Interview – Building a global legal community: the story of a Canadian law student in Dubai

source: lexismiddleeast.com

An interview with Viva Dadwal, McGill University Faculty of Law’s inaugural clerkship student at the DIFC Courts.

Analysis

An “intellectual partnership” as described by the DIFC Courts… champions of legal pluralism and judicial leadership, McGill University’s Faculty of Law and the DIFC Courts have joined forces to showcase to the world the importance of two-way exchanges between courts and law schools. One could not think of two countries better suited to discuss the challenges and successes faced by countries with civil and common law traditions.

LexisNexis met in person with Viva Dadwal, the “pioneer clerk”, who recently returned from Dubai after spending a month at the DIFC Courts. Viva had the opportunity to work side-by-side with the legal architects working on the Courts of the Future. She shared with us her experience at the Courts, her insights on the clerkship, as well as what this judicial partnership means for both Canada and the UAE—two very different countries navigating similar legal landscapes.

Describe to us your academic/legal background and how you got involved in this clerkship. Why would a clerkship in Dubai be of interest to a Canadian law student?

I am going into my last semester at McGill University, where I am studying towards a joint-civil and common-law degree. Prior to law school, I spent a year in Baltimore as a Visiting Scholar at Johns Hopkins University, and before that, I was with Global Affairs Canada negotiating trade and investment agreements. I have an undergraduate degree in Biology and Biotechnology from the University of Windsor and a Master’s degree in Public and International Affairs from the University of Ottawa. I heard about the clerkship through our school. I enjoy learning from different disciplines, countries, and cultures so this was the perfect opportunity to try something new and unique.

As for your other question, a clerkship at the DIFC Courts should be interesting to Canadian students for three main reasons. First, geographically speaking, Dubai and the DIFC Courts are situated (quite literally) in the middle of the world. This gives the DIFC Courts a physical and cultural advantage being at the crossroads of global commerce. Second, clerking at the DIFC Courts allows students to taste how an up-and-coming international commercial court navigates both the civil and common law traditions. The core principles of law in the UAE were also historically drawn from Sharia law, which also presents an interesting third legal order in the mix. The judiciary and the workforce at the DIFC Courts reflects this diversity (e.g., UAE, Malaysia, Singapore, Australia, U.K.), which can be a large source of knowledge for students interested in comparative law. Finally, and perhaps most importantly, the DIFC Courts have visionary leaders who think deeply about the role and functions of judicial institutions. As a relatively young court, a lot more experimentation and innovation is possible, which is exciting for any future-minded students!

This bridge-building in the region is the first of a kind for a Canadian law school, why McGill, why the DIFC, why now?

McGill University is Canada’s most globally oriented law faculty, and the only one to teach a bilingual (French and English) curriculum that combines perspectives from common law, civil law and, increasingly, Indigenous legal traditions in a unique integrated and comparative approach. Throughout its long history (it is the oldest law school in Canada!), the Faculty has always been a frontrunner in innovative legal research and pedagogy. The most recent overhaul of the curriculum has placed an even greater emphasis on putting knowledge into action and experiential learning.

At the same time, the DIFC Courts have emerged as the region’s hub for judicial and legal training excellence and are preparing lawyers and judges to work across the world’s jurisdictions. The 2018 DIFC Courts Work Plan identifies the importance of developing greater understanding of the two legal traditions that govern Dubai. Encouraging intellectual partnerships with tertiary institutions was identified as an important first phase, and looking particularly at those countries which have more than one legal tradition in their legal system was critical.

All of these factors contributed to building a favourable context for this official partnership, which actually builds on what was once an ad-hoc student clerkship. The idea of a formal programme was suggested to the law school—with important backing from various Canadian and UAE business groups and government agencies—and came about in an impressively short time!

Tell us a bit about the clerkship that was set up between McGill University and the DIFC Courts. Share with us some details on the purpose, mission, what you were doing… How does this clerkship programme enable greater 1/academic 2/ judicial cooperation between Canada/Quebec and the UAE/Dubai.

The McGill University – DIFC Courts clerkship programme enables greater academic cooperation by establishing an educational partnership between two world-class legal institutions. It does so by promoting legal scholarship, and giving McGill law students a practical experience in trans-systemic law and thinking on an international level.

The clerkship was designed with three overarching themes in mind. First, there is a focus on the development of a student’s knowledge of substantive law. This involves discovering the links between legal principles and doctrine under the supervision of judges (this is generally the traditional clerkship model).

Second, there is an emphasis on being exposed to judicial leadership. This component consists of understanding the importance of effective leadership in building world-class legal institutions, including the judicial institutions of tomorrow. Exploring ideas alongside some of the key players in the DIFC Courts and the Dispute Resolution Authority was undoubtedly the most interesting aspect of the clerkship for me.

Finally, true to the nature of both McGill University and DIFC Courts, there is a strong focus on legal pluralism. This means exploring the trans-systemic mandate within daily operations, i.e., from an administrative perspective, whether it be within or outside the DIFC. An insight into the administrative framework of the DIFC Courts helps students observe how different legal systems cooperate to achieve similar outcomes. On that front, I am leading a capstone project that is allowing me to investigate the application of blockchain technology in the recognition and enforcement of foreign judgments and arbitral awards.

Canada is a bijural country and so is the UAE (even trijural) to some extent. To what extent are the Canadian and UAE legal systems an example to countries trying to find the right balance between Civil Law and Common Law traditions?

To be frank, we have to first recognise that no legal tradition is “better” than another. There are fundamental juridical problems that are common to all legal traditions. It is our job as jurists to be able to imagine appropriate legal solutions to solve these fundamental human problems. This said, there are many lessons that Canada and UAE can share with the world. At a big picture level, Canada offers a nice example of a jurisdiction where the civil and common law influence each other in a positive way. This is probably one of the reasons why Canadians often find themselves at the forefront of international and comparative law initiatives. Looking beyond that, I think we are still learning how to navigate and incorporate other legal traditions and ways of thinking.

How will we do this? Naturally, the UAE offers important lessons on legal experimentation and innovation. It started as a country built on Islamic and European concepts of civil law. Soon thereafter, it began devising common-law free-trade areas that gave rise to new institutions like at the DIFC Courts. Earlier this year, it launched Blockchain Strategy 2021. There is no doubt in my mind that lessons from the UAE will help inform the work being undertaken in other jurisdictions, including in Canada.

Interview conducted by Erik Chiniara, Editor-in-Chief – Lexis Middle East Law www.lexismiddleeast.com  in collaboration with McGill University Faulty of Law and the DIFC Courts.

The Lebanese Access to Information Law: more transparency, more accountability and what else?

Source: lexismiddleeast.com 

Abstract

The Lebanese Parliament in January 2017 passed the Access to Information Law (Lebanon Law No 28/2017), introduced in 2009. The Law applies to listed public authorities and selected private companies and organisations. It provides for the right for anyone to receive information on request, requires the publication of expenditures, annual activity reports, all implementation orders and rationale of all laws, allows for the protection of personal data and mandates a written rationale for all personal administrative decisions.

Analysis

The 2017 law allows any natural or legal person, Lebanese or non-Lebanese, to access and view the information and documents of an ‘Administration’, in line with its provisions and without abusing this right.

This law is long overdue and in an era where ‘fake news’ seems to have stained the credibility of the press, this law will most probably help enhance the credibility and accuracy of the news and will offer the press and civil society an opportunity to better hold the people’s representatives to account.

This law has also championed the fight against corruption and is aimed at increasing transparency in and from public institutions.

These new ‘rights’ given to citizens, also guarantee by exception to the principle of transparency and access to all information, the secrecy of certain types of information which might be considered vital for public safety and national security reasons. The restrictions on full access to information are related to the following:

• Information which may be classified as national defence, national security and public security secrets.

• The management of the State’s secret external relations.

• Information which may be harmful to the financial and economic interests of the State and to the integrity of the national currency.

• The private life of people as well as their physical and mental health.

• Professional secrets protected by law such as lawyers’ and commercial secrets.

A list of documents are considered not available in a limited list, such as the following:

• The pre-trial proceedings of an ongoing investigation cannot be disclosed, nor proceedings of secret trials and trials related to juveniles and personal status.

• The minutes of the private meetings of the Parliament and its committees, unless otherwise decided, nor the deliberations of the Council of Ministers labelled secret.

• The preparatory and administrative documents which have not been completed.

• The consultative opinions issued by the Council of State, except by the relevant parties in the context of a trial.

Drawing a comparison with other jurisdictions who have championed this cause, Sweden was the first country to adopt this right through the Freedom of the Press Act of 1776. The ‘principle of publicity’ states all information and documents produced or received by public institutions (local or central Government and all public institutions) must be available to all citizens. This principle also states all public institutions must make every effort to give any person any information they may wish as soon as possible.

Finland was the first to adopt modern legislation on the same issue in 1951, which defined the conditions for access to information (or so-called freedom of information) in public institutions. The US adopted the Freedom of Information Act in 1966 and France adopted a law providing citizens with access to administrative documents in 1978.

In 1990, only 13 countries had access to information laws, but by March 2004 more than 50 countries had adopted comprehensive laws to facilitate access to Government records. By 2010, more than 85 countries had adopted this type of law, including Jordan, the first country in the Middle East to have passed the Information Access Act in 2007.

Article 19 of the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, guarantees the right to freedom of expression and information according to the following criteria: “Everyone has the right to freedom of opinion and expression. This right includes the freedom to embrace opinions without interference, and to seek, receive and impart information and ideas by any means without being bound by geographical boundaries.”

Articles 10 and 13 of the International Convention against Corruption focus on the right to access information. Although Lebanon had ratified the Convention on 16 October 2008, it still needed the tools to enforce it. With the 2017 law this has now changed. Information disclosure in Lebanon will no longer depend on the willingness of individuals in the relevant institutions. Citizens can now join in the decision-making process, take part in public debates while having all the facts and being familiar with the Government’s activities. There was a need for a legal framework which allows Lebanese citizens to monitor the decision-making process in the Government more effectively and the Access to Information Law is a first step in the right direction.

Stay tuned for a full Legislation Commentary written by Ghassan Moukaihber, Lawyer and former Member of the Lebanese Parliament who contributed to the drafting of the law and strongly advocated for it in Parliament and the political sphere.