New IBA president David W Rivkin tells Michael Cross how he fights for investors and stands up to arbitrary state power.
Opponents of the Transatlantic Trade and Investment Partnership (TTIP) have generated much heat about the supposedly murky activities of corporate lawyers undermining governments on behalf of multinational companies. But any campaigners hoping to find their bogeyman in David W Rivkin might find their Manichaean world view severely tested.
While the litigation partner at New York-based firm Debevoise & Plimpton has an excellent record in winning compensation from governments that fail to live up to their free-trade obligations – including a record $1.8bn from Ecuador on behalf of oil giant Occidental – activists might be surprised to learn that Rivkin’s views on topics such as global warming and people-trafficking belong firmly in the ‘progressive’ camp.
Or that the pro bono causes adopted by his firm include the cases of Mexican nationals on death row in the US and detainees in Guantanamo Bay.
There is no conflict here, Rivkin tells the Gazette: this is all about the rule of law standing up to the arbitrary power of the state. Indeed, when it comes to free-trade agreements he expresses surprise to find himself on the opposite side to so much bien-pensant opinion. ‘It is frankly hard to understand the criticisms,’ he says. ‘A lot of the opposition comes from organisations and people who generally try to limit the power of governments. These are groups that want limits on government power and that’s what the investor protection provisions [of trade treaties] are doing.
‘It hasn’t been a fact-based debate,’ he adds. ‘The history [of international trade treaty] cases shows that governments do very well, they win about half, and even where they lose the percentage of damages against what is claimed is rather small.’
He also suggests that the legal profession ‘has not done a good job’ of explaining why the rule of law must be supreme. ‘Those lawyers who represent states are not going to speak out, and lawyers who generally represent the investor side are… viewed as partial, so even when they point to law they are not necessarily believed. There is a need to bring facts out in the debate.’
Improving that understanding is one of several tall orders Rivkin has set himself for his two-year tenure as president of the International Bar Association, which began last month. His mission statement for his term draws a direct link between the most mundane legal work and the public good: ‘Every transaction we undertake, every dispute we resolve, builds the rule of law and binds us together.’
He admits that society does not necessarily see things that way. ‘People take lawyers for granted. They don’t understand the role lawyers play in helping preserve the rule of law. Too often lawyers get criticised without an understanding of that.’
The IBA, set up in 1947, describes itself as the global voice of the legal profession, representing 206 bar associations and 55,000 individual lawyers. Rivkin (not to be confused with his compatriot lawyer and Conservative commentator David B Rivkin (‘our views are generally 180 degrees apart’)), is the organisation’s first US president for a quarter of a century.
However, he has decades of involvement in the association’s cross-border initiatives, for example leading the effort to draw up standard rules of evidence for arbitration. He describes the standards, adopted in 1999 and updated in 2010, as a ‘nice middle ground between the common law and civil law approach’ – the kind of outcome that only an organisation with the international reach of the IBA can achieve.
That reach will be on show in Magna Carta anniversary year, where he says that the IBA ‘has a very special role’ in raising awareness of rule of law issues, ‘the importance of lawyers in preserving democracy, judicial independence and achieving equality’.
There’s even a Magna Carta theme to TTIP, he insists, linking the 1215 acceptance of limited government power to the effect of trade treaties. ‘Every treaty limits sovereignty in some way,’ he points out, adding that governments since Magna Carta have accepted limits on their power. ‘In the case of trade treaties, governments made a choice to attract investment. But investors have to know they have certain rights if the government fails to live up to its intentions.’
Such arguments are likely to be aired at this month’s Global Law Summit, where the IBA is playing a strong role. Rather than hold its own 1215 commemorative event in the UK – ‘there are enough Magna Carta celebrations in England this year so we felt we didn’t need to do another one’ – he is planning three international conferences on the role of Magna Carta today, in an interesting choice of locations.
The series opens in May in Cape Town, South Africa, and then moves to New Delhi, India. Both have common-law jurisdictions with a direct line traceable to Magna Carta. ‘But the relevance of the Magna Carta is universal, not just in common law jurisdictions,’ he says, ‘so I wanted one event to be in a civil law country, preferably Latin America.’ The third conference in the series will take place in Argentina in November, shortly after the presidential election.
Rivkin gives the impression of knowing Argentina well (another of his high-profile wins was a $700m judgment against the state over defaulted bonds), but does not rise to the bait of discussing the current crisis over the death of federal prosecutor Alberto Nisman. ‘It’s a country with enormous resources and enormous potential,’ he notes.
He is similarly diplomatic in discussing another Magna Carta project for his period in office, the judicial integrity initiative to tackle corruption. Up to now the issue has been neglected by groups such as the OECD, he says. ‘I want to do a very detailed typology. How does judicial corruption arise. How does it actually happen? In order to curb it we need to understand it.’
Experts will meet in London this month and later in Singapore, which he holds up as an example of a state that has got things right. ‘We can look at best practices, what have countries done when you look at countries that have reduced or eliminated corruption. We can then use our bar associations to look at how countries are living up to these best practices.’
BORN New York, October 1955
EDUCATION Yale University, BA in history; Yale Law School
CAREER Admitted in New York. Law clerk to US Court of Appeals judge Luther M. Swygert, 1980-81 ; joined Debevoise & Plimpton 1981, partner 1988, currently litigation partner and co-chair of the firm’s international dispute resolution group
KNOWN FOR Representing Occidental Petroleum Corporation in an arbitration, which resulted in an award of $1.8bn against the government of Ecuador; president of the International Bar Association 2015-2016
Rivkin draws attention to three further projects being undertaken during his presidency. The first is a taskforce on independence of the legal profession, emphasising ‘with a common voice’ the benefits to society arising from an independent bar. Can UK regulatory moves expect to be scrutinised along with those of more obviously repressive regimes? ‘I don’t think every government sanction [on lawyers] is the same, but governments have to tread very carefully – there is certainly a slippery slope.’
Second, he wants to take forward the recommendations of the IBA’s weighty 240-page report on climate change, published in Tokyo last year. The report, Achieving Justice and Human Rights in an Era of Climate Disruption, prompted some accusations of bandwagon-riding and hubris, with recommendations including legal recognition for a new universal human right to a ‘safe, clean, healthy and sustainable environment’ and the creation of a new international dispute resolution structure eventually, including a new specialist International Court on the Environment.
Less controversially, the third project concerns human trafficking. Under Rivkin’s presidency, the IBA’s human trafficking taskforce will carry out further research and implement training programmes in three countries where people, especially women, are most at risk.
Rivkin’s programme for the climate change initiative suggests a focus on bringing it down to earth. He concedes that some recommendations ‘will take an awful lot of work’ and that there is a need to break the programme down into ‘more manageable components to get something done’.
With this in mind, working groups will draft model standards on remedies and adaptation. The goal is to have them ready by the climate change summit at the end of this year.
However, any change of emphasis should not be interpreted as indicating that Rivkin has any doubts about the need for action. Of what he calls ‘the doubters’, he says: ‘I don’t understand them, given the overwhelming weight of scientific evidence. My answer to them is that we need to act in any case. If the science is right, we had better do something about it. But even if they are wrong, the steps we are taking – creating new industries and cleaning up pollution are still beneficial.’
Work on business and human rights is another priority. Draft guidance for bar associations and business lawyers (‘Draft IBA Guidance’) on the application of the UN Guiding Principles on Business and Human Rights has been opened for consultation and ‘final shaping’. Rivkin says he hopes to have the finished draft ready by the IBA’s annual conference in October.
More generally, Rivkin says he aims to bring together the two sides of the IBA’s constituency, the individual lawyers and bar associations, to get them working together. ‘I think we can do more to harness their joint power,’ he muses.
It is a busy programme and it is fortunate that Rivkin, who turns 60 in October, says he has no problem sleeping in airliners. And while he says his firm has been generous, he intends to keep up his day job, currently divided between the firm’s New York and London offices ‘at a reduced level’. This includes a 10-day hearing in Hong Kong in March. He confesses: ‘Sometimes it’s hard to let go.’
Michael Cross is Gazette news editor