Month: August 2015

UNPRECEDENTED CONCESSIONS BY INTERPOL OVER UNLAWFUL RED NOTICES FOR BUSINESSMEN RIZVI AND AL-WARRAQ

• Red Notice cancellations and public announcements success for British businessman, Mr Rafat Ali Rizvi, and Saudi National, Mr Hesham Al-Warraq
• Indonesia now faces increased difficulty in demanding enforcement abroad of its unlawfully-obtained domestic convictions of Rizvi and Al-Warraq
• Former interpol chief lawyer, Dr Rutsel Martha, helps to deliver unprecedented remedies for his clients, Rizvi & Al-Warraq

London:   INTERPOL has cancelled the hotly-disputed Red Notices issued against Mr Rafat Ali Rizvi and Mr Hesham al-Warraq. INTERPOL has also taken the unusual step of announcing the cancellations on its public website [http://www.interpol.int/News-and-media/News/2015/N2015-115] and highlighting the Organisation of Islamic Cooperation (OIC) Arbitral Award in favour of Al-Warraq.

Advised by Dr. Rutsel Martha of Lindeborg Ltd (London) and Mr. George Burn of Vinson & Elkins LLP (London), Interpol’s concession is a long-overdue but highly welcomed result for Mr Rizvi and Mr Al-Warraq.

Dr Martha brought to bear his intimate and unique perspective and unrivalled expertise on INTERPOL matters to secure:

• The cancellation of the Red Notices against al-Warraq and Rizvi, as well as the deletion of all information concerning them from INTERPOL’s police files;
• Confirmation letters signed and send by INTERPOL to risk profiling agencies, such as World-Check, Lexis Nexis, specified due diligence companies etc.
• Formal letters addressed to Mr Rizvi and Mr al-Warraq certifying their status in relation to INTERPOL;
• Cancellation letters to specified law enforcement agencies of all 190 INTERPOL member countries; and,
• A public statement to remain on INTERPOL’s public website confirming the foregoing.

Such results have never been obtained before from INTERPOL.

The Red Notices cancellations and announcements mark the second major success for Dr. Martha and Mr. Burn acting as co-counsels, the first being to procure the OIC Award in Al-Warraq v Indonesia (15 December 2014)[1], rendering Indonesia’s proclaimed international repatriation of ‘their’ assets a major uphill battle[2].

The Red Notices were first issued by INTERPOL at the request of National Central Bureau of Jakarta when Mr. Rizvi and Mr. Al-Warraq were embroiled in the politically controversial Bank Century bailout in Indonesia. The Red Notices have severely affected the lives and businesses of Rizvi and Al Warraq and of some people very close to them. INTERPOL’s concessions betray its acknowledgement that mere cancellation of the Red Notices would not have sufficed to undo the consequences suffered by Rizvi and Al Warraaq,.

According to the Tribunal in the OIC Award, Indonesia’s conduct in the prosecution and criminal conviction of Mr. Al-Warraq breached the fair and equitable treatment standard.

Further background:

Indonesia owed fair and equitable treatment to Mr Al-Warraq under the OIC Agreement by virtue of the most-favoured-nations treatment clause in the said treaty. Mr Al-Warraq challenged Indonesia’s treatment of him at the OIC Tribunal which found Indonesia breached this fair and equitable treatment standard and was therefore responsible for an internationally wrongful act. The Tribunal also aligned itself with the view that the fair and equitable treatment in international investment law imply a respect of human rights norms and, in particular, those concerning fair trial and due process. The Tribunal declared Indonesia culpable for a “[f]ailure to comply with the most basic elements of justice when conducting a criminal proceedings” against Mr. Al-Warraq.

These findings of the Tribunal have a number of implications in international law. Firstly, by virtue of Article 17.2(d) of the OIC Agreement, the Tribunal’s ruling renders Mr. Al Warraq’s conviction null and void. Article 17.2(d) provides that awards are “…final and cannot be contested. They are binding on both parties who must respect and implement them. They shall have the force of judicial decisions…The contracting parties are under an obligation to implement them… as if it were a final and enforceable decision of its national courts.” As a result of the OIC award therefore, the criminal convictions of Mr. Al Warraq and Mr. Rizvi in Indonesia can be considered as having been de facto overruled.

Secondly, it means that no state should render any aid or assistance to Indonesia’s internationally wrongful act. All states therefore have an obligation to decline mutual assistance and cooperation in relation to the criminal convictions.

Thirdly, it implies that no international organization, including INTERPOL, should render any aid or assistance to an internationally wrongful act. By issuing a Red Notice based on Indonesia’s unlawful criminal convictions, INTERPOL aided and assisted Indonesia’s wrongful conduct. By aiding and assisting, INTERPOL itself committed a wrongful act, which triggers the obligation to cease the wrongful act and to offer assurances and guarantees of non-repetition, by cancelling the Red Notices.

Lastly, according to INTERPOL’s own internal rules, the determinations of the OIC Tribunal have a direct consequence on whether the Red Notices continue to meet INTERPOL’s internal standards for publication of Red Notices.

Given that, according to the INTERPOL’s Rules on the Processing of Data, the requesting country should not be acting in breach of any of its international obligations, and also that the request should be of interest for the purposes of international police cooperation, the Red Notices published against Mr. Rizvi and Mr. Al- Warraq cannot be considered to have satisfied the conditions

The Red Notices against Mr. Rizvi and Mr. Al- Warraq were provisionally blocked in October 2014. After intense intervention by Dr Martha and Mr Burn, on 18 August 2015 they were, finally, permanently cancelled and deleted by INTERPOL.

This means that no National Central Bureau can use INTERPOL’s channels with respect to the matters raised in the Red Notices, that all internal and public databases are be updated to reflect these cancellations, and that the National Central Bureaux of the UK, Saudi Arabia, Hong Kong, Singapore, and Indonesia in particular have been notified of this outcome. As a result, Mr. Rizvi and Mr. Al-Warraq will be able to travel and conduct business without restriction

Dr. Rutsel Martha is a London based international legal consultant since 2014. Dr Martha is the former General Counsel of INTERPOL and author of, among others, “The Legal Foundations of INTERPOL” (Hart Publishing, 2010) and “The Financial Obligation in International Law” (OUP, 2015). He has held academic posts in National University of Singapore Law School and Washington College of Law of the American University, and has published extensively on this subject matter. His works on international law include: “Challenging Acts of INTERPOL in Domestic Courts” (In: Challenging Acts of International Organizations Before National Courts, Ed. A. Reinisch, OUP, 2010), and “Remedies Against INTERPOL” (Online: 2007). 
He has handled cases before a wide variety of international courts, tribunals and quasi-judicial bodies, including the ILOAT, ICJ, INTERPOL’s CCF etc.

The firm’s (Lindeborg LLP) clients include former heads of State, former senior government officials, industrialists and business executives facing adversity at the hands of governments and international bodies, or business disputes converted into criminal allegations. Typically, clients seek the firm’s assistance with challenging INTERPOL, fighting extradition requests in domestic courts, challenging UN, EU and US sanctions, supporting asylum requests, and opposing Mutual Legal Assistance requests regarding assets freezes and confiscations or addressing the consequences of inaccurate and negative publication and reporting.

The successful result for Messers Rizvi and Al-Warraq is testament to Dr Martha’s unique experience, knowledge and skills acquired as a member of the select group of public international lawyers. It seems safe to say that those frustrated by INTERPOL’s actions now have, in Dr Martha, someone uniquely experienced to turn to who can overcome INTERPOL’s opaque ways of dealing with complainants.

Mr. George Burn is a partner in the Vinson & Elkins International Dispute Resolution Group. His practice covers both Investor-State arbitration and commercial arbitration.  He has a wealth of experience in cases that involve issues of public international law, private international law, and complex or novel issues of jurisdiction. As well as acting as counsel, he regularly sits as an arbitrator. His cases to date have been under the rules of the ICC, the LCIA, UNCITRAL, the CRCICA, the LCIA India and the OIC Investment Agreement, and under the default rules in England’s Arbitration Act of 1996.

[1] “Convictions overturned in Bank Century arbitration”, CDR News, 7 January 2015 (http://www.cdr-news.com/categories/arbitration-and-adr/convictions-overturned-in-bank-century-arbitration)

[2] “OIC ruling postpones asset repatriation” Haeril Halim, The Jakarta Post, Jakarta | National | Mon, April 27 2015, 6:06 AM (http://www.thejakartapost.com/news/2015/04/27/oic-ruling-postpones-asset-repatriation.html)

24 August 2015

I can’t help but feel that gender difference has indeed played a role in the Chelsea FC doctor saga propelling the story to newspaper front pages – but perhaps not just simply down to the display of apparent sexism by an emotional male manager.  It strikes me that the mild, but meaningful, Facebook posting by Dr Eva Carneiro was the emotional reaction of a woman feeling hard-done-by.

Such gentle, but determined, defiance shown by a woman against a perceived unfairness is what I think marks out one of the key difference between the sexes.  I have been deeply fortunate in recent months to meet several incredible women who, having long abided the male-dominated structure in which they operate, have each had cause to show remarkable strength of character to defy the system when injustice has reared its ugly head. They’ve bravely, and rightly, ignored the ‘don’t make a fuss’ mantra of predominantly male lawyers, doctors, politicians, establishment bigwigs (and their advisors), police officers, professors and the like, to succeed in highlighting some very different, but equally troubling, issues.

I have never been a bra-waving, unshaven member of the feminist club – if such a set exists.  I’m of the view that the glass ceiling can be readily shattered if you are sufficiently determined, energetic, resourceful and smart.  However I am beginning to realise that if there’s a wrong that needs righting, a moral convention that needs challenging, or a societal system that needs rebalancing, it’s the female of the species that more often than not bravely puts her head above the parapet and coalesces her community to create beneficial change.  It’s true these women are often supported in their endeavours by many a courageous man, blessed as many males are with analytical function and a deep-rooted sense of probity.  But if there’s a cause to be fought for, I’ll join those ranks led by a woman inspired any day.

When I consider the ‘religious’ problems of sections of the Middle East with their patriarchal systems and cruel brutality, I am confident it will be the women of the region who will eschew violence and instead demonstrate the strength needed to bring equality and fairness where it is yet to exist.

Men show their power, bravery, determination and quest for success in different ways.  There will always be male achievers whose accomplishments we can joyously celebrate.  But where less-applauded but important challenges exist, I back women to succeed.

Dr Carneiro, already a rare woman in a male-dominated field, may have inadvertently started a chain of soul-searching to find an acceptable balance between safety and success on a pitch.  Women tend to call it cheating if grown men, uninjured, are left rolling around on the ground.

In my view, Dr Carneiro should avoid the phalanx of lawyers advising her she’s got a watertight claim for constructive dismissal, discrimination and the like.  Her long term reputation will likely be better served by moving to an environment that fully recognises her talents and where she can spearhead the discussion of wealth versus welfare. Rugby has considered the issue during its incidents of concussion, and grand tour cycling is getting there, in its own way.  The injustice is less about the side-lining meted out to Dr Carneiro, and more about the pressure placed on medics to turn a blind eye to illness or injury for the sake of the sport.  Dr Carneiro should run into the arena once more.

14 August 2015

London has recently been reaffirmed as the libel capital of the world following the case of Russian businessman and former senator, Vladimir Sloutsker, who has been awarded £110,000 in defamation damages by the High Court for allegations published in the Russian media.  However for cases arising post the introduction of the Defamation Act 2013, establishing English jurisdiction may prove somewhat trickier.

In this latest case, crucially predating the Defamation Act 2013, Mr. Sloutsker sued campaigning Russian journalist Olga Romanova over allegations that he put out a contract for the murder of her husband Alexei Kozlov and was also instrumental in Kozlov’s criminal prosecution and imprisonment.

Ms Romanov’s claims were made on the website of Moscow-based radio station Echo Moscow, in two articles on the website of Russian newspaper gazeta.ru and on a programme on Radio Liberty, which broadcasts to Central and Eastern Europe.

This ruling comes fifteen years after the House of Lords stunned publishers by letting the late Russian oligarch Boris Berezovsky sue American magazine Forbes in the English courts over an article concerned with matters that took place exclusively in Russia but which was published in England via a small distribution of Forbes magazine in print and on the internet.

Mr. Justice Warby ruled in February this year that the facts of Mr. Sloukster’s case were “not as striking as those of Berezovsky” and his “links not as strong” but said he has “a persuasive case that he had and has a substantial and widespread reputation in this jurisdiction.”

In English law there is no ‘single publication rule’ and each communication constitutes a separate libel so that each visit to a website by a person in England constitutes a publication in the same way that a single copy of a magazine carrying the offending article would. In both the Berezovsky and Sloutsker cases the courts ruled that the distribution of the offending publications in England was significant even though small compared to worldwide distribution.

There had been some cause for optimism among media defence lawyers that the chilling effect on free speech of the UK’s libel law was losing its bite after the dismissal in 2013 of two defamation cases brought by foreign nationals on the basis that they had no real reputation in England to defend.

The Defamation Act has fuelled that optimism by providing, under Section 9, that that non-European claimants would have to show England was the most appropriate jurisdiction to bring an action here. However, the Sloutsker case was decided on law existing before the Act came into force at the beginning of 2014.

“If section 9 were in play, I think it would have been harder, although the terms of Mark Warby’s judgment perhaps leave the door somewhat more ajar than we might have expected,” says Dan Tench, media partner at Olswang.

So until Section 9 gets properly tested in our courts, it seems that foreign claimants with sufficiently deep pockets can launch libel actions in London with every chance of success and despite having questionable links with England.

“The most significant point [in the Sloutsker case] is that libel tourism wasn’t argued and the defendant (for the most part) didn’t turn up,” says Mark Stephens, specialist media lawyer at Howard Kennedy.

“It is a worryingly high award as it’s over 10x the defendant’s annual salary and way beyond anything needed for vindication,” he adds.

3 August 2015