Jim Silkenat, special advisor to the American Bar Association Rule of Law Initiative’s (ABA ROLI) Board and former ABA president discusses his past experience working with the ABA, the importance of commercial law and developing sustainable solutions, an upcoming ABA ROLI study tour for members of the Supreme Court of Kazakhstan and why pro bono volunteers are critical to improving the rule of law around the globe.
ABA ROLI: Please describe your legal background, and some of the highlights of your work over the years with the ABA.
Silkenat: My initial contact with the American Bar Association was to participate in the ABA's first Delegation to China in the mid-1970s to learn about legal issues in China. Afterwards, I became active in the ABA's Section of International Law and eventually became its chair. After practicing with the Cravath firm in New York, I served as legal counsel at the World Bank's International Finance Corporation, working on private sector investments in a range of developing countries, including Indonesia, Zimbabwe, Turkey, China, Pakistan and Korea. After returning to private practice in New York, my work focused on U.S. investments abroad and foreign investments into the U.S., including privatizations, investment funds, joint ventures and cross-border mergers and acquisitions. During this period, I remained very active in the ABA, initially serving in the House of Delegates and on the Board of Governors. Eventually, I had the honor to serve as president of the ABA and to serve as the Association's spokesman on legal issues relating to immigration, voting rights, access to justice and gun violence, among other issues. The ABA also gave me a chance to write and speak publicly about a wide range of business and investment law topics. I served as editor or co-editor of the following volumes: “The Legal Doctrines of the Rule of Law and the Legal State” (2014); “The Law of International Insolvencies and Debt Restructurings” (2006); “The ABA Guide to International Business Negotiations” (1994, 2000 and 2009); and the “Moscow Conference on Law and Bilateral Economic Relations” (1990).
ABA ROLI: Because of your knowledge and experience in commercial law what strategies do you think are most effective for building a stable legal system that achieves the confidence of both domestic and foreign investors?
Silkenat: During my work (with) the ABA, I had a chance to chair the ABA's World Justice Project initiative (WJP), which had been started earlier by former ABA President Bill Neukom. The great insight of WJP was in recognizing the linkages between law, business and civil society and that the rule of law was the underpinning of the development of communities of opportunity and equity. The factors that are critical to the rule of law and that investors consider in making investment decisions are fairly straightforward: a) that governments are accountable under the law; b) that laws are clear, stable and just and protect fundamental rights; c) that legal processes are fair and efficient; and d) that justice is delivered in a timely manner by an independent judiciary. These are essentially the four principles at the heart of the WJP's definition of the rule of law and I think a country's compliance with them is an excellent test of how a country will treat investors, whether foreign or domestic. The WJP, through the continuing leadership of Bill Neukom and William Hubbard, became an independent entity in 2009 and I have remained involved in its work, especially concerning the development of on-the-ground initiatives to improve the rule of law and the annual publication of the WJP's Rule of Law Index.
ABA ROLI: ABA ROLI aims to reform commercial laws and practices to promote the use of alternative dispute resolution, strengthen enforcement of commercial contracts, improve protection of intellectual property rights and create equal economic opportunities for small entrepreneurs, women and other disadvantaged groups — why, in your mind, is this work so important to inclusive and sustainable development?
Silkenat: ABA ROLI has been a leader in promoting a wide range of commercial law principles throughout its history. Beginning with the creation of the ABA's Central and East European Law Initiative (CEELI) by Homer Moyer and Sandy D'Alemberte, and expanding into other geographic regions under ROLI itself in later years, there has been a strong connection to underserved, underrepresented or otherwise disadvantaged communities. ABA ROLI saw, very early, that without the rule of law, such communities would continue to suffer and their lack of development would hinder real and lasting economic progress.
ABA ROLI: Please share why you think pro bono volunteers are critical to ABA ROLI’s mission to improve the rule of law globally.
Silkenat: The variety of business law issues that now arise in most countries is so complex and so dynamic, that practical knowledge and experience are key to strengthening the rule of law. In many cases, that experience lies with ABA members and other practicing lawyers who work on those issues on a daily basis and who have familiarity with specific country laws and cross-border legal problems. ABA ROLI has made very effective use of the pro bono services of some of the world's leading legal practitioners to help strengthen the rule of law in the countries in which ROLI works. I have also found that there is a great educational benefit to the lawyers themselves who are providing these pro bono services. An increased understanding of cross-cultural issues and a chance to work with government and judicial leaders in developing states expands a lawyer's understanding of a challenging and changing world and makes her or him a better lawyer.
ABA ROLI: What are you looking forward to most regarding your role as a facilitator for the upcoming study tour of representatives from the Supreme Court of Kazakhstan? What do you think will be the most important takeaway from this exchange?
Silkenat: The study group from the Supreme Court of Kazakhstan is coming to the U.S. at an important time in Kazakhstan in the strengthening of the rule of law and judicial independence. The meetings the group will have in Washington D.C., with representatives from international institutions, courts, government agencies and non-governmental organizations will give them a perspective on how investment and related legal issues are dealt with by other countries. And while this may be a time of transition in Washington D.C., they may see how the difficulties they face at home sometimes arise in other jurisdictions as well. The most important take away from the study group's meetings arranged by ABA ROLI is the critical importance of judicial independence and the positive role that judges can play in society.
ABA ROLI: What advice, if any, would you give to someone interested in doing pro bono work with ABA ROLI?
Silkenat: ABA ROLI is very interested in tapping into the knowledge, talent and experience of the many ABA members who are active in private legal matters, in the judiciary and in legal education. The connection is an easy one to make, either by viewing available opportunities at www.ambar.org/abarolijobs or by contacting the ABA ROLI office at firstname.lastname@example.org. Also, I would be happy to answer questions about ROLI for any ABA member interested in pursuing this important and stimulating work.