Tuesday, March 31, 2009
I received a tip from James Levenson about an interesting new case on diplomatic immunity. The case is Swarna v. Al-Awadi, No. 06 Civ. 4880(PKC), 2009 WL 773446 (S.D.N.Y. Mar. 20, 2009). Here's an excerpt from the decision to give you a flavor of what the case is about and what the court held.
Plaintiff Swarna Vishranthamma brings this action against her former employers, Badar Al-Awadi and his wife, Halal Muhammad Al-Shaitan (“Individual Defendants”) and the State of Kuwait (collectively, “defendants”). At the time of the events in question, Mr. Al-Awadi was a diplomat serving in New York City with the Permanent Mission of the State of Kuwait to the United Nations (“Kuwait Mission”), and plaintiff was employed as the Individual Defendants' live-in domestic servant. Mr. Al-Awadi now lives in Paris, France. Plaintiff, asserting jurisdiction under the Alien Tort Claims Act (“ATCA”), 28 U.S.C. § 1350, seeks damages against the Individual Defendants for subjecting her to slavery and slavery-like practices, including trafficking, involuntary servitude, forced labor, assault and sexual abuse (“ATCA claims”). Plaintiff also brings claims under New York law for failure to pay legally required wage, N.Y. Labor Law §§ 190, et seq. and 650, et seq. , fraud, unjust enrichment and breach of contract (“labor law claims). Plaintiff seeks damages against Kuwait on the grounds that Kuwait is vicariously liable on the ATCA and labor law claims, and that Kuwait ratified Mr. Al-Awadi's ants and aided and abetted the Individual Defendants' allegedly unlawful conduct.
Defendants have not answered or otherwise moved with respect to the complaint. Plaintiff now moves for a default judgment pursuant to Rule 55(b)(2), Fed.R.Civ.P. Defendants have filed a Notice of Appearance and argue that this Court lacks subject matter jurisdiction because the Individual Defendants have diplomatic immunity under the Vienna Convention on Diplomatic Relations (“VCDR”), Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95, and because Kuwait has sovereign immunity under the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1607. For the reasons explained below, plaintiff's motion for a default judgment is granted with respect to her claims against the Individual Defendants, but is denied with respect to her claims against Kuwait. Plaintiff's motion for authorization to seek discovery from Kuwait is denied as moot.
Hat tip to James Levenson!
In the past week, there have been two signifiant trademark decisions involving well known alcoholic beverages - Budweiser and Club Havana.
Last week, Europe's second highest court rejected a European-wide trademark application by Anheuser- Busch, now owned by InBev, to register the Budweiser trademark in the EU. Although Anheuser-Busch InBev owns the Budweiser or Bud trademark in 23 of the 27 EU Member States, the Court of First Instance upheld the decision of the Office for Harmonization of the Internal Market or OHIM, that a Czech company, Budejovicky Budvar, has the right to use the Budweiser name in some EU Member States based on its prior use there. Both companies have used the name for many years due to connections with the Budweis region in Germany. The decision may be appealed to the European Court of Justice.
In other trademark news, the U.S. District Court for the District of Columbia dismissed a lawsuit by Cubaexport, Cuba's state-owned export agency, yesterday seeking to renew its U.S. trademark rights for Havana Club rum. Although Havana Club is not sold in the U.S. due to the trade embargo, Cuba originally obtained a trademark for the name in 1976 in anticipation of being able to sell the product when the embargo is lifted. In 1998, Congress passed a law that prohibited the registration or renewal of Cuban trademarks, partly at the urging of Bacardi, which wants to use that brand in the U.S. Of course, all this may change if the U.S. decides to ease the Cuban embargo.
I took a group of students from Stetson University School of Law (Florida) and the University of Lucerne Faculty of Law (Switzerland) to the United Nations and other international organiizations in Geneva. The students had a great time there. Here is a photo of part of the group.
Our group also visited two of the Chambers of the Supreme Court of Switzerland (in Lucerne), and in Geneva the group visited the International Committee of the Red Cross (ICRC) and its museum, the World Health Organization (WHO), the Embassy and Permanent Mission of Benin, and the World Trade Organization (WTO).
A big thank you to everyone who made the week possible, including especially John Cooper (Stetson) and Prof. Dr. jur. Alexander H.E. Morawa (Luzern) and their teams who helped coordinate our visits and the program.
Congratulations to the American Society of International Law for a highly successful meeting last week in Washington DC. More than 1200 persons attended the meeting and by all accounts it was a smashing success. Congratulations also to the Interest Groups (including TILIG, the ASIL Interest Group for Teaching International Law).
Monday, March 30, 2009
Momentum appears to be building for a further easing of the U.S. embargo on Cuba. According to a Washington Post article today, there will be a news conference on Capital Hill tomorrow to announce a new bill easing travel restrictions for Americans who want to go to Cuba. The bill appears to have greater support than similar ones introduced in Congress in the past. President Obama already lifted restrictions put in place by the Bush Administration on travel and foreign remittances by Cuban Americans with family in Cuba. His action appears to be consistent with his call for a "new strategy" with respect to Cuba. There is talk that President Obama will lift travel restrictions on all Americans who wish to go to Cuba prior to his participation in the Summit of the Americas in Trinidad and Tobago in mid-April. While the President alone cannot end all aspects of the embargo on Cuba without Congressional involvement, the Treasury Department does have significant leeway to tighten or loosen the embargo through its regulations and its decisions to grant or refuse licenses for transactions with Cuba. Stay tuned!
Saturday, March 28, 2009
The nominee for president-elect of the American Bar Association is Stephen N. Zack, a partner in the law firm of Boies, Schiller and Flexner, and a member of the Section Council for the ABA Section of International Law. He is a Cuban-American who has practiced law in Miami for more than 35 years, said he also plans to convene a commission to focus on Hispanic legal rights, including immigration, voting and consumer rights.
He is a former Chair of the ABA House of Delegates (a very prestigious position within the ABA) and is a former member of the Board of Governors, He is also a former president of the Florida State Bar and a former president of the National Conference of Bar Presidents.
I have known Steve for many years and am very happy to see that he will become President of the American Bar Association. If elected at the ABA Annual Meeting in Chicago in August, he will begin his one-year term as president in August 2010.
Friday, March 27, 2009
One of the side effects of the current financial crisis is its impact on trade finance. This very secure form of credit has become more expensive or dried up completely. The lack of credit lines and trade guarantees is one important reason for the reduction in trade flows, as exporters cannot ship their merchandise without them. The impact is even more severe for developing countries. Kimberly Wiehl, Secretary-General of the Berne Union, and Steven Beck, Head of Trade Finance at the Asian Development Bank, discuss the issues with Keith Rockwell, WTO Spokesperson. Click here to see the video debate.
Thursday, March 26, 2009
With the new Obama Administration in office, including the confirmation of the new US Trade Representative, Ron Kirk, as well as the nomination of Yale Dean Harold Koh to head the Office of Legal Advisor, there has been lots of talk at ASIL about the future of international law in the Obama Administration.
On the trade front, some of hot issues appear to be pressure to focus on more and better enforcement of trade laws, the relationship between trade and other issues such as labor, energy and the environment, and the possible renegotiation of NAFTA. The US trade relationship with China is on the front burner, particularly with respect to allegations of Chinese manipulation of its currency and negotiation of a bilateral investment treaty (BIT) between the US and China. There appears to be some interest in modifying trade preference programs that benefit developing countries to ensure that the benefits go to the countries who most need it. Of the three bilateral free trade agreements (FTAs) currently pending, the consensus seems to be that the US-Panama FTA would be most likely to move forward the fastest, possibly followed by the FTA with Columbia and then possibly South Korea, although there seemed to be some doubts as to the viability of the agreement with South Korea in particular at the present time.
More broadly, the Obama Administration is still struggling with what to do with the detainees at Guantanamo Bay in light of Obama's commitment to close that facility by end of the year. Other major international law issues include the possible ratification of the Law of the Sea Treaty and the future relationship between the U.S. and the International Criminal Court.
Wednesday, March 25, 2009
The Washington Post published an article today entitled, "Global War on Terror Is Given New Name," stating that the Obama Administration intends to replace the phrase "global war on terror" with "overseas contingency operations." The move apparently is designed to distance the Obama Administration from the rhetoric of the Bush Administration and better reflect the fact that there are different militant groups fighting the U.S. that should not be grouped together in a way that overstates their strength. The Obama Administration also may be responding in part to the urging of the International Commission on Jurists to drop the phrase "war on terror" because it was used to justify human rights and humanitarian law violations.
As law professors, we often teach our students that words matter and that it is important to select the correct word or phrase to convey the exact meaning and intent. When the Bush Administration used the phrase "war on terror," there was much discussion in the media and among academics as to whether it meant a war in the traditional sense that would invoke international law governing the use of force and what affect that would have on the ability of states engaged in the "war on terror" to derogate from certain international human rights obligations. While the Obama Administration appears to be backing away from the use of the word "war", it is not at all clear what is meant by "overseas contingency operations." The new phrase is broad enough and vague enough to cover all sorts of situations, from responses to actual armed hostilities to delivery of aid in the face of a natural disaster. Thus, I suspect many persons will still not be certain as to the meaning and intent of the new phraseology.
The Teaching International Law Interest Group (TILIG) is hosting a program on Using Simulations to Enhance Teaching of International Law at the ASIL conference tomorrow, Thursday, 3/26 from 3-4:30 pm. The program had been scheduled in the Executive Forum, but has been been moved to Colonnade. Hope to see you there!
The American Society of International Law (ASIL) is holding its 103rd Annual Meeting March 25-28, 2009, at the Fairmont Hotel, 2401 M Street, NW, Washington, DC. The theme of this year’s conference is "International Law as Law." We invite you to send us reports of panel presentations you may be attending and meetings, such as that for ASIL TILIG (the Interest Group for Teaching International Law). (mew)
The American Society of International Law (ASIL) is holding its 103rd Annual Meeting March 25-28, 2009, at the Fairmont Hotel, 2401 M Street, NW, Washington, DC. The theme of this year’s conference is "International Law as Law."
We invite you to send us reports of panel presentations you may be attending and meetings, such as that for ASIL TILIG (the Interest Group for Teaching International Law).
ITLOS has announced its 2009-2010 training programme on dispute settlement under the U.N. Convention on the Law of the Sea. The program offers young government officials and researchers working in the field of the law of the sea or dispute settlement in-depth knowledge of the dispute-settlement mechanisms available to States under Part XV of the Convention. The programme will be offered to five participants and will run from 1 July 2009 to 31 March 2010. Lectures, case studies and training in negotiation, mediation and delimitation of maritime areas will enable participants to acquire a deeper understanding of the dispute-settlement mechanisms under the Convention. Study visits will be made to organizations dealing with law of the sea matters. Lectures will also be given on current issues of the law of the sea (fisheries, environment, climate change, delimitation). Interested candidates should consult the website of the Tribunal to find more information and forms that must be sent in before April 30, 2009.
The tribunal established by the United Nations to try the perpetrators of a car bomb blast that killed former Prime Minister Rafiq Hariri of Lebanon has appointed its main officials and adopted rules of procedures and evidence, according to the President of the Special Tribunal for Lebanon, Antonio Cassese of Italy. He was also the first president of the International Criminal Tribunal for the former Yugoslavia (ICTY). The Special Tribunal for Lebanon (like the ICTY) is located in the Hague, a city that is sometimes called "the world's courthouse."
Tuesday, March 24, 2009
Jonathan Todres, an Associate Professor of Law at Georgia State University College of Law, has a new arrticle in the Santa Clara Law Review on "Law, Otherness, and Human Trafficking." I've known Jonathan for many years (and even edited a book with him and Cris Revasz on the UN Convention on the Rights of the Child). He does excellent work. I hope that you have a chance to take a look at his article.
WTO economists predicted this week that trade will decline by 9% worldwide in 2009, raising additional fears about increasing numbers of protectionist measures that could be contrary to the letter and spirit of the WTO Agreements.
The WTO Council on Trade in Goods also met this week and took several actions. It approved long-standing waiver requests from the U.S. for various trade preference programs intended to assist developing countries. The U.S. requested waivers for the Andean Trade Preference Act (ATPA), the African Growth and Opportunity Act (AGOA) and the Caribbean Basin Economic Recovery Act (CBERA). Several less developed nations commented on how important these programs are for their development, especially with respect to job creation and helping to create a stable investment climate. The Council will now forward its recommendation that the waivers be approved to the General Council. The Council also appointed chairpersons for its various subcomittees and took notice of seven regional free trade agreements that had been notified to it, including two by the United States - one with Peru and the other with Oman.
Monday, March 23, 2009
Click here for registration and hotel information for the fourth Global Legal Skills Conference, which will be held in June at Georgetown University Law Center in Washington DC. This conference focuses on skills education for international lawyers, Legal English, teaching abroad, international exchanges, and similar topics.
Sunday, March 22, 2009