February 14, 2009
Economic crisis and protectionism in the EU
The EU is often said to be based on “four freedoms,” i.e. the freedom of movement of goods, persons, services and capital. This is not surprising considering the fact that the establishment of a European internal market, an area without internal borders in which the free movement of goods, persons, services and capital must be ensured (see Articles 3 and 14 of the EC Treaty), has been one of the original objectives of the EU. As a result, Member States are prohibited from maintaining national rules and measures discriminating on account of nationality.
Regrettably, these “four freedoms” are now under attack although their contribution to European prosperity for the past 50 years has been both undeniable and decisive.
First of all, a series of strikes were recently organized in Britain to complain over the use of “foreign” – EU – workers on the ground that some firms were “importing” foreign workers accepting lower pay than Britons. This is a genuine problem but one for which EU cannot be blamed. It is difficult to do full justice to this issue in a few words.
The most important point is that it is the responsibility of the host Member State to conduct inspections and to enforce its employment and working rules as well as the relevant EU standards. While it cannot be denied that some EU firms have been trying to bring in “cheap labor” in the most “expensive” Member States, the main problem, today, is the unwillingness of most national governments to enforce national and EU rules on working time, minimum paid, etc. even in situations where violations of these rules are committed by or on behalf of national companies. My suggestion to the trade unions is therefore to fight for the hiring of more workplace inspectors rather than using fellow workers from other countries as scapegoats.
Secondly, most national governments are now busy trying to financially “bailout” their own banks and industries. This led Mr. Topolanek, the Czech Prime minister, to warn that the economic crisis is prompting protectionist and xenophobic reactions in the largest EU Member States (read France and Germany), reactions which obviously threaten the European single market.
The Czech Prime minister had a point. Sarkozy’s bailout plan to aid the French car industry on the condition that no jobs are outsourced to other countries may indeed lead to a vicious circle and the adoption of more beggar-thy-neighbor policies. From a legal point of view, the European Commission has the power to monitor “state aid” to make sure no Member State uses public funds to favor national firms or artificially keep a loss-making national firm in business (see Article 87 of the EC Treaty). The trouble is that the Commission has apparently made the political decision to set aside EU competition law for the duration of the current crisis.
That being said, the Czech Prime minister is, unfortunately, in no position to lecture. His political party has repeatedly and ridiculously postponed the ratification of the Lisbon Treaty for reasons of pure domestic politics. His government has further tolerated the continuous utterance of mad anti-EU remarks by Mr. Klaus, the President of the Czech Republic. This disgraceful situation is made worse by the fact that the Czech Republic now holds the EU 6-month rotating presidency. To put it concisely, one should be exemplary before complaining about a lack of European solidarity.
February 13, 2009
Global Legal Skills Conference IV - Georgetown University Law Center
Save the dates to attend the Fourth Global Legal Skills Conference, which will be held June 4-6, 2009 at Georgetown University Law Center in Washington, D.C. Calls for papers were due back in November and hopefully you sent in a proposal. But even if you didn't, the conference is well worth attending. I started the Global Legal Skills Conference several years ago at The John Marshall Law School in Chicago, where we held the first two conferences. The third conference -- called by some the best conference they ever attended in their lives (and they go to a LOT of conferences) -- was held in Monterrey Mexico (where we will meet again in February 2010). Click here for some photos from that conference in Mexico.
Craig Hoffman of Georgetown University Law Center is organizing this conference (and finding out how much work it is, I think!) and it all seems to be very much under control for another great conference in June.
Save the dates (June 4-6, 2009), and see you there!
February 12, 2009
Update on KBR FCPA Story
In an update to the story posted Monday regarding the charges brought against KBR (Kellogg, Brown & Root, the former Halliburton subsidiary), alleging violations of the Foreign Corrupt Practices Act (FCPA), KBR pled guilty yesterday to five counts of bribing Nigerian officials to obtain government contracts. KBR also settled a separate civil action brought by the Securities and Exchange Commission. As part of the plea agreement and settlement, KBR agreed to pay more than $400 million in fines, in addition to paying back $177 million in profits. Of that amount, only $20 million will be paid by KBR itself; the remaining amounts will be paid by Halliburton. KBR also agreed to cooperate in ongoing government investigations and employ independent monitors for the next three years.
ABA Midyear Meeting in Boston
For the first time, proceedings of the ABA House of Delegates will be available by webcast. The House of Delegates will meet Monday, February 16, 2009 beginning at 8:00 am ET. At 1:45 pm ET, the House will consider Report Nos. 109 and 110 which seek to amend the Model Rule of Professional Conduct 1.10. Other presentations of interest include remarks by Walter E. Dellinger, III, former U.S. Solicitor General on "America's Greatest Lawyer - Abraham Lincoln in Private Practice and Public Life" at 11:00 am, and remarks by Chief Justice Margaret Marshall, President of the Conference of Chief Justices and 23rd Justice of Massachusetts Supreme Judicial Court at 11:45 a.m. To view the complete list of Reports with Recommendations to be considered by the House of Delegates, click here. And on Monday click here to view the webcast.
200th Anniversary of the Birth of President (and Lawyer) Abraham Lincoln
Today marks the 200th anniversary of attorney, Abraham Lincoln of Illinois, who gave up his law practice to become one of the greatest presidents of the United Sates. Attorneys (and law students) everywhere around the world can celebrate this anniversary today.
February 10, 2009
WTO Appellate Body Issues 2008 Annual Report
The Appellate Body of the World Trade Organization (WTO) issued its Annual Report for 2008 yesterday. The report summarizes the work of the Appellate Body over the course of the year. Out of fifteen WTO panels reports that were finalized in 2008, thirteen were appealled to the Appellate Body, representing a sharp increase in activity. Historically, 68 percent of all WTO panel decisions have been appealed to the Appellate Body. Ten of the appeals filed in 2008 were original appeals from WTO panel decisions and three related to lack of implementation of WTO panel decisions filed pursuant to Article 21.5 of the Dispute Settlement Understanding (DSU).
The United States was the most frequent user of the WTO appellate process - it was a named party in six of the thirteen appeals. The European Union was the second most frequently named party, appearing in five proceedings.
The Appellate Body circulated twelve reports in 2008. Once again, the United States was the most frequently appearing party. Since its inception, the Appellate Body has issued a total of 96 reports, which averages out to approximately eight reports per year.
The most frequent WTO agreements that were the subject of disputes include the General Agreement on Tariffs and Trade 1994, the Anti-Dumping Agreement, and the Agreement on Subsidies and Countervailing Measures.
The full text of the Annual Report for 2008 can be found at: http://www.wto.org/english/tratop_e/dispu_e/ab_annual_report08_e.doc
ICJ Chamber of Summary Procedure
The judges of the International Court of Justice have elected the members of the Chamber of Summary Procedure. Article 29 of the Statute of the International Court of Justice provides that, with a view to the speedy despatch of business, the Court shall form annually a Chamber composed of five judges which, at the request of the parties, may hear and determine cases by summary procedure. The Court also selects two judges for this Chamber for the purpose of replacing judges who cannot sit in a particular matter. Under the Rules of Court, the President and Vice-President are members of this Chamber ex officio, the other Members and the substitutes being elected. The composition of the Chamber of Summary Procedure is now the following:
- Members: President Hisashi Owada
- Vice-President Peter Tomka
- Judge Abdul G. Koroma
- Judge Thomas Buergenthal
- Judge Bruno Simma
- Substitute members: Judges Bernardo Sepúlveda-Amor
- Leonid Skotnikov
International Criminal Tribunal for Rwanda
The trial of a Rwandan investigator accused of trying to fabricate evidence for the appeal of a former minister of higher education convicted of genocide started today at the International Criminal Tribunal for Rwanda (ICTR). Léonidas Nshogoza has been charged with two counts of contempt of the Tribunal and two counts of attempting to commit acts punishable as contempt against the ICTR. The indictment accuses Mr. Nshogoza of intending to fabricate evidence and procure false statements for use in the appeal of the conviction and sentencing of former Minister Jean de Dieu Kamuhanda. It also accuses him of interfering in the administration of justice. Mr. Nshogoza, who was the investigator for the defence in the case of Prosector v. Jean de Dieu Kamuhanda, voluntarily surrendered to the ICTR in February 2008 after an international warrant was issued for his arrest.
In its opening statement in Trial Chamber III, the prosecution said that the charges were very serious because they involved an attempt to pervert justice in a genocide case, adding that it had evidence to support the evidence fabrication charges and intent to procure false evidence. Former Minister Kamuhanda is serving concurrent life sentences after being convicted of genocide and extermination by the ICTR, which found that he had supervised the killings in his native Gikomero commune in the Kigali-Rural prefecture. He distributed firearms, grenades and machetes to the Hutu Interahamwe militia and led attacks at the parish church and adjoining school in Gikomero, where several thousand Tutsi civilians were killed.
(Adapted from a UN Press release issued today)
Stetson International Environmental Moot Court Competition - Results of the North American (Atlantic) Rounds
We've just learned that Cleveland-Marshall team won the North American (Atlantic) Rounds of the 13th Annual Stetson International Environmental Law Competition. They also wrote the first place Memorial.
The University of Maryland College of Law hosted the North American (Atlantic) Rounds, and reportedly did a great job. The Stetson Competition is well known for the caliber of the judges and their knowledge of international environmental law.
Hat tip to Professor Janice Aitken, Cleveland-Marshall College of Law at Cleveland State University
Careers in International Law
Careers in International Law, a best-selling career guide from the ABA Section of International Law, has now been published in a second edition. It's a collection of essays by leading international lawyers about their own careers and career paths. It's a useful guide for law students and new lawyers who are seeking to enter the field of international law. It's also useful for more experienced international lawyers who are seeking to move into a new area of international practice. Here's the table of contents, which shows a wide range of topics and author experiences:
Talking About China . . . in Texas!
The Texas International Law Journal will hold an upcoming symposium on "China's Emergence: Effects on Trade, Investment, and Regulatory Law." The Keynote address by Timothy Reif of the House Ways and Means Trade Subcommittee will be Thursday, February 26 at 5:00pm, and the main symposium will begin Friday, February 27 at 9:00am. The event will be held at the law school in Austin, Texas. Click here for more information. Attendees can receive up to 8 hours of CLE credit.
Hat tip to MItchell Kilby
February 9, 2009
KBR Charged in FCPA Case in Connection with Bribes in Nigeria
For those of you who cover the Foreign Corrupt Practices Act (FCPA) in your courses, you may be interested in the recent charges brought by the U.S. government against KBR (formerly Kellogg, Brown & Root), a Halliburton subsidiary until it was spun off in 2007. The U.S. government charged KBR last Friday in U.S. District Court in Houston, Texas with conspiracy to violate the FCPA (among other charges), in connection with a $180 million scheme to bribe Nigerian officials to secure $6 billion in contracts. KBR allegedly paid the bribes between 1994 and 2004 to secure four contracts to build and expand Nigeria's Bonny Island liquified natural gas terminal. That time period covers two administrations in Nigeria - that of former Presidents Abacha and Obasanjo - but no Nigerian officials have been charged with any wrongdoing. The time period at issue also overlaps the time when former U.S. Vice President Dick Cheney was CEO of Halliburton. He has not been charged. Albert Stanley, who was the CEO of KBR until 2003, pled guilty to bribery last fall. He admitted to hiring international consultants and paying them tens of millions of dollars to be used to bribe the Nigerian government. Stanley also admitted to receiving kickbacks of some of that money. The KBR scheme was truly multinational in scope involving KBR partner companies in Italy, France and Japan, as well as KBR shell companies in Portugal. The U.S. government is seeking the largest penalty against a U.S. company for bribery charges under federal law.
ASIL 2009 Annual Meeting: International Law as Law
The 2009 Annual Meeting of the American Society of International Law (ASIL) will consider the creation, implementation, enforcement, and critique of international law today. It will examine the changing character of fundamental aspects of the international legal system, including the sources of international law and the role of states in generating international obligations. The meeting will be held March 25-28, 2009. Click here for more information about the meeting and the American Society of International Law.