Tuesday, February 24, 2009
Professor Laurel Oates of Seattle University School of Law and Adjunct Professor Monika Batra are featured with their students in the February issue of the National Jurist Magazine for their successful work on an asylum case on behalf of two women in East Africa. The students secured T-visas (for victims of Trafficking) for their clients, who were granted asylum and who now live in the United States.
The Immigration Law Clinic worked with the law school's Legal Writing Program to create fact patterns that were then analyzed by 70 students. Click here to access the magazine, and then click on the table of contents to read the article.
Hat tip to Anne Enquist.
Saturday, February 21, 2009
On February 19, Belgium instituted proceedings against Senegal at the International Court of Justice (ICJ) alleging that Senegal has breached its obligation to prosecute the former President of Chad, Hissene Habre, or to extradite him to Begium for criminal proceedings on allegations of torture and crimes against humanity. Belgium has also requested the indication of provisional measures. Habre has been living in exile since 1990. Belgium claims that Senegal's duty to prosecute or extradite arises under both the Convention Against Torture (CAT) and customary international law. Belgium founds jurisdiction on the basis of the parties' respective declarations accepting the Court's compulsory jurisdiction under Article 36 of the Statute of the Court and the dispute resolution clause of CAT. With respect to provisional measures, Belgium requests the Court order Senegal to take appropriate measures to keep Habre under its control and surveillance until the international legal issues are resolved. Click here to read more.
Friday, February 20, 2009
In a meticulously reasoned (257 paras. long) and unanimous judgment delivered on Feb. 19, the European Court of Human Rights held that British authorities violated Art. 5 § 1 (right to liberty and security), Art. 5 § 4 (right to have lawfulness of detention decided by a court) and Art. 5 § 5 (victims of unlawful arrest or detention shall have an enforceable right to compensation) of the European Convention on Human Rights (ECHR). The full-text of the judgment is available here.
In this case, the eleven applicants (from the Maghreb or the Middle East) complained that they were detained in high security conditions under a statutory scheme (i.e. the Anti-Terrorism, Crime and Security Act 2001), which permitted the indefinite detention of non-nationals certified by the Secretary of State as suspected of involvement in terrorism, in violation of the provisions of the ECHR. The British Government, well aware that this detention scheme was not consistent with Art. 5 § 1 ECHR, issued a notice of derogation under Art. 15 ECHR in Nov. 2001 (According to Art. 15 ECHR: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law…”) But the European Court, while agreeing that there had been indeed a public emergency threatening the life of the nation (first condition to fulfill for a country to validly derogate from its obligations under Art. 5 § 1 ECHR), found that the derogating measures had not been strictly required by the exigencies of the situation. As a result, the UK could not lawfully derogate from Art. 5 § 1 ECHR. One should note that the UK government was the only country in Europe who decided to rely on Art. 15 ECHR although it was far from being the only one explicitly threatened by Bin Laden et al.
The European Court’s judgment in A et al. v. UK should be welcome and should be read in conjunction with the House of Lords’ judgment in the same case. The Law Lords found the detention scheme in violation of the ECHR under the UK 1998 Human Rights Act on the grounds that it did not rationally address the threat to security and unjustifiably discriminated against foreign nationals. The European Court merely confirmed this reasonable interpretation. Furthermore, the European Court’s judgment is well-balanced and sensibly recognizes the difficulties faced by States in protecting their populations from terrorist violence. Yet the Court is right to implicitly point out that the “war on terror” does not give national governments carte blanche to violate human rights and the rule of law. Too often, we have sadly come to realize that our elected officials did not think twice before playing with facts and did not shy away from enacting exceptionally repressive legislation for the sake of scoring points in the polls.
For a well-informed and more exhaustive analysis of this judgment, see the blog of the European Journal of International Law.
P.S. In a strange coincidence, the House of Lords, on Feb. 18, overruled the Court of Appeal’s judgment according to which a Jordanian terror suspect could not lawfully be extradited to Jordan because it was likely that evidence obtained by torture could be used against him there at a trial. As a result, the UK Home Secretary decided to immediately sign his deportation order. This individual, however, carefully lodged an application with the European Court a few days before. Unsurprisingly, the European Court sensibly decided to order the UK government not to deport him until the Court has given due consideration to the matter. One may only hope that the European Court will put an end to this abject policy of exporting suspected terrorists to dictatorial and torture-prone countries and that the UK will eventually rediscover the virtues of the rule of law.
Thursday, February 19, 2009
Save the Date: The Teaching International Law Interest Group (TILIG) of the American Society of International Law (ASIL) will be holding a program on "Teaching Using Simulations" at the ASIL Annual Meeting on Thursday, March 26, 2009 from 3-4:30 pm in the Executive Forum at the Fairmont Hotel in Washington, D.C. Participants are invited to bring examples of simulation exercises they use in their international law classes with them to the program to share. We will also hold our annual business meeting at that time. More information will be posted on this blog and on the ASIL website at a later date.
Tuesday, February 17, 2009
The UN-backed International Criminal Court for Cambodia (more properly called the "Extraordinary Chambers Resposible for the Prosecution of Crimes Committed by the Khmer Rouge in Cambodia") made history today by holding a hearing in its first trial. On trial is Kaing Guek Eav, also known as Duch, who is charged with crimes against humanity in connection with his supervision of a prison in the capital city of Phnom Penh during the rein of the Khmer Rouge where thousands of persons were allegedly tortured and killed. In a negotiated compromise between the the United Nations and Cambodia, the court uses a mixture of Cambodian and foreign judges, prosecutors, and defense attorneys. The Court has been criticised for being slow to begin proceedings and had been hindered by allegations of corruption and political interference by the Cambodian government. It remains to be seen whether the Court can live up to the hope that it will bring justice to the victims of the Khmer Rouge regime.
There is a new (or at least updated) on line resource available for law students seeking information about summer study abroad programs. It is the Renaissance Report sponsored by William Mitchell College of Law and can be found at http://www.wmitchell.edu/LER/Summer-law-programs-region-country-city.asp. The guide is searchable by law school or country and contains helpful details to assist students compare the various programs.
Sunday, February 15, 2009
We’re pleased to bring you a special blog post from Antonin I. Pribetic, Litigation Counsel at Steinberg Morton Hope & Israel LLP in Toronto, Canada.
Last week’s decision by the Court of Appeal for Ontario in Dancap Productions Inc., v. Key Brand Entertainment, Inc., 2009 ONCA 135 (Ont. C.A.) per Sharpe, Armstrong and Watt JJ.A., available online, reaffirms the Canadian judiciary’s “deferential approach” to the principle of competence/competence for arbitral jurisdiction.
The issue on appeal was whether the motion judge erred in refusing to grant a stay on account of arbitration and forum selection clauses in one of the contracts entered into by the respondents “Dancap” and the appellants “Key Brand”. Dancap and Key Brand executed a preliminary Term Sheet outlining the general terms of a participation agreement related to Key Brand’s acquisition of theatrical assets, including two Toronto theatres. Dancap was to gain an equity position in Key Brand and membership on its board, which included the right to manage the theatres pursuant to separate management agreements yet to be concluded. The parties also entered into an Additional Rights Agreement (“ARA”) which, inter alia, set out the parties’ agreement to negotiate in good faith towards the conclusion of the management agreements. Following Key Brand’s acquisition of the assets, but prior to the finalization of the management agreements, Key Brand sold the Toronto theatres to the respondent Mirvish Enterprises Limited (“Mirvish”). Dancap immediately threatened proceedings. However, Key Brand won the “race to the courthouse”; a month before Dancap sued in Ontario, Key Branch had already commenced an action in the United States District Court in California for an order compelling Dancap to submit their dispute to arbitration.
The ARA contained an “entire agreement” clause providing that it “supersedes all prior agreements, negotiations and understandings concerning the subject matter hereof” and that it “shall supplement each of the Management Agreements and the Shareholders Agreement of even date”. The entire agreement clause further provided that “if there is a conflict between this Agreement and… the Management Agreements, this Agreement shall control and provide [Dancap] with the additional rights granted… under this Agreement.” [at ¶ 13]. The ARA and Shareholders Agreement both contained an arbitration clause requiring that “[a]ny dispute, controversy or claim arising out of or relating to” the agreement (except for equitable claims) be submitted to arbitration “in accordance with the JAMS International Arbitration Rules. The tribunal will consist of a sole arbitrator.” The ARA and Shareholders Agreement also contained a forum selection clause providing for the exclusive jurisdiction of the state or United States District courts in California. However, the Term Sheet was silent on both arbitration and forum selection.
Key Branch then moved for a stay of the Ontario action based upon art. 8(1) of the UNCITRAL Model Law on International Commercial Arbitration, adopted in Ontario by the International Commercial Arbitration Act, R.S.O. 1990, c. I-9. The motion judge dismissed Key Brand’s motion. Morawetz, J. ruled that Dancap’s claims arose solely under the Term Sheet and not under the ARA and that the arbitration and forum selection clauses did not apply.
he Court of Appeal allowed the appeal and stayed the Ontario action, pending the resolution of the arbitration on the “core issue of whether Key Brand has the right to terminate any management rights to the theatres that Dancap may have obtained under either the Term Sheet or the ARA upon the sale of the theatres.” [at ¶43] Writing for the unanimous Court, Sharpe, J.A., held that:
“ It is now well-established in Ontario that the court should refuse to grant a stay under art. 8(1) of the Model Law where it is “arguable” that the dispute falls within the terms of an arbitration agreement. [Dalimpex Ltd. v. Janicki (2003), 64 O.R. (3d) 737 ( C.A. ), at para. 21, Charron J.A. and Hinkson J.A. in Gulf Canada Resources Ltd. v. Arochem International Ltd. (1992), 66 B.C.L.R. (2d) 113 (B.C.C.A.) internal quotation omitted] . . .
 As Charron J.A. explained in Dalimpex, at para. 22, “a deferential approach” allowing the arbitrator to decide whether the dispute is arbitrable, absent a clear case to the contrary, ‘is consistent both with the wording of the legislation and the intention of the parties to review their disputes to arbitration.’”
Justice Sharpe also relied upon the recent Supreme Court of Canada decision in Dell Computer Corp. v. Union des consommateurs, which endorsed the “competence-competence” principle, calling for deference to arbitrators to resolve challenges to their jurisdiction [at ¶34, citing Deschamps, J.,  2 S.C.R. 801 (S.C.C.) at ¶84). The parties consented to the admission of fresh evidence relating to a recent order issued by the District Court in California, which required the parties to submit to arbitration. The Court of Appeal’s deferential approach was not limited to arbitrability. Sharpe, J.A. had no difficulty in extending judicial comity to the U.S. court, without any form of reciprocity requirement, stating:
 It may well be that in the United States , courts do not follow the deferential approach to arbitrability set out in Dalimpex and Dell. (I note, however, that in the statement of defence Dancap has filed in the arbitration, Dancap maintains that Key Brand’s claims are not arbitrable and reserves the right to argue the point before the arbitrator as well as before the Ninth Circuit Court of Appeals.)
 Whatever the law may be in the United States , I am persuaded that the motion judge erred in ruling on the scope of the arbitration clause rather than leaving the issue to the arbitrator. While the issue of whether the dispute between the parties is covered by the ARA is by no means free from doubt, for the reasons that follow, I conclude that it is at least arguable that the ARA arbitration clause governs the core issue raised in the action. That issue was properly identified by the District Court judge as being whether Key Brand has the right to terminate any management rights to the theatres that Dancap may have obtained under either the Term Sheet or the ARA upon the sale of the theatres to Mirvish.
Thanks again to Antonin I. Pribetic, Litigation Counsel, Steinberg Morton Hope & Israel LLP, Toronto, Ontario, Canada
Saturday, February 14, 2009
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.
Friday, February 13, 2009
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!
Thursday, February 12, 2009
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.
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.
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.
Tuesday, February 10, 2009
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
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
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, 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:
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
Monday, February 9, 2009
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.