International Law Prof Blog

Investment Dispute Settlement in the Americas

The Fall Meeting of the American Bar Association Section of International Law concludes today in Miami, finishing a week of outstanding substantive panels on various aspects of transnational business, foreign investment, and international law, and with a special focus on Latin America and the Caribbean.

One of the final panels was on investment dispute settlement in the Americas, including disputes under bilateral and multilateral treaties applicable in the Americas:

• NAFTA (Canada and Mexico, 1994, currently being renegotiated)
• Chile (2004)
• Colombia (2012)
• DR CAFTA (the Dominican Republic Central America Free Trade Agreement, with the United States and the nations of Dominican Republic, Costa Rica, El Salvador, Guatemala, Honduras, and Nicaragua, with different dates of entry into force)
• Panama (2012)
• Peru (2009)

The panel also considered other bilateral treaties that the United States has with various nations of Latin America and the Caribbean, including:

• Argentina (1994)
• Bolivia (2001, terminated in 2012)
• Ecuador (1994)
• Grenada (1989)
• Honduras (2001)
• Panama (2001)
• Trinidad & Tobago (1996)
• Uruguay (2006)

The panel moderator was Viren Mascarenhas (King & Spalding LLP). Other speakers were Laura Sinisterra (Debevoise & Plimpton LLP) and Shane Spelliscy (Trade Law Bureau, Government of Canada). The panel chair was Paula Henin (Skadden Arps Slate Meagher & Flom LLP) who was also a speaker on the panel.

The panel discussed new developments and trends in international investment arbitration, including the "Mauritius Convention on Transparency," formally known as the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration. The Mauritius Convention entered into effect just 10 days ago, on October 18, 2017. It is an instrument by which Parties to investment treaties concluded before 1 April 2014 agree to apply the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration,  a set of procedural rules to make information publicly available on investor-State arbitrations under investment treaties. Although it has been signed by a number of countries (including the United States), so far only Canada, Mauritius, and Switzerland have ratified that treaty (and that was enough to bring the treaty into effect 10 days ago).

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Ethics of Client Communication with New Media in a Global Pracitce

The American Bar Association Section of International Law continues today in Miami. One of the CLE panels is on the ethics of client communications with new media in a global practice.

The panel moderator was Alexandra Darraby (The Art Law Firm, Los Angeles), co-chair of the ABA Section of International Law International Legal Ethics Committee and co-chair of the ABA Section of International Law New Media and Innovation Committee. The panelists were David M. Levine (Carey Rodriguez Milian Gonya LLP, Miami) and Ekaterina Schoenefeld (Schoenefeld Law Firm LLC, Princeton, New Jersey).

The panel discussed ethical issues and recent U.S. federal and state court decisions involving a large number of social media and electronic communication platforms, including:

• Facebook
• Google Plus
• Google Translate
• Instagram
• Kik
• LinkedIn
• MeetMe (a social networking service)
• MocoSpace (a mobile gaming community)
• MySpace
• Snapchat
• Tagged (a social networking service)
• Twitter
• WhatsApp
• Yik Yak (a social media smartphone application)

The panel raised a number of practical tips, such as a warning on using Google Translate with discovery documents (because the service is not confidential and searches done using Google Translate are discoverable).

The panel did not mention any active litigation matters involving the International Law Prof Blog.

One new resource for attorneys interested in these issues is the Handbook of Global Social Media Law for Business Lawyers, edited by John Isaza and Valerie Surgenor and published by the ABA Business Law Section. The book covers employees and social media, social media as evidence, cybersecurity, electronic defamation, and specific social media legislation for a number of countries including Australia, Brazil, Cambodia, Canada India, Indonesia, Malaysia, New Zealand, Pakistan, Turkey, the United Kingdom, and Vietnam.

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Latin American Leadership in Gender Equality

The Fall Meeting of the American Bar Association Section of International Law continues today in Miami with CLE panels, a luncheon, and a closing reception. One CLE program held today considers the advances Latin America has made in gender equality. The program noted that a 2016 study of 583 companies in 42 countries worldwide documented that although gender diversity was expected to generally stagnate in the next decade, women in Latin America are expected to hold 45 to 50% of all executive positions in corporations by 2025.

The panel, titled "Deconstructing the Myth of Machismo: Latin America's Leadership in Gender Equality," was moderated by the nationally-renowned journalist Eleanor Clift (former Newsweek correspondent, panelist on the McLaughlin Group, and author of books such as Madam President and Founding States and the Nineteenth Amendment). The speakers were:

• Brigida Benitez (Steptoe & Johnson LLP), a past president of the District of Columbia Bar (the second largest unified bar in the country, with more than 100,000 members worldwide) and an adjunct professor at Georgetown University Law Center. She has been recognized by Hispanic Business magazine as a “Woman of the Year” and one of the “100 most influential US Hispanics,” and by Latino Leaders magazine as one of the “25 Most Influential Hispanic Lawyers.”
• Juliana van Waveren, a senior consultant at Mercer LLC, who spoke on the comprehensive research study called "When Women Thrive, Businesses Thrive." That is also the name of Mercer's global research and solution platform designed to help organizations drive growth through the active and productive participation of their female workforce.
• Judith I. Lichtman (National Partnership for Women & Families), a guiding and influential force in the women's movement for more than 40 years, and a former president of the National Partnership for Women & Families.

The panel chair was the Honorable Delissa A. Ridgeway, a judge of the U.S. Court of International Trade who has helped the ABA Section of International Law create some of its most interesting and engaging CLE panels.

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Legal Ethics as Shown in Movies and Television Shows

The Fall Meeting of the American Bar Association Section of International Law concludes today in Miami. Panels on this last day included a popular legal ethics program. Using short video clips from a variety of movies and television shows, the panel discussed how particular ethical situations would be handled under the ethics rules of the United States, Mexico, and Peru. The speakers were Robert A. Anguiera (Robert A. Anguira P.A., Miami); Eduardo Benevides (Berninzon & Benavides Abogados, Lima Peru); and Andres Nieto (Van Wobeser y Sierra S.C., Mexico City); and Robert J. Misey, Jr. (Reinhart Boerner Van Deuren S.C., Chicago and Milwaukee).

Movie and television clips included:

• The Rainmaker, where Matt Damon plays Rudy Baylor, a rookie lawyer in over his head on a high-profile case. Rule 1.1 of the ABA Model Rules of Professional Conduct requires a lawyer to "provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
  
• Primal Fear, in which Richard Gear plays an attorney who changes the label on a VHS tape that has potential use as evidence in the case he's working on. Rule 3.4 of the ABA Model Rules of Professional Conduct provides that a lawyer "shall not alter or conceal material having evidentiary value."
• Suits, a television show in which Lewis, a junior partner, is caught by opposing counsel attempting to bribe a potential witness. Opposing counsel then uses this attempted bribe to force a favorable settlement for his client. The senior partners appear to condone the proposed settlement. The clip of the television show considered ethical responsibilities to partners, managers, and supervisory lawyers. The applicable rules from the ABA Model Rules of Professional Conduct included: (1) Rule 5.1(a), which provides that "A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct."; (2) Rule 5.2(a), which provides  that "A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person."; and (3) Rule 8.3(a), which provides that "A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority."
• Crazy Like a Fox, a show involving a man wrongly accused of murdering his wife (who had not actually been killed). Because he served 12 years for his time for that crime, the man goes to a lawyer to ask whether he would get a "freebie" on a future crime (killing his wife for real this time).  Applicable rules from the ABA Model Rules of Professional Conduce included Rule 1.6(b), which provides in part that "A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; or (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services."
• L.A. Law, in an episode where a murderer confesses to an attorney while confirming the existence of attorney-client privilege so that the attorney would be unable to testify against him, and Anatomy of a Murder, his which a lawyer coaches a defendant on the testimony he should give to excuse a murder. Rule 3.4(b) of the ABA Model Rules of Professional Conduct provides in part that a lawyer shall not "counsel or assist a witness to testify falsely" and Rule 3.3(a)(3) provides in part that a lawyer shall not knowingly "offer evidence that the lawyer knows to be false."
• The Client, in which a young boy who witnessed the suicide of a mafia lawyer hires an attorney (Susan Sarandon) to protect him when the District Attorney tries to use him to take down a mafia family. The boy only has a dollar to pay his lawyer. Rule 1.5(a) of the Model Rule provides in part that a fee has to be reasonable: "A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses." The discussion question was whether a small fee could be an unreasonable fee.
• The Verdict, in which a lawyer (Paul Newman) fails to inform his client of a settlement offer (and violated Rule 1.4 of the ABA Model Rules of Professional Conduct).
• El Secreto de Sus Ojos (The Secret of Your Eyes), a movie from Argentina, in which a retired legal counselor writes a novel hoping to find closure for one of his past unresolved homicide cases.

After presenting each clip and the applicable U.S. Model Rule, lawyers from Mexico and Peru compared the situation under the ethical rules in their countries. Watching the clips was an enjoyable way to consider the ethical rules applicable to each situation presented.

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International Law and International Litigation in U.S. Domestic Courts

The Fall Meeting of the American Bar Association Section of International Law continues this week in Miami, Florida. One showcase panel considered how U.S. judges view international litigation and international law. The speakers were a federal district court judge (the Honorable Ursula Ungaro, Judge of the U.S. District Court for the Southern District of Florida) and a Florida State Court judge (the Honorable John Thornton, Eleventh Judicial Circuit of Florida). The moderator was Steven Richman, Chair of the ABA Section of International Law. The panel discussed a variety of issues that arise in international litigation, including:

• serving process on defendants who reside in other countries, using the Hague Service Convention and by other methods of actual service (including service by Facebook and other social media), and issues that arise with establishing personal jurisdiction over foreign defendants; 
• the adequacy of alternative forums when arguing a motion to dismiss for forum non conveniens, or whether forum non conveniens can be a defense to enforcement of a foreign arbitral award under the New York Convention on the Recognition and Enforcemnt of Foreign Arbitral Awards, or in an action under the Montreal Convention (the Convention for the Unification of Certain Rules for International Carriage by Air, 28 May 1999);
• problems that arise when a state constitution or state statute purports to prohibit courts from considering international and foreign law, because eleven states (Alabama, Arizona, Arkansas, Louisiana, Kansas, Mississippi, North Carolina, Oklahoma, South Dakota, Tennessee, and Washington) have enacted legislation restricting the application of foreign or religious law in state courts. Click here to read more about state restrictions on using foreign or religious law.
• blocking enforcement of foreign defamation judgments in U.S. courts unless the party seeking enforcement complies with the federal statute called the "Securing the Protection of our Enduring and Established Constitutional Heritage" Act (the "SPEECH Act");
• different rules for attorney-client privilege in different jurisdictions and other issues that arise when seeking discovery.

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International Arbitration and Litigation as Mechanisms to Protect Investments in Latin America

The Fall Meeting of the American Bar Association Section of International Law is continuing in Miami with a number of substantive panels. One panel was on international arbitration and litigation as mechanisms to protect investments in Latin America.

The panel moderator was Ricardo Henrique Safini Gama (Veirano Advogados, Brazil). Panelists included: William D. Wood (Norton Rose Fulbright, Houston), who spoke on U.S. litigation arising out of corruption scandals in Latin America; Nicole Duclos (Covington & Burling, New York), who discussed issues relating to corruption in international commercial arbitration and the interaction of criminal investigations with international commercial arbitration proceedings; Barry Appleton (Managing Partner at Appleton & Associates International, Toronto and Washington, D.C.), who spoke about investment treaty arbitration as another route to combat corruption; and Rachel Giesber Clingman (Vice Presidentl for Petroleum and Minerals Americas at BHP Billiton), who described the role of in-house counsel in avoiding and reporting corruption.

Some points from the presentation:

• Corruption is pernicious and stifles development.
• Remember that a foreign state will not have immunity under the Foreign Sovereign Immunities Act (FSIA) when a suit is based on commercial activities in the United States (such as trading U.S. securities) or when property is taken in violation of international law (28 U.S.C. sec. 1605). When basing a suit on securities or investor agreements, look for contractual consent to U.S. jurisdiction.
• Of the 87 companies whose 2016 public filings disclosed that they were the subject of ongoing and unresolved investigations under the Foreign Corrupt Practice Act, 26 companies are in Latin America.
• Arbitrators will always be concerned about allegations of corruption in an arbitration proceeding because they want their arbitral decisions to be enforceable, and an allegation of corruption may derail enforcement.
• If a country raises corruption on the part of the claimant as an issue in an investment-state arbitration, the tribunal will usually dismiss the proceeding. But if the claimant raises corruption on the part of the government, the tribunal will investigate that claim.

Click here to read more about anti-corruption trends across Latin America.

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CISG Veterans and Newcomers: Brazil, Cuba, and CISG Latin American Countries

The U.N. Convention on the International Sale of Goods (CISG) has been ratified by a number of countries in Latin America, including Argentina (1988), Mexico (1989), Cuba (1994), and, most recently, Brazil (2014). Many attorneys routinely exclude application of the CISG, however, probably because they've never taken the time to learn about the CISG and advantages that attach to a contract governed by the CISG. Other countries, such as Panama, are still not parties to the CISG, but operate under its own commercial law and perhaps bilateral commercial treaties. Countries that have ratified the CISG also have their own commercial domestic laws, including the Brazilian Commercial Code (first promulgated in 1850, revised in 2002 and still under review since 2011), the Commercial Code of Cuba (first promulgated in 1886, and re-enacted in 2012), and the Commercial Code of Mexico (dating back to 1889, revised as recently at 2014).

A CLE panel at the Fall Meeting of the American Bar Association Section of International Law explored the CISG in terms of countries that are long-time parties to the Convention, newcomers to the Convention (most notably Brazil, where the CISG entered into effect three years ago on October 16, 2014), countries (like Guatemala, Nicaragua, and Panama) that are still not parties to the CISG, and a country (Costa Rica) that will join the CISG next year. The panel was sponsored by the International Transportation Committee of the ABA Section of International Law and co-sponsored by the International Trade Committee; the Committee on International Commercial Transactions, Franchising, and Distribution; the Latin American and Caribbean Committee of the ABA Section of International Law; and the Cuban Law Subcommittee of the Florida Bar Association Section of International Law.

The Panel Chair was Attilio Costabel of Costabel P.A. in Miami. Panel speakers included: James M. Meyer (Harper Meyer, Miami); Ivette Martinez Saenz (IMS Legal); Henry Rodriquez (Nassar Abogdos, San Jose, Costa Rica), Victor Fernandes (Basch & Rameh, Sao Paolo Brazil); and Pedro A. Freyre (Akerman, LLC, Miami, who presented on behalf of Professor C. Narciso Cobo Roura from the Cuban Commercial Arbitration Court, who had been denied a visa to present at the ABA conference in Miami).

Here are some nuggets from the panel:

• Where a contract is governed by the CISG, a federal court in the United States would have federal question jurisdiction (because the CISG is an international treaty to which the United States is a party).
• State courts in Brazil have jurisdiction with respect to claims involving the international sale of goods.
• The first court decision in Brazil directly applying the CISG was Noridane v. Anexo (14 Feb. 2017, Appellate Court of the State of Rio Grande do Sol), popularly known as "the Chicken Feet Case."
• Panama's failure to join the CISG has not severely affected import-export in Panama, but ratification of the CISG may increase international business opportunities for Panama.
• Central America is not integrated economically or legally -- important differences exist in each country in Central America. For example, while El Salvador and Honduras are parties to the CISG; there is no movement in Guatemala or Nicaragua to join the CISG.
• Even though El Salvador and Honduras are parties to the CISG, courts in those countries are likely to apply local commercial law rather than the CISG (because courts may not know about the CISG, because materials on the CISG are not available in Spanish, or because it may simply be easier for judges in those countries to apply local commercial law).
• The CISG is expected to enter into effect for Costa Rica in August 2018 (Statute No. 9421).
• Legal provisions in forms that are valid in the United States may not necessarily work in other countries.
• A Cuban Commercial Court has ruled that the CISG is part of the law of Cuba. Laudio No. 19/2013, Emiat v. Agrapisa.

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ABA Section of International Law Fall Meeting in Miami

The American Bar Association Section of International Law holds its Fall Meeting this week in Miami. The opening Power Plenary focused on Women Entrepreneurs in the International Arena.

Speakers included Maria Cardenas (Reed Smith), Melissa Medina (eMerge Americas), Constance Collins (Sundari Foundation), Lisette Calderon (Calderon Holdings of Florida), and Meeting Co-Chair Melissa Pallett-Vasquez (Bilzin Sumberg Baena Price & Axelrod LLP of Miami).

The Fall Meeting of the ABA Section of International Law continues through Friday at the JW Marriott Marquis Hotel in Miami.

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International Law Weekend 2017 - Program and Registration Information

The American Branch of the International Law Association (AmBranch or ABILA) and the International Law Students Association (ILSA) are about to host yet another edition of the popular and well-worth-your-time International Law Weekend from October 19-21, 2017 in New York City. The theme of the 2017 meeting -- the 96th ABILA Annual Meeting -- is "International Law in Challenging Times."

A link to the program is here. As with other conferences, check for updates and changes to the program.

The International Law Weekend begins Thursday evening, October 19, 2017 with a distinguished opening panel at the New York City Bar (42 W. 44th

Street). The panel will include Prof. Martin Flaherty, Co-Director of the Leitner Center for International Law and Justice; Ambassador Elinor Hammarskjöld, Director General for Legal Affairs of the Swedish Ministry for Foreign Affairs, Stockholm; Lucinda A. Low, Partner at Steptoe & Johnson, LLP, and President of the American Society of International Law; and D. Stephen Mathias, Assistant Secretary General of the United Nations for Legal Affairs (and head of the Office of the Legal Counsel). ABILA President David P. Stewart will moderate. A reception will follow.

The conference continues Friday, October 20 and Saturday, October 21, 2017 at Fordham University School of Law (150 West 62nd Street). Friday’s activities feature a keynote address by Sir Christopher Greenwood, a Judge on the International Court of Justice. On Friday evening, a reception will be generously hosted by the Permanent Mission of the Republic of Bulgaria to the United Nations. You must register in advance for that reception, and usually it’s a sellout.

The registration link is at  https://www.eventbrite.com/e/international-law-weekend-2017-tickets-3698942837.  The event is free for law students. General registration is just $50.

Mark E. Wojcik (mew).