Developments in international law, prepared by the Editorial Staff of International Legal Materials
The American Society of International Law December 7 , 2006
Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs Referred to the Committee on Foreign Relations at the United States Senate (November 13, 2006).
The United States signed the Geneva Act of the Hague Agreement Concerning the International Registration of Industrial Designs (the Agreement) July 6, 1999. On November 13, 2006, the Agreement was referred to the Committee on Foreign Relations of the United States Senate.
The Agreement promotes the ability of U.S. design applicants to file for protection in any of the contracting parties to the Agreement, including the U.S., by filing a standard application in English. Articles 3 and 4(1) of the Agreement permit any person who is a national of, or is domiciled in the U.S., to file an international design application with the U.S. Patent and Trademark Office (USPTO), or with the World Intellectual Property Organization (WIPO) International Bureau (IB). Pursuant to Articles 9(1) and (13(3) of the Agreement, the date of filing of the international design application is deemed to be either the date the IB or the USPTO receives it. The general rule is that the USPTO must send an application to the IB one month from the date that the USPTO receives it. Where a security clearance is required by law however, the USPTO has six months to forward the application to the IB, after first notifying the Director of the WIPO.
Article 5(1) of the Agreement specifies certain required elements of the design application, including that it be in one of the prescribed languages (either English or French), that it be accompanied by specific data regarding the applicant, and provide a brief description of the design features of the industrial design that is the subject of the application.
The IB will normally publish the international registration within six months of its registration date, unless the applicant asks for the publication to be made right after its registration. Article 12(1) allows the USPTO to refuse to register an application in either whole or in part, where the conditions for a grant of protection under U.S. law have not been satisfied. When the USPTO refuses to register an application, Article 12(2) of the Agreement requires it to notify the IB within 6 months from the date when the IB forwards a copy of the publication of the international registation to the USPTO.
At issue before the court was whether a foreign state’s offer of a reward in exchange for information enabling it to find and apprehend a fugitive fell within the “commercial activity exception” to the Foreign Sovereign Immunities Act. The court held that it does.
In November 2000 a prosecutor in Peru issued national and international arrest warrants for Vladimiro Lenin Montesinos Torres, who served as an advisor to Peruvian President Alberto Fujimori and chef of Peru’s National Intelligence System in the 1980s. Montesinos is accused of a plethora of crimes during his tenure including arms trafficking, drug dealing, money laundering, extortion, and a number of murders. To help find and capture Montesinos, Peru established a five million dollar reward. In June 2001 FBI agents detained Jose Guevara in Miami, and informed him that he would be criminally prosecuted unless he revealed information to them about Montesinos. Guevara exposed Montesino’s whereabouts and helped the Venezuelan intelligence agency capture him. Peru then refused to pay him the promised reward. Guevara brought suit claiming breach of contract, fraudulent inducement, and fraudulent misrepresentation against the Republic of Peru, its Ministry of the Interior, and two Ministers of the Interior, Antonio Vidal, and Vidal’s successor, Fernando Rospigliosi. Peru and the Ministry of Interior moved to dismiss the suit alleging that they were immune under the Foreign Soverign Immunities Act (FSIA) 28 U.S.C. §§1602-1611. Vidal and Rospigliosi also moved to dismiss, contending that as agents of Peru they were similarly entitled to sovereign immunity. The district court granted Peru’s and the Ministry of Interior’s motion for summary judgment, holding that Peru’s actions did not fall under one of the exceptions to FSIA, and it dismissed the suits against the individual defendants for lack of subject matter jurisdiction, holding that Peru’s sovereign immunity protected them. Guevera appealed the dismissal of his complaint.
In its analysis, the Eleventh Circuit discussed FSIA’s general grant of immunity for foreign governments, which is subject to certain exceptions, including the “commercial activity” exception . 28 U.S.C. §1605 (a)(2). Peru argued that offering a reward for capturing an alleged criminal, did not comprise a commercial activity. Guevara by contrast, contended that the key issue was whether private actors could also offer such a reward, and because they can, the action is a “commercial” one. The court examined the language of FSIA at 28 U.S.C. §1603 (d) regarding the meaning of “commercial activity” and the United States Supreme Court decision Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 612 (1992). In Weltover, the Supreme Court set forth the rule for determining when an activity is “commercial”: when a foreign government acts as a private player, rather than a regulator, in a market. Further, because the FSIA provides that the commercial character of an act is to be determined by examining the nature of the act, rather than its purpose, the Court required an examination of the motive behind the action, and whether it is the sort of activity in which private parties engage in “trade, traffic, or commerce.” Applying the Weltover standard to the facts before it, the Eleventh Circuit reasoned that Peru’s offer of a reward for information was commercial in nature, and fell within the "commercial activity" exception to the FSIA, and therefore Peru was not immune from suit. Because the Eleventh Circuit held that Peru was not immune from suit, it remanded to the district court the determination whether to grant the two individual defendant's motion to dismiss for lack of personal subject matter jurisdiction.
International Centre for Settlement of Investment Disputes: Biwater Gauff (Tanzania) Ltd., v. United Republic of Tanzania, (September 29, 2006)
On August 2, 2005, the claimant, Biwater Guff (Tanzania) Ltd. (BGT) filed a request for arbitration regarding a dispute with the United Republic of Tanzania regarding the latter's alleged breach of its responsibilities under both international and domestic law on foreign investments, resulting in a loss to BGT of $20 to $25 million dollars US. BGT later requested the tribunal pursuant to article 47 of the ICSID Convention and Article 39(1) of the ICSID Arbitration Rules, to take certain provisional measures preventing the release of information, correspondence, and documents about the arbitral proceeding.
Tanzania refused to provide an undertaking not to disclose certain types of documents in the future, which, BGT alleged, constituted a breach of Tanzania's duty to respect the procedural integity of the Arbitration Process and the non-aggravation of the dispute. Tanzania argued that BGT should accept the regime that governs arbitrations under the ICSID Convention and Arbitration Rules, neither of which authorizes the restrictions on transparency that BGT sought. Tanzania emphasized that orders, decisions, awards, and pleadings from numerous cases are available on the Internet. Tanzania argued that the provisional measures that BGT requested would be unprecedented, and contrary to the trend in arbitral practice, scholarly commentary, and amendments to the ICSID Arbitration and Facility rules, that all favor more transparency in the arbitration process. Tanzania further alleged that BGT did not face a material threat to any legitimate interest, particularly any challenge that warranted the imposition of the drastic step of provisional measures.
In its analysis, the arbitral panel discussed the need to balance the need for transparency with the need to protect the procedural integrity of the arbitration. The panel noted specifically that considerations of confidentiality and privacy have not played the same role in the field of investment arbitration as they have in international commercial arbitration, and that, "without doubt, there is now a marked tendency toward transparency in treaty arbitration." While the panel noted that the parties may enter into any agreements regarding confidentiality that they choose, in this case, there was neither a general agreement as to confidentiality nor a confidentiality provision in the UK-Tanzania bilateral investment treaty under which the proceedings were brought. The panel emphasized that in the absence of any agreement to the parties regarding confidentiality, there is no general rule imposing either a general duty of confidentiality or transparency in ICSID arbitration. The ICSID Convention and the Administrative and Financial Rules and Regulations provide for limits on only certain aspects of confidentiality. For example, Article 48(5) of the ICSID Convention provides that the consent of the parties is needed for ICSID to publish the award. Rule 32(2) of the new ICSID Arbitration Rules specifies that the tribunal may open the hearing to other parties besides the disputing parties, their agents, counsel, and advocates, witnesses and experts, and officers of the tribunal, if no one objects.
The panel therefore held that, subject to general requirements regarding disclosure of documents, neither party should be precluded from speaking generally about the case in public, if such statements are not used to antagonize the other party. The panel held that there should be a presumption in favor of permitting the publication of ICSID's decisions, orders, and directions, with decision to be made on a case-by-case basis. The panel held however, that because correspondence between the parties and the panel itself concerns the process itself, rather than its substance, it should be kept confidential.
World Trade Organization Panel Report--United States Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (November 30, 2006)
In 1995 the U.S. completed an anti-dumping investigation on Argentine Oil Country Tubular Goods (OCTG), which are steel tubes, drill pipes, drill casings, and other goods, used by the oil and gas industry. The sole Argentine exporter that participated in the original investigation was a company named Siderca. The inquiry resulted in the U.S. imposition of an anti-dumping duty of 1.36 per cent for other Argentine exporters as well, the same rate as the dumping margin for Siderca. From 1995 to 2000, the U.S. Department of Commerce (USDOC) conducted four administrative reviews at the request of U.S. OCTG producers. During the investigation Siderca indicated that it had not shipped any OCTG products for use in the U.S. In July 2000, the USDOC began a sunset review of the anti-dumping duty from Argentina, and determined that dumping was likely to recur or continue if the duty was no longer imposed. On July 25, 2001, the USDOC published a notice of continuation of the anti-dumping duty on OCTG from Argentina.
In October 2002 Argentina requested consultations with the U.S. regarding certain aspects of laws, regulations and procedures on sunset reviews and the OCTG sunset review carried out by US authorities, but because these discussions did not result in a mutually agreed solution the Dispute Settlement Body (DSB) created a panel to examine the issues. The panel circulated its report to WTO members, and the U.S. appealed certain areas of law and interpretations of the panel and Argentina cross-appealed certain issues. The Appellate Body issued its report on November 29, 2004. The DSB adopted the Appellate Body report on December 17, 2004. In January 2006, Argentina requested the establishment of a panel pursuant to Article 21.5 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) on the alleged failure of the U.S. to implement the 2004 recommendations and rulings of the DSB.
On November 30, 2006, the panel found that the U.S. had failed to comply with the 2004 panel decision faulting the sunset review procedures in antidumping cases. Specifically, the panel concurred with Argentina that a number of waiver provisions for sunset reviews set forth in the U.S. Tariff Act 715(c)(4)(A), (B), in conjunction with implementing regulations 351.218(d)(2) are inconsistent with WTO antidumping rules requiring governments to ascertain that the continuation or recurrence of dumping is likely to occur, before being able to keep a dumping order in place beyond the five year time limt. The panel futher found that the U.S. Commerce Department lacked a sufficient factual basis to be able to conclude that dumping was likely to reoccur.
The U.S. is permitted to appeal the panel's findings.
United Nations Security Council Resolution 1664 (2006) requested the Secretary-General to negotiate an agreement with the Government of Lebananon to establish a tribunal to try those responsible for the bombing that killed former Lebanese Prime Minister Rafiq Hariri and others on February 25, 2005, and to submit a report to the Security Council on the implementation of the resolution. Negotiations between representatives of the UN Office of Legal Affairs and the Government of Lebananon represented by two Lebanese judges, took place May 31 to June 1, 2006 at UN Headquarters, and July 3 to 7, 2006 in The Hague.
The report presents the principal features of the statute of the special tribunal and the agreement between the United Nations and the Government of Lebananon. It presents the temporal, personal, and subject matter jurisdictional aspects of the tribunal, its structure, how trials will be conducted, where it will be situated, and how it will be funded.
The legal basis for the tribunal is a treaty between the UN and the Government of Lebanan, and the court will therefore not be either an organ of the United Nations or a part of the Lebanese court system. The tribunal will possess an international character with the "highest international standards of criminal justice;" but its subject matter jurisdiction and applicable law is national in character. The report cites two pricipal differentiating characteristics between the special tribunal for Lebananon and other international criminal tribunals established, or aided by the United Nations: 1) a greater number of aspects of civil law have been incorporated into the trial procedures; and 2) the prosecutor's office will be comprised of the International Independent Investigator's Office. The tribunal will use as a guiding principle the Lebanese Code of Criminal Procedure, along with other international criminal procedure reference materials. It will be able to take steps to promote expeditious hearings and prevent unreasonable delays, and it may hold trials in abstentia.
The temporal jurisdiction of the tribunal includes authority over those responsible for the terrorist bombing of Hariri on February 14, 2005, as well as other attacks with similar characteristics that occurred between October 1, 2004 and December 12, 2005, and later attacks that may be connected and are of a "nature and gravity similar" to the February 14, 2005 attack. The personal jurisdiction of the tribunal extends "over persons" responsible for crimes falling within its subject matter jurisdiction. The subject matter jurisdiction of the tribunal includes provisions of the Lebanese Criminal Code on terrorism, crimes and offenses against life and personal integrity, illicit associations, failure to report crimes, and the rules on material elements of crimes, criminal participation, and conspiracy.
The Lebanese special tribunal will consist of a majority of international judges, and an international prosecutor who will be aided by a Lebanese deputy prosecutor. Unlike the pre-trial judges in the ad hoc tribunals for former Yugoslavia and Rwanda, the pre-trial judge at the Lebanese Special Tribunal will not also serve as a member of any of the chambers.
The report notes that the parties have determined that the tribunal should be located outside of Lebanon, with considerations of justice and fairness, administrative efficiency, the rights of the victims and the proximity to witnesses, to be taken into consideration.
The report presents several options for funding the tribunal: assessed contributions, voluntary contributions, and indicates a preference for a combination of the two approaches, with 51 percent of the expenses of the tribunal to be made by voluntary contributions from states, and 49 percent to be made by the Government of Lebanon, and the expenses of investigations to be considered expenses of the United Nations organization pursuant to Article 17 of the UN Charter. The report emphasizes that the Secretary-General will wait until he has sufficient funds ffor the creation of the tribunal and its operation for twelve months, in addition to pledges for its operation for twenty-four months, before further work on it takes place.
On December 1, 2006, Judge Gladys Kessler of the United States District Court for the District of Columbia, denied the respondent, U.S. government's, motion for an order to show cause why the case should not be dimissed. She granted the respondent's motion to stay the proceedings until conclusion of the related appeals. She ordered further that counsel for petitioner, should be granted access to him as soon as they obtain the necessary security clearances. Petitioner, Hamid Al Razak is a detainee at Guantanamo Bay, Cuba.
Judge Kessler determined that counsel for petitioner Al Razzak met the requirements set forth in Whitmore v. Arkansas, 495 U.S. 149 (1990), that he demonstrate that the detainee on whose behalf he wishes to file a Petition for the Writ of Habeas Corpus cannot challenge the legality of his detention himself; and that he has a significant relationship with the detainee demonstrating that he is truly dedicated to the detainee's best interest. Judge Kessler then cites the legal, cultural, and psychological factors that the petitoner cited in his opposition memorandum to the government's motion:
"He is a resident of Afghanistan. He has had virtually no contact with the news media or any word from outside the closed Guantanamo prison system for over 3 years. He has had no contact with his friends or family members outside Guantanamo. He is unfamiliar with the United States Court System. He does not speak English. He likely does not know what the term Habeas Corpus means. He has no criminal charges against him. He has every reason to distrust his captors and keepers. He has every reason to rely on the friendship with other detainees, who speak his language and suffer the same disabilities. He has every reason to challenge his confinement. No party outside Guantanamo is aware of the specific camp in which he is being detained, nor the "grade" or "level" of detention he is presumed to be, each level being determinative of the privileges he receives. He does not have access to a law library. He cannot communicate with his attorney, nor does he even know at present that he has an attorney. He has no expectation of release, ever."
Judge Kessler notes that "[i]n light of these facts, there can be little doubt in the Court's mind that Mr. Al Razzak is not able to challenge the legality of his detention."
United States Amicus Brief: Former Senior Justice Department Officials in Support of Petitioners--Appellants (Al-Maari v. Wright) (November 20, 2006)
In their brief, Amici Curiae, former senior United States Justice Department officials, including Janet Reno, Attorney-General 1993-2001, express concern about the government's decision to designate petitioner, Ali Saleh Kahlah Al-Maari as an "enemy combatant" rather than continuing to prosecute him on criminal charges. They contend that the recently enacted Military Commissions Act of 2006 (Pub. L. 109-266)(MCA) does not permit the indefinite detention of Al-Maari in a military brig. First, while the MCA establishes military commissions for cases subject to military trial, the government has never indicated that Al-Maari will be tried by military commission. Second, while the MCA purports to strip courts of jurisdiction over habeas corpus cases filed by alleged enemy combatants, Al-Maari is a United States citizen and thus entitled to Constitutional protection of habeas corpus privileges when the civilian courts are still operational, and Al-Maari was not arrested on a battlefield. The amici point to a number of alternative statutes other than executive detention under which Al-Maari could be charged including 18 U.S.C. 2384 which makes it a crime in the jurisdiction of the United States to "conspire to overthrow the Government of the United States;" or 18 U.S.C. 2339A which criminalizes the provision of "material support or resources" to terrorist organizations; and 18 U.S.C. 2332B which criminalizes "acts of terrorism transcending national boundaries." The amici emphasize that other federal statutes, while not designed specifically for anti-terrorism efforts, may also be used to prosecute suspected terrorists. These include making false statements to a federally insured financial instutution pursuant to 18 U.S.C. 1014.
The United States government arrested Al-Maari in Peoria, Illinois in late 2001 as a material witness in the investigation of the September 11, 2001 attacks, and brought criminal charges against him in early 2002. After obtaining three criminal indictments against Al-Maari, for possession of unauthorized counterfeit devices with intent to defraud, for making false statements to the FBI, and for making false statements in a bank application, and using stolen identification to influence a federally-insured institution, the government changed course and designated Al-Maari as an ememy combatant i June 2003 and dismissed the criminal indictment against him with prejudice. Al-Maari has been held since 2003 without being charged.
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