February 1 - 12, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
Council of Europe, Criminal Law
Convention on Corruption (No. 173), done at Strasbourg,
January 27, 1998, E.T.S. No. 173
The Convention obligates Parties to enact domestic
legislation criminalizing the intentional bribery of
domestic public officials (active bribery), the intentional
solicitation or receipt of a bribe by domestic public
officials (passive bribery), and the bribery of members
of domestic public assemblies, as well as both passive
and active bribery in the private commercial sector.
Arts. 2-4, 7-8. In addition, the Convention extends
to bribery of foreign public officials and members of
foreign public assemblies, bribery of officials of international
organizations, members of international parliamentary
assemblies, and judges and officials of international
courts. Arts. 9-11. Other prohibited conduct includes
trading in influence, "whether or not the influence
is exerted or whether or not the supposed influence
leads to the intended result" and money-laundering of
proceeds from corrupt offenses, as well as aiding and
abetting corrupt acts prohibited under the Convention.
Arts. 12-13, 15. Each Party is further obligated,
unless it makes a declaration or reservation, to enact
legislation providing criminal penalties or other measures
for intentionally falsifying accounting records to cover
up corrupt acts. Art. 14. Corporations are to
be held liable under criminal or non-criminal sanctions
for active bribery, trading in influence, and money-laundering,
committed by persons with a "leading position" within
the organization, and may further be held liable for
failure to supervise or control such persons. Arts.
18-19. Judicial assistance, cooperation between
national authorities, and witness protection programs
are mandated, and the Convention provides that "[b]ank
secrecy shall not be an obstacle" to the gathering of
evidence regarding corrupt acts. Arts. 20-23; 25-31.
The Group of States against Corruption (GRECO) is to
monitor implementation of the Convention, which enters
into force three months after the fourteenth State has
expressed its consent to be bound. Arts. 24, 32.
DL http://www.coe.fr/eng/legaltxt/173e.htm
Croatia-Slovenia: Free Trade Agreement,
done at Zagreb Dec. 12, 1997 WTO Doc. WT/REG55/1(Jan. 27, 1999)
Croatia and Slovenia have agreed to "gradually establish
a free trade area on substantially all their bilateral
trade in a transitional period ending on January 1,
2001...." Art. 1.1 The Parties agree to most favored
nation duties on products and agree not to impose new
customs duties on imports from, or exports to, the other
party. Arts. 2-4, 7. In addition, all existing customs
duties are to be abolished pursuant to Protocol 1 to
the Agreement, and all customs duties on exports are
abolished as of the date of entry into force of the
agreement. Arts. 4(2), 7(2). The Agreement further contains
specific provisions regarding trade in agricultural
products, government procurement, and intellectual property.
Arts. 11-15, 24, 25. Annex III references various international
intellectual property instruments and obligates the
Parties to accede to them within three years if they
are not already a member.
The Agreement also provides a detailed list setting
forth the percentage of duty reductions and a progressive
timetable for implementation during the transitional
phase. Protocol 1. A list of exports is included
as Annex II containing a description of products for
which Croatia has agreed to abolish all quantitative
restrictions by January 1, 2001. The Agreement
recognizes the "growing importance" of trade in services
and investments and to cooperate toward a "progressive
liberalization and mutual opening of markets for investment
and trade in services" in keeping with the General Agreement
on Trade in Services. Art. 36(1). Croatia and Slovenia
agree to establish a Joint Committee for further implementation
of the Agreement. Arts. 34-35. TT
Download in Microsoft Word - http://www.wto.org/wto/ddf/ep/D3/D310e.doc
U.S. Second Circuit: Cabiri v.
Ghana, No. 97-9563 (Jan. 26, 1999)
Bawol Cabiri worked as Ghana's trade representative
in the U.S. and was given the use of a house owned by
Ghana in Westbury, New York, for the duration of his
employment. In 1986, Cabiri was summoned back
to Ghana where he was allegedly tortured and imprisoned,
and was not allowed to return to the U.S. until 1991.
During this period his wife and family continued to
live in the Westbury house. In 1987, Ghana brought
a summary proceeding in state court to evict the Cabiri
family. Mr. and Ms. Cabiris counterclaimed asserting
breach of contract, abuse of trust, fraudulent misrepresentation,
false imprisonment, and Ms. Cabiri asserted the intentional
infliction of emotional distress. In the settlement
of the eviction proceedings, the parties agreed that
the Cabiris would assert their counterclaims in a new
federal action, and that Ghana would waive sovereign
immunity to the extent that the counterclaim exception
to the Foreign Sovereign Immunities Act (FSIA), or any
other exception, would constitute a waiver of sovereign
immunity in the state proceeding.
The FSIA provides that "a foreign state shall be immune
from the jurisdiction of the courts of the United States..."
but contains an exception for counterclaims "arising
out of the transaction or occurrence that is the subject
matter of the claim in the foreign state...." 28 U.S.C.
sect. 1607. The Second Circuit held that the breach
of contract claim arises out of the same transaction
as the eviction proceeding, i.e., Cabiri's employment
contract and his termination, but rejected causes of
action based on abuse of trust in inducing Cabiri to
return to Ghana under false pretenses, fraudulent misrepresentation,
false imprisonment, and intentional infliction of emotional
distress as lacking a sufficient logical relationship
to Cabiri's employment contract and its termination.
The court further rejected Ms. Cabiri's intentional
infliction of emotional distress claim arising out of
Ghana's failure to provide information concerning her
husband's disappearance as constituting misrepresentation
and therefore falling outside the non-commercial tort
exception to the FSIA. 28 U.S.C. sect. 1605(a)(5).
The Second Circuit noted that "Ghana enjoys immunity
as to this claim -- for emotional injury caused by the
refusal of a foreign state, however nefarious, to give
its citizens in the United States full or truthful information
concerning its operations. The FSIA is not an
enforcement mechanism for global freedom of information."
The Second Circuit further rejected the claim of implied
waiver of sovereign immunity, criticizing a contrary
decision by "an adventurous panel of the Ninth Circuit"
relied upon by the Cabiris, Siderman de Blake v.
Republic of Argentina, 956 F.2d 699 (9th Cir. 1992)
as implicitly based on the "new and dubious" theory
that "a foreign state forfeits immunity with respect
to matters related to a scheme of persecution if it
advances that scheme by bringing suit in the United
States." AE http://laws.findlaw.com/2nd/979563.html
WTO Panel Report: United
States - Anti-Dumping Duty on Dynamic Random Access
Memory Semiconductors (DRAMS) of One Megabit or Above
from Korea, WTO Doc. WT/DS99/R (Jan. 29, 1999)
The United States Department of Commerce (DOC) investigated
allegations that Korean manufacturers were dumping DRAM
computer chips and imposed antidumping duties on May
10, 1993. The following two annual administrative
reviews found that Hyundai and LG Semicon did not dump
DRAMs during the periods under review. At the
time of the third annual administrative review, Hyundai
and LG Semicon requested a revocation review under section
353.25(a)(2) of the DOC regulations to revoke the anti-dumping
duty order. On July 24, 1997, the DOC issued its
conclusions which contained a determination not to revoke
the anti-dumping order in part, and a finding that Hyundai
and LG Semicon had not dumped DRAMs during the period
of the third annual review. Korea requested consultations
and ultimately the establishment of a WTO Panel to examine,
inter alia, the consistency of section 353.25(a)(2)
of the DOC regulations with US obligations under the
Agreement on Implementation of Article VI of GATT 1994
(the AD Agreement).
The Panel examined the text of Article 11.2 of the
AD Agreement and rejected Korea's assertion that Article
11.2 requires the immediate revocation of an anti-dumping
duty as soon as an exporter is found to have ceased
dumping and that the continuation of an anti-dumping
duty is precluded a priori in any circumstances
other than where there is present dumping. The
Panel further noted that the "sunset provision" of Art.
11.3 envisages a determination of whether the expiration
of an anti-dumping duty would lead to a "continuation
or recurrence" of dumping. (emphasis in original).
The Panel next considered whether the sub-section of
353.25(a)(2) which permits the revocation of an anti-dumping
duty when it is "not likely" that the future dumping
will recur satisfies the necessity requirement of Art.
11 of the AD Agreement. The Panel held that the
section 353.25(a)(2)(ii) was inconsistent with Art.
11 in that the former's "not likely" standard "falls
decisively short of, establishing that dumping is 'likely
to recur if the order is revoked'" as mandated under
Art. 11. The Panel rejected Korea's assertion
that the U.S. violated Art. 11.2 by failing to initiate,
"solely on the basis of three years and six months'
no dumping", an ex officio review of whether
dumping would be likely to continue or recur if the
duty was removed or modified. In addition, the Panel
held that the final results of the third annual anti-dumping
review, which was based on section 353.25(a)(2)(ii)
was consequently inconsistent with US obligations under
Art. 11 of the AD Agreement and recommended that the
Dispute Settlement Body request the US bring both the
regulation and the third annual review into conformity
with Art. 11. FM
Download in Adobe pdf format http://www.wto.org/wto/dispute/99r.pdf
U.S. Supreme Court: El Al Israel
Airlines, Ltd. v. Tseng, No. 97-475 (Jan. 12, 1999)
Before boarding an El Al flight from New York to Tel
Aviv, Tseng was subjected to an intrusive security search.
Tseng brought suit against El Al alleging mental injuries,
but no physical injuries. The parties agreed that
the incident was not an "accident" within the meaning
of Art. 17 of the Warsaw Convention, which governs air
carrier liability for all international transportation.
The issue before the Court was whether the Warsaw Convention
precludes actions for damages under other sources of
law in cases in which the Convention does not allow
recovery. Article 24 provides that "cases covered
by article 17...[may] only be brought subject to the
conditions and limits set out in th[e] [C]onvention."
The Second Circuit interpreted Art. 24 as permitting
any passenger whose personal injury suit did not satisfy
the liability conditions of Art. 17 to pursue the claim
under local law.
The Supreme Court held that Art. 24 precludes recovery
under local law for personal injuries outside the scope
of Art. 17. The Court reasoned that the "cardinal
purpose" of the Warsaw Convention was to promote uniform
rules governing claims arising iwithin nternational
air transportation and that permitting personal injury
suits under local law would disrupt the balance between
the interests of passengers seeking recovery for personal
injury and those of air carriers seeking to limit liability.
The Court noted that the drafting history of the Art.
17 was consistent with this interpretation and further
noted that the Montreal Protocol No. 4, ratified by
the Senate on Sept. 28, 1998, amends Art. 24 to clearly
preempt actions under local law. The Court agreed
with El Al that revised Art. 24 "merely clarifies, [but]
does not alter, the Convention's rule of exclusivity."
In dissent, Justice Stevens noted ambiguity in the
drafting history, and stated: "I firmly believe
that a treaty, like an Act of Congress, should not be
construed to preempt state law unless its intention
to do so is clear." AE http://laws.findlaw.com/US/000/97-475.html
On February 10, 1999, Latvia
became the 134th member of the World Trade
Organization. The WTO reports that thirty
other governments are currently negotiating their membership
in the organization. http://www.wto.org/wto/about/organsn6.htm
The International Criminal Tribunal
for Rwanda on February 5th sentenced Omar Serushago,
the former Interahamwe leader in Gisenyi, to fifteen
years imprisonment for genocide and crimes against
humanity. Serushago pleaded guilty to all
the crimes. International Law In Brief will analyse
the full text of the decision when it is released. http://www.ictr.org/english/pressrel/160.htm
The International Court of Justice
will hold hearings from February 15 - March 5 on the
merits in the Kasikili/Sedudu Island (Botswana/Namibia)
case concerning the boundary around Kasikili/Sedudu
Island and the legal status of the Island. http://www.icj-cij.org/icjwww/ipresscom/iPress1999/ipresscom9902_19990210.htm
International Legal Materials
(ILM) is seeking candidates for
nomination to the ILM Editorial Advisory Committee.
Committee members work closely with the Interim Editor,
meeting bimonthly in Washington, D.C. to provide guidance
on the selection of documents for publication in ILM.
Candidates are nominated by the Editorial Advisory Committee,
and are elected to a three-year term by the ASIL Executive
Council at its annual spring session. Potential
candidates must be willing to attend meetings without
expense to ASIL. Interested persons should contact
ASIL Executive Director Charlotte Ku by fax at (202)
797-7133.
The 1999 Philip C. Jessup International
Moot Court Competition, entitled "The Case Concerning
Cultural Identity and Intellectual Property Rights,"
will be held on March 22-27, 1999 in Washington,
D.C. Persons interested in becoming judges
and/or bailiffs for the competition should contact Elizabeth
Atkins, ILSA Executive Director by e.mail at ilsa@access.digix.net
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Elizabeth J. Fabrizio, David A.
Levy Interns: Alice Epler, Fredrick Mudenda, Teresa
Taylor
To comment on this publication, send an e.mail message
to David A. Levy, Interim Editor at david.levy@his.com
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