February 15 - 20, 1999 Developments in international law, prepared by the Attorney-Editors of International Legal Materials The American Society of International Law
The Electronic Transactions Act is intended to facilitate
and promote public confidence in electronic communications
and commerce. sect. 3. Part I sets forth definitions
and general principles, including freedom of contract,
and the inapplicability of the Act to wills, negotiable
instruments, title documents, conveyances of immovable
property, and certain forms of trusts.
Part II provides that rules of law requiring a writing
may be satisfied by electronic signatures and electronic
records that contain information in a form "accessible
so as to be usable for subsequent reference."
Part III provides that, in general, network service
providers shall not be subject to civil or criminal
liability merely by providing access for third-party
materials.
Part IV, Electronic Contracts, states the rule that
"[f]or the avoidance of doubt", offers and acceptances
may be expressed in the form of electronic records.
sect. 11. Section 13 sets forth basic rules regarding
attribution of the message to the originator while section
14 sets up default rules for the acknowledgment of receipt
and section 15 establishes rules for time and place
of despatch and receipt.
Part V defines "secure electronic record[s]" and "secure
electronic signature[s]" and provides evidentiary presumptions.
Part VI expands the definitions to include "secure digital
signature[s]" and corresponding evidentiary presumptions.
Part VII notes the foreseeability of reliance on certificates
containing the public keys to digital signatures
and sets forth rules regarding certificates subject
to criminal penalties. Part VIII sets forth the
duties of certification authorities in issuing, suspending,
and revoking certificates while Part IX sets forth the
duties of subscribers in relation to the creation, use,
control, suspension and revocation of the certificate.
Part X provides for the establishment of a Controller
of Certification Authorities and sets forth guidance
for their regulatory activities, while Part XI provides
that government bodies may accept electronic records.
Finally, Part XII provides investigatory power for the
Controller of Certification Authorities and clarifies
criminal procedures for offenses under the Act.
DL http://www.cca.gov.sg/eta/index.html
The Electronic Transactions (Certification Authority)
Regulations have been issued for the licensing of Certification
Authorities (CAs) in Singapore pursuant to the Electronic
Transactions Act 1998. Part I of the Regulations
sets forth definitions of "license", "subscriber identity
verification method" and "trusted person". Part
II deals with the licensing of CAs. Licenses are
valid for one year or longer as allowed by the Controller
of Certification Authorities.
Part III establishes criteria for the evaluation of
license applications, including financial stability
of the applicant, operating policies and procedures,
and previous business experience. Applicants must
have not less than $2 million in paid-up capital and
in addition, a combined paid-up capital and proof of
available financing of not less than $5 million.
The applicant must also obtain a performance bond or
banker's guarantee in favor of the Controller for an
amount of not less than $1 million.
Part IV sets forth circumstances for the revocation
or suspension of a license, including the winding up
of business as a CA, the failure to carry on the business
for which it was licensed, financial difficulties, and
upon request of the CA, inter alia. Part
V deals with standards of conducting business as a CA,
and obliges them to maintain trustworthy record-keeping
and trustworthy transaction logs, and to materially
satisfy the security guidelines set out by the Controller,
as well as setting out confidentiality and notification
requirements. Requirements for the CA practice
statement are listed, as are technical considerations
regarding digital signatures and information security.
Part VI is concerned with requirements for repositories
and mandates the availability of a general-purpose repository.
Part VII deals with the application of the Regulations
to government and statutory corporations, while Part
VIII addresses administrative matters such as waivers,
periodic reporting requirements, and procedures for
discontinuing operations as a CA. The Regulations
entered into force on February 10, 1999. FM http://www.cca.gov.sg/regulations/index.html
WTO Appellate Body Report: Korea
- Taxes on Alcoholic Beverages, AB-1998-7, WT/DS75/AB/R,
WT/DS84/AB/R (Jan. 18, 1999)
Korea appealed the decision in Korea - Taxes on
Alcoholic Beverages, WT/DS75/R, WT/DS84/R (Sept.
17, 1998), claiming that the Panel erred in its interpretation
and application of Article III of GATT 1994 and the
rules allocating the burden of proof, as well
as procedural errors under Articles 11 and 12 of the
Dispute Settlement Understanding in failing to make
an objective determination and in failing to state the
basic rationale behind its findings and recommendations.
para. 102.
The Panel was created by the Dispute Settlement Body
(DSB) at the request of the United States and the European
Communities to determine whether two Korean tax laws,
the Korean Liquor Tax Law of 1949 and the Korean Education
Tax Law of 1982, were consistent with Article III:2
of GATT 1994. paras. 1-2. The U.S. and E.C. claimed
that these tax laws gave "preferential treatment to
soju, a traditional Korean alcoholic beverage,
as compared with certain imported 'western-style' alcoholic
beverages." para. 2. The Panel concluded that
the imported "western-style" alcoholic beverages, such
as whiskey and rum, are "directly competitive or substitutable
products" of soju and that the two tax laws are
applied so as to afford protection to domestic production,
resulting in more than a de minimus tax differential.
Id.
The Appellate Body affirmed the Panel's conclusions,
citing Japan - Alcoholic Beverages for the principle
that internal taxes should not be applied as to afford
protection to domestic production, and that given that
an objective of Article III is to avoid protectionism,
the term "directly competitive or substitutable" should
be read broadly to include not only what consumers currently
see as an alternative product, but also to include considerations
of latent demand for potentially alternative products.
paras. 119-124. The Appellate Body endorsed the
consideration of consumer perceptions of substitutability
in the Japanese market, noting that evidence of consumer
behavior in similar markets may be relevant when the
behavior of consumers in the market at issue may have
been influenced by regulatory trade barriers. paras.
137-138. The Appellate Body held that the Panel
correctly made its determination based on objective
factors that the tax was applied "so as to afford protection"
to domestic products. paras. 149-154. Finally
the Appellate Body noted that the Panel correctly
allocated the burden of proof, held that Korea failed
to demonstrate that the Panel did not make an objective
assessment of the evidence, and held that the Panel
adequately set forth the rationale for its findings
and recommendations. paras. 155-157; 159-165; 166-169.
TT
Download in Adobe pdf format http://www.wto.org/wto/dispute/7085d.pdf
Australia High Court: Joosse v.
Australian Securities and Investment Commission [1998]
HCA 77 (Dec. 21, 1998)
The Australian High Court dismissed five separate applications
which claimed that there had been an "unremedied, perhaps
even irremediable, 'break in sovereignty'" causing some
legislation passed by the Parliament of the Commonwealth,
or of the State Parliaments, to be invalid. First
the parties asserted that while the Constitution was
an act of the U.K. Parliament, the High Court has held
that sovereignty rests with the people of Australia,
consequently certain provisions of the Constitution
and legislation are invalid. Second, the references
in the Constitution to the Queen were intended as references
to the Queen as sovereign of the U.K., but since the
Royal Style and Titles Act 1973 (Cth), the Queen has
been Queen of Australia, and as there has been no alteration
of the Constitution, Royal Assent has not been validly
given to certain acts of the Commonwealth Parliament.
Finally, the parties assert that Australia gained recognition
of its "independent and sovereign identity" when it
signed the Treaty of Versailles as well as upon becoming
a founding member of the International Labor Organization,
but that treaties made by Australia were not registered
as international agreements as mandated by the Treaty
of Versailles. paras. 11-12.
On the question of sovereignty, the Court noted the
evolving relationship of the United Kingdom and Australia,
and that the statement that "Australia is now a 'sovereign
and independent nation'...[is a statement about] politics
and...'the realities of the relationship this century
between the United Kingdom and Australia.'"
The Court framed the issue in the cases as "what law
is to be applied in the courts of Australia." The Court
resolved this question by citing to clause 5 of the
Constitution which provides that the Constitution, "and
all laws made by the Parliament of the Commonwealth
under the Constitution, shall be binding on the courts,
judges and people of every State and of every part of
the Commonwealth, notwithstanding anything in the laws
of any State." The Court held that it is the Constitution
and laws made by the Parliament under the Constitution
that should be the focus of attention of the courts,
rather than how other nations have treated Australia
or whether or not the Westminister Parliament could
or could not pass laws having effect in Australia.
para. 19.
The Court briefly rejected the argument based on Royal
Assent, noting that section 58 of the Constitution permits
the Governor-General to declare assent to legislation
in the name of the Queen. para. 20. The Court
further rejected the arguments based on international
law noting that international treaties to which Australia
is a party "do not form part of domestic law unless
incorporated by statute", therefore various human rights
instruments cited by the parties and the U.N. charter
do not have force of law in Australia. The Court noted
the different conceptions of sovereignty in international
law and sovereignty as described by H.L.A. Hart as "the
supreme legislative authority recognised in this system"
and stated that the latter is the critical question
in the courts, a question resolved by clause 5 of the
Constitution. FM/DL http://www.austlii.edu.au/au/cases/cth/high_ct/1998/77.html
South Africa High Court (Cape of
Good Hope Provincial Division), National Coalition for
Gay and Lesbian Equality v. Minister of Home Affairs,
No. 3988/98 (Feb. 12, 1999)
Applicants challenged the validity of section 25(5)
of the Aliens Control Act of 1991, which permits regional
committees to issue an immigration permit to a spouse
of a permanent and lawful resident of South Africa,
on the grounds that the term spouse unconstitutionally
excludes same-sex couples. As an initial matter,
the High Court noted that section 25(5) only applies
to foreign partners of South Africans married under
civil or customary law, and on its face does not extend
to "other forms of life partnership" including same
sex partnerships, common law marriages, and Muslim and
Hindu marriages. The definition of "spouse" was
determined to be linked by the Court to the recognized
concept of lawfully valid marriage, to the exclusion
of "all forms of conjugal life partnerships."
The Court noted that section 9(3) of the Constitution
prohibits unfair discrimination on the grounds of sexual
orientation, holding that section 25(5) of the Alien
Control Act discriminates against "gay and lesbian life
partners", and that the government failed to justify
the discrimination.
"Section 25(5) prefers certain forms of life partnership
over others. In doing so, it grants legal recognition
to certain styles of life and confirms the legal rejection
of others. In the context of the constitutional
commitment to a plurality of identity and that everyone
should be treated with equal concern and respect it
must follow that section 25(5) cannot be justified on
the grounds of fairness. It discriminates in favour
of certain forms of life partnership to the exclusion
of all others and thus operates to perpetuate patterns
of discriminatory stereotyping and prejudice.
In short, the manner in which section 25(5) differentiates
on the grounds of sexual orientation is both unfair
and unjustifiable."
Download in Adobe pdf format: http://www.law.wits.ac.za/docs/gayaliens.pdf
ICC Recommended Code of Practice
for Competition Authorities on Searches and Subpoenas
of Computer Records
The International Chamber of Commerce (ICC) has released
a code of practice to guide governments in conducting
searches of computers pursuant to antitrust (competition)
investigations. The ICC recommends that competition
authorities first assess the necessity of actually seizing
computer records if these same documents are also available
in paper form. If seizure of computer records is required,
then competition authorities should determine whether
seizure of a portion of all computer files will suffice
as opposed to the seizure of all computer files.
"As a general rule, the authority should avoid asking
a firm to produce multiple copies of the same document
or to take steps that would require [the firm] to stop
using its computers to comply." The competition
authorities should inform the judge issuing the warrant
or subpoena of the range of files to be searched, how
the firm will need to comply, and the likelihood that
the firm's computers may contain links to locations
outside that contained in the warrant or subpoena.
The Code of Practice contains nine procedural recommendations
for executing computer search warrants. Competition
authorities should inquire whether the firm's computers
are linked to third party locations or contain information
owned by third parties. Either additional warrants
should be obtained or voluntary permission granted prior
to seizing data from third party links or seizing data
owned by third parties that is contained in the firm's
computer system. Similarly, authorities should
not seize data stored outside their jurisdiction.
The authorities should work with the business to reduce
the possibility of damage, for which the authorities
are to be held accountable, and to avoid disclosing
privileged materials or removing hardware that would
interfere with the conduct of business. Where
seizures of computer records may be disruptive to the
carrying on of business, then authorities are to copy
those records and ensure their accuracy. Disagreements
regarding the execution of computer search warrants
should be resolved by judicial decision rather than
unilateral action. Competition authorities are
to comply at all times with the safeguards for protecting
business information in the ICC Statement on International
Cooperation between Antitrust Authorities. TT http://www.iccwbo.org/Commissions/Competition/Code_of_Practice_for_Computer_Records.htm
Eritrea has filed an application
to the International Court of Justice in a dispute
with Ethiopia alleging violations of the diplomatic
immunities of the premises and staff of Eritrea's diplomatic
mission in Addis Ababa. In a press release, the
ICJ noted that the Court cannot take any action on the
application "unless and until" Ethiopia consents to
the Court's jurisdiction in the matter. http://www.icj-cij.org/icjwww/ipresscom/iPress1999/ipresscom9904_19990216.htm
The International Criminal Tribunal
for the former Yugoslavia (ICTY) reports that Sweden
will sign an Agreement on Tuesday, February 23rd
with the United Nations on the Enforcement of Sentences
imposed by the ICTY. Other UN Member States to
such agreements include Italy, Finland, and Norway.
http://www.un.org/icty/pressreal/p382-e.htm
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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