June 3-16, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
WIPO: Patent Law Treaty, Regulations
under the Patent Law Treaty, and Agreed Statements by
the Diplomatic Conference, PT/DC/47 (June 1, 2000)
The Patent Law Treaty ("Treaty") adopted by the Diplomatic
Conference of the World Intellectual Property Organization
("WIPO") regulates: 1) "national and regional applications
for patents for invention and for patents of addition,
which are filed with or for the Office of a Contracting
Party,"(Art. 3.1); and 2) such patents as "have been
granted with effect for a Contracting Party." Art. 3.2.
Along with the Treaty, the Contracting Parties adopted
additional Regulations that, inter alia, provide
for the establishment of Model International Forms for
functions such as, e.g., power of attorney. Art.
14; Regulations Rule 20.1. The Contracting Parties also
adopted Agreed Statements by the Diplomatic Conference
explaining the intent of the Contracting Parties in
regard to Treaty provisions and policy issues surrounding
the Treaty.
The Treaty regulates the procedure for obtaining a
patent, including, inter alia: 1) the language,
form and filing date of applications; and 2) provisions
for translations, fees and evidence regarding forms,
priority or translations. Arts. 5-6. The Treaty states,
however, that the Contracting Parties are free to set
requirements more favorable to applicants and owners
except in the case of the filing date. Art. 2.1. The
Treaty also states that the Treaty is not intended to
limit the freedom of the Contracting Parties in prescribing
substantive patent law. Art. 2.2.
Contracting Parties shall not be obliged to accept
non-paper communications or exclude paper communications.
Art. 8.1. After June 2, 2005, however, any Contracting
Party may exclude the filing of paper communications.
Regulations Rule 8.1.
The Treaty states that a patent may not be revoked
or invalidated, either totally or in part: 1) because
of non-fraudulent non-compliance with the Treaty's formal
requirements, (Art. 10.1); or 2) "without the owner
being given the opportunity to make observations on
the intended revocation or invalidation, and to make
amendments and corrections where permitted under the
applicable law, within a reasonable time limit." Art.
10.2. The provisions do not, however, require the establishment
of distinct judicial procedures for the enforcement
of patent rights. Art. 10.3.
The Treaty establishes an Assembly to maintain and
develop the Treaty. Art. 17. Each Contracting Party
shall be represented in the Assembly by one delegate.
Id. The Treaty also establishes an International
Bureau to perform administrative tasks concerning the
Treaty, such as preparing meetings. Art. 18.
The Treaty obliges the Contracting Parties to comply
with the Paris Convention's patent provisions, and states
that the Treaty does not derogate from obligations between
Contracting Parties under the Paris Convention. Art.
15. The Treaty also confirms that the Patent Cooperation
Treaty must be followed for the international application
for patents unless otherwise provided for by the Treaty.
Art. 6.1. The Treaty states that changes to the Patent
Cooperation Treaty made after June 2, 2000 and consistent
with the Treaty shall apply for the purposes of the
Treaty and Regulations if the Assembly so decides by
a vote of three quarters in favor.
The Treaty opened for signature on June 2, 2000, and
will enter into force three months after ten instruments
of ratification or accession have been deposited with
the WIPO Director General. Art. 21. MF
ECHR: Case of Condron v. The
United Kingdom, Application No. 35718/97 (May 2,
2000)
Mr. and Mrs. Condron ("Applicants") were arrested in
London on charges of passing heroin. Para. 12. During
subsequent police interviews the Applicants responded
with the words "no comment." Para. 17. At trial, the
judge directed the jury that "[t]he law is . . . that
you may draw such inferences as appear proper from a
defendant's failure to mention the points . . . in their
respective interviews." Para. 22. The Applicants were
subsequently convicted, (Para. 23), and their appeal
on the grounds of, inter alia, the direction
was dismissed by the Court of Appeal, which held that
the direction did not render the convictions"unsafe."
Paras. 24, 28-29.
The Applicants thereafter appealed to the European
Court of Human Rights ("Court"), alleging that the direction
violated their right to a fair trial under Article 6,
Sect. 1 (former Article 25) of the European Convention
for the Protection of Human Rights and Fundamental Freedoms
("Convention"). Paras. 1, 4, 42. The Applicants also
asserted that their silence during the police interviews
was due to the advice of their solicitor, who had "grave
doubts about their fitness to cope with police questioning."
Para 61.
The Court noted that Section 34 of the U.K.'s Criminal
Justice and Public Order Act of 1994 ("1994 Act"), which
allows the court or jury to draw such inferences "as
appear proper" from an accused's failure to mention
any fact on which the accused later relies in defense,
is still being developed through ongoing U.K. court
interpretation. Paras. 30, 55. The Court also recalled
its view in a prior case that "whether the drawing of
adverse inferences from an accused's silence infringes
Article 6 is a matter to be determined in the light
of all the circumstances of the case." Para. 56.
The Court held, however, that the direction "left the
jury at liberty to draw an adverse inference notwithstanding
that it may have been satisfied as to the plausibility
of the explanation" provided by the Applicants. Para.
61. The Court held that as a matter of fairness the
jury should instead have been directed not to draw an
adverse inference if it was satisfied that the Applicants'
silence at the police interviews "could not sensibly
be attributed to their having no answer or none that
would stand up to cross-examination." Id.
The Court noted that the Court of Appeal had been concerned
with the safety of the Applicants' conviction, rather
than the question of a fair trial. Para. 65. The Court
held that the Article 6 right to a fair trial "cannot
be assimilated to a finding that [the] conviction was
safe in the absence of any enquiry into the issue of
fairness." Id. The Court held that Article 6,
Section 1 had been violated, (Para. 68), and awarded
the Applicants 15,000 pounds sterling. Para. 81. AC
ICTR (Appeals Chamber): In the
Matter of Jean-Bosco Barayagwiza v. The Prosecutor,
ICTR-97-19-AR72 (March 31, 2000)
Jean-Bosco Barayagwiza ("Appellant") was arrested by
Cameroonian authorities on April 15, 1996. Sect. V.A.3.
On February 21, 1997 Cameroon rejected an extradition
request from Rwanda, and the Appellant was detained
in Cameroon until being transferred to the International
Criminal Tribunal of Rwanda ("ICTR") detention unit
on November 19, 1997. Id. After ICTR Trial Chamber
II rejected the Appellant's preliminary motion challenging
the legality of the arrest and detention, the Appeals
Chamber ("Chamber") granted an appeal on November 3,
1999, dismissing the indictment with prejudice to the
Prosecutor, and directing the Appellant's immediate
release and transfer to the Cameroonian authorities.
Sect. I. On November 25, 1999, the Chamber issued an
order staying execution of its decision pending the
filing of the Prosecutor's Motion for Review or Reconsideration
("Motion"), which the Prosecutor filed on December 1,
1999. Sects. I, II.
The Chamber noted that the Tribunal Statute and Rules
of Procedure and Evidence require for review of a final
Chamber decision that: "[t]here must be a new fact;
this new fact must not have been known by the moving
party at the time of the original proceedings; the lack
of discovery of the new fact must not have been through
the lack of due diligence on the part of the moving
party; and it must be shown that the new fact could
have been a decisive factor in reaching the original
decision." Sect. V.A.1.
The Chamber found that the Prosecutor's submission
of new evidence constituted "new facts" establishing
inter alia that: 1) the Appellant had been detained
in Cameroon without having been informed of the charges
for a period shorter than that identified in the Chamber's
previous decision; and 2) contrary to the original decision's
finding, the delay in the Appellant's transfer to the
ICTR detention unit was not due to the Prosecutor's
negligence. Sect. V.A.3. While acknowledging that the
Prosecutor could have known or discovered some of the
new facts at the time of the original decision, the
Chamber noted the Canadian Supreme Court's holding in
McMartin v. The Queen that the requirements of
due diligence and unavailability are to be applied less
strictly in criminal than in civil cases. Id.
The Chamber further held that the new facts "could have
been decisive in the Decision," and that the prior reparation
thereby appeared "disproportionate in relation to the
events." Id.
The Chamber declined to reject the new facts, noting
that to do so "in the light of their impact on the Decision,
would indeed be to close [one's] eyes to reality." Id.
The Chamber denied, however, the Motion's petition for
reconsideration, finding that there had been a proper
hearing on the issues for the Chamber's previous decision.
Sect. V.B. The Chamber also modified its original decision
by denying the Appellant's application for release,
and by setting the time of remedy to coincide with the
judgment at first instance. Sect. V.B.II. The Chamber
held that the Appellant would receive financial compensation
if found not guilty, or alternatively would have a reduced
sentence to compensate for the human rights violations
suffered. Id. AC
WIPO Arbitration and Mediation
Center: World Wrestling Federation Entertainment,
Inc. v. Michael Bosman, D99-0001 (January 14, 2000)
On October 7, 1999 Michael Bosman, a U.S. citizen,
registered the Internet domain name "worldwrestlingfederation.com"
with an Australian company. Sects. 1-3. Three days later
Bosman contacted the World Wrestling Federation ("WWF"),
a U.S. company, and offered to sell the domain name
to the WWF for U.S. $1,000. Sects. 1, 4. The WWF thereafter
electronically submitted a complaint to the World Intellectual
Property Organization ("WIPO") Arbitration and Mediation
Center ("Center"). Sects. 1, 3.
After the Center unsuccessfully attempted to contact
Bosman, the Center appointed a panel and issued a Notification
of Respondent Default. Sect. 3. Thereafter, while the
Center and Panel learned that settlement negotiations
were in fact ongoing and close to completion, the Panel
issued a ruling pursuant to its deadlines under the
Rules of the Internet Corporation for Assigned Names
and Numbers ("ICANN"), the WIPO Supplemental Rules,
and those of the WIPO Center. Id. The Panel noted
that the decision did not rely on any purported settlement
agreement. Id.
The Panel found that Bosman was bound under the domain
name registration agreement by the ICANN Uniform Domain
Name Dispute Resolution Policy ("Policy"), (Id.),
and that under the Policy the WWF was required to prove
that: 1) the domain name was "identical or confusingly
similar" to a WWF service mark or trademark; 2) Bosman
had no "legitimate interest" in the domain name; and
3) the domain name was "registered and used" in bad
faith. Sect. 6.
The Panel concluded that the domain name was "identical
or confusingly similar" to a WWF service mark and trademark,
"WORLD WRESTLING FEDERATION," (Id.), and that
Bosman was neither a WWF licensee nor authorized to
use the marks. Sects. 4-5. The Panel further concluded
that the domain name could not be "identified with or
related to a legitimate interest" of Bosman's. Sect.
4.
The Panel concluded on the basis of Bosman's offer
to sell that the domain name had been registered in
bad faith. Sect. 6. The Panel noted, however, that since
Bosman had not established a website under the domain
name, it was questionable whether Bosman had in fact
"used" the domain name. Id. Upon review of the
legislative history of the Policy, the Panel determined
that the use requirement was intended to be met by an
offer to sell "for valuable consideration in excess
of" out-of-pocket expenses. The Panel therefore held
Bosman's "use" to be in bad faith under the Policy.
Id.
The Panel cited similar U.S. "use" cases in support
of its "bad faith" conclusion. Id. While acknowledging
such references to be unnecessary, the Panel noted that
Paragraph 15(a) of the ICANN Rules authorized the Panel
to consult "any rules and principles of law" that the
Panel deemed applicable. Id. The Panel stated
that it would look to the U.S. courts for guidance because:
1) both the WWF and Bosman were domiciled in the U.S.;
and 2) U.S. courts had recently experienced similar
disputes. Id.
The Panel noted with approval the WWF's attempt to
negotiate and its "policy not to litigate against its
fans." Id. The Panel subsequently required the
transfer of the domain name to the WWF. PH
WIPO: Supplemental Rules for Uniform
Domain Name Dispute Resolution Policy (December 1, 1999)
The World Intellectual Property Organization ("WIPO")
supplemental rules are to be read and used in connection
with the Rules for Uniform Domain Name Dispute Resolution
Policy approved by the Internet Corporation for Assigned
Names and Numbers ("ICANN"). Art. 1(a). Any term defined
in the ICANN rules shall also have the same meaning
in the supplemental rules. Art. 2. The WIPO Arbitration
and Mediation Center ("Center") may, however, amend
the supplemental rules in its sole discretion pursuant
to the ICANN Policy and Rules, (Art. 11), and the version
in effect at the date of the complaint shall apply to
the subsequent administrative proceeding. Art. 1(b).
The supplemental rules establish modalities and requirements
for any submission to the WIPO Center or administrative
panels. Art. 3-4. E-mail is permitted, and a specific
Center address is provided. Art. 3. For paper
submissions, four copies are required in addition to
the original. Art. 3(c).
Within five calendar days of receiving a complaint,
the Center shall review the complaint for compliance
with formal requirements, and shall provide five calendar
days to remedy any deficiencies before deeming the complaint
withdrawn. Art. 5(a)-(b). Thereafter, unless the intent
to re-submit is confirmed, the filing fee minus a processing
fee will be returned. Art. 5(c).
A Center staff member will serve as Case Administrator,
and will assist an administrative panel or panelist
in administrative matters. Art. 6. The Case Administrator
shall not, however, be authorized to decide matters
of a substantive nature that concern the dispute. Id.
Where the parties may submit names of panelist candidates,
they shall do so in order of preference. Art. 7(a).
The Center shall respect such an order of preference,
subject to candidate availability. Id. If the
respondent does not timely submit a response or pay
the required fee, an administrative panel will be appointed
regardless in the form designated by the complainant.
Art. 7(c). If a single panelist is designated, the Center
will appoint a panelist from the Center's published
list, but if three are chosen one may be of the complainant's
choosing. Id.
Except in respect of deliberate wrongdoing, neither
an administrative panel, the WIPO or the Center shall
be liable to a party, concerned registrar or ICANN for
any act or omission connected to an administrative proceeding.
Art. 12. PH
ICTY: Final Report to the Prosecutor
by the Committee Established to Review the NATO Bombing
Campaign Against the Federal Republic of Yugoslavia
(June 13, 2000)
During and after the 1999 NATO bombing campaign in
the Federal Republic of Yugoslavia ("FRY"), the Prosecutor
for the International Criminal Tribunal for the Former
Yugoslavia ("ICTY") received numerous requests to investigate
alleged serious violations of international humanitarian
law by senior NATO figures. Para. 1. On May 14, 1999
the Prosecutor established a committee to assess the
allegations and supporting material, and to advise the
Prosecutor as to whether a sufficient basis existed
to proceed with an investigation. Para. 3. The committee
noted, however, that the fundamental legality of the
use of force by NATO was not addressed in detail because
"if such activity was unlawful, it could constitute
a crime against peace and the ICTY has no jurisdiction
over this offence." Para. 4.
The committee applied the same criteria used in reviewing
the activities of other actors in FRY territory. Para.
5. The committee relied exclusively on documents, mostly
from the public domain, including inter alia
reports by Human Rights Watch, the FRY Ministry of Foreign
Affairs, Amnesty International, a Russian Parliamentary
Commission, and NATO public documents. Paras. 6-7. The
committee reviewed legal issues related to, inter
alia: 1) the environmental impact of the bombings;
2) the use of depleted uranium projectiles and cluster
munitions; and 3) target selections. Para. 11. The committee
focused primarily on incidents involving alleged or
reported civilian deaths, and in particular ten incidents
in which ten or more civilians were killed. Paras. 9,
13.
The committee found that the NATO bombing campaign
had caused an indeterminate amount of environmental
damage not reaching the threshold for action. Paras.
14, 17. The committee noted, however, that the customary
rule of proportionality does not provide concrete guidelines
as to what environmental damage can be considered excessive.
Para. 20. The committee also concluded that while a
requisite mens rea for a commander might be actual
or constructive knowledge of a military attack's grave
environmental effects, such a standard "would be difficult
to establish for the purposes of prosecution and []
may provide insufficient basis to prosecute military
commanders inflicting environmental harm in the (mistaken)
belief that such conduct was warranted by military necessity."
Para. 23.
The committee held that its analysis and conclusions
with regard to environmental damage applied also to
the use of depleted uranium projectiles. Para. 26. The
committee noted that there is no specific treaty ban
on the use of such projectiles, nor has such use formed
the basis of any Prosecutorial charge. Id. The
committee also concluded that there is "no general legal
consensus that cluster bombs are, in legal terms, equivalent
to antipersonnel landmines," and found no indication
that NATO had used such devices against civilians. Para.
27.
The committee further concluded that, while the selection
of certain attack objectives might be subject to legal
debate, (Para. 90), "NATO air commanders have a duty
to take practicable measures to distinguish military
objectives from civilians or civilian objectives . .
. [and that] it appears that with the use of modern
technology, the obligation to distinguish was effectively
carried out in the vast majority of cases during the
bombing campaign." Para. 56.
The committee held in all the cases reviewed that either:
1) the law was not sufficiently clear; or 2) investigations
were unlikely to result in "sufficient evidence to substantiate
charges against high level accused or against lower
accused for particularly heinous offences." Para. 90.
The committee accordingly concluded that no investigation
into the bombing campaign or its incidents be commenced.
Id. BM
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Peter C. Hansen, Esq., Branislav
A. Maric Interns: Amit Chugh, Marina Fedorova
To comment on this publication, send an e.mail message
to Peter C. Hansen, Editor at phansen@asil.org
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