November 4-10, 2000 Developments in international law, prepared by the Attorney-Editors ofInternational Legal Materials The American Society of International Law
NAFTA Arbitral Tribunal: Pope
& Talbot Inc. v. Canada (Interim Award) (June
26, 2000)
Pope & Talbot Inc., a U.S. corporation ("Investor"),
wholly owned a Canadian subsidiary engaged in manufacturing
and selling softwood lumber. Paras. 1-2, 4. The greater
part of the subsidiary's sales were exported to the
U.S. Para. 5.
In 1996 Canada and the U.S. entered into a bilateral
Softwood Lumber Agreement ("SLA") under which Canada
established an export permit system to limit the free
export of softwood lumber from certain Canadian provinces
into the U.S. Paras. 6, 30. Canada's regime provided
for no-to-low permit fees for the initial 15.35 billion
board feet of overall exports, and a higher rate for
all further exports. Para. 30. Exporters were annually
allocated portions of the no-to-low fee export levels
on the basis of their recent shipment levels. Paras.
30, 38.
The Investor thereafter brought proceedings against
Canada before an ICSID arbitral tribunal ("Tribunal"),
(Paras. 7-8, 12), contending inter alia that
Canada's permit regime violated the NAFTA's Article
1106 prohibition on performance requirements by requiring
the subsidiary to: 1) export a certain amount of softwood
lumber each year to maintain its allocated share; and
2) restrict its U.S. sales because of the relation of
such sales to the volume at which no fee would be charged.
Paras. 45-47.
The Tribunal held that the language of the NAFTA's
performance requirement provisions was not expressly
limited to the "imposition or enforcement of a higher
level or percentage of exports," but could "admit equally"
imposition or enforcement at "any given" export
level or percentage. Para. 74 [emphases in original].
The Tribunal noted, however, that while Canada's regime
"undoubtedly" deterred increased exports to the U.S.,
such deterrence did not constitute a prohibited "requirement"
given inter alia the regime's allowance for unlimited
exports at a higher fee rate. Paras. 75-76.
The Tribunal found the subsidiary's access to the U.S.
market to be a "property interest" subject to the NAFTA's
Article 1110 expropriation protections. Paras. 11, 96,
98, 101. The Tribunal concluded, however, that the regime
did not qualify as an expropriation for failure inter
alia to meet the test of being an interference "sufficiently
restrictive" to support a conclusion that the property
had been "taken" from its owner. Paras. 96, 102, 105.
PH
U.S. Second Circuit Court of Appeals:
In re Holocaust Victim Assets Litigation, Polish
American Defense Committee v. Swiss Bankers Association,
No. 00-7045 (September 21, 2000)
Four consolidated class action lawsuits against Swiss
banks on behalf of Nazi victims and their heirs ended
in a settlement. Prior to the district court's certification
of the settlement class, the Polish American Defense
Committee and six named individuals ("Appellants") sought
to intervene in order to include those who had been
persecuted on the basis of Polish nationality. The district
court rejected the Appellants' motion, and the Appellants
thereafter appealed to the U.S. Second Circuit Court
of Appeals ("Second Circuit"). Sect. I.
The Second Circuit first dismissed the appeal of the
Polish American Defense Committee, noting that it was
"impossible to know" whether the group represented the
Polish community. Sect. II. The Second Circuit rejected
the remaining Appellants' argument that the language
of the original complaint vested putative class members
with a right to be part of the ultimately certified
class. Sect. II.3. The Second Circuit held that a court
is not required to take into account the original complaint's
language in considering a motion to intervene. Id.
The Second Circuit noted that such an issue was a question
of first impression for the Second Circuit. Id.
The Second Circuit concluded that because the settlement
reflected a calculation of Jewish assets transferred
to Swiss banks, the parties had "justifiably limited"
the class to those whose losses were reflected in the
settlement. Id. The Second Circuit also found
no basis to question the motives of the class representatives
and their counsel in including Romani (i.e. gypsies),
Jehovah's Witnesses, homosexuals and the disabled. Sect.
III.3, Footnote 14. The Second Circuit noted
that: 1) such groups were far fewer in number than ethnic
Poles; and 2) their ability to pursue their interest
in the matter would otherwise be impaired. The Second
Circuit noted that neither its holding nor the district
court's ruling reflected any view in regard to Polish
suffering under the Nazis, or denied the suffering of
non-Jewish Poles. Sect. IV.
The Second Circuit found no abuse of discretion by
the district court in: 1) denying the Appellants' motion
on the ground inter alia that intervention at
such a "late stage" would prejudice the existing parties
by destroying their settlement and requiring new negotiations
(Sect. III.1); or 2) holding the Appellants would not
be "unduly prejudiced" by the denial of their motion.
Sect. III.2. The Second Circuit determined that the
"many significant obstacles" facing the Appellants in
separate litigation did not as a matter of law require
intervention. Id. PH
WTO Panel Report: European Communities
-- Measures Affecting Asbestos and Asbestos-Containing
Products, WT/DS135/R (September 18, 2000)
France's Decree No. 96-1133 ("Decree") prohibited the
"manufacture, processing, sale, import, placing on the
domestic market and transfer under any title" of all
asbestos fiber varieties. Paras. 2.3-4. The Decree,
however, excepted certain products containing chrysotile,
a type of asbestos, provided inter alia that
importers submitted a declaration attesting that their
chrysotile met the exception's requirement inter
alia that no better substitute was available. Paras.
2.1-2, 2.5-6.
Canada challenged the European Communities ("EC") over
the Decree before a WTO Panel ("Panel"), arguing that
the Decree was incompatible with the Agreement on Technical
Barriers to Trade ("TBT Agreement") and the GATT 1994
("GATT") insofar as it inter alia: 1) created
an unnecessary obstacle to international trade; 2) was
neither based on nor in compliance with effective and
appropriate international standards; 3) erected a non-tariff
barrier prohibiting or restricting the import of chrysotile
products; and 4) favored national chrysotile producers.
Paras. 1.1-1.2, 3.1, 8.86.
The Panel held that while the Decree's exceptions were
"technical regulations" to which the TBT Agreement applied,
(Para. 8.70), the TBT Agreement did not apply to the
Decree because the Decree's general ban did not constitute
a "technical regulation." Paras. 8.63, 8.72. The Panel
further concluded that the applicability of the TBT
Agreement to the exceptions "should not affect" either:
1) the general ban's legal characterization; or 2) the
TBT Agreement's applicability to the general ban. Para.
8.71-72.
The Panel noted, however, that the GATT's Article III
national treatment provisions extend to regulations
or requirements applicable to both : 1) an imported
product and; 2) the like domestic product. Para. 8.86.
The Panel found that while no substitute fiber alone
combined all of chrysolite's properties and qualities,
chrysolite and fibro-cement products permitted as substitutes
under the Decree were "like products" within the meaning
of GATT Article III. Paras. 8.124, 8.150-51. The Panel
held that inasmuch as the Decree did not place an "identical
ban" on such substitute products produced domestically,
it applied a less favorable treatment to imported chrysotile
products in violation of GATT Article III. Paras. 8.99,
8.155-58.
The Panel concluded, however, that because the EC had
made a prima facie case for the existence of
a health risk connected to chrysolite use, the Decree
fell within the range of policies "designed to protect
human life or health" provided for by GATT Article XX(b).
Para. 8.194. The Panel concluded that controlled chrysolite
use was neither effective nor a reasonably available
alternative to the banning of chrysolite and recourse
to substitute products. Paras. 8.212, 8.217, 8.222-23.
The Panel noted that the use of chrysotile had been
banned by WTO Members "well before" France had banned
it, and that Canada by the end of the Uruguay Round
"could reasonably have anticipated" that France might,
"in the short term," adopt more restrictive measures
on asbestos use. Paras. 8.297, 8.300. The Panel therefore
concluded that Canada had not established that the Decree's
application had nullified or impaired a benefit under
the GATT. Para. 8.304. BM
U.N. Security Council: Resolution
1325 (on women and peace and security), S/RES/1325 (2000)
(October 31, 2000)
The Security Council: 1) reaffirmed the important role
of women in preventing and resolving conflicts, as well
as in peace-building; 2) stressed the importance of
women's equal participation and full involvement in
all efforts to maintain and promote peace and security;
and 3) stressed the need to increase the role of women
in decision making for conflict prevention and resolution.
Preamble. The Security Council also recognized
the urgent need to mainstream a gender perspective into
peacekeeping operations. Id.
The Security Council urged Member States to ensure
women's increased representation at "all decision-making
levels in national, regional and international institutions
and mechanisms" for preventing, managing and resolving
conflict. Para. 1. The Security Council also urged the
Secretary-General to appoint more women as special representatives
and envoys, and to expand the role and contribution
of women in U.N. field-based operations, particularly
among military observers, civilian police, and human
rights and humanitarian personnel. Paras. 3-4.
The Security Council requested the Secretary-General
to provide Member States with training guidelines and
materials on the protection, rights and particular needs
of women. Para. 6. The Security Council also urged Member
States to increase their voluntary financial, technical
and logistical support for gender-sensitive training
efforts, such as those undertaken by inter alia
the U.N. Fund for Women, U.N. Children's Fund, and the
Office of the U.N. High Commissioner for Refugees. Para.
7.
The Security Council called for the adoption of a "gender
perspective" in negotiating and implementing peace agreements
so as to include inter alia: 1) the special needs
of women and girls during repatriation and resettlement;
2) measures supporting local women's peace initiatives
and involving women in all peace agreement implementation
mechanisms; and 3) measures ensuring that the human
rights of women and girls, particularly those related
to the constitution, electoral system, police and judiciary,
are protected and respected. Para. 8. BM
To international law professors:
Having your students subscribe to International
Law In Brief gives them a highly useful (and
free) class supplement that can be used as both a talking
point in class and a guide to international law online.
Subscription information is located at /ilibsub.htm
International Law In Brief - Copyright 2000 - The American
Society of International Law Editors: Peter C. Hansen, Esq., Branislav
A. Maric
To learn more about the sources covered in this publication,
visit /ilmlinks.htm
To comment on this publication, send an e.mail message
to Peter C. Hansen, Editor at phansen@asil.org
For membership information, visit us on the Internet http://www.asil.org
