International Law in Brief

International Law In Brief

February 15 - 20, 1999
Developments in international law, prepared by the
Attorney-Editors of
International Legal Materials
The American Society of International Law

Legislation
Judicial Decisions
Reports and Other Documents
News and Notes

Legislation

Singapore: Electronic Transactions Act 1998

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

Singapore: Electronic Transactions (Certification Authority) Regulations 1999

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

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Judicial Decisions

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

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Reports and Other Documents

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

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News and Notes

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 Canadian Corruption of Foreign Public Officials Act entered into force February 14, 1999. Full text of the Act: http://www.parl.gc.ca/36/1/parlbus/chambus/house/bills/government/S-21/S-21_4/S-21_cover-E.html

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

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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