International Law in Brief

International Law In Brief

June 3-16, 2000
Developments in international law, prepared by the
Attorney-Editors of International Legal Materials
The American Society of International Law

Treaties, Agreements and Related Documents

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

Archived in PDF format at http://www.wipo.org/eng/document/pt_dc/index.htm

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Judicial and Other Decisions

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

Archived at http://www.echr.coe.int/eng/Judgments.htm

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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

http://www.ictr.org/ENGLISH/decisions/Barayagwiza/dcs20000331.htm

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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

http://arbiter.wipo.int/domains/decisions/html/d99-0001.html

Editor's Note: The ICANN Policy was abstracted in the April 1-14, 2000 edition of the ILIB.

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Legislation and Regulation

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

http://arbiter.wipo.int/domains/rules/supplemental.html

Editor's Note: The ICANN Policy was abstracted in the April 1-14, 2000 edition of the ILIB.

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Reports and Other Documents

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

http://www.un.org/icty/pressreal/nato061300.htm

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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