International Law In Brief
Developments in international law, prepared by the
Editorial Staff of International Legal Materials
The American Society of International Law
May 25, 2006
©2006 American Society of International Law
(Educational copying is permitted with due acknowledgment)
| LEGISLATION · | |
| | Bolivia: Presidential Supreme Decree 28701 (Nationalization of Hydrocarbons Sector) (May 1, 2006) |
JUDICIAL AND RELATED DOCUMENTS
World Trade Organization (WTO): Appellate Body Report- United States - Laws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing") (April 18, 2006)
Click here for the report.
The Appellate Body held that the so-called "zeroing-methodology" employed by the United States was contrary to the Anti-Dumping Agreement (the AD Agreement) in the original anti-dumping investigation as well as in the administrative review.
The zeroing methodology is used by the United States to calculate the anti-dumping duties owed by each individual importer. The price of each individual export transaction is compared with a monthly average normal value. Transactions with a higher export price than normal value are considered to be "zero" and are therefore not included in the dumping calculation.
The European Communities argued that dumping margins have to be established for the product as a whole and that disregarding the transactions in which no dumping occurred inflated the anti-dumping duties. In that regard the Appellate Body upheld the Panel's conclusion that the zeroing methodology violates Article 2.4.2 of the AD Agreement. It referred to the cases of EC - Bed Linen and US - Softwood Lumber V, in which the Appellate Body indicated that, under the Anti-Dumping Agreement and Article VI of the GATT 1994, "dumping" and "margins of dumping" must be established for the product under investigation as a whole. In terms of the administrative review of the dumping calculation, the Appellate Body, reversing the findings of the Panel, held that the zeroing methodology also violated the AD Agreement, "because Article 9.3 clearly stipulates that the amount of the anti-dumping duty shall not exceed the margin of dumping as established under Article 2."
International Criminal Tribunal for the Former Yugoslavia (ICTY): Prosecutor v. Ivica Rajic, a.k.a Viktor Andric (May 8, 2006)
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The Trial Chamber of the ICTY (the "Trial Chamber") sentenced Ivica Rajic, a.k.a Viktor Andric to 12 (twelve) years of imprisonment with 1130 days credit for time spent in custody.
Ivica Rajic, the Defendant, was a Captain (first class) in the former Yugoslav People's Army and Commander of the Second Operational Group of the HVO, based in Kiseljak in northern Bosnia and Herzegovina (BiH). Rajic was indicted on 10 counts for actions against Bosnian Muslims during the war in violation of the Geneva Conventions of 1949. Under a plea agreement, Rajic pleaded guilty to 4 of 10 original counts from the indictment. The counts he plead guilty to were: Count 1: Willful Killing (Article 2(a) of the Statute of the ICTY, Count 3: Inhuman Treatment (Article 2(b) of the Statute of the ICTY), Count 7: Appropriation of Property (Article 2 (d) of the Statute of the ICTY), and Count 9: Extensive destruction not justified by military necessity and carried out unlawfully and wantonly (Article 2 (d) of the Statute of the ICTY).
The issue before the Trial Chamber was what sentence to impose upon Rajic based on his admission of guilt under the Plea Agreement. In determining the appropriate penalty, the Trial Chamber relied upon Articles 24 (Penalties), Article 27 (Enforcement of Sentences), Article 100 (Sentencing Procedure on a Guilty Plea), and Article 101 (Penalties) of the Statute of the ICTY. As such, in determining the sentence, the Trial Chamber had to take into account the following factors: "the gravity of the crime; the individual circumstances of the convicted person; any aggravating circumstances; any mitigating circumstances; and the general practice regarding prison sentences in the courts of the former Yugoslavia". The trial Chamber held that although the gravity of the crimes was high and Rajic was in a supervisory role, these had to be tempered in determining an appropriate sentence with the mitigating circumstances. These include: the plea agreement entered into by Rajic; his remorse, which the prosecution did not refute; his cooperation with the prosecution; and Rajic's personal circumstances and fact that he had been an exemplary soldier and respected member of the community prior to the war. In setting the punishment, the Trial Chamber was also guided by the general practice regarding prison sentences in the courts of the former Yugoslavia under Article 24 of the Statute of the ICTY and Rule 101(b) of the Rules. The Trial Chamber determined that the punishment prescribed ranged from 5-20 years imprisonment or the death penalty. However, as Yugoslavia had abolished the death penalty 20 years ago and replaced it with a prison term of 20-40 years the Trial Chamber had a range of 5-40 years within which to work. This was narrowed to 12-15 years which the Defense and Prosecutor sought respectively. After weighing all of the factors the Trial Chamber came to a sentence of 12 (twelve) years for his crimes.
European Court of Human Rights (ECHR): Evans v. The United Kingdom (March 7, 2005)
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The European Court of Human Rights (the "Court") held that there had been no violation of Article 2 (right to life), Article 8 (right to respect for private and family life), or Article 14 (prohibition of discrimination) of the European Convention on Human Rights ("the Convention").
Ms Evans (the "applicant") and her partner J started fertility treatment at the Bath Assisted Conception Clinic, when the applicant was diagnosed with a pre-cancerous condition of her ovaries. She was offered one cycle of in vitro fertilization treatment prior to the surgical removal of her ovaries. The applicant and her partner J were informed that they would each need to sign a form consenting to the treatment and that, in accordance with the provisions of the Human Fertilisation and Embryology Act 1990, it would be possible for either of them to withdraw his or her consent at any time before the embryos were implanted in the applicant's uterus. The applicant considered whether she should explore other means of having her remaining eggs fertilized, to guard against the possibility of her relationship with J ending. J reassured her that that would not happen. After the creation of six embryos the applicant had her ovaries removed. The relationship between the applicant and her partner ended two years later, and he withdrew his consent to the continued storage or implantation of the embryo. The applicant then brought proceedings in the UK courts against J in order to have his consent restored. The courts, however, finding that he had acted in good faith, refused to grant the applicant's request. Before the Court the applicant asserted that requiring the father's consent to the implantation of the embryo was a violation of her rights under Articles 8 and 14 of the Convention, inter alia because the embryos created with her eggs and J's sperm represented her only chance to have a child to whom she was biologically related. She also claimed that the rights of the embryos under Article 2 of the Convention were violated.
Reiterating "that, in the absence of any European consensus on the scientific and legal definition of the beginning of life, the issue of when the right to life begins comes within the margin of appreciation" of each signatory state, the Court held that there had been no violation of the right to life, as an embryo did not have independent rights or interests under UK law and could therefore not claim a right to life under Article 2 of the Convention. In terms of a violation of Article 8 of the Convention, the Court accepted "that a different balance might have been struck by Parliament, by, for instance, making the consent of the male donor irrevocable or by drawing the "bright-line" at the point of creation of the embryo." The Court then pointed out that the issue was whether the UK Parliament had "exceeded the margin of appreciation afforded to it under that Article." In determining that question, the Court noted that the UK was not the only state to allow the revocation of consent at any stage up until the point of implantation of the embryo, and it also noted that "a similar emphasis on the primacy of consent [is] reflected in the relevant international instruments concerned with medical interventions." The Court therefore concluded that "the United Kingdom did not exceed the margin of appreciation afforded to it or upset the fair balance required under Article 8 of the Convention." With respect to a violation of Article 14 of the Convention the Court held that "the reasons given for finding that there was no violation of Article 8 also afford a reasonable and objective justification under Article 14."
England and Wales High Court of Justice (Chancery Division Companies Court) In the Matter of AY Bank Limited (in liquidation) And in the Matter of the Insolvency Act 1986 AY Bank Limited (Applicant) and Bosnia and Herzegovina, The Republic of Croatia, The Republic of Macedonia, The Republic of Slovenia, The Federal Republic of Yugoslavia (now Serbia and Montenegro), and The National bank of Serbia (Respondents) (April 12, 2006)
Click here for the document.
This decision involves whether all or any of the issues raised in the application of the Joint Liquidators were justiciable in the Court and to the extent that any of these issues were, what directions, including disclosure, should be given to enable them to be determined.
The facts surrounding this case are essentially as follows. On 5 March 1980 AY Bank Ltd. ("the Bank") was incorporated under the Companies Act of 1948 for the purpose of encouraging trade, finance, and engaging in associated banking activities with the Socialist Federal Republic of Yugoslavia ("SFRY"). Between 25 June 1991 and 5 April 1992 various Republics, except Serbia and Montenegro, declared independence. On 30 May 1992, 9 June 1998, and 19 June 1999 sanctions were imposed on SFRY and its nationals by the UN, U.S., and EU. There are three types of accounts at issue in this case: (1) accounts in the name of the National Bank of Yugoslavia ("NBY"), (2) accounts in the name of the Yugoslavian Embassy, and (3) a suspense account in which funds had been credited in the name of the NBY. Under Article 5 of the Agreement on Succession Issues ("the ASI"), concluded on 29 June 2001, the available foreign financial assets were to be distributed accordingly: Bosnia and Herzegovina (15.5%), Croatia (23%), Macedonia (7.5%), Slovenia (16%), and the FRY (38%). The relevant transactions fell under three categories: credits/debits to the NBY accounts after the formation of FRY and NBS on 27 April 1992, debits to the NBY accounts from a set-off effected on 25 May 1993, and further debits to the NBY accounts arising from a further set-off effected on 18th July 1994.
In terms of justiciability, the Court agreed that the principle of non-justiciability would apply if this was a case involving only the transactions of foreign sovereign states, that the courts of England have no power to interpret or enforce treaties between sovereign foreign states not incorporated into English domestic law, and that parties in a case can not confer jurisdiction by consent. However, the Court relied on the fact that the debts due by the Bank to the former NBY were issues affecting the rights of the Bank and other unsecured debtors, therefore, allowing an exception to non-justiciability based on enforcement of private law rights.
In terms of directions and disclosure, the Court held that it could not, at this stage, give directions to the Joint Liquidators without further proceedings and disclosure, but could give directions as to future conduct of proceedings in the liquidation to enable issues to be determined. As such disclosure was ordered by all Parties in respect to the issues.
LEGISLATION
Bolivia: Presidential Supreme Decree 28701 (Nationalization of Hydrocarbons Sector) (May 1, 2006)
Click here for the document (in Spanish).
The Council of Ministers issued a decree through which the natural hydrocarbon resources were nationalized in Bolivia. The decree stipulates that companies, which are conducting activities in the gas and petroleum production industry, have to turn over the entire production of hydrocarbons to "Yacimientos Petroliferos Fiscales Bolivianos ("YPFB"). YPFB will control the distribution of these resources, and will also determine the amount and conditions at which gas and petroleum will be allocated to the domestic and foreign markets.
Companies which challenge the provisions of the decree can continue to operate for 180 days, after which date they will have obtain new contracts fulfilling the constitutional requirements. Companies which do not have new contracts after that date will not be able to continue operating in the country. During that transitional period of 180 days, the production of fields yielding more than 100 million cubic feet per day will have to grant the state 82% of the production value. Moreover, the shares of various companies are nationalized in order to make YPFB a majority shareholder.
International Law In Brief (ILIB) - Copyright 2006 - The American Society of International Law (ASIL)
Authors: Carson Clements, Elena Papangelopoulou
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