• U.S. - India Framework for Cooperation on Trade and Investment Agreement (Mar. 17, 2010)

European Court of Human Rights

• Demopoulos v. Turkey (Mar. 1, 2010)

World Trade Organization

• United States – Anti-Dumping Measures on Polyethylene Retail Carrier Bags from Thailand (Jan. 22, 2010)

High Court of Hong Kong Special Administrative Region

• FG Hemishphere Assoc. LLC v. Congo (Feb. 10, 2010)

High Court of South Africa – North Gauteng High Court & High Court of Zimbabwe

• Gramara (Pvt) Ltd. v. Zimbabwe (Jan. 26, 2010); Von Abo v. South Africa (Feb. 5, 2010)

• Former Yukos Executives sue Russia in European Court of Human Rights (Mar. 2, 2010)

U.S. – India Framework for Cooperation on Trade and Investment Agreement (Mar. 17, 2010)

Click here for document (approximately 3 pages)

The United States and India have signed an agreement to strengthen bilateral cooperation and to take advantage of the “rapid growth” of trade between the two countries “which has more than doubled over the past five years.” At the signing ceremony, the parties also announced the launch of the so-called “Integrating U.S. and Indian Small Businesses into the Global Supply Chain” initiative.

The agreement is meant to improve trade relations between the two parties by:

1. Facilitating trade and investment flows . . .;
2. Developing and implementing investment policies through transparent procedures that comply with international obligations;
3. Fostering an environment conducive to technological collaboration and innovation; and
4. Promoting inclusive economic growth and job creation in the United States and India.

BusinessWeek reports that “[t]rade between the U.S. and India almost doubled to $39.7 billion in the four years to March 2009, according to Indian commerce ministry data.”

European Court of Human Rights

Demopoulos v. Turkey (Eur. Ct. H.R. Mar. 1, 2010)

Click here for document (approximately 28 pages)

The European Court of Human Rights Grand Chamber ruled that the applications by seventeen Cypriot nationals of Greek-Cypriot origin were inadmissible given that the applicants had not exhausted all available domestic remedies. The Grand Chamber also concluded that the amended law and the Immovable Property Commission (IPC)—established pursuant to the amended law to remedy the applicants’ alleged deprivation of property in northern Cyprus following the 1974 Turkish invasion—were accessible and effective.

The complaints arose out of the 1974 Turkish military occupation of northern Cyprus, the continuing division of the territory, and the resultant proclamation of the “Turkish Republic of Northern Cyprus” (TRNC) in 1983. Notably, the TRNC proclamation was declared legally invalid by the United Nations, and the Council of Europe has stated that the government of the Republic of Cyprus continues to be the sole legitimate government of the country as a whole.

The applicants, former landowners in the disputed TRNC territory, filed applications with the European Court of Human Rights, relying on Article 1 of Protocol No. 1 (protection of property), Article 8 (right to respect for home), and Article 14 (prohibition of discrimination). The applicants alleged not only discrimination but also deprivation of use of their property and/or access to their homes in northern Cyprus under control of the TRNC. Furthermore, they claimed that the IPC, established to handle property claims, was unfair and ineffective.

The Grand Chamber determined that the applicants had failed to prove that the IPC was ineffective and discriminatory. It also dismissed the argument that by legitimizing the ICP’s compensation awards, the Court was legitimizing the illegal occupation of Cyprus:

As has been consistently emphasised, this conclusion does not in any way put in doubt the view adopted by the international community regarding the establishment of the “TRNC” or the fact that the government of the Republic of Cyprus remains the sole legitimate government of Cyprus (Foka, cited above, § 84). The Court maintains its opinion that allowing the respondent State to correct wrongs imputable to it does not amount to an indirect legitimisation of a regime unlawful under international law.

The Economist reports that “optimistic observers hope [that this decision] may speed up the peace process” between the two governments.

World Trade Organization

United States – Anti-Dumping Measures on Polyethylene Retail Carrier Bags from Thailand (Jan. 22, 2010)

Click here for document (approximately 11 pages)

A World Trade Organization (WTO) panel issued a report finding the United States in violation of Article 2.4.2. of the Anti-Dumping Agreement. The panel concluded that the U.S. practice of using “zeroing” in determining the dumping margins for Thai exporters of polyethylene retail carrier bags was inconsistent with its trade obligations.

In 2008, Thailand requested consultations to determine whether the United States had been applying the practice of “zeroing” in its anti-dumping investigation of Thai exporters. When the parties failed to settle the dispute, a panel was established to examine the allegation.

The United States acknowledged that it had used “zeroing” in calculating the dumping margins for individually investigated exporters. The panel nonetheless had to determine whether Thailand had established a prima facie case of violation of Article 2.4.2 of the Anti-Dumping Agreement.

The panel, relying on a copy of the computer program used to calculate the dumping margins and the U.S. acknowledgment of its practices, concluded that Thailand had sufficiently demonstrated U.S. zeroing practices. The panel also concluded that the zeroing methodology used in this case was “the same in all legally relevant respects as the methodology . . . found . . . to be inconsistent with Article 2.4.2 of the Anti-Dumping Agreement” in another WTO dispute (U.S. – Softwood Lumber V). And while the panel noted that it was not bound by the reasoning of prior Appellate Body/panel reports, it stressed that the “adopted Reports create legitimate expectations among WTO Members” and that “following the Appellate Body’s conclusions in earlier disputes is not only appropriate, but is what would be expected from panels, especially where the issues are the same.”

The panel recommended that the Dispute Settlement Body order the United States to bring its measures into conformity with its obligations under the Anti-Dumping Agreement.

High Court of Hong Kong Special Administrative Region

FG Hemisphere Assoc. v. Congo & China Railway Group (HK App. Ct. Feb. 10, 2010)

Click here for document (approximately 101 pages)

A Hong Kong appeals court ruled that FG Hemisphere Associates (FG), a New York company that had acquired two default judgments (in the form of arbitral awards) against the Democratic Republic of the Congo (DRC), has the right to a portion of the of entry fees that the state-owned China Railway Group (China Railway) is paying DRC to develop the latter’s infrastructure in return for the right to mineral resources.

Essentially, this case considers sovereign immunity, a legal doctrine precluding the institution of a suit against a sovereign government and its entities without the sovereign’s consent. Sovereign governments often resort to this doctrine to defend against legal proceedings. They often claim absolute immunity for acts done as sovereign states. While courts generally recognize some level of sovereign immunity, many jurisdictions apply a more restrictive type of sovereign immunity, which often does not shield transactions of a purely commercial nature.

In the present case, the Hong Kong court had to determine first whether restrictive or absolute immunity applied; and second, if restrictive immunity applied, whether the relevant actions by the DRC fell within any of the exceptions of sovereign immunity (“acts of a private law or commercial character”). FG argued that the court should apply restrictive immunity and that the ore-for-infrastructure deal was commercial in nature. The DRC, on the other hand, argued that it enjoyed absolute immunity for its acts as a sovereign state.

The court ruled that the DRC enjoys restrictive but not absolute immunity from jurisdiction in the courts of Hong Kong, and that the entry fees due to the DRC not intended for sovereign purposes are not immune from execution. FG was granted leave to enforce the two arbitral awards, and the DRC was restrained from receiving—and the China Railway from making—payments of the entry fees.

High Court of South Africa – North Gauteng High Court & High Court of Zimbabwe

Gramara (Pvt) Ltd. v. Zimbabwe (Jan. 26, 2010); Von Abo v. South Africa (Feb. 5, 2010)

Click here for the Gramara decision (approximately 22 pages); click here for the Von Abo decision (approximately 15 pages)

The Supreme Court of Zimbabwe has ruled that decisions by the Southern African Development Community (SADC) tribunal “are binding and enforceable within the territories of Member States,” but that “such enforcement is governed by the rules of civil procedure for the registration and enforcement of foreign judgments.” In other words, the government of Zimbabwe has the final say in determining whether a judgment should be enforced in its sovereign territory.

The long-debated and controversial issue regarding land expropriated by the Zimbabwean government thus reaches yet another obstacle. This particular case was an application to register a previous SADC judgment in favor of several Zimbabwean landowners whose land had been expropriated by the government and in some cases transferred to third parties.

Interestingly, only a few days later, the High Court of South Africa issued a judgment against the South African government for its inability to protect the rights of a citizen whose land was also taken under the Zimbabwean land reform. The High Court ordered the government of South Africa to compensate Crawford von Abo, who had been trying to get the South African government to intervene for the past eight years. He, like many other land owners, has not been compensated for his losses and, after exhausting his legal options in Zimbabwe, turned to the South African government for diplomatic protection.

Former Yukos Executives sue Russia in European Court of Human Rights (Mar. 2, 2010)

Click here for press release (approximately 1 page)

Times Online reports that former Yukos executives have lodged a case against Russia in the European Court of Human Rights, alleging violations by the Russian government of the applicants’ property rights and of the right to a fair hearing.

The Yukos dispute is currently being adjudicated by other international tribunals. Recently, a tribunal, sitting at the Permanent Court of Arbitration in The Hague and composed of L. Yves Fortier (Chairman), Dr. Charles Poncet, and Judge Stephen M. Schwebel, issued three separate decisions allowing three former shareholders of Yukos Oil Corporation OJSC (Yukos) to proceed to the merits phase of their expropriation claims against Russia.