2007 International Law Update, Volume 13, Number 10 (October)

2007 International Law Update, Volume 13, Number 10 (October)

Legal Analyses published by Mike Meier, Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com. 

ANTI‑SUIT INJUNCTION

Eleventh Circuit vacates anti‑suit injunction where Costa Rican and U.S. district court actions are pending involving the same agreement between the parties because the legal claims in both actions differ

In 1996, Canon Latin America, Inc. (“Canonlat”), a Florida corporation, agreed with Lantech (C.R.), S.A. (“Lantech”) of Costa Rica regarding the distribution of Canon products in Costa Rica. This agreement was superseded in 2003 by a distribution agreement (“Agreement”) that made Lantech the non‑exclusive distributor of Canon brand products in Costa Rica. The Agreement included a forum selection and a choice of law clause designating Florida.

In 2004, Lantech started falling behind on its payments to Canonlat, and Canonlat appointed Santa Barbara Technology, S.A. (“SB Technology”) as an additional distributor. Lantech, without a warning, then filed suit in Costa Rica against Canonlat and SB Technology for violations of Costa Rica Public Law 6209 (Representatives of Foreign Companies Act). A Costa Rican court demanded that Canonlat post a $1 million bond or discontinue selling goods in Costa Rica. Eventually, Canonlat posted the bond and sought to have the Costa Rican lawsuit dismissed for lack of jurisdiction. Canonlat also terminated the Agreement with Lantech for Lantech’s failure to pay for the Canon products.

In February 2005, Canonlat brought the present lawsuit against Lantech in the Southern District of Florida, seeking an injunction against Lantech’s Costa Rican lawsuit. The district court granted Canonlat a permanent injunction, barring Lantech from proceeding with its case in Costa Rica. Lantech appeals the district court’s order, claiming that the threshold requirements for an anti‑suit injunction are not met.

The U.S. Court of Appeals for the Eleventh Circuit, in a per curiam opinion, vacates the injunction and remands the case for dismissal of Canonlat’s outstanding claims.

Federal courts have some power to enjoin foreign lawsuits by persons subject to federal court jurisdiction. In this case, Lantech alleges that the requirements for an anti‑suit injunction are not met. The Court agrees. An anti‑suit injunction may issue only if:

“(1) ‘the parties are the same in both [the foreign and domestic lawsuits],’ and (2) ‘resolution of the case before the enjoining court is dispositive of the action to be enjoined.’ ... [Paramedics Electromedicina Comercial, Ltda. v. GE Med. Sys. Info. Techs., Inc., 369 F.3d 645, 652 (2d Cir. 2004)] ... Once these threshold requirements are satisfied, courts must then consider additional factors to determine whether an injunction is appropriate. ... see also [Quaak v. Klynveld Peat Marwick Goerdeler Bedrijfsrevisoren, 361 F.3d 11, 18 (1st Cir. 2004)], noting that only if the ‘gatekeeping inquiry’ is met ‘should the court proceed to consider all the facts and circumstances in order to decide whether an injunction is proper’) ...” [Slip op. 3]

Here, the substantive issue in the Costa Rican action is a claim arising from Law 6209 for unlawful termination of a distributorship. The claims before the district court, in contrast, are common law contract and quasi‑contract claims for non‑payment of goods.

Even though both the Costa Rican and the U.S. actions revolve around the parties’ Agreement, the claims are different. “Lantech’s Costa Rican action hinges on statutory rights that are unique to Costa Rica and that cannot be resolved by a judgment of the district court on Canonlat’s claims in Florida. ... As a result, the district court erred in granting the permanent anti‑suit injunction against Lantech. ...”

“While we agree with Canonlat that the two actions are somewhat similar, Canonlat has not shown that the resolution of its claims in the district court would actually dispose of Lantech’s claim in Costa Rica. The district court conceded as much in its discussion of the issue but concluded nevertheless that the cases were ‘sufficiently similar’ to justify an anti‑suit injunction because ‘the effect and enforceability of the Agreement [were] placed directly at issue in the Costa Rican action.’ Whether or not the cases are similar is not the legal standard, however. On the contrary, the standard, even according to Gallo upon which the district court mostly relied, is ‘whether or not the first action is dispositive of the action to be enjoined.’ ...” [Slip op. 4]

The district court erred because the second threshold requirement for an anti‑suit injunction has not been met.

Citation: Canon Latin America, Inc. v. Lantech (CR), S.A., No. 07‑13571 (11th Cir. November 21, 2007).

CHILD ABDUCTION

In case of minor children being taken to the U.S. from France without French parent’s consent the Sixth Circuit holds that the Children’s habitual residence was in the U.S., under the Hague Convention, where they had returned to France for three weeks after an eleven month stay in the U.S.

Ivan Nicholas Robert (Petitioner), a citizen of France, married Gayle M. Tesson (Respondent), as citizen of the United States, on January 6, 1996 in France. They had meet in 1994 in Houston, Texas where Petitioner was training to be a helicopter pilot. On May 22, 1997 Respondent gave birth to twin boys, Thomas J. Robert and Alexis E. Robert in Houston, Texas.

In December of 1998 the family moved to France, after establishing a French company called SCI‑TAGIR, which was used to purchase a lot in Cabris, France. The family lived in an apartment near the lot they had purchased until July 1999, when the parties decided that their marriage was not working, and separated. Respondent took the boys to Baton Rouge where they lived in a rented apartment and the boys attended school.

In September of 2001 the Respondent and the boys returned to France to reunite with Petitioner. The parties agreed to purchase and renovate a rustic house named “Mas Verdoline”, which lacked electricity and running water. The family lived in a rental in Cabris during their stay in France because the renovations on Mas Verdoline had not been completed. The boys attended French school and became fluent in French during this time. The marriage became strained once again and in July of 2002, Respondent left to take a temporary position in Denver, Colorado. The boys stayed in France with Petitioner due to the demanding nature of Respondents employment.

Respondent returned to France in November of 2002 and returned to Denver with the boys in December of 2002. The boys attended school in Denver and had little contact with the Petitioner during this time. In September of 2003, Respondent took the boys back to France after purchasing round trip tickets with a return date of October 8, 2003. The family stayed together at Mas Verdoline and the boys were enrolled in French school. On October 8, 2003 the parties had an argument after which the Petitioner left the house alone. Respondent took the children back to Denver while the Petitioner was away, leaving a note stating that Respondent was taking the children to see sick mother.

Respondent filed for legal separation from Petitioner in Ohio on December 3, 2003. Petitioner filed for divorce in a French court on January 23, 2004 and then filed a criminal complaint alleging that Respondent had abducted the children. The French court granted temporary custody of the boys to Petitioner on September 22, 2004. Respondent was convicted of the criminal charges on December 12, 2005, receiving a one year suspended sentence.

Petitioner filed a Petition for Return of Children in the Southern District of Ohio, pursuant to the International Child Abduction Remedies Act, 42 U.S.C. Section 11601, alleging that Respondent removed the boys from France in violation of the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention). A magistrate judge issued a report and recommendation on June 29, 2005. “Relying largely on the Ninth Circuit’s decision in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) (“Mozes”), the magistrate judge found that the parties lacked a shared intent to remain in France, and recommended that the petition seeking return of Thomas and Alexis be denied. The district court adopted the magistrate judge’s report in its entirety on May 19, 2006¼” [Slip op. 7]. Petitioner filed an appeal in the United States Court of Appeals for the Sixth Circuit, which affirmed the decision of the district court.

The Circuit Court first addressed the issue of the proper legal standard to be applied. The Circuit Court had previously addressed this issue in Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993) (“Friedrich I”). The Circuit Court held that in assessing habitual residence under the Hague Convention. “Inquiry should focus exclusively on the child’s ‘past experience.’” “‘Any future plans’ that the parents may have ‘are irrelevant to our inquiry.’” [Slip op. 9].

The Ninth Circuit had elaborated a different standard in Mozes, which according to the Sixth Circuit held that “the subjective intentions of the parents are all but dispositive of a child’s habitual residence.” [Slip op. 10].

“Ignoring this Court’s binding decision in Friedrich I, the magistrate judge applied the Ninth Circuit’s rule in determining that Thomas and Alexis Robert are habitual residents of the United States. The magistrate judge determined that ‘the parties held no shared intent to abandon the United States¼’” [Slip op. 11].

“Rather than apply the Ninth Circuit’s rule in Mozes, the magistrate judge should have followed this Court’s decision in Friedrich I‑that is, the court below should have focused solely on the past experiences of the child, not the intentions of the parents. [Cite].” [Slip op. 12].

The Sixth Circuit did, however adopt the Third Circuits Ruling in Feder v. Evans‑Feder, 63 F.3d 217 (3d. Cir 1995), which held that “a child’s habitual residence is the place where he or she has been physically present for an amount of time sufficient for acclimatization and which has a ‘degree of settled purpose’ from the child’s perspective¼” Feder, 63 F.3d at 224.

Addressing the standard of review the Sixth Circuit found fault with the district court because “[r]ather than apply this preponderance of the evidence standard¼the magistrate judge applied the heightened standard of evidence adopted by the Ninth Circuit in Mozes.” [Slip op. 15].

“The International Child Abduction Remedies Act expressly states that courts should apply a preponderance of the evidence standard, 42 U.S.C. Section 11603(e)(1), not the unequivocal evidence standard adopted by Scotland and the Ninth Circuit. As a United States Court of Appeals, this Court is bound by Congress’ decision.” [Slip op. 16].

“Turning now to the merits of the case, we hold that even though the district court applied an incorrect legal standard in determining Thomas and Alexis’ habitual residence, it reached the correct result in holding that they were habitual residents of the United States at the time of their removal from France.” [Slip op. 18].

Even assuming that the boys acquired an habitual residence in France during their 15 month stay in that country, the boys took up a new habitual residence in the United States during the period beginning December 2002 when they lived in Denver¼As the magistrate judge found, the children became “more and more socialized in the United States.” [Cite]. They attended American schools, formed meaningful relationships with their American relatives, and participated in excursions throughout the United States.” [Slip op. 19].

“Having determined that the boys were habitual residents of the United States at the time they boarded their September 2003 flight to France, the remaining question is whether or not their habitual residence changed from the United States to France during their three week stay at Mas Verdoline.”

“[S]ome evidence points to a conclusion that the boys did acquire a new habitual residence while in France. The boys were already fluent in French, and they were briefly enrolled in a French school.”

“These facts, however are not sufficient to outweigh the volumes of evidence suggesting that the boys would have perceived their stay in France to be merely a temporary journey before they returned to a permanent residence in the United States. First, their French father did little to welcome them to France or communicate that they should expect a long stay. Second ¼ Thomas and Alexis brought only “two seasons worth of clothing” to France, a fact that suggests a return to the United States when the weather became warmer. Third, the actual length of the boys’ stay in France was only three weeks, hardly enough time for them to become “acclimatized” to a new residence, and far less than the ten months they had recently spent in the United States. Finally, the rough state of Mas Verdoline would suggest to any child that the French house was completely unlivable.” [Slip op. 20].

“The twins’ final trip to France lasted only three short weeks. In that time, they had few experiences that would have acclimatized them to their new surroundings, or which would indicate a settled purpose to remain in France. Indeed, most of their experiences at Mas Verdoline suggest the opposite. Accordingly, we hold that the twins’ habitual residence at the time of their removal from France was the United States.” [Slip op. 21].

Citation: Robert v. Tesson, No. 06‑3889 (6th Cir. November 14, 2007).

CONSUMER PROTECTION

Australian Federal Court grants injunction to consumer commission against admitted violations by United States companies of their Undertaking clearly to warn customers that they could return its software in three days with full refund if not satisfied with its quality

StoresOnline (Respondents)consist of two companies incorporated in the United States. Their business is holding seminars and workshops in Australia at which they promote and offer for sale to the Australian public a computer software package for setting up and operating online stores. In 2005, the Australian Competition and Consumer Commission (ACCC) filed proceedings in the Federal Court of Australia that claimed, inter alia, that the Respondents took part in misleading and deceptive conduct in breach of the Trade Practices Act of 1974 (Cth) (TPA).

The parties settled the matter based on Respondents giving the ACCC an Undertaking pursuant to Section 87B of the TPA (Enforcement of Undertakings). Respondents undertook not to conduct the seminars and workshops in Australia without abiding by certain restrictions imposed by the ACCC to shield Australian consumers from what the ACCC deemed to be further misleading and deceptive practices. The test of whether an entity has breached an Section 87B Undertaking is objective in the sense that intent of the party who breaches the Undertaking is not relevant.

The ACCC claims that Respondents have violated certain terms of the Undertaking it gave to the ACCC on April 24, 2006. Petitioner contends that the present application is urgent because Respondents are likely to continue transgressing the Undertaking when its representatives arrive in Australia in October 2007 to give further presentations relating to the products it offers for sale.

In Petitioner’s view, the Court’s power to grant interlocutory relief arises under Section 23 of the Federal Court of Australia Act 1976 (Cth) (FCA); it gives the Court “power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders ... as the Court thinks appropriate”. It says that the TPA does not cabin the Court’s jurisdiction to entertain this matter. Finally, it submits that the balance of convenience lies in favour of the Court exercising its power to make sure that Respondents comply with their Undertaking.

Respondents submit that they have complied with most of the terms of the Undertaking, and that any breaches were so minor that the Court need not exercise its discretion to grant the relief sought. They say that they have taken steps to ensure there are no further violations.

Respondents mainly maintain that the balance of convenience does not favour the ACCC because there has been no material harm or prejudice to the ACCC or its buyers. The agency’s mere invocation of the public interest is not decisive; moreover, the breadth of the ACCC’s Amended Application exceeds the scope and duration of the original Undertaking.

The judge generally rules in favor of the ACCC and explains his bases. “In this case, breaches of certain terms of the Undertaking given by Respondents are conceded. Specifically, these admissions relate to the terms of the Undertaking requiring Respondents (1) to ensure that the testimonials used in the presentations contained certain information (¶ [17(d)(ii)] of the Undertaking) and (2) to notify the ACCC of the dates and locations of presentations to be made in Australia (¶ [27] of the Undertaking). Having regard to these failings to comply with the Undertaking and all the evidence, I am not persuaded that a regime is now in place which will ensure that Respondents do not commit further breaches. A more effective sanction than an inter partes agreement is necessary in this case.”

“These conceded breaches establish that there has been a failure to comply with the Undertaking given by Respondents to the ACCC on 24 April 2006. These breaches are sufficient to justify the exercise of the power of the Court in Section 87B(4)(a) to make orders directing Respondents to comply with ¶¶ [17] and [27] of the Undertaking.”

“As for further breaches which the ACCC alleges, and which are denied, I am prepared on the basis of the evidence before me to rule that at least one important additional breach has occurred. This breach concerns the term in ¶ [14] of the Undertaking which requires Respondents to make known to purchasers that they have a ‘cooling‑off’ period during which they could change their mind about the purchases they made within three business days, return the product and receive a full refund. I have seen a number of the written ‘disclaimers’ relied on by Respondents and, in my view, some of them are manifestly inadequate on their face. Several affidavits sworn by purchasers of Respondents’s packages were read by counsel for the ACCC.”

“The evidence adduced in these affidavits, to which objection was not taken and which I accept, was that, in some instances, Respondents either did not notify purchasers of the cooling‑off period, or if they did so, it was in a manner which was not readily brought to the purchasers’ attention and not easy to understand, so that it could not be said to have been ‘made known’, as required. I accept the evidence that, in some cases, [Respondents’] presenters encouraged potential purchasers not to pay attention to the documents recording the cooling‑off period. This conduct breaches the requirement in ¶ [15] of the Undertaking that Respondents ‘make the content of the [cooling‑off] Undertaking in ¶ 14 above known to Purchasers before, and at, the time of purchase’. Accordingly, this breach is sufficient to enliven the jurisdiction of the Court in Section 87B(4)(a) to make orders directing Respondents to comply with ¶¶ [14] and [15] of the Undertaking.”

“With respect to the other terms of the Undertaking which the ACCC alleges have been breached, I do not make findings as to whether a breach has in fact occurred. However, in circumstances where Respondents [have] admitted to certain breaches of the Undertaking given by it to the ACCC, and has been found to have engaged in other breaches which it denied, it is appropriate to invoke and exercise the discretionary jurisdiction given by Section 87B(4)(d) of the TPA to order that Respondents comply with the other terms of its Undertaking. I make this ruling because there is sufficient basis in the numerous past breaches of certain terms of the Undertaking to give rise to a reasonable apprehension that there could well be future breaches of the same or other terms of the Undertaking which could be prevented by the granting of the ACCC’s application under Section 87B on a quia timet basis.”

“Insofar as orders made by the Court on the present application go beyond the text and duration of the original understanding given on 24 April 2006, I accept the submission of the ACCC that Section 87B(4)(d) is a conferral of broad power which is ‘additional to the power conferred by Section 87B(4)(a), to make any order that the Court considers appropriate’. This approach is supported when one has regard to the explanatory memorandum to the Trade Practices Legislation Amendment Act 1992 (Cth), which introduced Section 87B into the TPA. It states that Section 87B(4)(d): ‘... is a wide power which would encompass at least orders of the kind mentioned in Sections 80, 87(2) and 87A(2) .... It is intended to provide the court with suitable flexibility to deal with the range of circumstances which may arise in the enforcement of Undertakings.’”

“This comment demonstrates that, where it is appropriate to do so, as in this case, the Court is empowered to make orders which extend beyond the ambit of Sections 80, 87(2) and 87A(2) in the TPA and, if necessary, beyond the scope of the original Undertaking to provide relief against apprehended breaches on a quia timet basis.”

“The ACCC submits that the balance of convenience in this case is in favour of granting the relief it seeks because the Undertaking given under Section 87B of the Act was intended to settle previous proceedings in this Court and for the purpose of protecting Australian consumers and vindicating the public interest. This is a cogent submission in the circumstances of this case. The ACCC says that Respondents’ approach to compliance with the terms of the Undertaking has been very unsatisfactory, and this is clearly demonstrated, for example, by the minimalist and embedded references made to the ‘cooling‑off’ period at the time purchasers bought the packages, and the inaccurate or ineffective ‘qualifying statements’ contained in the scripts used in Australian presentations.”

“Respondents’ compliance with its agreement with the State of Texas in the United States of America concerning similar conduct, is said by the ACCC to be insufficient because it does not address all the requirements necessary to ensure compliance with the Undertaking given in respect of its conduct in Australia. The ACCC also says that Respondents’ dealings with the ACCC are characterised by delay and obfuscation, and that the detriment to the public is immediate, expensive and difficult to rectify.”

“Respondents submit that the interest of the Australian public is not an appropriate consideration in the assessment of the balance of convenience. Primary emphasis, it says, ought to be given to its claims that breaches of the Undertaking have not caused material harm to purchasers of Respondents’s packages, have not caused prejudice to the ACCC, are essentially administrative and not deliberate or contemptuous breaches, and have occurred in the context of substantial compliance with other terms of the Undertaking and entry into the Texas agreement which outlines a compliance regime albeit in different terms.”

“In my view, the balance of convenience in this case comes down in favour of granting the relief sought in ¶ [20] of the ACCC’s Amended Application because the relief does not prevent Respondents from conducting their scheduled presentations and workshops in Australia, but rather serves to discourage them, with the powerful sanction of contempt, from giving those presentations in a way that breaches its Undertaking given to the ACCC. While the breaches of the Undertaking by Respondents do not warrant a blanket order restraining Respondents from making any presentations in Australia, I am persuaded that the most appropriate course is to make orders requiring Respondents to give effect to the Undertaking to which it made a commitment on 24 April 2006, until further order. This position, in my view, provides an appropriate balance between the ACCC’s concern to protect consumers in Australia and Respondents’s claimed financial commitments, which are said to involve expenditure thus far of approximately USD450,000 in relation to the scheduled workshops and seminars.”

“Finally, I reject the submission by Respondents that it should have an Undertaking as to damages from the ACCC. The giving of such an Undertaking is not a condition of the granting of injunctions: see Trade Practices Commission v. Santos Ltd. (1992) 38 FCR 382 at 388. In any event, having refused to grant the blanket injunctions sought by the ACCC in ¶ [19] of its Amended Application, no significant damage should accrue to Respondents as it is still entitled to conduct its presentations in Australia, provided it does so within the ambit of the Undertaking and the injunctions granted in these reasons.” [¶¶ 18‑26].

Citation: Australian Competition and Consumer Commission v. Storesonline International, Inc. ____________ (Fed. Ct. Austr. [Sydney] Oct. 19, 2007). More information on this case is available on the website of the Australian Competition and Consumer Commission at www.accc.gov.au (see the section on news releases).

CRIMINAL LAW

In case where district court admitted evidence allegedly in violation of the Mutual Legal Assistance Treaty (MLAT) between the U.S. and The Netherlands, obtained after The Netherlands denied U.S. request for assistance, Second Circuit finds that evidence was not within scope of MLAT and must only comply with U.S. law, not foreign law

Henk Rommy, a Dutch citizen who ran a large international drug ring, was convicted of importing the drug “ecstasy” (MDMA) into the U.S. The conviction was in part based on the testimony of his co‑conspirators and recorded conversations with an informant and an undercover agent.

In early 2000, Dutch Authorities notified the Drug Enforcement Agency (“DEA”) about plans to smuggle large amounts of ectasy pills to New York. Based on the Mutual Legal Assistance Treaty (“MLAT”) between the two countries (Treaty on Mutual Assistance in Criminal Matters, June 12, 1981, U.S.‑Netherlands, 35 U.S.T. 1361, T.I.A.S. No. 10,734). The DEA interviewed the Dutch Authorities’ confidential informant and then, based on the MLAT, wanted to use him to introduce Rommy to an undercover agent, Mark Grey, and record the resulting conversations. Dutch Authorities denied the request.

The DEA nevertheless went ahead and used the confidential informant to put agent Grey in touch with Rommy. Between October 2001 and March 2003, DEA agents in New York recorded telephone conversations between the informant, Agent Grey and Rommy in The Netherlands about smuggling ectasy into New York. In March 2003, Rommy met with the informant and Agent Grey in Bermuda. There, Rommy spoke openly about his experience in drug trafficking, and explained the origin of the ectasy pills. U.S. authorities video‑taped the meeting and subsequently requested Spanish authorities to arrest and extradite Rommy. He was convicted in U.S. district court for the Southern District of New York.

Rommy appeals his conviction, claiming, inter alia, that the district court erred in admitting evidence obtained in violation of the MLAT between the U.S. and The Netherlands. In particular, Rommy challenges the district court’s failure to suppress the recorded telephone conversations and the video‑taped Bermuda meeting as violations of the MLAT.

The U.S. Court of Appeals for the Second Circuit affirms the conviction.

The Court disagrees with Rommy. “First, Rommy cannot demonstrate a treaty violation. The [MLAT] ... provides various means for the governments of the two countries to provide legal assistance to one another in criminal matters, ... It also places certain limitations on how information obtained pursuant thereto may be used. ... By its express terms, however, the treaty has no application to evidence obtained outside the MLAT process. Article 18, subsection 1, states:”

“‘Assistance and procedures provided by this Treaty shall be without prejudice to, and shall not prevent or restrict, any assistance or procedure available under other international conventions or arrangements or under the domestic laws of the Contracting Parties.’”

“... This does not mean that United States or Dutch authorities, operating without MLAT authorization, may act with impunity in conducting law enforcement investigations in each others’ countries. To the contrary, it means that, when securing evidence without MLAT authorization, foreign government officials lacking diplomatic immunity must conduct themselves in accordance with applicable ‘domestic laws.’ ...”

“Thus, when DEA agents proceeded to use [the] confidential informant in the Netherlands even after their MLAT request to do so was denied, they did not violate the treaty. They did, however, subject themselves and their informant to any constraints imposed on private actors by Dutch law. We need not here decide whether any DEA actions violated Dutch domestic law. ... The admissibility of evidence in a United States court depends solely on compliance with United States law. See United States v. Morrison, 153 F.3d 34, 57 (2d Cir. 1998) (observing that “federal law governs the admissibility of evidence in a federal criminal trial”) ... Rommy makes no claim on appeal that the DEA’s undercover investigation generally, or its recording of the telephone calls in the United States or the meeting in Bermuda specifically, violated any United States law.” [Slip op. 24‑35]

Further, the MLAT does not appear to create individual rights. There is a general presumption against individual enforcement rights. Absent treaty language conferring individual enforcement rights, treaty violations are handled by diplomatic means. Sometimes sovereign nations decide to overlook such treaty violations.

In this case, it is clear that the MLAT signatories did not intend to create individual rights. Article 18, subsection 2, specifically states that “the provisions of this Treaty shall not give rise to a right on the part of any person to take any action in a criminal proceeding to suppress or exclude any evidence.”

Rommy then points to MLAT Article 2, subsection 2, which states that “[t]he Requesting State shall not use any evidence obtained under this Treaty ... without the prior consent of the Requested State.”

Here, The Netherlands denied the U.S. request under the MLAT. Therefore, the evidence is not subject to the MLAT Article 11. The admissibility of this evidence is governed solely by U.S. domestic law.

Consequently, Rommy’s argument for suppression of the evidence lacks any foundation in the text of the MLAT, and district court properly denied it.

Citation: United States v. Rommy, No. 06‑0520‑cr (2d Cir. November 5, 2007).

EXTRADITION

On appeal from judgments of extradition and surrender by Canada to United States by one of three individuals charged with operating fraudulent cross‑border telemarketing scheme to United States citizens, Ontario Court of Appeal dismisses appeal on grounds that lower court did not err in declining to allow calling of witness not shown to have relevant and reliable testimony that one petitioner may not have known that telemarketing was fraudulent

In this extradition matter, the United States alleged that Leslie Anderson, Lloyd Prudenza and David Dalglish ran a fraudulent telemarketing scheme in Toronto between September 2001 and the end of December 2002. They hired telemarketers who got in touch with people in the United States with poor credit records. They told these people that First Capital, the company represented by the telemarketers, could obtain pre‑approved credit cards for them in exchange for an advance fee. The amount of the fee varied, but was usually around $200 U.S. First Capital could not, and did not, supply any pre‑approved credit cards. Over an eighteen months period, the scheme bilked U.S. Consumers out of about $7,000,000.

The Record of the Case certified by the United States included a sworn videotaped statement furnished in Canada to Canadian and American authorities by one Mark Lennox on April 1, 2004. The American authorities had started out by seeking the extradition of Lennox. On the advice of counsel, however, he co‑operated with the authorities in the hope that Canada, and not the United States, would prosecute him; he hoped that he would receive a lenient sentence in exchange for his co‑operation. In addition to turning over the sworn videotaped statement, Lennox gave grand jury testimony in Illinois in May 2004.

Lennox had quite a bit of prior experience in the telemarketing business and had worked with Dalglish in the past. Anderson and Dalglish hired him as the office manager of First Capital. Lennox also knew Prudenza. He had previously taken part in the telemarketing business and also had a mail fraud conviction. Apparently, Anderson had no prior involvement in the telemarketing business.

Lennox testified that the telemarketing operation was “a complete and total scam”. He admitted having an integral role in that fraud. He also outlined the respective roles played by Anderson, Prudenza and Dalglish in the First Capital operation. These reasons are not concerned with the roles played by Prudenza and Dalglish. I need not review that evidence. This trio admitted at the extradition hearing that the evidence provided by the United States justified their extradition.

The Court then focuses on Lennox’s account of the role played by Anderson. Lennox first met Dalglish and Anderson in early September 2001. They told him that they were about to set up a telemarketing operation with Lennox managing its day‑to‑day affairs. Anderson was to be the “money man” who would finance the scheme. At this first meeting, Dalglish assured the others that each successful sale would produce a net profit of about $150 U.S.

When Lennox decided to come on board, Anderson gave him a $2,000 signing bonus.. Lennox clearly saw that Anderson was bankrolling the start‑up costs of the business, characterizing Anderson and Dalglish as “co‑owners of First Capital”. Anderson would be signing the payroll checks. He also signed the leases on various premises used by the telemarketers. In August 2002, when First Capital had serious cash flow problems, Anderson came up with additional financing. According to Lennox, without this additional funding, the operation would have ground to a halt.

Before the grand jury, Lennox’s testimony made clear that Anderson was told that Capital One had no power to issue pre‑approved credit cards. When speaking to potential customers, Dalglish and Prudenza required the telemarketers to use “scripts” that the two of them had put together. In his sworn statement, Lennox said that Anderson saw the ‘script’ before the telemarketers used it. In his statement, Lennox said that Anderson was a party to discussions among Prudenza, Lennox and Dalglish that, to increase customer confidence, First Capital must appear to the U.S. customers to be operating out of the United States and not from Canada. Counsel for Anderson subpoenaed Lennox to testify at the extradition hearing. At that time, Lennox, a Canadian citizen, was living in Windsor, Ontario in a psychiatric/detoxification facility.

Anderson’s counsel contended that Lennox’s live testimony coupled with the Record of the Case could lead the judge to conclude that Anderson’s committal for extradition was not warranted under Section 29(1)(a) of the Extradition Act, S.C. 1999, c. 18. The extradition judge, however, refused to allow Lennox to testify.

Counsel for the United States conceded that Lennox was compellable. He also agreed that Lennox’s evidence would meet the reliability requirement in Section 32(1)(c) of the Extradition Act. Counsel submitted, however, that counsel must make a detailed offer of proof to show that testimony from Lennox would be relevant without raising immaterial issues of reliability and credibility.

Anderson stressed that he was not challenging Lennox’s credibility or reliability. He needed to call Lennox, however, to “clarify” some of the answers he had given in his statement and in his grand jury testimony to rebut inferences that Anderson had actually known about the fraudulent nature of the operation. If successful, there would be no basis to commit Anderson for extradition.

In precluding counsel from calling Lennox, the extradition judge ruled that the proposed testimony was in reality aimed at attacking the credibility and reliability of his evidence. This would flout the criteria for admission set out in Section 32(1)(c) of the Extradition Act. Anderson took an appeal but the Ontario Court of Appeal dismisses it.

“Section 29(1)(a) requires some evidence of the existence of each element of the Canadian offence that parallels the offence on which extradition is sought. That evidence must be such as would permit a reasonable jury, properly instructed, to convict on the parallel Canadian offence: see United States v. Ferras, [2006] 2 S.C.R. 77 (S.C.C.), if that evidentiary threshold was crossed, the evidence proffered by the requesting state justified committal.”

“A qualitative assessment of the evidence relied on by the requesting state was beyond the scope of the Section 29(1)(a) inquiry. The extradition judge could not weigh the evidence either by testing the credibility of the sources of that evidence or by examining the reliability of the evidence put forward by the requesting state. [Cites]. Consequently, evidence that could potentially affect the quality of the evidence proffered by the requesting state was irrelevant at the extradition hearing. For example, on the law as it stood prior to United States v. Ferras, evidence that Lennox had a motive to falsely inculpate Anderson would have been irrelevant to whether his evidence justified committal for extradition.”

“United States v. Ferras, supra, turned a new jurisprudential page in the [Canadian] law of extradition. The Supreme Court unanimously concluded, at paras. 39 ‑‑ 40, that the principles of fundamental justice enshrined in Section 7 of the Charter, considered in the context of an extradition proceeding, required a judicial assessment of the evidence beyond a simple consideration of whether there was some evidence, regardless of its quality, to support the existence of each element of the parallel criminal offence. Chief Justice McLachlin explained that since extradition proceedings could result in the removal of the person sought for extradition from Canada, an obviously significant interference with that person’s liberty and security, the principles of fundamental justice required some qualitative assessment of the evidence relied on to support the extradition request.”

“The nature of that qualitative assessment of the evidence is described in several places in United States v. Ferras, supra, at paras. 46, 50, 54. For example, at para. 54, McLachlin C. J. C. observes: ‘Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury. Where such evidence is adduced, or such arguments are raised, an extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case. The ultimate assessment of reliability is still left for the trial where guilt and innocence are at issue. However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict. If the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal.”

“United States v. Ferras, supra, contemplates a limited qualitative evaluation of the evidence proffered by the requesting state. ... United States v. Ferras, supra, does not envision weighing competing inferences that may arise from the evidence. It does not contemplate that the extradition judge will decide whether a witness is credible or his or her evidence is reliable. Nor does it call upon the extradition judge to evaluate the relative strength of the case put forward by the requesting state. There is no power to deny extradition in cases that appear to the extradition judge to be weak or unlikely to succeed at trial.”

“United States v. Ferras, supra, does permit an extradition judge to remove evidence from judicial consideration if the extradition judge is satisfied that the evidence is ‘so defective’ or ‘appears so unreliable’ that it should be disregarded and given no weight for the purposes of deciding whether the test for committal has been met under Section 29(1)(a) of the Extradition Act. The Chief Justice put it this way, at para. 59: ‘Simply put, the extradition judge has the discretion to give no weight to unavailable or unreliable evidence when determining whether committal is justified under Section 29(1).”

“Evidence may be rendered ‘so defective’ or ‘so unreliable’ as to warrant disregarding it due to problems inherent in the evidence itself, problems that undermine the credibility or reliability of the source of the evidence, or a combination of those two factors. I would stress, however, that it is only where the concerns with respect to the reliability of the evidence, whatever the source or sources, are sufficiently powerful to justify the complete rejection of the evidence, that these concerns become germane to the Section 29(1)(a) inquiry.”

“In deciding whether defects in the case proffered by the requesting state are sufficiently serious to justify disregarding some part of the evidence relied on by the requesting state when conducting the Section 29(1)(a) assessment, an extradition judge must begin from the premise that the material properly certified by the requesting state pursuant to Section 33 is presumptively reliable for the purposes of the Extradition Act, including the Section 29(1)(a) assessment: see United States v. Ferras, supra, at paras. 52‑56. The party resisting extradition may rebut the presumption of reliability flowing from certification either by reference to the requesting party’s own material or by calling evidence to demonstrate fundamental inadequacies or frailties in the material relied on by the requesting state: see United States v. Ferras, at paras. 66‑67.”

“In this case, there were features of Lennox’s evidence that could call his credibility and the reliability of his evidence into question were this a criminal proceeding in Canada. Lennox was a co‑conspirator who was seeking a benefit through co‑operation with the authorities. There were some inconsistencies between his sworn statement and his grand jury testimony. At the extradition hearing, counsel did not argue that those features could justify refusing to commit Anderson for extradition.”

“On appeal, post‑United States v. Ferras, supra, counsel still does not argue that the frailties apparent in Lennox’s evidence from the material filed by the requesting state would justify a refusal to give Lennox’s evidence any weight for the purposes of the Section 29(1)(a) assessment. I think counsel is correct in not advancing that argument. As is evident from the facts in United States v. Ferras, where much of the evidence came from a co‑conspirator, the mere fact that evidence relied on by the requesting state has potential significant weaknesses, or comes from sources that are less than pristine, cannot justify totally discounting that evidence when determining whether the requesting state has met the test for extradition.”

“Having regard to the entirety of Lennox’s sworn statement and his grand jury testimony, there is nothing in that material or his status as a co‑conspirator seeking a favorable bargain with the prosecuting authorities that could justify characterizing his statement and evidence as ‘so defective’ or ‘so unreliable’ as to warrant the exclusion of the statement and testimony from consideration when determining the issue of committal for extradition.”

“Although counsel for Anderson does not argue that the problems apparent in Lennox’s evidence from the material filed by the requesting state could justify the extradition judge disregarding that evidence, he does argue that those frailties opened the door to evidence called on behalf of Anderson that could reveal difficulties inherent in Lennox’s evidence that were sufficiently serious to warrant refusing to commit for extradition based on Lennox’s statement and grand jury testimony.”

“After United States v. Ferras, supra, the subject of an extradition request may lead evidence to demonstrate that evidence relied on by the requesting state is manifestly unreliable and should be excluded from consideration by the extradition judge: see United States v. Ferras, at para. 70. Counsel for the United States submits, however, that before counsel for Anderson could call Lennox, he had to outline the nature of the evidence he anticipated obtaining from Lennox and demonstrate that the anticipated evidence could potentially affect the decision of the extradition judge on the issue of committal. Counsel for the United States contends that Lennox’s evidence could be relevant to the question of committal only if it was capable of convincing the extradition judge that Lennox’s evidence was so unreliable that it should be disregarded for the purposes of deciding whether Anderson should be committed for extradition.”

“I think it is beyond question that had Lennox been required to testify, counsel for Anderson may well have elicited testimony that adversely affected Lennox’s credibility or the reliability of his sworn statement and grand jury testimony. I can even accept that it is possible that the questioning of Lennox could have led the extradition judge to conclude that Lennox’s sworn statement and grand jury testimony were totally unreliable and should not be considered in determining the question of extradition.”

“The essential question on this appeal is whether that possibility is enough, without requiring counsel for Anderson to make some offer of proof demonstrating the ultimate relevance of the proposed evidence, before being allowed to call Lennox on the extradition proceedings.”

“In any litigation where the admissibility of evidence is challenged, the presiding judge may require counsel to outline the nature of the anticipated evidence and demonstrate its admissibility based on that outline. [Cites]. Where the admissibility of the proffered evidence turns on its relevance, the presiding judge may determine relevance based on counsel’s outline of the anticipated evidence or the judge may hear the evidence and then rule on its relevance. Policy considerations will determine which of those two courses should be followed.” [¶¶ 26‑37].

“... Extradition proceedings are intended to be expeditious and to facilitate prompt compliance with Canada’s international obligations: see United States v. Dynar, [1997] 2 S.C.R. 462 (S.C.C.) at para. 122. The extradition hearing is neither a trial, nor even a precursor to a Canadian trial. The guilt or innocence of the person whose extradition is sought is irrelevant in the extradition proceeding. That proceeding has but one purpose ‑‑ to ensure that the person is not extradited from Canada unless the requesting state has justified extradition as required by Section 29(1)(a).”

“The expansion of the judicial role in extradition proceedings effected by United States v. Ferras, supra, creates a tension between the limited right to challenge the credibility and reliability of the evidence tendered by the requesting state and the need to maintain the essential nature and narrow focus of the extradition hearing. If anyone who could potentially give evidence that could significantly undermine the reliability or credibility of the evidence relied on by the requesting state could be compelled to testify at the extradition hearing, I do not see how the extradition judge could prevent the proceeding from becoming a wide‑ranging discovery‑like process for the party whose extradition was being sought.”

“The extradition judge must be satisfied that the proffered evidence could, when considered in combination with the rest of the record, lead him or her to conclude that evidence offered by the requesting state that is essential to the committal for extradition is so manifestly unreliable or defective that it should be disregarded for the purposes of determining whether the requesting state has met its evidentiary burden under Section 29(1)(a).” [ ¶¶ 42‑43]

“Counsel for Anderson candidly acknowledged that he could not offer any outline of the proposed evidence of Lennox that would render the proposed evidence relevant to the question of committal. He frankly acknowledged that he had no idea whether Lennox would give evidence that would turn out to be relevant to the question of committal. Nor, in the light of United States v. Ferras, supra, has counsel attempted to put anything before this court which would demonstrate the relevance of any evidence Lennox might give to the issue of committal. The extradition judge correctly held that Lennox could not be called as a witness by Anderson in the extradition proceedings.”

I would dismiss the appeal from the committal order and the application for judicial review of the Minister’s surrender order” [ ¶¶ 47‑48] The other two members of the panel agree.

Citation: United States v. Anderson, 2007 CarswellOnt 638, 85 O. R. (3d) 380 (Ont. Ct. App. 2007).

FORUM NON CONVENIENS

Fifth Circuit affirms forum non conveniens dismissal of Texas lawsuit in favor of forum Mexico despite allegations of bribery and other unethical conduct in Mexico; all relevant acts occurred in Mexico and aspects of the matter have already been litigated in Mexico; the fact that the opposing party has already prevailed in part in Mexico proves that it is an adequate alternative forum

The following is a dispute between a Mexican banking corporation and a South Carolina company over the proceeds from the sale of textile manufacturing equipment. A Mexican textile manufacturer, Denimtex, S.A. de C.V., purchased $30 million worth of manufacturing equipment with bank loans, and began defaulting on the loans in 2000. BBVA Bancomer, S.A. (Bancomer) held a security interest in that equipment, and DTEX, LLC claims that it owned the equipment based on a foreclosure sale by the Mexican Government. This dispute has occupied Mexican and U.S. courts since 2002. In one of the Mexican actions, Bancomer claimed that the Mexican tribunal that conducted the sale of the equipment had done so in violation of Bancomer’s rights.

The Mexican court dismissed that action, and subsequent appeals confirmed the result.

DTEX filed the present lawsuit in the Southern District of Texas, seeking damages for tortious interference with contract, intentional interference with prospective contractual relations, and conversion. There was jurisdiction over Bancomer in Texas because it has a foreign bank agency in Houston, Texas. The district court dismissed DTEX’s lawsuit based on forum non conveniens, suggesting that the matter proceed in Mexico. This appeal ensued.

The U.S. Court of Appeals for the Fifth Circuit affirms the district court because there was no abuse of discretion. In fact, the Court fully agrees with the district court’s opinion and adopts its Memorandum and Order by reference as the opinion of the Court.

The district court has broad discretion in determining forum non conveniens, and such finding may be reversed only if there is a clear abuse of discretion. The applicable standard is:

“The defendants bear the burden of proof on all elements of the forum non conveniens analysis. ...”

“The ‘private interest’ factors include: ‘(I) the relative ease of access to sources of proof; (ii) availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; (iii) possibility of view of [the] premises, if view would be appropriate to the action; (iv) all other practical problems that make trial of a case easy, expeditious and inexpensive . . . enforceability of judgment [; and whether] the plaintiff [has sought to] ‘vex,’ ‘harass,’ or ‘oppress’ the defendant. [...]”

“The ‘public interest’ factors include:”

“(I) the administrative difficulties flowing from court congestion; (ii) the local interest in having localized controversies resolved at home; (iii) the interest in having a the trial of a diversity case in a forum that is familiar with the law that must govern the action; (iv) the avoidance of unnecessary problems in conflicts of law, or in application of foreign law; and (v) the unfairness of burdening citizens in an unrelated forum with jury duty.”

“The defendant carries the burden of persuading the court that a lawsuit should be dismissed on forum non conveniens grounds. ... Ordinarily a strong favorable presumption is applied to the plaintiff’s choice of forum. ‘[U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’ Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).” [Slip op. 10‑11]

The district court then applied the factors to the case at bar. As for the adequacy and availability of the foreign forum, both parties presented experts on Mexican law. Even though Mexican law may limit some of the damages that DTEX is claiming for the alleged tortious conduct, it does recognize DTEX’s claims. In fact, DTEX has prevailed against Bancomer in one of the Mexican cases and collected 39 million Mexican pesos.

As for the ease of access to sources of proof, DTEX’s witnesses are primarily in Mexico. Most of the alleged events occurred in Mexico. The evidence includes Mexican court transcripts, Mexican police records, the impoundment of the equipment by Mexican authorities, and DTEX’s attorneys’ fees incurred in Mexico. Most of these documents are in Spanish and translations would be expensive and time consuming. Thus, the relative ease of access to evidence favors Mexico.

As for the availability of compulsory process for unwilling witnesses, many of DTEX’s non‑party witnesses are Mexican, including the judicial administrator of the equipment impoundment, Mexican judges, Mexican police officers, and other Mexican court officials. The district court cannot compel the attendance by any unwilling non‑party witness located in Mexico. This factor favors dismissal based on forum non conveniens.

As for the cost of securing attendance of willing witnesses, since virtually all witnesses are Mexican, this factor favors dismissal.

As to other factors that facilitate the proceeding, DTEX refers to Bancomer’s alleged undue influence on Mexican government officials and other unethical actions. Furthermore, DTEX claims that litigating in Spanish is a hardship. The district court notes that DTEX purchased the equipment at issue in Mexico at an auction sponsored by the Mexican Government, and has already litigated aspects of this case in Mexico.

As for the public interest factor of administrative difficulties, all of the above‑mentioned factors indicate that administrative difficulties would be greatly reduced in Mexico.

As for interest of the forum in resolving the controversy, all alleged torts occurred in Mexico. Clearly, Mexican courts have a greater interest that U.S. courts in deciding whether the Mexican court system has been abused after an impoundment by the Mexican Government. DTEX’s only connection to Texas in this instance is this lawsuit.

As to the governing law, it is likely that Mexican law will apply to at least part of the controversy. Texas follows the “most significant relationship test” pursuant to the Restatement (Second) of Conflict of Laws Section 6 and Section 145. The relevant contacts include the place where the injury occurred, the domicile of the parties, and the place where the relationship of the parties is centered. All of these contacts favor Mexico.

Finally, as to the burden on the citizens, Texas should not be burdened with the Mexico‑centered lawsuit.

In sum, Mexico is an adequate and available forum, and both private and public interest factors strongly support dismissal based on forum non conveniens.

Citation: DTEX, LLC v. BBVA Bancomer, S.A., No. 07‑20364 (5th Cir. November 21, 2007).

WORLD TRADE ORGANIZATION

WTO issues Compliance Report in U.S.‑Brazil Cotton Dispute

On December 18, 2007, a Panel of the World Trade Organization (WTO) issued its report on U.S. compliance with the original Panel and the Appellate Report in the U.S.‑Brazil Dispute over U.S. subsidies for Upland Cotton (DS267).

This dispute goes back to September 2002, when Brazil requested consultations with the U.S. regarding U.S. subsidies to producers of cotton. The WTO established a Panel to hear the dispute.

The Dispute Settlement Panel issued its report in May 2004, which was largely confirmed by the Appellate Body. In particular, the Appellate Body upheld, among other things:

(1) the Panel’s finding that the challenged U.S. price‑contingent subsidies (marketing loan program payments, user marketing payments, market loss assistance payments, counter‑cyclical payments) are a significant price suppression within the meaning of Article 6.3(c) of the SCM Agreement;

(2) the Panel’s finding that “user marketing payments” (payments to domestic users of such products) under Section 1207(a) of the Farm Security and Rural Investment Act of 2002 (FSRI) are subsidies contingent on the use of domestic over imported goods that are inconsistent with Articles 3.1(b) and 3.2 of the SCM Agreement; and

(3) the Panel’s finding that the U.S. credit guarantee programs (so‑called GSM 102, GSM 103 and SCGP, which support commercial financing of agricultural exports) are export subsidies within the meaning of the SCM Agreement.

Brazil requested an Article 21.5 panel in August 2006 to review U.S. compliance with the recommendations of the Dispute Settlement Panel. The Panel issued its compliance report, concluding that:

(1) The U.S. has acted inconsistently with its obligations under Articles 5(c) and 6.3(c) of the SCM Agreement in that the effect of marketing loan and counter‑cyclical payments to U.S. upland cotton producers under the FSRI Act of 2002 is a “significant price suppression” within the meaning of Article 6.3(c). Thus, the U.S. has failed to comply with the WTO recommendations.

(2) The U.S. has acted inconsistently with Article 10.1 of the Agreement on Agriculture through the GSM 102 export credit guarantees issued after 1 July 2005. The U.S. is applying export subsidies in a way to circumvent the U.S. export subsidy commitments. Thus, the U.S. has failed to bring its measures in conformity with the Agreement on Agriculture and failed to withdraw the subsidy without delay.

The U.S. must remove the adverse effects or withdraw the subsidy under Article 7.8 of the SCM Agreement.

Citation: United States—Subsidies on Upland Cotton, Recourse to Article 21.5 of the DSU by Brazil (WT/DS267/RW) (18 December 2007).

EU agrees on treaty reform. The leaders of the Member States of the European Union have agreed on a treaty for a major reform. The 250‑page document was agreed upon in Lisbon shortly after midnight on October 19, 2007, and will be formally signed on December 13, 2007. If all Member States ratify this “Treaty of Lisbon,” it will enter into force in 2009 and replace the current EU Treaty. Features of the reform treaty include a long‑term President fo the European Council, a EU foreign policy chief, and a reformed voting system. It will amend existing EU treaties. It does not, however, turn the EU in a single state; the Treaty does not mention an EU anthem or a common flag. Citation: Information and the draft text of the Lisbon Treaty is available on the website http://europa.eu/reform_treaty/index_en.htm. The text of the Lisbon Treaty is available on the website of the Council of the European Union at http://consilium.europa.eu.

EU imposes anti‑dumping duty on persulphates from the U.S. On October 9, 2007, the European Union issued Regulation No 1184/2007, imposing an definite anti‑dumping duty on peroxosulphates (persulphates) originating in the U.S., China and Taiwan. These chemical substances are used in many industries because of their disinfectant, bleaching and etching properties, for example in the manufacture of electronic circuit boards and as pool disinfectants. The affected U.S. manufacturers are E.I. DuPont De Nemours (10.6 percent duty), FMC Corporation (39 percent duty), and all other manufacturers (39 percent duty) of these substances.

Citation: Regulation No 1184/2007, 2007 O.J. of the European Union (L 265) 1, 11 October 2007.

U.S. President signs ratification of Hague Convention on Intercounty Adoption. Americans adopt more foreign‑born children than all other countries in the world combined. On November 16, 2007, U.S. President George W. Bush signed the U.S. instrument for the ratification of the Hague Convention on Intercounty Adoption. The U.S. had signed the Convention in 1994, and the Senate gave its advice and consent in 2000. The implementing legislation is the Intercountry Adoption Act (IAA). The Convention establishes federal oversight of adoption policies and policies overseas, providing international rules for adoptions among the signatory countries. There are safeguards for children, birth parents and adoptive parents to protect them from shady practices, including hidden fees and child abduction. Some agencies have been luring families with photos of unavailable children and encouraging them to bribe foreign bureaucrats to expedite an adoption. Under the Convention, each Member State creates a Central Authority (as pioneered in the Hague Service Convention many years ago.) In the adoptions context, these Authorities are to establish ethical practices, to require accreditation for the agencies handling the adoptions, to maintain a registry to track complaints and to create a system for decertifying agencies that fail to meet the standards. In the U.S., the State Department is the responsible authority, which will ensure compliance and track adoption cases. Member nations will recognize adoptions that occurred in other Member nations. Once the Convention is fully operational in April, 2008, U.S. parents seeking a visa for an overseas adoption must prove to the State Department (1) that a child has been properly cleared for adoption, (2) that a local placement had been considered, (3) that the birth parents were counseled on their decision and have signed consent forms and (4) that all prospective adoptive parents are properly trained for what could be emotionally rocky transitions for orphaned children. Agencies working in Member States must be accredited, a process under way in the United States until February 15, 2008. Moreover, each Member State is expected to enact enabling domestic legislation. Among the more popular nations for American adoptions, China has ratified the Convention; neither Ethiopia nor Vietnam has signed it; and Russia has signed but not ratified it. Guatemala has ratified the Convention but has yet to enact implementing legislation. – The U.S. officially acceded to the Convention on December 12, 2007 with a ceremony at the designated authority in The Hague, The Netherlands. The Convention is expected to enter into force on April 1, 2008.

Citation: U.S. Department of State Media Notes, November 21, 2007 & December 21, 2007; the interim rule is published in 72 Federal Register 56831 (October 4, 2007); The New York Times, Tuesday, December 11, 2007 at page A25 (byline of Jane Gross). More information on the Convention is available on the website of the U.S. State Department at travel.state.gov.

Secretary of State Rice welcomes Senate passage of Peruvian trade agreement. On December 4 last, the U.S. Secretary of State issued the following statement quoted here in part. “I am gratified by the Senate’s bipartisan approval of the U.S. ‑ Peru Trade Promotion Agreement. ... U.S. businesses, workers, farmers, and ranchers will now be able to compete on a level playing field with their Peruvian counterparts, and U.S. investors will have greater opportunities to play a positive role in the Peruvian economy. Peruvian access to the U.S. market, which had to be renewed by Congress periodically, will become permanent. This permanent access will help build a more efficient and effective economic engine to create growth, jobs and economic opportunities both in Peru and in the United States. ... I urge Congress, as we begin a new year, to move forward with the same energy and focus that brought about this agreement’s passage, to the pending trade agreements with Colombia, Panama and South Korea.” Citation: Statement #2007/1089 by Secretary Condoleezza Rice, Washington, D.C., released Tuesday, December 4, 2007, at 3:28 p.m.