Legal Analyses written by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
1996
International Law Update, Volume 2, Number 6 (June).
BANKING
see
also CRIMINAL LAW
Federal
Reserve Board amends Regulation K to relax restrictions on mergers of U.S.
subsidiaries of foreign banks and to require foreign banks to designate
"home state" by June 30, 1996
In
the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994
(Interstate Act), congress allowed free interstate banking for foreign banks
effective September 29, 1995. For the
first time, the Act also required certain foreign banks without U.S.
deposit-taking offices to select a "home state."
Accordingly,
the Board of Governors of the U.S. Federal Reserve System has updated
Regulation K dealing with interstate banking operations of foreign banks (see
12 C.F.R. Part 211). The amended
Regulation requires foreign banks to select a home state by June 30, 1996 (or
the Board will assign one). It also
removes outdated restrictions on certain mergers by U.S. subsidiaries of
foreign banks outside the home state of the foreign bank, as well as obsolete
provisions of Regulation K as to home state selection.
Citation: 61 Federal Register 24439 (May 15, 1996).
CHOICE
OF LAW
U.K.
enacts statute setting standards for domestic choice of law in multinational
tort cases
On
November 8, 1995, the United Kingdom enacted the Private International Law
(Miscellaneous Provisions) Act. Part III sets forth important provisions
governing transnational choice of law in tort or Scottish "delict"
cases (other than defamation) in the courts of England, Scotland, Wales and
Northern Ireland.
Section
9(2) empowers the forum court to decide whether to characterize a matter as
tort or another cause of action. Under
Section 9(5), choice of the "applicable law" comprises only the
internal law of the countries in question not their choice-of-law principles --
thus presumably precluding renvoi. The
common law rule that would require actionability in tort both at the forum and
in the other country is abolished by Section 10.
Adopting
a version of the lex loci delicti approach, the keystone of Part III is Section
11. It provides that "(1) the
general rule is that the applicable law is the law of the country in which the
events constituting the tort or delict in question occur; (2) Where elements of
these events occur in different countries the applicable law under the general
rule is to be taken as being -- (a) for a cause of action in respect of a
personal injury caused to an individual or death resulting from personal
injury, the law of the country where the individual was when he sustained the
injury; (b) for a cause of action in respect of damage to property, the law of
the country where the property was when it was damaged; and (c) in any other
case, the law of the country in which the most significant element or elements
of those events occurred; (3) In this section 'personal injury' includes
disease or any impairment of physical or mental condition."
Section
12 introduces substantial flexibility by providing for derogation from the general territorial
rule. If a court sees from the relevant
linking circumstances that it would be "substantially more
appropriate" to apply the law of a country other than the locus delicti to
any issues, the court should apply the law of that other country. Such elements include "factors relating
to the parties, to any of the events which constitute the tort or delict in
question or to any of the circumstances or consequences."
Several
traditional "escape" provisions are found in Section 14(3). The Act does not authorize a U.K. forum to
apply the law of another country chosen by the above principles if it would
"conflict with principles of public policy" or would "give
effect to such a penal, revenue or other public law as would not otherwise be
enforceable" under forum law or would affect any rule of forum evidence or
procedure.
Citation: Great Britain. Public General Acts. Private
International Law (Miscellaneous Provisions) Act 1995. Chapter 42. London,
HMSO.
Sixth
Circuit determines damages in 1983 Korean Airlines disaster according to U.S.
law, applies DOHSA and finds that loss of society and grief awards not
available to plaintiffs
The
notorious details of the 1983 downing of a Korean passenger airplane by fighter
planes of the former U.S.S.R. have been the subject of substantial litigation
[see Oct. 1995 I.L.U. at page 11]. The crash killed all 269 people aboard. In the following case, the Sixth Circuit
determines the damages arising from that incident according to U.S. law, using
the approach of the U.S. Supreme Court in Zicherman v. KAL, 116 S.Ct. 629
(1996) [see Feb. 1996 I.L.U. at page 15].
Generally,
the Warsaw Convention [49 Stat 3000, T.S. No. 876 (1934)] limits recovery for
airline negligence to $75,000. On the
issue of liability for all such suits in federal courts, a D.C. jury found that
KAL's "willful misconduct" had proximately cause the crash, thus
lifting the $75,000 limit [see Articles 22(1) & 25(1) of the
Convention]. Thereafter, the
Multidistrict Litigation Panel remanded the individual cases to their courts of
origin to determine damages.
Personal
representatives of five victims brought damages claims against KAL in Michigan
federal court. The district court held
that both dependent and non-dependent relatives could recover pecuniary as well
as non-pecuniary damages. After a 1993
trial, the jury awarded plaintiffs damages for wrongful death and survival,
including loss of society, survivor's grief, and pain and suffering of the
deceased. KAL appealed.
The
Sixth Circuit reverses and remands.
Article 24(2) of the Warsaw Convention provides that the internal laws
of some party to the Convention control the issue of damages. The U.S. Supreme Court held more specifically
in Zicherman that a party's domestic law determines who can bring an action and
what damages they can recover (in that case the parties had stipulated to the
application of U.S. law).
In
the absence of such a stipulation, the Court here must decide whether to apply
the law of the U.S.S.R., the Republic of Korea or the U.S. and which
choice-of-law rules to use to make this decision. These cases are in part "federal
question" cases since they arise under an international convention and in
part they arise under the admiralty law of DOHSA.
Therefore,
"[t]o answer the choice of law question presented by these cases, we apply
a federal choice of law rule. In doing
so, we are mindful that there is 'no federal general common law,'... The Warsaw Convention, however, embodies a
concrete federal policy of uniformity and certainty ..., which would be
undermined by the use of state choice of law rules. Consequently, we are of the view that these
cases present precisely the type of situation in which it is appropriate to
craft a special federal rule which, in these cases, is a choice of law
rule." [5-6]
Absent
an existing body of federal conflicts law, the Court guides itself by the
Restatement (Second) of Conflict of Laws.
Under § 175 on wrongful death cases, the presumption is to apply the lex
loci delicti (here, the former U.S.S.R.) unless a more significant relationship
exists with another state pursuant to the principles of § 6. As a nonexistent state, the former U.S.S.R.,
in the Court's view, lacks a "judicially cognizable interest" in
having its law applied.
As
between Korean and American law, the Court analyzes the factors in Restatement
§ 6 and concludes that U.S.law should govern.
First, application of U.S. law supports "ease in the determination
and application of the law to be applied."
Secondly, the Supreme Court and other circuits have already applied U.S.
law in other cases involving this disaster, so that to preserve
"certainty, predictability, and uniformity of result" the Court
follows their lead. Thirdly, neither
Korean nor U.S. law can lay claim to greater protection of "the basic policies
underlying the particular field of law," or "the needs of the
interstate and international systems" because these suits arise under the
Warsaw Convention. Finally, "the
relevant policies of other interested states and the relative interests of
those states in the determination of the particular issue" weigh heavily
in favor of the U.S. Many of those
killed were Americans and the flight began in the U.S. The domiciliary nation generally has a
greater interest in compensation of its plaintiffs than any other state.
Having
concluded that U.S. law applies, the Court turns to Zicherman where the Supreme
Court read DOHSA to bar loss-of-society damages. Though Zicherman did not directly address
survivor's grief damages, the Sixth Circuit finds them equally unavailable. Finally, the Court reverses the damage award
for decedents' pain and suffering because DOHSA itself does not provide for it.
Citation: Bickel v. Korean Airlines Co., Ltd., No.
93-2144, 65 U.S.L.W. 2693 (6th Cir., April 29, 1996).
CRIMINAL
LAW
Mexico
enacts law to curb money-laundering of drug proceeds
On
April 29, 1996, the Mexican legislature passed several amendments to the
Mexican Penal Code (Código Penal). One
of the amendments, the new Article 400 bis, serves to make money laundering a
criminal offense. The law includes provisions to punish criminal conspirators
who are involved in such activities. The
law provides for increased penalties if the crimes are committed through
"public servants" (which might mean if officials are bribed -- The
Editors).
The
provisions of the law are broad and rather general. In essence, it provides for
up to five years of imprisonment for anybody who receives, administers, guards,
exchanges, deposits, invests, transports or transfers through Mexico the
proceeds of illegal activity with the purpose of hiding their origin, location,
destination or owner.
The
law does not specifically mention "banks"; instead, it applies to all
employees and officers of institutions of the "financial system"
(sistema financiera). It also includes a broad definition of the term
"financial system."
Previously,
Mexican banking rules had classified activities related to money-laundering as
an irregularity rather than a crime. The
U.S. Drug Enforcement Agency (DEA) repeatedly accused Mexican banks of being
involved in money-laundering activities.
The subject of money laundering and Mexican financial institutions has
been repeatedly discussed in the U.S. Congress (see, for example, 142
Congressional Record S555-03, January 3, 1996).
The
new Mexican law entered into force on May 14, 1996.
Citation: Decreto por el que se reforman, adicionan y
derogan diversos artículos del Código Penal ..., 1996 [Mexican] Diario Oficial
de la Federación [Official Gazette], Primera Sección, page 2, June 13, 1996.
EXTRADITION
New
York district court finds political leader of Hamas extraditable to Israel
Israel
requested the extradition of Mousa Mohammed Abu Marzook, the leader of the
"political wing" of the Islamic Resistance Movement
"Hamas." INS officials
arrested Marzook, a U.S. resident, at John F. Kennedy International Airport
upon his return from the United Arab Emirates.
Israel alleged that the "military wing" of Hamas and Marzook
are responsible for several terrorist acts in Israel. Marzook claims that he was a political
official with no control over the militants who were responsible for the
attacks.
On
May 7, 1996, the U.S. District Court for the Southern District of New York
finds Marzook extraditable based on 18 U.S.C. § 3184 and the Convention on
Extradition, Dec. 10. 1962, U.S.-Isr., 14 U.S.T. 1707, 18 U.S.T. 382. Section 3184 requires a hearing so that
"the evidence of criminality may be heard and considered."
The
Court first rejects Marzook's argument that the extradition is unconstitutional,
thus depriving the court of jurisdiction.
Because Section 3184 allows the Executive to exercise its foreign
affairs powers without encroachment by the Judiciary, there is no impermissible
intrusion by the Judiciary upon executive functions.
As
for the applicable law, Article V of the Convention authorizes extradition only
if probable cause exists "according to the laws of the place where the
person sought shall be found." Marzook argued that only New York law
governs, and he could not be liable for the substantive crimes charged under
New York law (New York rejects the aspect of federal conspiracy law that the
jury can hold all members of a conspiracy liable for the substantive crimes
committed in its furtherance). The Court
holds that it may look into the laws of both the U.S. and the state of arrest
when determining extraditability. It
would be destructive to foreign relations if a felon could escape extradition
because of the peculiarities of some state law.
Finally,
the Court spurns the application of the "Political Offense
Exception," which the Second Circuit has rejected under facts similar to
this case. Based on the evidence
presented, the Court finds probable cause to believe that Marzook had committed
the crimes charged.
Citation: Marzook v. Christopher, Nos. 95 Cr. Misc. 1, 95
Civ. 9799 CKTD (S.D.N.Y. May 7, 1996).
FORUM
NON CONVENIENS
Second
Circuit upholds forum non conveniens dismissal of federal suit by New York
plaintiffs against British defendants relating to internal governance of
Scottish corporation
Filed
in New York federal court in 1985, this corporate litigation has sauntered
through the federal court system for 11 years generating six reported opinions
but has not yet reached the merits.
Plaintiffs are Scottish Air International (SAI), Inc. (a dissolved New
York corporation) and Murray Vidockler, a New York resident and investor in
defendants. Plaintiffs sued British
Caledonian Group plc (BCG), a Scottish company, and three British subjects who
used to be directors of BCG over Vidockler's right to a nominee's seat on BCG's
board. After friction developed, the
parties entered into a court-approved settlement of a 1966 New York
shareholders' suit with a deal allowing plaintiffs to have one seat on BCG's
board. Vidockler held a seat on a
related company until 1985 when he was ousted.
SAI and Vidockler filed suit claiming the right to a seat on Caledonian
Air Group (CAG), a shareholder in BCG, and to have defendants held in contempt
for violating the 1966 settlement agreement.
The following year, plaintiffs amended their complaint to charge breach
of additional agreements and conspiracy.
Eventually the trial court granted summary judgment for defendants on
the contempt claim and dismissed the case on forum non conveniens (FNC)
grounds. Plaintiffs appealed.
The
U.S. Court of Appeals for the Second Circuit affirms both the summary judgment
and the FNC dismissal. Noting that a
plaintiffs' finding on the contempt branch of the case might have made New York
a convenient forum, its disposition tilts the case toward an FNC dismissal if
vexation and burdensomeness to defendants clearly outweigh convenience to
plaintiffs. Since the court has
jurisdiction over defendants and plaintiffs are U.S. citizens, their choice of
an American forum is entitled to "considerable deference." An appellate court's job is to determine
whether the FNC dismissal amounted to a clear abuse of discretion.
The
Court first evaluates the "private interest" factors. Since all of the alleged improper actions
took place in Britain, all potential
witnesses are British save Vidockler. In
view of the special importance of credibility as to the terms of oral
understandings, securing their live testimony in New York would create high
costs and other logistical difficulties.
Likewise, almost all relevant documents lie in the U.K. In addition, having to file a proceeding in
Britain to enforce a New York award of damages would lead to further expense
and delay.
No
abuse of discretion is found in the lower court's application of the
"public interest" factors.
Compared to Great Britain, New York has comparatively little interest in
resolving this dispute. Moreover,
British law will apply since plaintiffs' complaints relate to internal
corporate affairs and the U.K. has the "most significant contacts"
with the case under New York choice-of-law principles. Since the case deals with the right to a
board seat in a Scottish corporation, British courts have a strong interest in deciding
the appropriateness of an English versus a Scottish forum.
Finally,
since the New York federal court alone could have decided the contempt issue,
it was not improper to rule on the merits of that issue and then to dismiss the
rest of the case under the FNC doctrine.
Citation: Scottish Air International, Inc. v. British
Caledonian Group plc, 81 F.3d 1224 (2nd Cir. 1996).
JUDICIAL
ASSISTANCE
On
eve of complex transnational securities trial, Australian Federal Court forbids
plaintiffs to take oral testimony from Colorado witness pursuant to 28 U.S.C. §
1782
In
the Linter litigation pending in the Federal Court for New South Wales [see
April 1996 I.L.U. at page 38], 14 of the applicants for relief arising out of
the issuance of debentures of that company successfully got an order from the
U.S. District Court for the District of Colorado pursuant to 28 U.S.C. § 1782
for the obtaining of oral and documentary evidence from one Millard Zimet
during February 1996. While a member of
the Skadden firm, Zimet had logged 900 hours of time in the Fall of 1988 on the
Lintner Companies' account dealing with the Prospectus and with filings and
communications with the Securities and Exchange Commission. Skadden moved the court to enjoin the
evidence-taking in Colorado.
The
Australian federal court grants the motion.
Noting that he had the March 18, 1996 as the date for the trial of this
complex suit and that counsels' estimates of its length ranged from six to 18
months, the Court finds that the Colorado proceeding would be vexatious and
oppressive. Citing the Esmerian case
[see Oct. 1995 I.L.U. at page 7], the Court also notes the split in federal
circuits as to whether a showing of discoverability of the material sought in
the foreign tribunal is a threshold requirement under § 1782 or only one of
several factors pertaining to the exercise of statutory discretion.
The
Court points out that, like the U.K.,
Australian procedure does not allow compulsory discovery of documents
from persons not a party to the litigation in question. Skadden, however, does not object to obtaining
documents from Zimet. The crucial point
is that compulsory oral pretrial discovery is not available under Australian
procedure from either parties or non-parties.
"There is no procedure of this Court remotely similar to the
procedure under para 1782 invoked to compel oral discovery by Mr. Zimet. ... In
this Court, unless a witness voluntarily informs a party of the evidence which
the witness will give, the party must choose between calling the witness 'cold'
on the hearing or not calling him or her at all." ¶ 26.
While
the Australian Court might consider issuing a letter of request to obtain Mr.
Zimet's testimony for introduction at trial, the party would need the witness's
cooperation to find out what he was going to say in advance. Citing F. R. Civ. P. 30(d)(3) as presumably
applicable pursuant to § 1782, the Court suggests that it tends to support the
power of a foreign court in which the action is pending to suspend or terminate
U.S. depositions on grounds of bad faith or oppression of a party.
Citation: Allstate Life Ins. Co. v. Australia and New
Zealand Banking Group Ltd., Fed No. 119/86 (Fed. Ct. Aust., N. South Wales
Dist. Reg., 28 Feb. 1996).
JURISDICTION
Ninth
Circuit rejects extraterritorial application of SEC Act and RICO to allegedly
fraudulent oversees stock swap by
foreign defendants that allegedly injured foreign plaintiffs
Clive
J. Smith, a citizen and resident of England along with several citizens and
residents of Australia and Canada plus certain British companies (collectively
"Promoters") bought Montana mining properties and equipment from
Dennis Washington in 1986. The following
year, Promoters formed Butte Mining PLC, a British corporation, to buy and
lease these properties. Smith controlled
the C. J. Smith Trust on the U.K. Island of Jersey. His daughters held shares in Butte Mining
through Jersey corporations and trusts.
Promoters, the Smith Trust, the Butte Mining officers and directors (the
Control Group) formed 15 Jersey companies and trusts that owned 15 Montana shell
corporations. In May 1992, Butte and
three shell companies sued the Control Group and others for engineering an
allegedly fraudulent swap of 49,500,000 shares of Butte Mining stock that
enriched defendants at plaintiffs' expense.
Plaintiffs
alleged securities fraud under § 10 of the SEC Act of 1934 [and Rule 10(b)-5]
plus RICO conspiracy violations along with many pendent state law claims. Plaintiffs specifically claimed that
defendants had committed two or more acts of securities fraud in the U.S. and
had used the U.S. mails and wires to advance their fraudulent scheme. After
analyzing the extraterritorial application of U.S. law sought in this suit, the
district court dismissed it in January 1995.
On
appeal, the U.S. Court of Appeals for the Ninth Circuit affirms. On the securities fraud issues, the Court
declares, "[i]n this case the base of operations for the alleged
defrauders was London or Jersey. That
defendants had, as assets underlying their stock, mining property in Montana
did not make Montana their operational base.
Personally, so far as the record shows, they avoided Montana like the
plague even while they are alleged to have played on a credulous public
invoking whatever glamour still clings to mines in Montana." [290-91]
The Court
also rebuffs plaintiffs' argument that American professionals got involved in
the matter. Only Washington's lawyer and
a tax accountant were domestic and plaintiffs did not allege that either had
anything to do with the stock swap.
Moreover, because defendants' purchase of Montana properties and
formation of Montana companies were only preparatory to the alleged overseas
fraud, these activities were not enough of an American jurisdictional
nexus. Similar reasoning also shows lack
of U.S. jurisdiction over the RICO claims.
Citation: Butte Mining PLC v. Smith, 76 F.3d 287 (9th Cir.
1996).
SOVEREIGN
IMMUNITY
Fifth
Circuit denies rehearing in FTCA action for release of Hitler's paintings and
historic photographs seized by U.S. during allied occupation of Germany
The
Fifth Circuit recently held in Price v. United States, 69 F.3d 46 (5th Cir.
1995) [see Jan. 1996 I.L.U. at page 9], that art investor Billy Price could not
force the U.S. to turn over to him certain watercolors painted by Adolf Hitler
as well as photographs taken by Hitler's personal photographer. Based on a 1951 Vesting Order pursuant to the
Trading with the Enemy Act, American authorities had removed the paintings and
photographs from Germany during the allied occupation after World War II. The Court had held that there was no subject
matter jurisdiction under the Federal Tort Claims Act (FTCA) § 2680(k) if the
claim arose outside the U.S.
The
Fifth Circuit denies the petition for rehearing on April 10, 1996. It sees no merit in Price's claim for
photographs presently in the U.S. archives which the 1951 Vesting Order did not
cover. As to these items, Price had
failed to comply with the administrative exhaustion requirements of FTCA
Section 2675(a). The dismissal is without prejudice to Price's action presently
pending in district court.
Citation: Price v. United States, 81 F.3d 520 (5th Cir.
1996).
TRADE
Federal
Circuit upholds rulings of Court of International Trade as to application of
antidumping statutes and regulations to antifriction bearings imported from
Japan
The
antidumping laws require the Department of Commerce to impose added duties on
merchandise imported for sale in the U.S. at less than its foreign fair market
value (FMV) to the damage of a domestic industry. [N.B. While the Uruguay Round
Agreements Act, P. L. 103-465, 108 Stat. 4809 (1994) modifies these laws, the
present case arose prior to its effective date]. In 1990, Commerce started reviewing imports
of antifriction bearings (other than Tapered Roller Bearings) from Germany,
France, Italy, Japan, Romania, Singapore, Sweden, Thailand and the U.K. The instant case, however, relates to
Japanese bearings.
With
respect to Japanese bearings that American Koyo and Koyo USA (Koyo), American
subsidiaries of Koyo Seiko Ltd., brought into the U.S. but then exported to a
third country, Commerce had exempted Koyo from reporting because it had no U.S.
sales price from which to calculate a dumping margin. In addition, Commerce calculated the foreign
market value of bearings NTN Corporation (NTN) imported by NTN American
subsidiaries through deducting pre-sale home-market transportation expenses as
an ESP (exporter's sales price) offset, thus effectively lowering NTN's dumping
margin. A third issue arose about
post-sale price adjustments (PSPA's). In computing an antidumping duty,
Commerce had adjusted the FMV of bearings for certain PSPAs as indirect selling
expenses. The Torrington Company
generally objected to these actions by Commerce and to their approval by the
Court of International Trade (CIT) and appealed further. Koyo cross-appealed the CIT's rejection of
Commerce's action on the PSPA issue.
The
U.S. Court of Appeals for the Federal Circuit affirms the CIT. Noting that there are no factual disputes
here, the Court points out that Commerce must comply with a clear legislative
direction from Congress. If, however,
the statute is silent or ambiguous, the Court may uphold Commerce if its
actions rest on a reasonable reading of the statutes and compliance with its
own regulations.
On
the re-exported bearings issue, the Court finds that the statute is
silent. Commerce acted reasonably,
however, in exempting Koyo from reporting since it was impracticable for
Commerce to obey Congress's command to calculate an American sales price. The Court also adheres to its holding in
Torrington v. U.S., 68 F.3d 1347 (Fed. Cir. 1995) that Commerce may deduct
indirect transportation expenses from FMV under the ESP offset. Since Congress did not speak to the PSPA
question, the Court would normally defer to Commerce's reading of its own
regulations. It concludes that Commerce
did not act reasonably, however, in reducing the FMV by the amount of indirect
selling expenses customarily made in foreign sales of bearings, even though
Koyo Seiko's sales records are not product-specific but customer-specific.
Citation: Torrington Co. v. United States, Nos.
95-1210/1211 (Fed. Cir. April 23, 1996).
WTO's
preshipment inspection body, Independent Entity (IE), has begun work resolving
disputes between exporters and preshipment inspection agencies
On
May 1, 1996, the IE -- the WTO's mechanism for settling disputes between
exporters and preshipment inspection companies -- went into operation. The WTO administers the IE jointly with the
International Chamber of Commerce (ICC) and the International Federation of
Inspection Agencies (IFIA).
"Preshipment
inspection" (PSI) verifies details as to shipments of goods from overseas,
such as price, quantity and quality.
About 30 developing countries (mostly in Africa) use PSI to prevent
capital flight, commercial fraud and evasion of customs duties.
The
General Council set up the IE in December 1995 based on the WTO Agreement on
Preshipment Inspection. The Agreement
envisages an independent review procedure for resolving disputes between an
exporter and a preshipment inspection agency.
Once someone files a complaint, the IE appoints a single trade expert or
a three-member panel, to make a decision within eight working days. The full
text of the General Council decision and the IE's rules of procedure are
available from the WTO Secretariat on the Internet [http:// www.unicc.org/wto].
[The
Uruguay Round agreement on preshipment inspection is only one of several
agreements that establish the WTO. The
others concern subjects such as agriculture, sanitary and phyto-sanitary
measures, textiles, anti-dumping, trade-related investment measures, subsidies
and countervailing measures, safeguards, technical barriers to trade, customs
valuation, intellectual property protection, rules of origin, import licensing
procedures, services, and dispute settlement. - The Editors].
Citation: World Trade Organization Press Release, 1 May
1996.
U.S.
Department of Treasury amends customs regulations to clarify that OFAC applies
Customs laws and regulations regardless of how regulated matters arrive in, or
depart from, the U.S.
The
U.S. Customs Service of the Department of the Treasury enforces the laws and
regulations administered by the Office of Foreign Asset Control (OFAC). These
laws include:
The Trading With the Enemy Act (50 U.S.C. App.
1-44),
The National Emergencies Act (50 U.S.C. 1641),
The International Emergency Economic Powers
Act (50 U.S.C. 1701-1706), and
The International Security and Development
Cooperation Act (22 U.S.C. 2349aa8-9).
Effective
on May 17, 1996, a final rule amends the Customs Regulations (19 C.F.R. Parts
12, 145, and 161) to clarify that OFAC enforces sanctions on countries that the
President has designated as presenting a threat to the national security,
foreign policy, or economy of the U.S.
The former Customs Regulations referred to OFAC regulations only in the
context of merchandise arriving in the U.S. by mail. The new rule clarifies that Customs enforces
the laws and regulations administered by OFAC regardless of the manner in which
the merchandise, services, or technology arrives in, or departs from, the U.S.
Citation: 61 Federal Register 24888 (May 17, 1996).
U.S.
Treasury eases trade sanctions against Bosnian Serbs for compliance with Dayton Accords
The
U.S. Department of the Treasury, Foreign Assets Control Office, has amended the
Federal Republic of Yugoslavia (Serbia and Montenegro) and Bosnian
Serb-Controlled Areas of the Republic of Bosnia and Herzegovina Sanctions
Regulations (31 C.F.R. Part 585). The
amendment prospectively authorizes all transactions regarding property of the
Bosnian Serb forces and authorities, and any dealing by U.S. persons regarding
trade and services in the Republic of Bosnia and Herzegovina that the Bosnian
Serb forces control. Certain exceptions,
however, apply to blocked property (31 C.F.R. § 585.201).
On
January 16, 1996, the Treasury Department prospectively suspended sanctions
imposed against the Federal Republic of Yugoslavia (Serbia and
Montenegro). Sanctions against the
Bosnian Serb forces were to remain in effect until their withdrawal to the
borders agreed to in the General Framework Agreement for Peace in Bosnia and
Herzegovina [see Jan. 1996 I.L.U. at page 8].
On February 26, the United Nations Secretary-General notified the
Security Council that all Bosnian Serb forces had withdrawn behind the zones of
separation established in the Agreement.
The
rule went into effect on May 10, 1996.
Citation: 61 Federal Register 24696 (May 16, 1996).
Additional information from the Office of Foreign Assets Control is available
by FAX through the fax-on-demand service by calling (202) 622-0077, or on the
internet at [http://www.ustreas.gov/treasury/ services/fac/fac.html].
WAR
CRIMES
Appeals
Chamber of International Criminal Tribunal for Former Yugoslavia finds no merit
in objections by Duško Tadi_ to jurisdiction of Tribunal over his alleged
crimes
In
August of 1995, the Trial Chamber of the International Criminal Tribunal for
the Former Yugoslavia rejected the challenges of Dusko Tadi_ to the
jurisdiction of the Tribunal. Tadi_ then
sought review by the Appeals Chamber.
There he argued (1) that the U.N. Security Council lacked power to
establish such a Tribunal; (2) that the Tribunal lacked primacy over competent
domestic courts, and (3) that the Tribunal has subject matter jurisdiction only
over the prosecution of crimes committed in the course of an armed conflict.
On
October 2, 1995, the Appeals Chamber rejected all of these objections. On issue (1), it concluded that it has power
to determine the validity of its own establishment. This does not involve a political question or
an otherwise nonjusticiable matter.
In
the Chamber's view on issue (2), the Security Council had validly set up the
tribunal. Though the Council is not a
judicial body and Article 41 of the UNC does not expressly mention the setting
up of judicial organs, the Article does empower the Council to maintain
international peace and security by "measures not involving the use of
force." Moreover, the Tribunal
qualifies as one "established by law" under Article 14(1) of the
International Covenant on Civil and Political Rights. This applies to "a body which, though
not a Parliament, has a limited power to take binding decisions. In our view, one such body is the Security
council when, acting under Chapter VII of the [UNC], it makes decisions binding
by virtue of Article 25 of the Charter." [22]
Nor
does the Tribunal have to yield jurisdiction to competent domestic courts. While it is not disputed that the courts of
Bosnia-Herzegovina would have prosecutorial jurisdiction, the Chamber notes
that German authorities had done only investigative work on the Tadi_
case. Additionally, the crimes charged
are of universal concern, in the Chamber's view, and Tadi_'s nation has
surrendered enough sovereignty by its membership in the U.N. to eliminate any
primary right Tadi_ might otherwise have to trial under the laws, and in the
courts, of his own nation.
As
to issue (3), the Chamber concludes that the Tribunal has subject matter
jurisdiction over violations of international norms whether committed in an
internal or in an international armed conflict.
Finally, though the prosecutor has not charged Tadi_ with violating any
particular international agreement, the Tribunal has the authority to apply
customary international law as well as any binding treaties that might have
been operative at the time Tadi_ carried out his alleged offenses.
Citation: Prosecutor v. Duško Tadi_, 35 Int. Leg. Mat.
35-74 (1996).
Internet
features many current EU documents:
Our subscribers and readers may locate many European Union documents, including
recent policy documents, on the Internet at the EC Commission's server at
[http://www.cec.lu or http://europa.eu.int].
Press releases of the EC Delegation in Washington, D.C. are at
[http://eurunion.org].
Canada
joins industrial property convention: The Paris Convention for the
Protection of Industrial Property of March 20, 1883, 24 U.S.T. 2140, 6 I.L.M.
806 (1967), as revised at Stockholm on July 14, 1967, entered into force for
Canada on May 26, 1996. The Convention
generally grants foreign patent applicants the same status as applicants who
are nationals. Citation: 1996
[German] Bundesgesetzblatt II, number 20, page 746, 6 May 1996. The Paris Convention is also reprinted at
1970 [German] Bundesgesetzblatt II, pages 293 & 391; 1984 [German] Bundesgesetzblatt
II, page 799. It entered into force for the U.S. on April 26, 1970; T.I.A.S.
6923, 7727; 24 U.S.T. 2140.
WEU
and NATO enter into agreement to increase role of Europeans: On May 6,
1996, the Western European Union (WEU - Europe's defense organization that
complements NATO) and NATO signed a security agreement to increase the role of
the European allies in the defense of Europe.
The agreement will permit the European allies to conduct military
operations using NATO capabilities even when the U.S. does not wish to
participate. It was signed by the WEU
Secretary-General Jose Cutileiro and NATO Secretary-General Javier Solana. The agreement gives the WEU access to classified
documents and communication codes, e.g., for peacekeeping operations such as
the Rapid Reaction Force sent to Bosnia last year. Citation: News from France (newsletter
of the French Embassy in Washington, DC), Vol. 96.09 (17 May 1996); 1996 The
Times of London (May 16, 1996).
United
States and France conclude extradition treaty to supersede 1909 agreement:
The U.S. and France signed a new extradition treaty that supersedes the
current one dating from the year 1909.
On April 23, French Justice Minister and U.S. Attorney General Janet
Reno signed the new treaty which is based on European extradition
practice. The treaty provides a list of
extraditable offenses and minimum penalties.
An extraditable offense is one which is punishable in both countries
with a prison sentence of at least one year.
Currently, there are 42 extradition demands pending between the U.S. and
France. The treaty must be ratified in
both countries, which is expected to take at least one year. In the U.S., the document has not yet been
submitted to the Senate for advice and consent.
Citation: News from France, Vol.96.08, page 6, 3 May 1996. For more information, call the U.S.
Department of Justice at (202) 616-2777.
