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

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

2000 International Law Update, Volume 6, Number 8 (August).

FAMILY LAW

New Zealand Family Court invokes local Domestic Violence Act to enter permanent restraining order against U.S. resident based on findings that he has been harassing and trying to control former girlfriend’s life in New Zealand

In September 1998, Ms. Deborah Taylor had originally obtained a temporary protection order against Kevin Nudd from a Family Court under New Zealand’s Domestic Violence Act of 1995. There was, however, no service upon Nudd who was then and is now residing in the United States though he often visits Australia. Ms. Taylor obtained a further temporary protection order in July 1999 which she did succeed in serving upon Nudd.

Since 1980, the parties have had a stormy on-and-off relationship which had worsened during the last two years. In 1995, they had a son, Shelby. Ms. Taylor later asked for a protection order because Nudd kept on contacting her directly and through her New Zealand relatives with a relentless zeal that she found stifling and against which she wanted some legal protection.

The evidence at the hearing showed that Nudd had been making harassing and coercive telephone calls to Ms. Taylor up to six times a day. He also bombarded her with mail. Moreover, Nudd had often expressed his firm intention to keep up a relationship with Ms. Taylor which she did not want, and found frightening. Failing that, he wished to maintain control over Ms. Taylor’s life. He has made several efforts to enter New Zealand which the government rejected, allegedly because of his previous drug activities involving the U.S. and Australian police.

In entering the permanent order, the Court declares: “There is evidence of him having arranged for others to visit her in Australia and of him instructing a private investigator in New Zealand, presumably for the purpose of keeping tabs on her. Although it seems unlikely that Mr Nudd will obtain entry to New Zealand in the immediate future and hence be a physical threat to Ms Taylor, there is ample evidence of him contacting her in New Zealand from overseas in a way which constitutes emotional abuse and hence psychological violence under the Domestic Violence Act.” [N/A]

Citation: Taylor v. Nudd, [2000] N.Z.F.L.R. 391 (N.Z. Fam. Ct. Otahuhu).

INTERNET

EU issues comprehensive directive on electronic commerce, providing framework for free movement of such services within Internal Market

With the approval of the European Parliament, the Council of the European Union has issued Directive 2000/31/EC to address legal aspects of electronic commerce.

The Directive harmonizes national requirements on information society services to the extent necessary, including the areas of internet service, commercial communications, electronic contracts, liability of intermediaries, codes of conduct, arbitration, and court actions. It does not, however, establish additional rules of private international law or interfere with the jurisdiction of the courts (Article 1).

The Directive defines the term “service provider” broadly and includes all “information society services” such as internet access, internet communications, advertisements, electronic sales, and so forth. For example, the new Directive provides that:

- Information society services do not require prior authorization. Directive 97/13/EC, however, may require authorizations and licenses for telecommunication services (Article 4).

- All service providers shall make basic information about themselves and their services easily available (Article 5).

- The parties involved must clearly identify commercial communications (referring to mass promotional e-mails and advertisements) as such and they must contain information about the sender (Article 6).

- Electronic contracts are permissible but the parties must clearly explain the conditions and distinctive steps required for such contracts (Article 10). Certain transactions such as real estate sales and agreements governed by family law are not included (Article 9).

- Service providers for electronic services are not liable for content and have no obligation to monitor it for possible illegalities (Articles 12-15).

The Directive entered into force on the day of its publication, July 17, 2000, and the Member States have until January 17, 2002 to transpose it into national law.

Citation: Directive 2000/31/EC ... on certain legal aspects of information society service, in particular electronic commerce, in Internal Market (Directive on electronic commerce), 2000 O.J. of European Communities (L 178) 1, 17 July 2000.

JUDICIAL ASSISTANCE(CRIMINAL)

EU Member States sign Agreement on Mutual Assistance in Criminal Matters to supplement existing Conventions; it deals inter alia with dual criminality principle, video conferencing and role of Central Authorities

On May 29, 2000, fifteen Member States of the European Union signed the new “Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union.” The new Convention supplements the European Convention on Mutual Assistance in Criminal Matters of 1958, its Additional Protocol of 17 March 1978, the provisions on mutual assistance in criminal matters of the 1990 Convention Implementing the Schengen Agreement, and Chapter 2 of the Benelux Treaty on Extradition and Mutual Assistance of 1962, as amended in 1974.

The Convention does not require “dual criminality” as a condition for legal assistance (i.e. the crime or crimes at issue do not have to be punishable in both the requesting and the requested Member State) (see Article 3, paragraph 1). Among other things, the Convention provides that:

- The requesting state shall send procedural documents, if possible, directly to the recipient in the other Member State by the postal system. Resort to the Central Authorities is proper only if delivery by mail has failed or if the circumstances so require. The documents, or at least relevant parts thereof, must be in a language that the recipient understands (Article 5, paragraph 3).

- The states parties may transmit urgent requests for mutual assistance through Interpol or other competent agencies in conformity with the Treaty on European Union (Article 6, paragraph 4).

- Member States should submit certain communications through the respective Central Authorities, such as requests for the temporary transfer of persons in custody or the sending of judicial records (Article 6, paragraph 8 & Article 9).

- Specific forms of innovative mutual assistance are possible, such as the cross-border return of contraband to the rightful owners (Article 8).

- The parties may carry out the questioning of witnesses by video conferencing (Article 10).

- The Member States may establish joint investigative teams for specific inquiries (Article 13), may assist in covert investigations (Article 14) and may wiretap telecommunications systems (Article 18).

- Despite the breadth of these exchanges of information among the various Member State governments, the Convention requires that the parties protect the confidentiality of personal data as much as possible (Article 23).

The Convention will enter into force when the parties to the Convention have fully transposed its provisions into domestic law according to their respective constitutional procedures.

Citation: 2000 O.J. of the European Communities (C 197) 1, 12 July 2000.

JUDICIAL ASSISTANCE(CRIMINAL)

Manitoba Court of Appeal dismisses appeal by five immunized Canadian residents from order under Canada-U.S. Mutual Assistance Treaty and implementing statute to supply testimony as to acts and statements surrounding Oklahoma homicide

The United States government secured a Canadian court order under the Mutual Legal Assistance in Criminal Matters Act [the Act]. It entailed the collection of evidence from five witnesses in Canada for use in the investigation of a murder alleged to have taken place in Oklahoma. The witnesses consisted of the parents of the victim’s wife who had been visiting the deceased and his wife just before and after his death and the wife’s brother who was also a guest during the relevant time period.

According to the U.S., the victim’s wife was nearby when someone killed the victim. Significantly, the order expressly provides that "any statement or statements made by the respondents in the examination . . . cannot  be used . . . directly or indirectly, to incriminate the person giving the statement or statements except in a prosecution for perjury".

The witnesses appealed the order, claiming that the similarity of language between Section 18 of the Act and in the search warrant provisions of the Canadian Criminal Code s. 487(1)(b) showed that the legislature intended that the criteria be the same. Only in this way, they argued, can Canadian law adequately protect the privacy of Canadian citizens from the compelled furnishing of evidence. The Manitoba Court of Appeal, however, disagrees and dismisses the appeals.

The Court concedes that both the Criminal Code and the Act say that there has to be “reasonable grounds” to believe that there is evidence of an offense’s commission.  Where the contexts and goals of the respective provisions differ, however, identity of language does not necessarily mean identity of legal criteria.

The objective of the Criminal Code is to set up a standard for seizing and securing admissible evidence as to the suspected perpetration of an offense by designated person(s). Section 18(1) of the Act, on the other hand, implements procedures set up by the 1990 Treaty between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters.

“Section 17(2) of the Act enables the Minister of Justice of Manitoba to apply ex parte on behalf of a foreign government with whom Canada has the appropriate treaty, for an order ‘for the gathering of evidence to a judge of the province’. Section 18(1)  (the section under review here) entitles the judge to make such an order when satisfied ‘there are reasonable grounds to believe that . . . (b) evidence of the commission of the offence . . . will be found in Canada’” [358].

Striking a proper balance between safeguarding individual rights and the public interest, Section 18(1) simply sets up a fact-finding process. It is enough to show (1) that there was a death under circumstances suggesting foul play and (2) that the witnesses had a link to the event or to the suspect that made it reasonably probable that they knew facts that could advance the investigation or prosecution of the crime. A superior court judge supervises the evidence-gathering procedure. It may be formal or informal.

“I think it is reasonably probable that Beverley Johnson, who is certainly a material witness to her husband's death, would have provided details of what she heard and saw the evening Dr. Johnson was shot to her parents and her brother. [Counsel] conceded the death of Dr. Johnson was a homicide. Homicide is an offence in Oklahoma. I conclude that whatever Beverley Johnson said to her relatives, the Beaches, about the homicide is evidence of the commission of the offence of homicide that will be found here in Canada.”[366]

Citation: United States v. Beach et al., 185 D.L.R. 4th 357 (Man. Ct. App. 2000).

SOVEREIGN IMMUNITY

House of Lords unanimously holds that United States may claim state immunity under English common law in defamation suit by American civilian instructor against American civilian employed by U.S. Defense Department to oversee education of U.S. military in England arising from his adverse report on her teaching performance

Dr. Carolsue Holland is a U.S. citizen and a professor of international relations at Troy State University (TSU) in Alabama. TSU is an American institution that also provides extension courses at several military bases abroad including Menwith Hill, an RAF Air Station in England.

The U.S. government runs the base as part of its NATO functions and conducts education and training programs for U.S. Military personnel stationed overseas. It has contracted with TSU to administer the program. James Lampen-Wolfe is another U.S. national. In 1995, the U.S. Department of Defense hired him as a civilian to plan, develop and carry out the educational programs at Menwith Hill.

In 1997, Dr. Holland was teaching international relations on behalf of TSU at Menwith Hill. In March of that year, Mr. Lampen-Wolfe, in his capacity as education services officer at Menwith Hill, sent a memorandum to the University's European Programme Director at its regional office in Germany. The memorandum was captioned "Unacceptable Instructor Performance." It itemized seven complaints about her conduct that a number of her students had sent to him. He regretfully recommended that the director assign another instructor to complete the current course.

Dr. Holland then filed a defamation action against Mr. Lampen-Wolfe in an English court. Defendant moved to dismiss the action on the grounds of sovereign or state immunity. The lower court granted it and gave plaintiff leave to appeal. The Court of Appeal (Civil Division) dismissed. [See 1998 International Law Update 121(October, 1998)].

Plaintiff then obtained leave to have the House of Lords review the case. After due consideration, the House of Lords also dismisses plaintiff’s appeal.

Lord Hope first points out that, in England, two legal regimes bear on the question of foreign state immunity. The first is the State Immunity Act of 1978 which generally retained the immunity of foreign states unless one of the twelve exceptions in the Act applied. Plaintiff here relied upon the Section 3 exception relating to commercial transactions and contracts to be performed in the U.K.

Section 16(2) of the Act, however, disapplies Part I of the Act where the proceedings have to do with "anything done by or in relation to the armed forces of a state while present in the United Kingdom."

The second source of law in this area is the English common law. While defendant’s function here was not as a military combat or logistics officer, the provision of competent educational benefits to U.S. military stationed abroad related to their mission. It may qualify them for promotion and, by boosting morale, induce trained personnel to remain in service.

For example, the course taught by plaintiff dealt with international relations, an important area of awareness for military personnel stationed abroad. As part of a complex program designed and financed by the U.S. military, defendant’s supervision of a course of instruction like this one is part of a military mission. Since this case comes within Section 16(2), the Lords must interpret and apply the common law.

It is important to note, Lord Hope declares, that this case does not involve the personal immunities of plaintiff or defendant but of the U.S. as a sovereign state under international law. The fact that both plaintiff and defendant are U.S. civilians does not bar the U.S. from invoking sovereign immunity in litigation involving the actions of its authorized agent. Just as administering a military base is an activity jure imperii, so it follows that educational programs provided by the military come within the same category. As immunity is a state attribute under international law, the application of immunity does not violate Article 6 of the European Convention on Human Rights and Fundamental Freedoms which ensures plaintiffs access to the English courts.

Lord Cooke’s concurring opinion first reminds us that the U.S. is not a party to the European Convention so that Article 6 does not apply ex proprio vigore. On the other hand, more general principles of human rights also support access to the courts. Moreover, there might not be a grave injustice if a narrower reading of immunity law led to a denial in a case such as this.

Nevertheless, Lord Cooke would also dismiss the appeal. “At the present day, I think, a state may reasonably claim to have welfare and educational responsibilities towards the members of its armed forces. In turn the quality and efficiency of the forces may be strengthened if the state discharges those responsibilities. In their discharge the state may reasonably claim that it should not be subject to interference by other states or their courts. This is such a case.” [N/A]

Lord Clyde concurs in the dismissal. He agrees that Section 16 of the Act applies since the activities in question were “in relation to the armed forces.” This disables Part I of the Act and refers the matter to the common law.

He also stresses the indeterminacy of the Latin phrases used to distinguish between a sovereign activity and that of a mainly commercial nature, i.e. jure imperii versus jure gestionis. Lord Clyde points to the effort that Parliament made to aid in making the distinction when it provided that, “[i]t is the nature and character of the activity on which the claim is based which has to be studied, rather than the motive or purpose of it.”

As to plaintiff’s “due process” argument, Lord Clyde comments as follows. “In so far as a right of access in an international context by a citizen of one state to the courts of another state is concerned, such a right would require to be measured against the demands of policy, comity and international law. At least in the circumstances of the present case, I do not consider that the application of the established immunity would be unreasonable or disproportionate.” [N/A]

Lord Millett’s scholarly concurring remarks more fully quote the various legal provisions referred to by the Lords in their comments. As to the jure imperii principle, he declares that: “[i]n my opinion the standard of education which the United States affords its own servicemen and their families is as much a matter within its own sovereign authority as is the standard of medical care which it affords them. Neither ought to be subjected to the supervision or jurisdiction of another state.” [N/A]

In Lord Millett’s view, the terms of the “commercial act” exception as formulated in Section 3(1) of the Act would not in any event fit this case. “The fact that the memorandum complains of the quality of the services supplied under the contract means that the memorandum relates to the contract (which is why Section 16(2) is satisfied.) But it does not follow that the proceedings relate to the contract, which is what Section 3(1)(a) requires. In my opinion the words ‘proceedings relating to’ a transaction refer to claims arising out of the transaction, usually contractual claims, and not tortious claims arising independently of the transaction but in the course of its performance.” [N/A] [Emphasis added]

Convention Article 6 on access to courts, Lord Millett concludes, is merely an evanescent obstacle to the recognition of immunity and there is no inconsistency between the two principles. “[Article 6] does not confer on contracting states adjudicative powers which they do not possess. State immunity, as I have explained, is a creature of customary international law and derives from the equality of sovereign states. It is not a self-imposed restriction on the jurisdiction of its courts which the United Kingdom has chosen to adopt. It is a limitation imposed from without upon the sovereignty of the United Kingdom itself.” [N/A]

Nor does Lord Millett feel it proper to “balance” the interests of the plaintiff against those of the U.S. Distinctions may be fine and fact-specific but the court must act judicially, indifferent to the result.

“Either the proceedings relate to something done by or in relation to the armed forces of the United States or they do not. Either the writing and publication of the memorandum sued upon were acts of the United States iure imperii or they were not. The court cannot reach a particular conclusion because it prefers the right of access to justice, which the Convention affords to Dr. Holland, to the immunity from suit, which international law affords to the United States. The United States has rights too, and the court is bound to respect them. It claims immunity from the present suit. In my opinion its claim is well founded.” [N/A] Lord Hobhouse declares that he substantially agrees with this opinion.

Citation: Holland v. Lampen-Wolfe, 2000 WL 976034 (HL), [2000] 1 W.L.R. 1573, 27 July 2000, Times 976,034 (Smith Bernal transcript).

TRADE

As matter of first impression, Sixth Circuit decides that 1916 Antidumping Act does not permit U.S. steel company to obtain injunctive relief against Japanese companies who were allegedly dumping steel on U.S. market

The Antidumping Act of 1916 (15 U.S.C. Section 72) allows private plaintiffs to bring actions in district court against parties that have violated, or conspired to violate, plaintiffs’ business interests. It was enacted to counter unfair predatory practices by foreign competitors, and the remedy includes treble damages, attorneys’ fees and costs. The 1916 Act does not expressly provide for injunctive relief.

Wheeling-Pittsburgh Steel Corporation (WPSC) brought suit against three Japanese trading companies, Mitsui & Co., Inc., Marubeni America Corp., and Itochu International, Inc., under the 1916 Act to prevent them from importing hot-rolled steel into the U.S. WPSC is a domestic producer of that commodity.

Plaintiff alleged that the defendants were selling such steel for less than the actual market value, and urged the court to apply its inherent powers to enjoin foreign competitors from illegally dumping products on the U.S. markets. In particular, plaintiff requested preliminary injunctive relief pending a final determination on the merits. The district court, however, concluded that the Act did not authorize such a remedy. Plaintiff then filed this interlocutory appeal.

The U.S. Court of Appeals for the Sixth Circuit affirms.

Whether a federal district court may grant injunctive relief under the 1916 Act is a matter of first impression in all jurisdictions. The language of the 1916 Act provides for treble damages, attorneys’ fees, and costs. When Congress sets forth specific remedies in a statute, those remedies are generally exclusive. Federal courts do possess inherent equitable power to grant injunctive relief, depending on traditional principles of equity jurisdiction, e.g., whether plaintiff has an adequate remedy at law for damages. In the case of importation of foreign goods, however, the Court is unable to find that federal courts traditionally granted this type of equitable relief.

Furthermore, courts must interpret the 1916 Act in the light of its interaction with later antidumping statutes. If the 1916 Act provided for injunctive relief, it would likely interfere with investigations under Title VII of the Tariff Act of 1930 [19 U.S.C. Section 1671] and with presidential measures taken under the International Emergency Economic Powers Act [50 U.S.C. Section 1701(a)]. Finally, the Court exercises caution because the World Trade Organization (WTO) has recently found the 1916 statute incompatible with GATT trading rules (see 2000 International Law Update 64 & 97).

Citation: Wheeling-Pittsburgh Steel Corp. v. Mitsui & Co., Inc., No. 99-3741 (6th Cir. July 25, 2000).

WORLD TRADE ORGANIZATION

Where U.S. imposed retaliatory measures for EU’s failure to comply with WTO Banana Report, WTO Panel finds that U.S. violated trading rules by unilaterally imposing sanctions during pendency of proceedings, and emphasizes that WTO remedies are prospective rather than retroactive

On September 25, 1997, the WTO Dispute Settlement Body had adopted the Appellate Body report and modified panel reports regarding the case European Communities - Regime for the Importation, Sale and Distribution of Bananas (WT/DSB/M/37). The WTO had agreed with the complainants in that case, including the U.S., that the EU had been unduly favoring banana imports from certain former colonies and hindering imports from certain Central and South American countries. Dissatisfied with EU remedial actions, the complainants continued consultations but without success.

Effective March 3, 1999, the U.S. imposed bonding requirements on EU imports of listed products valued at $520 million annually and levied a 100% duty on each individual importation of the itemized goods. The U.S. Customs Service required bonds from importers to make sure that it could collect any duties that might apply after the WTO arbitrators determined in March 1999 the level of harm caused to the U.S. as a result of the EU banana regime. See 1999 International Law Update 58.

On April 9, 1999, WTO arbitrators determined that the level of nullification and impairment suffered by the U.S. in this case amounted to $191.4 million per year. The EU claimed that the WTO had only authorized the U.S. on April 19, 2000 to suspend concessions as of that date on EU imports valued at $191.4 million. Therefore, the EU requested consultations before the WTO which led to the instant WTO Dispute Settlement Panel decision issued on July 17, 2000.

The Panel finds that the U.S. unilaterally took action on March 3, 1999, because there are no explicit rules on the retroactive application of retaliatory measures. The U.S. did not request retroactivity and such would be contrary to WTO/GATT practice where remedies have traditionally been prospective (Paragraph 6.106). The Panel also rejects the U.S. argument that the EU had unduly delayed the establishment of an arbitration panel and should therefore bear the consequences of unilateral U.S. action since it would not have taken place if the parties had been able to timely set up the arbitration panel.

“We will offer only two brief comments on this defense. First, no WTO violation can justify a unilateral retaliatory measure by another Member; this is the object of the prohibitions contained in Article 23.1 of the DSU. If Members disagree as to whether a WTO violation has occurred, the only remedy available is to initiate a DSU/WTO dispute process and obtain a WTO determination that such a WTO violation has occurred. Secondly, as noted by the Panel in US - Section 301, most of the time-limits in the DSU are either minimum time-limits without ceilings or maximum time-limits that are, nonetheless, indicative only. ... Delays in dispute settlement procedures can always happen. The fundamental obligation of Article 23 of the DSU would be a farce if every time there is a delay in a panel or arbitration process, the dissatisfied Member could simply determine unilaterally that a violation has occurred and unilaterally impose any remedy. We reject, therefore, this US defense.” (Paragraph 6.135). The Panel concludes that:

(a) The 3 March Measure was seeking to redress a WTO violation and was thus covered by Article 23.1 of the DSU. When it put in place the 3 March Measure, the United States did not abide by the rules of the DSU and breached Article 23.1.

(b) By putting into place the 3 March Measure, the United States made a unilateral determination that the EU implementing measure violated the WTO rules, contrary to Articles 23.2(a) and 21.5, first sentence. In doing so the United States itself did not abide by the DSU and thus violated Article 23.1 together with Article 23.2(a) and 21.5 of the DSU.

(c) The increased bonding requirements of the 3 March Measure as such led to violations of Articles II:1(a) and II:1(b), first sentence; the increased interest charges, costs and fees resulting from the 3 March Measure violated Article II:1(b) last sentence. The 3 March Measure also violated Article I of GATT.

(d) In view of the above, the 3 March Measure constituted a suspension of concessions or other obligations within the meaning of Articles 3.7, 22.6 and 23.2(c). The U.S. had imposed it without any DSB authorization and while the Article 22.6 process was still going on. In doing so the United States violated Article 23.1 together with DSU Articles 3.7, 22.6 and 23.2(c).

Citation: United States - Import Measures on Certain Products from the European Communities (WT/DS165/R) (17 July 2000). [Report is available on WTO website “www.wto.org”; U.S. Trade Representative press release 00-54 (July 17, 2000)].

WORLD TRADE ORGANIZATION    

WTO Panel essentially rules in favor of U.S. complaint regarding Korean restrictions on beef imports and sets limits to transitional restraints

On July 31, 2000, the World Trade Organization (WTO) circulated a Report of the Dispute Settlement Panel in the U.S.-Korean dispute over Korean import restrictions on fresh, chilled, and frozen beef. The U.S. alleges, in essence, that Korea restricts beef imports by allowing its distribution only through a few government and commercial bodies, and improperly supports the national cattle industry.

The U.S. had first asked for consultations with Korea on February 1, 1999. After unsuccessful discussions in which Australia, Canada and New Zealand also took part, the WTO set up a Dispute Settlement Panel on July 26, 1999.

The Panel concludes, among other things, that:

(a) While some of Korea’s import restrictions did fall under the transitional period granted by its WTO accession agreement, Korea must nevertheless get rid of them by January 1, 2001.

(b) Korea’s dual retail system for beef (including the obligation for department stores and supermarkets to have a separate display for imported beef) is at war with GATT Article III:4 in treating imported beef less favorably than domestic beef and cannot be absolved under Article XX(d).

(c) The requirement that imported beef in Korea’s wholesale market is limited to special “imported beef stores” does not square with Article III:4 and nothing in Article XX(d) warrants it.

Citation: Korea - Measures Affecting Imports of Fresh, Chilled and Frozen Beef (WT/DS161/R) (31 July 2000). [Panel Report is available on WTO website “www.wto.org.” Agence France Presse report of August 2, 2000.]

WORLD TRADE ORGANIZATION

EU complaint against U.S. safeguard measures on imports of wheat gluten is ruled upon by WTO Dispute Settlement Panel in favor of EU

On July 31, 2000, the WTO circulated a Dispute Settlement Panel Report in the U.S.- EU dispute over U.S. safeguard measures imposed on EU wheat gluten. Wheat gluten is widely used for the production of high-fiber and multi-grain bread.

The dispute concerns the quantitative restriction imposed by the U.S. as a definitive safeguard measure on certain wheat gluten imports (HS headings 1109.00.10 and 1109.00.90). The U.S. International Trade Commission (USITC) had investigated the matter upon application of the Wheat Gluten Industry Council of the United States.

The USITC finally agreed that the EU was importing wheat gluten into the U.S. in such quantities as to be a substantial cause of serious injury to the domestic wheat gluten industry. The definitive safeguard measure restricted wheat gluten imports to 57,521,000 kilograms for the first year (this amount equals the total annual average imports in the crop years 1993-1995). Products from Canada and certain other countries did not come under the safeguard measure.

The EU had requested WTO consultations on this matter on March 17, 1999. After failed discussions between the parties, the WTO set up a Panel on July 26, 1999.

To get hold of information that the USITC had taken out of the public version of its report, the Panel adopted “Procedures Governing Private Confidential Information” on February 1, 2000. Pursuant to these Procedures, only “approved persons” (such as Panel Members or especially designated representatives) may receive such confidential information. The Panel concludes that:

(1) The U.S. has not acted inconsistently with Articles 2.1 and 4 of the Agreement on Safeguards or Article XIX:1 (a) of GATT 1994 (a) in redacting certain confidential information from the published USITC Report or (b) in determining the existence of imports in “increased quantities” and of serious injury.

(2) The definitive safeguard measure imposed by the U.S. on certain imports of wheat gluten based on the U.S. investigation and determination is inconsistent with Articles 2.1 and 4 of the Agreement on Safeguards in that (a) the causation analysis applied by the USITC did not ensure that it did not attribute to imports injury actually caused by other factors and (b) the USITC excluded Canadian imports from the application of the measure after it included imports from all sources in its determination of whether the increased imports caused “serious injury.”

Citation: United States - Definitive Safeguard Measures on Imports of Wheat Gluten from European Communities (WT/DS166/R) (31 July 2000). [Panel Report is available on WTO website “www.wto.org.” Wall Street Journal, August 1, 2000, Page A17.]

U.S. amends International Traffic in Arms Regulations according to NATO reforms. The U.S. Department of State, Bureau of Political-Military Affairs, has amended the International Traffic in Arms Regulations (22 C.F.R. Parts 124, 125, 126) to implement the reforms announced by the Secretary of State at the NATO Ministerial meeting in Florence, Italy, on May 24, 2000. It changes the U.S. export controls for NATO Allies, Australia and Japan. For example, U.S. companies may now perform certain maintenance and maintenance training for NATO governments, Australia and Japan on inventoried U.S.-origin defense articles. Moreover, the U.S. can, without a license, transfer technical data for the procurement of  defense equipment to NATO countries, Australia and Japan. Citation: 65 Federal Register 45282 (July 21, 2000).

EU bans imports of rough diamonds from Sierra Leone. The Council of the European Union has issued a Common Position to prohibit the direct and indirect import of  rough diamonds from Sierra Leone. It exempts, however, rough diamonds controlled by the Government of Sierra Leone through the Certificate-of-Origin regime. The ban will endure until January 5, 2002. Citation: Council Common Position 2000/455/CFSP, 2000 O.J. of the European Communities (L 183) 2, 22 July 2000.

I.C.J. issues provisional orders in Congo conflict case. On July 1, 2000, the International Court of Justice, pursuant to Article 41 of its Statute, ordered provisional measures in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda). Without dissent, the Court directed the parties to refrain from any armed or other action that might harm the rights of the other Party or that might worsen the dispute before the Court or make it harder to resolve. The Court further demanded that the Parties carry out their duties under international law, especially pursuant to the U.N. Charter, the Charter of the Organization of African Unity and U.N. Security Council resolution 1304 of June 16, 2000. It reminded the Parties of their duty to fully respect basic human rights and humanitarian law in the zone of conflict. Finally, the Court observes that it is "not disputed that at this date Ugandan forces are present on the territory of the Congo, that fighting has taken place on that territory between those forces and the forces of a neighboring State, that the fighting has caused a large number of civilian casualties in addition to substantial material damage, and that the humanitarian situation remains of profound concern." It also adds that it is "not disputed that grave and repeated violations of human rights and international humanitarian law, including massacres and other atrocities, have been committed on the territory of the Democratic Republic of the Congo." Citation: International Court of Justice, Press Communiqué 2000/24, July 1, 2000. [Full text of Order is available at Court's website “http://www.icj‑cij.org”.]

EU imposes anti-dumping duties on imports of U.S. ethanolamines. On July 25, 2000, the EU Council issued Regulation 1603/2000 placing anti-dumping duties on ethanolamines originating in the U.S. Ethanolamines are chemicals used in detergents, fertilizers, corrosion inhibitors, photographic materials and cosmetics. The U.S. manufacturers are (specific duty imposed in parentheses): Dow Chemical Company (EUR 59.25 per ton), Huntsman Chemical Company (EUR 111.25 per ton), and Union Carbide Corporation (EUR 69.40 per ton). Citation: 2000 O.J. of European Communities (L 185) 1, 25 July 2000.

Highest Chilean Court deprives Pinochet of immunity. On August 8, 2000, the Supreme Court of Chile handed down a 14 to 6 ruling which divested 84-year-old General Augusto Pinochet of his lifetime senatorial immunity from prosecution. Chilean authorities can now formally charge the erstwhile dictator for taking part in ordering the kidnaping, torture and murder of thousands of victims. His seventeen-year regime began with the violent overthrow of Socialist President Salvador Allende in 1973. The General’s family pledges to fight a legal battle to have him exempted from trial because he suffers from diabetes, circulatory problems and the effects of three strokes. The Court’s ruling also opens the door to the prosecution of many more retired military and police officers for the executions and disappearances of over 3,000 persons. The Court also held that any person who “disappeared” during the dictatorship and who has not been located was the victim of a continuing kidnaping offense. These crimes thus would escape the amnesty decree handed down during the Pinochet regime since it dealt only with past acts. Over the years, human rights groups and the families of victims have lodged 157 criminal claims against the General. According to a poll taken since the Court’s ruling, 52% of Chileans approve of the decision and 35% are opposed with 17% expressing no opinion. Judge Juan Guzman, the prosecuting judge, is reportedly drawing up a series of questions to be put to General Pinochet. The general expectation is that Judge Guzman will have an indictment ready in October, followed by a mental examination. The date of trial, if any, is some time off. Citation: New York Times Articles by Clifford Krauss, August 9, 2000, Section A, page 3, Col. 1 and August 12, 2000, Section A, page 6, Col. 6. [See also House of Lords ruling on General’s extraditability to Spain, 1999 International Law Update 41 (April, 1999)].

U.S. signs international demining agreement. On July 17, 2000, the U.S., the EU Commission, Belgium, Canada, the Netherlands and Sweden, signed a Memorandum of Understanding for the International Test and Evaluation Program (ITEP) for Humanitarian Demining Equipment, Processes and Methods, in Brussels, Belgium. The purpose of ITEP is the development and sharing of information supporting the removal of mines for humanitarian purposes. For example, ITEP will provide data on how to find and remove land mines laid during wars from homes and other civilian structures such as schools and factories. ITEP will work closely with the United Nations and will have its initial office at the EU Joint Research Center (JRC) in Ispra, Italy. The U.S. established its Office of Humanitarian Demining Programs (HDP) in 1998 and currently provides humanitarian demining assistance to 37 countries including Kosovo and Northern Somalia. Citation: U.S. Department of State Press Statement (July 17, 2000).

EU again modifies Yugoslavia sanctions. The EU Council has again modified the economic sanctions it imposed on Yugoslavia. Among the changes are: the EU now permits the supply of petroleum and petroleum products to certain Serbian municipalities. Also, the EU continues its flight ban until March 31, 2001. Citation: Council Common Position 2000/454/CFSP & Council Decision 2000/457/CFSP, 2000 O.J. of European Communities (L 183) 1 & 4, July 22, 2000.

International Court of Justice declines jurisdiction in Pakistan/India dispute. In September 1999, the Islamic Republic of Pakistan began proceedings against the Republic of India in the International Court of Justice over the destruction of a Pakistani aircraft in August 1999. India filed preliminary objections to the Court’s jurisdiction based on Pakistan’s Application. The Court votes 14 to 2 that it lacks jurisdiction. Pakistan rested its jurisdictional claim on several bases. The first was Article 17 of the General Act for Pacific Settlement of International Disputes of 1928. British India had acceded to it in May 1921 but it is unclear whether the Act has survived the demise of the League of Nations. More decisively, India had written to the U.N. in September 1974 declaring that, since independence, it had never regarded itself as bound by the Act of 1928. Since India was not a party to the Act at the time of Pakistan’s present application, the Act fails to supply a basis for jurisdiction. Secondly, the ICJ does not acquire compulsory jurisdiction pursuant to India’s Article 36 declaration since it features a reservation that bars ICJ jurisdiction over any dispute with a Member of the Commonwealth of Nations. Since Pakistan is a Commonwealth Member, the ICJ is bound to apply the reservation, whatever may have been its motivation at the time. Third, Pakistan cites Article 36(1) of the ICJ Statute. It provides that “the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations". The ICJ, however, is unable to locate a specific Charter provision that confers compulsory jurisdiction on itself. Despite its lack of jurisdiction, the Court stresses that both parties have a duty to settle this dispute in accordance with international law and with the accords both nations had recently entered into at Simla and Lahore. Citation: Pakistan v. India, International Court of Justice, Press Communiqué 2000/19 of June 21, 2000.

U.S. and Australia resolve WTO dispute over automotive leather. The U.S. Trade Representative has announced that the U.S. and Australia have reached an agreement regarding the dispute over Australia’s export subsidies to its sole exporter of automotive leather. The U.S. had successfully brought a complaint against Australia before the WTO in 1998 but was dissatisfied with Australia’s compliance. Under the new agreement, the Australian recipient agreed to a partial repayment of the prohibited export subsidy, and Australia agreed to exclude this industry from current and future subsidy programs. Citation: U.S. Trade Representative press release 00-48 (June 21, 2000). [See also previous report at 2000 International Law Update 65.]

U.S. and Vietnam sign trade agreement. On July 13, 2000, the U.S. and Vietnam signed a framework trade agreement. Once implemented into the national law of both parties, the Agreement will establish normal trade relations. In particular, it provides that Vietnam lower its tariffs and eliminate other trade barriers such as investment restrictions on U.S. parties. The U.S. will reduce current tariffs on Vietnamese products from about 40% to less than 3%. In a related matter, the U.S. House of Representatives voted 332-91 on July 26, 2000, to continue to grant Vietnam access to U.S. financial assistance. The vote defeated an attempt to overturn President Clinton’s decision to extend for one year Vietnam’s eligibility for export financing from agencies including the Ex-Im Bank and the Department of Agriculture. — Also the EU is expanding trade with Vietnam and recently amended its textiles trade agreement with that country— The U.S. and Vietnam restored full diplomatic relations in 1995. The trade relationship will be subject to an annual review by Congress until Vietnam joins the WTO. Citation: The Washington Post, July 14, 2000, page E3 and New York Times, July 28, 2000, page C4 (U.S.-Vietnam trade agreement); The Washington Post, July 27, page A4, and New York Times, July 27, 2000, page A3 (House vote); 2000 O.J. of European Communities (L 190) 1, 27 July 2000 (EU-Vietnam textiles agreement).

U.S. and Mexico conclude antitrust cooperation agreement. On July 11, 2000, the U.S. and Mexico signed an antitrust cooperation agreement to enable antitrust agencies in both countries to work together in enforcement actions. The agreement also addresses issues such as mutual notification of actions, conflict avoidance, consultations, and confidentiality protections. It contains a “positive comity” provision for both parties to consider in receiving cooperation requests. This agreement is not a comprehensive antitrust mutual legal assistance agreement as authorized by the International Antitrust Enforcement Assistance Act of 1994, such as the one the U.S. has concluded with Australia. Instead, it is more like the cooperation agreements with Brazil, Canada, the EU, Israel and Japan. Citation: U.S. Department of Justice press release 00-390 (July 11, 2000). International Law Update reported on the U.S.-EU antitrust agreement in 1998 International Law Update 62.

U.S. Senate approves OAS Corruption Convention. On July 27, 2000, the U.S. Senate gave its advice and consent to the OAS Inter-American Convention against Corruption. The Convention requires the ratifying parties to implement anti-corruption measures in their domestic law and strengthens international cooperation on extradition, mutual legal assistance, and asset forfeiture for corruption-related crimes. Citation: U.S. Department of State Press Statement, August 1, 2000.

EU Commission issues statement on predominant position of U.S. in the internet area. In response to a question from a Member of the European Parliament regarding the U.S. dominance of the internet, the EU Commission has outlined its efforts to catch up with the U.S. For example, through the Information society-related technologies (IST) program, approximately Euro 300 million in funding has been awarded to 138 collaborative research projects developing next generation networking technologies and applications. Furthermore, the Commission is taking measures to reduce the price of internet access. For example, it has recommended to reduce the interconnection prices of leased lines. Citation: 2000 O.J. of the European Communities (C 170 E) 82, 20 June 2000.

Chinese Supreme Court publishes full text of decisions on internet. The Chinese Supreme People’s Court has begun publishing transcripts of its decisions on the internet. These will appear on the following websites: www.court.gov.cn and www.rmfyb.com. According to the Court’s spokesman, Liu Huisheng, there are other developments as well. In the past, Chinese judges only referred to the numbers of articles and names of the law in their decisions without citing the content. Court papers were only three to five pages long and the reasoning was hard to understand. Today, decisions are 20 to 30 pages long, reciting in detail the evidence, arguments and reasoning. Citation: Newsletter Embassy of People’s Republic of China, No. 00-12, June 30, 2000.