Legal Analyses written by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
1996 International Law
Update, Volume 2, Number 11 (November).
ANTI-SUIT INJUNCTIONS
In case of first
impression, English Court of Appeal enjoins English claimants from litigating
Indian air crash case in Texas courts, thus effectively barring their chances
of obtaining damages
On February 14, 1990, an
Airbus A320 aircraft, Indian Airlines' flight IC 605, crashed near Bangalore,
India. The Airlines (IC) operates
domestically in India and had bought the French-made plane from Airbus (AB) in
1989. Though most of the casualties were
Indian citizens, eight of those injured or killed were English citizens and
three were Americans. An Indian board of
inquiry concluded that pilot error had caused the crash.
On February 12, 1992, the
English claimants sued IC and the airport operator (HAL) in the Indian
courts. Along with the American claimants,
they also sued AB and others in Texas state court seeking compensatory and
punitive damages under Texas product liability principles. They were able to finance the action by
virtue of contingent fee arrangements not generally lawful outside of the United
States. At the time of filing, Texas law
did not allow for dismissals on grounds of forum non conveniens [but see
"IN BRIEF" below].
In March 1992, the English
claimants settled the Indian litigation with IC. AB, however, secured a judgment against the
English claimants from the Indian courts in November 1992 that barred the
English claimants from litigating other than in the Indian courts. AB filed assurances with the Indian court
that it would waive jurisdictional and limitations objections and would pay an
appropriate judgment against it.
In May 1993, AB voluntarily
conceded that the Texas courts had personal jurisdiction over it under the
Texas long-arm statute, presumably based on a prior sale of aircraft in
Texas. AB did succeed, however, in
getting the court to dismiss based on sovereign immunity under the FSIA, AB
being more than half owned by foreign governments. That matter is presently on appeal.
In November 1995, AB filed
suit in the English courts to enjoin the English claimants from pursuing the
Texas litigation on the grounds that those proceedings were oppressive and
vexatious. The lower court denied the
injunction and AB appealed.
In the first reported English case to issue an
injunction to protect the jurisdiction of a non-English court, the Court of
Appeal (Civil Division) reverses. Noting
that the Indian injunction was not binding outside that nation, the Court sees
itself as the only court with jurisdiction over the English claimants. Hence it alone can rule definitively on AB's
efforts to have the case tried in the Indian courts. Though the English claimants did not dispute
the general appropriateness of the Indian forum, they point (1) to the ten to
twenty year delays often seen in Indian civil actions and appeals, (2) to the
bar on contingency fees by which alone they can afford to pursue their rights
in court and (3) to the requirement of proving fault on AB's part under Indian
law.
The Court finds that India
seems the most convenient forum although the courts of France, AB's
headquarters, as well as the place of manufacture and purchase of the A320
aircraft, would also be a natural forum under the Brussels Convention on
Jurisdiction and Judgments. There is no
significant link, however, between this litigation and the Texas courts or its
substantive law. Allowing the Texas
suits to proceed would also embarrass AB in any efforts it might have to take
to obtain contribution from IC and HAL.
Even though the injunction
will, practically speaking, terminate the English claimants' suits against AB,
this is more than counterbalanced by their effort to gain illegitimate and
oppressive advantages by suing in an unrelated forum and by invoking ungermane
Texas law as to strict liability and punitive damages. The injunction, of course, does not preclude
these claimants from suing AB in France.
Citation:
Airbus Industrie G.I.E. v. Patel, The Times, 12 August 1996 [Eng. Ct. App.
(Civ. Div.) (Smith Bernal Trans.)].
HUMAN RIGHTS
European Court of Human
Rights unanimously finds that unduly lengthy French detention of American
citizen had violated Article 5 of the European Human Rights Convention
In August 1988, French
authorities arrested Thomas Quinn, an American citizen born in New York and
living in Paris. They charged him with
the crime of aggravated fraud [in the selling of securities] and lodged him in
Sante Prison. In August 1989, the French
Court of Appeal ordered him released on the grounds that the inquiry no longer
demanded his detention. That same day,
however, during a delay in his actual release, Swiss authorities faxed an
urgent request to detain Quinn for extradition to Switzerland. The Swiss
planned to try Quinn for securities fraud amounting to $10,000,000. The French courts three times rejected
Quinn's applications for release based on Article 5 of the European Convention
on Human Rights and Fundamental Freedoms.
In January 1991, a French
court finally entered an extradition order against Quinn. Seven months later, a French court sentenced
Quinn to four years in prison on the original French fraud charges. The Conseil d'Etat denied Quinn's petition
for a stay of the extradition order in January 1992. After Quinn had completed his French
sentence, authorities extradited him to Switzerland in September 1992. Quinn later secured review by the European
Court of Human Rights in Strasbourg, claiming a violation of his rights under
Articles 5 and 18 of the Convention and seeking damages under Article 50.
On several issues, a
nine-judge panel of the Strasbourg Court rules in Quinn's favor. It unanimously concludes that the improper
delay in his release in August 1989 and the length of his detention pending
extradition violated Article 5(1) of the Convention. It thereupon ordered the French government to
pay Quinn 60,000FF [$7,344] for non-pecuniary damages and 150,000FF [$18,360]
for costs and expenses.
Citation:
Quinn v. France, Series A, No. 311, (1996) 21 E.H.R.R. 529.
INSURANCE
Japan postpones until December
31 controversial insurance regulations
As part of its efforts to
deregulate the insurance industry, on June 7 Japan published a law [hoken gyo
ho] that would permit Japanese insurers to move into the niche areas
("third sector") where foreign firms have most of their business
(such as accident and cancer insurance).
The law is supposed to enter into force within nine months of
publication. The U.S. Trade
Representative announced on October 1, however, that she had agreed with
Japan's Minister of Finance to delay the effective date until December 31. In the meantime, further U.S.-Japan
negotiations on this matter will continue.
The goal is to reach a solution on primary sector (major life and
non-life markets) deregulation as well as temporary limitations in the third
sector.
The law would allow
insurance companies to expand into niche areas such as cancer insurance,
personal accident insurance, and stand-alone medical insurance. Major Japanese insurers have formed
subsidiaries to move into those areas. A
concern on part of the U.S. is that, if large Japanese insurance companies
expand too rapidly they will push foreign insurers out of the market. During the negotiations, Japan also agreed to
allow automobile insurance sales by mail or telephone. This would make it easier for foreign
insurers to compete against the large numbers of Japanese sales agents.
Citation:
Hoken gyo ho [Law concerning Insurance Business], 1996 Kanpo [Japanese Official
Gazette], June 7, 1996 [Heisei year 7], page 17. See also Office of the U.S.
Trade Representative Press Release 96-76 (October 1, 1996). For more information, call the USTR at (202)
395-3230. [Several newspaper articles
address the issue, such as "Japan to Protect For Now Certain Foreign
Insurers," The Asian Wall Street Journal (October 2, 1996); The
International Herald Tribune, page 11 (October 2, 1996). For a Japanese view on Japan-U.S. trade talks
in English: The Japanese "The Daily
Yomiuri" (September 9, 1996) published an editorial in English, translated
from the respected Yomiuri Shimbun newspaper the same day. The editorial urges both Japan and the U.S.
to respect WTO rules in opening up trade instead of imposing economic
sanctions.]
JUDGMENTS
In Irish action to enforce
U.S. default judgment, High Court allows setting aside of own default judgment
if defendant timely pays into court full amount of U.S. judgment
In February 1991, Pasquale
"Pat" Petronelli, Guerino "Goody" Petronelli and Petronelli
Brothers, Inc. (U.S. plaintiffs) sued Stephen Collins and Barney Eastwood in
Massachusetts federal court. The dispute
arose out of a 1988 contract dealing with the management of Collins, a
professional boxer. U.S. plaintiffs got
a default judgment for about $165,534 in September 1993. Much later, the federal court denied Collins'
motion to vacate judgment and he lodged an appeal in the U.S. Court of Appeals
for the First Circuit. In January 1996,
the Circuit Court affirmed the default judgment.
While the above appeal was
pending, Pat Petronelli sued Collins in the Irish courts in September 1995 to
enforce the American default judgment.
Though the facts are disputed, plaintiff claimed that he brought about
in-hand service upon Collins in Dublin's "Baggot Inn." Failing Collins' appearance, the court
issued, in November 1995, a default judgment for the amount of the U.S.
judgment plus costs. In February 1996,
Collins moved to set aside the Irish judgment.
Meanwhile back in
Massachusetts, Collins filed a new federal action against the U.S. plaintiffs
plus their lawyers alleging fraud in the obtaining of the American
judgment. Collins argued that plaintiffs
had deceived him into thinking that he had a contract only with Petronelli
Bros. Inc., the corporation. He later
found out, however, that the corporation had dissolved in 1990 -- a matter the
individual plaintiffs had concealed from the federal court. That court planned to rule on various motions
in late July 1996.
Analyzing the conflicting
affidavits as to the service issue, the High Court upheld the validity of the
service upon Collins. Collins then
argued that the High Court should follow the general English rule of declining
to enforce a fraudulent foreign judgment even though the foreign court had
rejected the same claim of fraud.
Plaintiff answered that the U.S. courts have not actually decided the
fraud claim and that, in any event, an Irish court should not relitigate the
American forum's ruling on the fraud issue.
The High Court's solution
to this Gordian tangle is as follows.
Without passing on the substantive issues, the Court (1) requires
Collins to pay into court the full amount of the U.S. judgment; (2) orders a
stay of enforcement for a short period and (3), if Collins timely lodges the
funds with the Court, it agrees to set aside the Irish default. This will give Collins a chance to enter an
appearance and to resist summary judgment.
He may also seek an adjournment until the American court resolves the
fraud claim pending there.
Citation:
Petronelli v. Collins, 1996, No. 672S (Transcript) (High Court, 19 July 1996).
In a case of first
impression, U.S. Court of Federal Claims finds that it lacks jurisdiction to
recognize and enforce foreign country judgment against U.S. for breach of
contract
For three years, the U.S.
Army Corps of Engineers leased about 250 acres of land from the plaintiff
Urbina Ramirez in Las Delicias, Honduras, for military training. The Corps built barracks and removed large
amounts of top soil. At the expiration
of the lease, the plaintiff demanded that the Corps return the land to its
previous condition. When it failed to do
so, the plaintiff sued the United States Army in the Honduran courts for breach
of contract and damage to the land. The
Army failed to defend, so plaintiff obtained a $1,500,000 default
judgment. Plaintiff then tried to enforce
the judgment in the U.S. Court of Federal Claims under the Tucker Act, 28
U.S.C. 1491(a)(1), the only possible statutory basis for jurisdiction.
The U.S. Court of Federal
Claims, however, finds no statutory jurisdiction to enforce the Honduran
judgment. The U.S. is not a party to any
treaty generally requiring its courts to recognize and enforce foreign civil
judgments [N.B. the U.S. is currently trying to negotiate such a treaty at the
Hague Conference on Private International Law].
Citing Hilton v. Guyot, 159 U.S. 113 (1895), the Court points out that,
in the absence of any statutory or constitutional requirement, federal courts
will generally enforce a fair and valid foreign judgment only under the
discretionary doctrine of international "comity" based on good will
and mutual respect. The Tucker Act,
however, does not apply to common law actions.
Further, the Act allows monetary relief only if there is a substantive
cause of action arising under a separate statute, a constitutional provision, a
regulation, or an express or implied contract.
The Court concedes that the
Army's breach of a lease contract gave rise to plaintiff's Honduran
action. A federal suit to enforce the
contract judgment in the U.S, however, rests on a common law cause of action
[Edit. the action of Debt on a judgment of a court of record]. No matter what the nature of the underlying
claim, the Tucker Act does not confer upon the Federal Claims Court the power
to enforce any foreign judgment against the United States.
Citation:
Urbina Ramirez v. United States, No. 95-224C,
Fed.Cl. (U.S. Ct. Fed. Cl.,
September 4, 1996).
JURISDICTION
Under Florida Long-Arm
Statute, Eleventh Circuit finds no jurisdiction over Canadian company based on
Florida sales activities by independent Canadian contractor but does derive
jurisdiction based on "corporate succession" doctrine
Michael Kelldorf is the
president of Sculptchair, Inc. (Sculptchair), which owns the U.S. and Canadian
trademark for "Sculptchair" chair covers. Sculptchair granted Century Arts, Ltd.
(Century), a Canadian company, the exclusive license to manufacture and
distribute the chair covers in Canada.
The agreement, however, did not last long. The two Century officers later dissolved
Chair Decor and formed a new company, Chair Decor, Inc., to market their own
chair covers.
Sculptchair sued Century
Arts, Ltd., Deena Rich, a Canadian domiciliary, and others in a Florida federal
court for patent infringement, unfair competition, and breach of contract. The court, however, dismissed for lack of
personal jurisdiction. Florida's
long-arm statute [Fla.Stat. ch. 48.193 (1993)] provides for personal
jurisdiction, for example, if a person operates or conducts a business or has
an office or agency in the state.
The Eleventh Circuit
affirms in part and reverses in part. Here, Deena Rich worked as a part-time
independent contractor for Chair Decor.
Her sales efforts, viewed collectively, qualify as a business activity
in Florida. The crucial question,
however, is whether the court can attribute Rich's activities to Chair
Decor. Here, the facts show that Rich
was only an independent contractor -- not an agent. The Court therefore concludes that Chair
Decor was not carrying out a business in Florida within the meaning of the
long-arm statute.
The Court does find
long-arm jurisdiction over Chair Decor and Deena Rich, however, under Florida's
"mere continuation of business doctrine." A "mere continuation" exists where,
as in this case, one corporation absorbs another, as shown by identity of
assets, location, management, personnel and stockholders. Under it, the successor assumes the
liabilities of the prior entity.
Moreover, its sales representatives did carry on enough business
activity overall to meet the requirements of the Fourteenth Amendment.
Citation: Sculptchair, Inc. v. Century Arts, Ltd., 94
F.3d 623 (11th Cir. 1996).
SOVEREIGN IMMUNITY
In airplane crash
litigation, Seventh Circuit concludes that European aerospace company that
French and Italian governments indirectly own constituted "foreign
state" under FSIA
On October 31, 1994,
American Eagle Flight 4184 developed icing problems and crashed not far from
Roselawn, Indiana. Thirty two plaintiffs
sued the airlines and related entities as well as Avions de Transport Regional
(ATR), the French-Italian manufacturer of the airplane, in Illinois state
court. Whereupon ATR removed the
litigation to federal court for a nonjury trial pursuant to 28 U.S.C. § 1441(d).
In disposing of plaintiffs'
motion to remand, the district court ruled that ATR was a "foreign
state" under the Foreign Sovereign Immunities Act (FSIA) [28 U.S.C. §§
1130, 1602-1611]. It also held that the
FSIA is constitutional in requiring judges to try the suits against ATR while a
jury would try actions against other defendants. The plaintiffs appealed the rulings. They contended that the FSIA does not
recognize "pooled" ownership by more than one foreign government and
that, to qualify as a "foreign state," a single foreign government
must own the entity.
The U.S. Court of Appeals
for the Seventh Circuit affirms. ATR is
a commercial company created as a joint international venture under French law
and indirectly owned by the French and Italian governments (each to 50%)
through two European aerospace companies and other intermediary companies. Generally, the FSIA grants federal
jurisdiction when a foreign state or instrumentality waives immunity or its
activity falls within the exceptions of § 1605.
As for "pooling,"
the Court finds that ATR qualifies as a "foreign government." In addition to owning about three-fourths of
ATR, intermediary French and Italian governmental companies control and manage
it by retaining approval authority over its actions and by appointing corporate
officers. In determining the issue of
majority ownership under § 1603(b)(2), the court can combine the interests of
more than one foreign government.
The Court also rejects the
argument that, to amount to a "majority," ownership must exceed
50%. As long as the foreign entity is
formed under the laws of one of the nations involved in the international joint
venture, it does not contravene the "third state" clause of §
1603(b)(3). The FSIA does not expressly
require direct ownership, nor does it exclude the form in which France and
Italy indirectly hold ATR as an instrumentality.
The Court also concludes
that ATR could remove claims that name it as third-party defendant in their
entirety including the first-party complaint against the defendants upon which
the third-party claims are premised, see § 1441(d). It also finds the FSIA constitutional under
the Seventh Amendment. The latter
"preserves" the right to a jury trial in common law actions as it
existed in 1791. This did not include
suits against foreign states.
Citation: In Re: Air Crash Disaster Near Roselawn,
Indiana on October 31, 1994, 96 F.3d 932 (7th Cir. 1996).
TELECOMMUNICATIONS
FCC issues Exclusion List
of countries and facilities for global Section 214 authorizations
Section 214 of the
Communications Act provides: "No carrier shall undertake the construction
of a new line or of an extension of any line, or shall acquire or operate any
line, or extension thereof, or shall engage in transmission over or by means of
such additional or extended line, unless and until there shall first have been
obtained from the Commission a certificate that the present or future public
convenience and necessity require or will require the construction, or
operation, or construction and operation, of such additional or extended line
..." 47 U.S.C. § 214(a)(1988).
Effective July 26, 1996,
the U.S. Federal Communications Commission issued an "Exclusion List"
for purposes of international Section 214 authorizations. The List identifies restrictions on providing
service using particular facilities or to particular countries for carriers
receiving Section 214 authorizations.
Using this List, carriers can determine which non-U.S. licensed
facilities they may use under the grant of global Section 214 authorization.
Citation:
61 Federal Register 50022 (September 24, 1996).
TRADE
WTO Appellate Body rules
that Japan has violated its GATT obligations by imposing much higher taxes
on imported liquors than it does on like domestic spirits
Japan is the second-largest
export market for U.S. distilled spirits.
On October 4, 1996, the WTO Appellate Body circulated an opinion in the
Japanese liquor case, deciding in favor of the complaint brought by the U.S.,
the European Community and Canada. The
complainants had alleged that Japan's taxes on distilled spirits discriminate
against imports. They are several times
higher than the taxes on the traditional Japanese shochu spirit. Shochu and vodka are like products.
In essence, the Appellate
Body affirms a panel conclusion that the Japanese Liquor Tax Law [Shuzeiho, Law
No. 6 of 1953 as amended] is inconsistent with GATT Article III:2. By taxing imported products in excess of like
domestic products, Japan violated its duties under Article III:2, first sentence,
of GATT 1994. Further, shochu and other
distilled spirits (except vodka) are "directly competitive or
substitutable products." In the
application of its Liquor Tax Law, Japan does not similarly tax imported and
directly competitive or substitutable domestic products. Thus it protects domestic production in
violation of Article III:2, second sentence, of GATT 1994.
The Appellate Body
recommends that Japan bring its law into conformity with the above GATT
regulations.
Citation:
Japan - Taxes on Alcoholic Beverages, AB-1996-2 (September 25, 1996). The WTO
Appellate Opinion is available on the internet at
[http://www.wto.org/wto/dispute/alcohpr.wp5] in Wordperfect format. See also Office of the U.S. Trade Representative,
Press Release 96-82 (October 4, 1996).
EU plans to publish the
names of U.S. citizens and companies filing actions pursuant to Cuban Liberty
Act (Helms-Burton Act); asks WTO to set up dispute settlement panel
The Commission of the
European Communities issued a notice that it is planning to publish a list of
U.S. citizens and companies that have filed actions pursuant to Title III of
the Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996 [Pub.L. 104-114
(H.R. 927), 110 Stat. 785].
Title III of that Act
provides that U.S. citizens and companies may seek compensation for the loss of
property through nationalization by the Cuban Government. The EU Council has identified a range of
measures that the EU could use to protect the interests of EU citizens and
companies from injury. Among those
measures is the establishment of a "watch list" of U.S. citizens or
companies filing Title III actions.
Subsequently, the EC
Commission published a notice regarding the effects of the Act on EC
companies. In that notice, the
Commission is requesting information from "any economic operator" in
the European Union who thinks that the Act will adversely affects its "potential
trading opportunities." The EC
Commission is also requesting information from economic operators who have been
adversely affected by other economic embargo measures that the U.S. has taken
against Cuba (1996 O.J. of the European Communities (C 307) 4, 16 October
1996).
In a related matter, the EU
Council decided on October 1 to ask the World Trade Organization (WTO) to
establish a WTO Dispute Settlement Panel to review the law. In the October 3 meeting of the WTO Dispute
Settlement Body, the EU requested that a panel be set up to resolve this dispute.
The EU is also preparing countermeasures such as a Regulation prohibiting the
recognition and enforcement of judgments and administrative decisions based on
the law [see Commission Document COM(96)420 fin]. (European Union New Press
Release No. 55/96; see also "European Union turns to WTO Over U.S. Curbs
on Cuba," The Wall Street Journal, October 2, 1996; "EU puts US
'bully' in the WTO dock," Financial Times, October 3, 1996). On October 2, the Canadian Government
announced that it would join the request of the European Union. It also announced that it was still
considering a challenge under the North America Free Trade Agreement (NAFTA)
(see "Canada Joins Europe in Fighting Law on Cuba," The New York Times,
October 3, 1996).
On October 17, the European
Union requested a dispute settlement panel on the Helms‑Burton Act at the World
Trade Organization (WTO) in Geneva. The
United States opposed the establishment of a panel, and the European Commission
plans to make another request on November 20 at the next meeting of the WTO
Dispute Settlement Body [European Union Press Release 57-96 (October 17,
1996)].
Citation: Notice concerning the publication of a list
of citizens and companies of the United States of America (USA) filing actions
under Title III of the Cuban Liberty and Democratic Solidarity (Libertad) Act
1996 (HR 927), 1996 O.J. of the European Communities (C 276) 7, 21 September
1996. Some information on this pending
dispute can be found at the WTO's internet site [http://www.wto.org/wto].
Canada and United States
resolve softwood lumber dispute in detailed agreement designed to reduce threat
to U.S. lumber industry
An agreement to resolve a
long-simmering controversy between the U.S. and Canada over importation of
Canadian softwood lumber has entered into force. Its goal is to make sure that imports of
Canadian softwood lumber are not so excessive in amount or so underpriced as to
cause material injury to the U.S. lumber industry.
Canada agrees to put
softwood lumber on its Export Control List and to require issuance of a federal
export permit for Canadian lumber.
Importation of more than 14.7 billion board feet will trigger a sliding
scale of fees per thousand board feet.
The agreement also sets a "trigger price" above which Canada
may export additional lumber without paying a fee. Both countries agree to gather relevant data
on such matters as identities of exporters, quantities and origins of lumber
exported, modes of transport and U.S. ports of entry. Monthly exchanges of information are to be
the usual arrangement.
In accordance with the laws
of each country, the parties consent to adopt measures designed to keep
business proprietary information and other data confidential. Canada is to keep the U.S. informed as to any
pertinent amendments to its laws and regulations and to transmit information on
harvests and revenues. There are also
provisions dealing with consultations, arbitration of disputes and enforcement
of awards. Disputants may select three
panelists from NAFTA and WTO rosters.
These panelists are to act in their personal rather than in their
representative capacities.
The Agreement entered into
force on the signature date of May 29, 1996 to take effect from April 1, 1996.
Citation:
Softwood Lumber Agreement between the Government of the United States of
America and the Government of Canada, 35 I.L.M. 1195-1205 (1996).
USTR publishes report
identifying trade expansion priorities
On October 1, 1996, the
U.S. Trade Representative (USTR) published a report entitled
"Identification of Trade Expansion Priorities Pursuant to Executive Order
12901." This report describes trade
expansion priorities, as well as foreign country practices that affect U.S.
exports.
As a result of the 1996
annual review, the Administration is initiating Section 301 actions regarding
Indonesia's national auto policy, Brazil's auto program, Australia's export
subsidies, and Argentina's import duties.
Other areas currently being reviewed are, for example, Japan's insurance
market, Japanese telecommunications, Chinese market access for agricultural
products, and the EC ecolabelling requirements.
The report also describes pending WTO and NAFTA disputes.
Citation: 61 Federal Register 52827 (October 8, 1996)
[You may also obtain this document by calling the U.S. Trade Representative
Press Office at (202) 395-3350, or the Fax-on-demand system at (202) 395-4809].
Report on U.S.-Japan
Automobile Agreement issued
The automotive industry is
one of the largest sectors of the U.S. economy.
On June 28, 1995, after almost two years of negotiations, the U.S. and
Japan reached an Agreement regarding bilateral automotive trade [see 1996 Int'l
Law Update, page 34]. It applies to
motor vehicles, automotive parts, and Japanese regulations of the
aftermarket. To ensure compliance with
this Agreement, the U.S. established an Interagency Enforcement Team to monitor
compliance with the Agreement. The
Agreement was signed on August 23, 1995.
On October 21, 1996, the
Interagency Enforcement Team issued its report, entitled Report to President
Clinton of the Interagency Enforcement Team regarding the U.S.-Japan Agreement
on Autos and Auto Parts (October 21, 1996).
The Report analyzes compliance with the 17 quantitative and qualitative
criteria of the Agreement, such as:
- Change in the number and
value of new foreign motor vehicles sold in Japan.
- Procurement of parts by
japanese vehicle manufacturers and by Japanese transplant vehicle manufacturers
without discrimination.
- Change in purchases of
U.S. auto parts by Japanese transplant vehicle manufacturers in the U.S.
Citation: To obtain the Report to President Clinton of
the Interagency Enforcement Team regarding the U.S.-Japan Agreement on Autos
and Auto Parts (October 21, 1996), call the Fax retrieval system of the U.S.
Trade Representative at (202) 395-4809 (Document No. 29056). It seems that Japan has a slightly different
view of what the Agreement really means.
Please refer to the documents at the website of the Japanese Ministry of
Trade and Industry (MITI), at [http://www.jf.or.jp/index.html], click on
"auto issues."
WAR CRIMES
U.S. enacts law to enlarge
U.S. jurisdiction over punishment of war crimes
On August 21, 1996,
President Clinton signed into law the "War Crimes Act of 1996." The law amends Title 18 of the U.S. Code, and
carries out the obligations under Geneva Conventions to provide criminal penalties
for certain war crimes.
The law provides that
American courts may fine and/or imprison anyone who, inside or outside the
U.S., violates the Geneva Conventions under any of the specified
circumstances. An American court may
impose the death penalty if the offense resulted in the death of the victim.
The law broadens U.S.
criminal jurisdiction over war crimes, permitting prosecution in the U.S. if
the war criminals are found in, or extradited to, the U.S. Upon signing the bill, President Clinton
announced plans to further expand jurisdiction over these offenses,
encompassing war crimes committed by any person who comes within U.S.
jurisdiction, as well as other war crimes not covered by the Geneva
Conventions.
[Editors' Note: The
international conventions relating to the laws of warfare signed at Geneva on
August 12, 1949 are the Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T.
3114, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition
of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12,
1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; Geneva Convention Relative to the
Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135;
Convention Relative to the Protection of Civilian Persons in Time of War, Aug.
12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. The additional protocols are the
Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating
to the Protection of Victims of International Armed Conflicts, 16 I.L.M. 1391;
Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating
to the Protection of Victims of Non‑International Armed Conflicts, 16 I.L.M.
1442 (1977)].
Citation:
War Crimes Act of 1996, Pub.L. 104-192 (H.R. 3680); Statement of President
Clinton on Signing War Crimes Act of 1996, The White House, Office of the Press
Secretary (August 21, 1996).
- Texas statute changes
prior law to authorize forum non conveniens dismissals. As to civil actions for
wrongful death or injury filed on or after September 1, 1993, the Texas
legislature has authorized dismissals based on general criteria used in forum
non conveniens cases. Thus, the Statute
allows the granting of a timely written motion to dismiss on the grounds that,
based on weighing of public and private litigation interests, there is another
viable forum where the litigation would more effectively further the interests
of the parties and witnesses and the interests of justice. All properly joined defendants must agree to
waive any objections based on personal jurisdiction and statute of limitations
grounds. A court may not grant such a
motion, however, if made by a legal resident of the U.S. or where the causative
event took place in Texas. Citation:
Vernon's Texas Civil Practice and Remedies Code § 71.051 (effective August 30,
1993; as amended, effective September 1, 1995) [See also ANTI-SUIT INJUNCTIONS,
above].
- Part of European
Tariff TARIC reissued: Because of
changes in the agricultural chapters, the Commission has reissued Volume I of
the integrated tariff of the European Communities (Taric). It replaces the Volume I of April 1, 1996
(No. C 98 A). You may obtain the updated
version from EU publication offices (No. C 255 A of 3 September 1996). -- In a
related matter, the Commission amended Annex I to Regulation 2658/87 on the
Common Customs Tariff ("combined nomenclature"). On 1014 pages, Annex I sets forth the duty
rates (autonomous and conventional) for agricultural products, mineral
products, pharmaceuticals, chemicals, machinery, and other goods. Citation: Notice on page 3 of the
cover of 1996 O.J of the European Communities (C 255), 3 September 1996
[Taric]; 1996 O.J. of the European Communities (L 238) 1, 19 September 1996
[new Annex I].
- FAA bars commercial
flights in Iran: The Federal
Aviation Administration (FAA) has barred flight operations by U.S. commercial
carriers within the territory of Iran for safety reasons. According to the FAA, a new Iranian missile
launch site is a potential threat to civilian air traffic. Citation: 1996 Federal Register 49870
(September 23, 1996).
- Many useful
international law documents may be found on the internet: Several internet sites provide international
law documents for free or connect you to providers. You can find almost anything from GATT to the
French Constitution at the following sites:
- International Economic
Law Links: http://www.tufts.edu/~jtrachtm
- D'Angelo Law Libary:
http://www-law.lib.uchicago.edu/lib/intl.html
- U.S. Department of State
Private International Law Database: http://www.his.com/~pildb
- Cornell Law School site:
http://www.law.cornell.edu/topics/international.html
- International Law Links
site: http://starbase.neosoft.com/~aritchie/intlaw.html
- International Law Sites:
http://law.uark.edu/arklaw/aglaw/intlinks.htm
- Willamette University
College of Law Library: www.willamette.edu/~slewis/forint.htm
- Indiana University School
of Law: http://www.law.indiana.edu/law/v-lib/non-us.html
- Mexico adopts rules for
instrument flights over Mexican territory: On August 8, 1996, the Mexican Official
Gazette published a standard that establishes the requirements for
satellite-based equipment used aboard airplanes for determining the position of
the airplane. The Mexican requirements
follow the GPS system developed by the U.S.
The effective date of the standard is September 7, 1996. Citation: Norma Oficial Mexicana
Emergente NOM-EM-051-SCT3-1996, que establece los procedimientos para el uso del
sistema mundial de determinación de la posición (GPS) para vuelos en ruta IFR,
dentro del espacio aereo Mexicano, Diario Oficial de la Federación [Official
Gazette], August 8, 1996.
- U.S. signs MFN Trade
Agreement with Cambodia: Acting U.S.
Trade Representative Charlene Barshefsky signed a trade agreement with Cambodia
that will require most-favored-nation treatment (MFN) from the U.S. Citation: U.S. Trade Representative
Press Release 96-84 (October 8, 1996).
- Implementation of EC
law in the Member States: The EC
Commission has published its annual report on the implementation of EC
requirements in the various member states.
The report addresses various sectors, such as removal of technical
barriers, free movement of people, competition, and environment. For example, in the area of competition, the
report states that all Member States have notified the Commission of their
national implementation of the satellite communications directive (94/46/EC). Citation: Thirteenth annual report on
monitoring the application of Community law -- 1995, 1996 O.J. (C 303) 1, 14
October 1996.
- EC issues extradition
convention: The Council has issued a
convention relating to extradition between the Member States of the European
Union, which will supplement existing extradition agreements such as the
European Convention on Extradition (1957).
The Member States will implement the convention into national law. Citation: 1996 O.J. of the European
Communities (C 313) 11, 23 October 1996.
- New WTO report on
trade and foreign investment: The
WTO has issued a new report on "Trade and Foreign Direct Investment
(FDI)." The guidance document
addresses the question of whether WTO member states should continue to use
bilateral FDI arrangements, or whether they should create a multilateral
framework. The report examines the
interaction of trade and FDI, and concludes with a review of key policy issues
facing WTO members. Citation: WTO
Press Release, 9 October 1996.
- Japan delays
establishment of WTO Panel in film case. According to a press release of the U.S.
Trade Representative (USTR), Japan has delayed the establishment of a WTO Panel
to resolve the photographic film and paper dispute. At a meeting of the WTO Dispute Settlement
Body (DSB) on October 3, Japan objected to the establishment of a panel because
the U.S. had allegedly not yet exhausted all possibilities of a negotiated
solution to this dispute. Citation:
Office of the U.S. Trade Representative, Press Release 96-79 (October 3, 1996)
[Some information about this pending dispute can be found at the WTO's internet
site [http://www.wto.org]. For the
Japanese view, please see the internet site of Japan's Ministry of
International Trade and Industry (MITI) at [http://www.jef.or.jp/news/index.html],
which contains Japanese statements about the situation].
- Gillette to acquire
Duracell: The EC Commission
published a notice regarding the proposed acquisition of Duracell International
Inc. [consumer batteries] by Gillette Company [personal hygiene products and
small appliances]. Citation: 1996
O.J. of the European Communities (C 302) 10, 12 October 1996.
- EC Commission permits
the "notified concentration" of Lockheed Martin and Loral Corporation
as compatible with the Common Market.
The decision can be obtained from EC sales offices (Document No.
396M0697). Citation: 1996 O.J. of the European Communities (C 314) 9, 24
October 1996.
- EC report on EU-U.S.
competition agreement: On October 8,
the EC Commission forwarded to the Council a Report on the Application of the
Agreement between the European Communities and the United States regarding the
application of their respective competition laws (10 April 1995 to 30 June
1996). You may obtain this report from
EC Sales Offices. The Code is
COM(96)479, the Catalogue number is CB-CO-96-486-EN-C.
