Legal Analyses written by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
2001
International Law Update, Volume 7, Number 1 (January).
CHILD
ABDUCTION
In
case of first impression in Ninth Circuit, Court holds that child acquires new
“habitual residence” under Hague Convention on Child Abduction only in presence
of settled intent by parent or lawful guardian to abandon former residence
Israeli
citizens Arnon and Michal Mozes were living with their four children in Israel
until 1997 when Michal decided to move to Los Angeles with her children. Arnon
stayed behind in Israel, but he did cover the expenses of the house and cars in
Los Angeles. Even though the family had only short-term U. S. visas, the
children went to school and quickly learned English. A year after her arrival
in the U.S., Michal filed for divorce and custody of the children who then
ranged from seven to sixteen years old. A Los Angeles Court granted Michal
temporary custody of the children.
Less
than a month later, Arnon filed a petition in a California federal court
seeking the children’s return to Israel pursuant to the Hague Convention on the
Civil Aspects of International Child Abduction (T.I.A.S. 11670, 15 I.L.M.
1501). The Hague Convention addresses the unilateral removal or retention of
children by parents, guardians or close family members. When a person
wrongfully removes a child habitually residing in one signatory state to
another signatory state, Article 12 provides for procedures to secure the
child’s return to its former residence. Under Article 16, the authorities of a
signatory state are not to decide custody rights on the merits until they have
determined that the child is not returnable under the Hague Convention. The
district court denied Arnon’s petition, and he appealed. The U.S. Court of
Appeals for the Ninth Circuit reverses and remands.
As
to what constitutes the “habitual residence” of the children and whether the
children were wrongfully removed, the Court turns first to the “intent”
element. “[T]he first step toward acquiring a new habitual residence is forming
a settled intention to abandon the one left behind. Otherwise, one is not
habitually residing; one is away for a temporary absence of long or short
duration. Of course, one need not have this settled intention at the moment of
departure; it could coalesce during the course of a stay abroad originally
intended to be temporary. Nor need the intention be expressly declared, if it
is manifest from one’s actions; indeed, one’s actions may belie any declaration
that no abandonment was intended. ... Whether there is a settled intention to
abandon a prior habitual residence is a question of fact as to which we defer
to the district court.” [Slip op. 20-21]
The
question then becomes “whose settled intention” determines whether a child has
abandoned a prior habitual residence. In general, American courts say it should
be the intent of the person or persons who are legally entitled to fix the
place of the child’s residence. “Sometimes the circumstances surrounding the
child’s stay are such that, despite the lack of perfect consensus, the court
finds the parents to have shared a settled mutual intent that the stay last
indefinitely. When this is the case, we can reasonably infer a mutual
abandonment of the child’s prior habitual residence. Other times, however,
circumstances are such that, even though the exact length of the stay was left
open to negotiation, the court is able to find no settled mutual intent from
which such abandonment can be inferred. Clearly, this is one of those questions
of ‘historical and narrative facts’ in which the findings of the district court
are entitled to great deference.” [Slip op. 29] Finally, acquiring a new
“habitual residence” demands an actual change in geography and the passage of a
period of time “sufficient for acclimatization.”
Here,
the district court failed to consider the importance of shared parental intent
under the Convention. “Given that the Mozes children had a clearly established
habitual residence in Israel in April 1997, and that the district court did not
find an intent to abandon this residence in favor of the United States, the
question it needed to answer was not simply whether the children had in some
sense ‘become settled’ in this country. Rather, the appropriate inquiry under
the Convention is whether the United States had supplanted Israel as the locus
of the children’s family and social development. As the district court did not
answer this question, we must remand and allow it to do so.” [Slip op. 52-53]
In
the interest of judicial economy, the Court clarifies certain additional issues
that may arise on remand. For example, the Convention requires a review of
whether the retention breached rights of custody attributed to Arnon in Israel.
Article 14 of the Convention allows courts to take judicial notice of the law
of the habitual residence in such cases. Here, the applicable Israeli Capacity
and Guardianship Law, Section 18, states that “in any matter within the scope
of their guardianship the parents shall act in agreement.” Thus, Michal had
disregarded her husband’s rights. In this case, if Israel was still the
children’s habitual residence at the time that Michal filed her action, then
their retention in the U.S. was wrongful and Convention Article 12 requires
that the children go back to Israel for an Israeli court to decide the question
of custody.
Citation:
Mozes v. Mozes, No. 98-56505 (9th Cir. January 9, 2001). [Additional
information on Hague Convention is available on internet website of Hague Conventions
on Private International Law “www.hcch.net”.]
CONSTITUTIONAL
LAW
District
of Columbia Circuit upholds legal sufficiency of plaintiff‘s allegations that
U.S. government’s longstanding deceptions concerning torture and death of her
husband at hands of Guatemalan military breached her constitutional right of
access to courts
In
1991, Jennifer K. Harbury, a U.S. national, entered into a Texas marriage with
Efrain Bamaca-Velasquez, a citizen of Guatemala and a leader in the Guatemalan
National Revolutionary Union, a rebel organization. A few months later Bamaca
went back to Guatemala where, in March 1992, he dropped out of sight. According
to the Guatemalan army, Bamaca had committed suicide during a skirmish with its
troops. The alleged truth was that the Guatemalan military had captured and
secretly detained Bamaca to torture information out of him about the local
resistance forces. According to Harbury, CIA “assets” such as security or
intelligence personnel took part in this operation with financial support from
the CIA.
An
escapee from a military interrogation camp told Harbury in early 1993 that
Bamaca was still alive but under physical and psychological pressures. State
Department officials whom Harbury contacted promised to inquire into the matter
but never gave her any information.
When
Harbury eventually got to open Bamaca’s alleged grave, she found that the body
therein was someone else. Harbury immediately reported this to Marilyn McAfee,
the U.S. Ambassador to Guatemala. McAfee allegedly assured Harbury that she would
look into the situation and report back but never did convey any information to
Harbury.
Harbury
had many meetings with State Department officials over the next year or so only
to hear that the Guatemalan Military claimed that it never had detained Bamaca.
An October 1994 broadcast of the CBS news program “60 Minutes” announced that
the American Embassy in Guatemala had an intelligence report that the local
military had captured Bamaca alive. At this point, State admitted to knowing
about Bamaca’s capture and detention but denied it knew whether Bamaca was dead
or alive.
These
disclosures led Harbury to meet with National Security Advisor Anthony Lake. He
claimed that the U.S. government had “scraped the bottom of the barrel” for
data on Bamaca but had nothing more to report. He, too, assured Harbury that
the government would go on looking for information and would keep her informed.
Other State Department and NSC officials told Harbury that they lacked specific
information about Bamaca’s fate but that they assumed he was still alive.
Finally,
Harbury announced that she would start a hunger strike in front of the White
House on March 12, 1995. Twelve days into the strike, Congressman Robert
Torricelli publicly reported that a paid “CIA asset” had ordered the murder of
Bamaca years before.
Harbury
then sued various named and unnamed officials of the CIA, State Department and
the NSC. Her claims rested on two general allegations of fact. “First, she
alleged that CIA officials at all levels ‘knowingly engaged in, directed,
collaborated and conspired in, and otherwise contributed to [her husband's]
secret imprisonment, torture and extrajudicial murder.’ Complaint paragraph 49.
Many of the Guatemalan military officers who tortured and killed Bamaca, she
alleged, were paid CIA agents. Two had been trained in torture and
interrogation techniques at the School of the Americas, a U.S. Army facility
located in Georgia.”
“According
to Harbury, CIA officials who did not participate directly in Bamaca's torture
not only paid Agency assets for information about Bamaca's rebel organization,
knowing that the information had been extracted through torture, but also
requested further intelligence, knowing it too would be obtained in the same
manner. And as a general matter, Harbury alleged that CIA officials knew of
other gross human rights violations in Guatemalan interrogation centers‑‑including
beatings with cement blocks, burials of prisoners alive, and electrical shocks
to the testicles and legs‑‑and that CIA officials up the chain of command, from
the operations and intelligence divisions to the Director himself, expressly
authorized their assets to use torture to obtain information from Guatemalan
rebel leaders.” [599]
Secondly,
Harbury alleged that, during years of meetings, U.S. officials knew of Bamaca’s
fate and deliberately refused to reveal the facts to her for fear of incurring
bad publicity or legal liability. Harbury’s complaint alleged direct breaches
of the U.S. constitution -- the Bivens claims -- plus common law tort claims
and claims for violating international law.
The
U. S. District Court for the District of Columbia dismissed her complaint for
failure to state claims upon which relief may be granted. This rested not only
on plaintiff’s failure to allege valid substantive violations but on the
conclusion that, assuming the violations arguendo, defendants were immune from
suit. Harbury appealed.
Only
Harbury's Bivens claims, however, are directly at issue before the appellate
court. These rest on three alleged constitutional violations: (1) that, by
complicity in Bamaca's torture, CIA defendants had violated his Fifth Amendment
substantive due process rights; (2) that, by taking part in and covering up
information about Bamaca's torture and murder, all defendants had breached
Harbury's constitutional right to familial association; and (3) that, by hiding
information and misleading her about her husband's fate, NSC and State
Department defendants had transgressed her right of access to the courts. The
U. S. Court of Appeals for the District of Columbia Circuit affirms in part and
reverses in part.
First,
the Court rejects plaintiff’s contention that the torture of her husband in
Guatemala violated his substantive Fifth Amendment right to due process. In
general, the extent of an alien’s claim to constitutional protection varies
directly as the closeness of his or her links to the U.S. Here, Bamaca was a
non-resident alien allegedly being abused outside the U. S. The furthest reach
of the precedents have recognized violations of the substantive constitutional
rights of non-citizens only in the cases of (1) physical presence in the U.S.
at the time, (2) mistreatment in a country where the U.S. exercised de facto
political control or (3) abuse in the course of abduction for trial in an
American court. Bamaca falls into none of these categories.
As
to the government’s violation of plaintiff’s familial rights, there are two
lines of argument relied on by plaintiff. The first involves the extension to
spouses of recognized parental rights to maintain their relationship with their
children. The second principle is the constitutional right of family members to
make certain private decisions as to intimate family affairs such as in the
areas of procreation or the children’s education.
The
Court first takes issue with plaintiff’s application of the first type of
family protection. “Harbury's claim ... lies beyond Supreme Court precedent in
not one but two respects: it concerns neither a parent‑child relationship nor
purposeful interference with a familial relationship. ... We hold only that in
view of Supreme Court precedent ..., we cannot extend a constitutional right to
familial association to cases where, as here, the government has indirectly
interfered with a spousal relationship.” [606]
The
Court then summarily rejects plaintiff’s invocation of the second principle.
Her familial association claim against the State Department and NSC defendants
alleged that their failure to reveal information about Bamaca’s fate had
violated her right to decide the best way to rescue her husband from torture
during his life and, after his death, how to secure him a decent burial. “The
broad general principle Harbury cites appears never to have been applied to a
situation even remotely like hers. Nor does she explain why it should be. We
therefore decline to extend the right in the manner she proposes.” [Id.]
Plaintiff
fares better on her claim alleging the government’s denial of meaningful access
to the courts, a right fundamental to a civilized society. “[She] alleges that
they affirmatively deceived her into believing that they were actively seeking
information about her husband. Instead of saying (as they could have) that they
were unable to discuss Bamaca's situation, they sought to lull her into
believing that they were working on her behalf, intending to prevent her from
suspecting that the U.S. Government was actually involved in Bamaca's torture.
One of their express objectives, Harbury alleges, was to prevent her from suing
them. Viewed this way, and regardless of whether Defense and NSC officials had
an affirmative duty to provide information to Harbury in the first place, the
complaint states a clear case of denial of access to courts.” [608]
Although
the lower court erred in dismissing plaintiff’s denial-of-access allegations,
the Court of Appeals next turns to the government’s fall back reliance on
qualified immunity from suit. To trigger immunity, “[t]he contours of the right
must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right. This is not to say that an official
action is protected by qualified immunity unless the very action in question
has previously been held unlawful ... but it is to say that in the light of pre‑existing
law the unlawfulness must be apparent.” [609]
Since
plaintiff does not allege a breach of a duty to inform, “[t]he relevant inquiry
in Harbury's case, then, is this: would an objectively reasonable official have
thought it clearly unconstitutional to affirmatively mislead Harbury for the
express purpose of preventing her from filing a lawsuit?” [Id.] The Court
concludes that the answer is clearly yes.
“Not
only have five of our sister circuits held that cover‑ups that conceal the
existence of a cause of action (or make it difficult to prosecute one) infringe
the constitutional right of access to courts, and not only are we unaware of
any contrary decision, but we think it should be obvious to public officials
that they may not affirmatively mislead citizens for the purpose of protecting
themselves from suit. ... Qualified immunity was never intended to protect
public officials who affirmatively mislead citizens for the purpose of
protecting themselves from being held accountable in a court of law.” [611]
Instead,
the immunity is only supposed to protect public officials from “insubstantial
lawsuits” that would tend to distract them unduly from attending to the public’s
business or to discourage able citizens from taking on public office.
Citation:
Harbury v. Deutch, 233 F.3d 596 (D. C. Cir. 2000).
INTERNET
German
High Court decides novel issue in holding that German law may impose criminal
liability on foreign owners of internet websites who design their sites to stir
up racial hatred within German society
On
December 12, 2000, the German High Court (Bundesgerichtshof) issued a decision
that concerns criminal liability for internet content obtained from foreign
internet websites. In the case at bar, the Court affirms the criminal
conviction of an Australian national for libel and for “inciting hatred among
people” (Volksverhetzung) (see Section 130 paragraphs 1 and 3 of the German
Criminal Code, StGB).
The
defendant is Frederick Toben, the Director of the “Adelaides Institute” in
Australia. Holding itself out as a research entity, the Institute published
statements and articles with “revisionist” theories that doubt the Holocaust
and describe it as an invention of “Jewish circles.”
Even
though defendant has acted only outside Germany, the Court holds that he may be
criminally liable for his actions under German criminal law if the “success
necessary to constitute a crime” under Section 9 of the Criminal Code (StGB)
took place in Germany. The crime of incitement of hatred among people requires
that the action be “capable of disturbing the peace in Germany.” German
criminal law, however, does not require proof that the peace was actually disturbed
[i.e., such a crime is called an “abstract offense” (abstraktes
Gefaehrdungsdelikt) in German law]. Until this decision, the High Court has
never addressed the issue of whether such “abstract” offenses require a special
“location of success.”
The
Court rules that German criminal law may punish a foreign national if he
publishes statements that constitute incitement of hatred among people on a
foreign internet server that is accessible to German internet users within
Germany. Such actions are considered “capable of disturbing the peace in
Germany” and Germany is thus the “location of success” of the crime. The Court
emphasizes that its decision applies only to the defendant’s own extremist
statements which he made available on the internet.
Even
though the Court found defendant liable for his statements, it reverses the
conviction for a procedural defect. The criminal court had assigned defendant
an attorney who himself had charges of inciting hatred among people pending
against him. Therefore, defendant was not in a position to receive the
effective assistance of counsel.
[Editors’
Note: Many radical groups have established internet websites with far-right and
Nazi propaganda material. According to the German Interior Ministry, about 800
of those foreign websites direct their propaganda at Germans. Even though a
person cannot publish such content in Germany, the foreign websites may enjoy
local free speech protections such as from the First Amendment in the U.S.]
Citation:
Bundesgerichtshof, Urteil vom 12. December 2000 — 1 StR 184/00; Washington
Post, December 21, 2000, page A1.
JURISDICTION
European
Court of Justice rules that jurisdictional provisions of Brussels Convention
require plaintiffs domiciled outside European Union to comply with Convention
rules when suing defendants domiciled in EU Member States
Universal
General Insurance Company (UGIC), a Canadian insurance company with its
registered office in Vancouver, is in liquidation. It brought a civil action in
the French courts against Group Josi Reinsurance Company, S.A. (GJR), a Belgian
reinsurance company with its registered office in Brussels, over an amount of
money claimed by UGIC from GJR as a party to a reinsurance contract.
UGIC
had instructed its broker, Euromepa, a French company, to obtain a reinsurance
contract to take effect from April 1990 onward and dealing with a portfolio of
comprehensive home-occupiers’ insurance policies centered in Canada. Euromepa
offered GJR a shared-in reinsurance contract, representing that the “main
reinsurers are Union Ruck with 24 percent and Agrippina Ruck with 20 percent.”
In a fax dated April 6, 1990, GJR agreed to buy a 7.5 percent share in that
contract.
It
turned out that in March 1990, Union Ruck had already informed Euromepa that it
intended to terminate its share after May 31, 1990. A few days later, Agrippina
Ruck had told Euromepa that it would cut back its share to 10 percent,
effective June 1 of that year. Both companies explained that their parent
companies based in the United States had imposed certain changes in economic
policy upon them, thus requiring their cutback.
In
February 1991, Euromepa sent GJR a bill for Can. $ 54,679 for its share in the
reinsurance transaction. The following month, GJR declined to pay, contending
that false information had induced it to enter into the reinsurance contract.
In July 1994, UGIC sued GJR in the Commercial Court of Nanterre, France.
GJR
maintained that the Nanterre court lacked jurisdiction over the case since only
the Tribunal de Commerce, Brussels, the situs of its registered office, had
power to decide the case under the Brussels Convention. In July 1995, the
Nanterre court upheld its jurisdiction. It reasoned that UGIC is a Canadian
company without a place of business in the EU and thus the jurisdictional
provisions of the Brussels Convention do not apply to it. The Court awarded
judgment on the amount claimed by UGIC plus interest.
On
appeal to the Cour d’Appel in Versailles, the Court decided in November 1998 to
stay proceedings and to refer two issues to the ECJ for a preliminary ruling
under Title II of The Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters, as amended (the
“Brussels Convention”).
These
questions are: (1) may a defendant established in a Contracting State rely upon
the specific rules on jurisdiction set out in the Brussels Convention against a
plaintiff domiciled in Canada? and (2) do the Convention’s specific rules
pertaining to insurance litigation in Articles 7 to 12a apply to matters
dealing with reinsurance?
The
Sixth Chamber of the ECJ first outlines the general jurisdictional scheme of
the Convention. “It is only by way of derogation from [the] fundamental principle,
that the courts of the Contracting State in which the defendant has its
domicile or seat are to have jurisdiction, that the Convention provides, under
the first paragraph of Article 3 thereof, for the cases, exhaustively listed in
Sections 2 to 6 of Title II, in which a defendant domiciled or established in a
Contracting State may, where the situation is covered by a rule of special
jurisdiction, or must, where it is covered by a rule of exclusive jurisdiction
or a prorogation of jurisdiction, be excluded from the jurisdiction of the
courts of the State in which it is domiciled and sued in a court of another
Contracting State.” [para. 36]
After
analyzing those of its cases which have construed those rare Convention
provisions keyed on the plaintiff’s domicile, the Court responds to Question 1.
“In those circumstances, the answer to the first question must be that Title II
of the Convention is in principle applicable where the defendant has its
domicile or seat in a Contracting State, even if the plaintiff is domiciled in
a non‑member country. It would be otherwise only in exceptional cases where an
express provision of the Convention provides that the application of the rule
of jurisdiction which it sets out is dependent on the plaintiff's domicile
being in a Contracting State.” [para. 61]
The
ECJ then addresses the second question. “First, according to settled case law,
it is apparent from a consideration of the provisions of Section 3 of Title II
of the Convention in the light of the documents leading to their enactment
that, in affording the insured a wider range of jurisdiction than that
available to the insurer and in excluding any possibility of a clause
conferring jurisdiction for the benefit of the insurer, they reflect an underlying
concern to protect the insured, who in most cases is faced with a predetermined
contract the clauses of which are no longer negotiable and is the weaker party
economically.” [para. 64]
This
rationale, however, does not extend to reinsurance contracts. “The role of
protecting the party deemed to be economically weaker and less experienced in
legal matters than the other party to the contract which is fulfilled by those
provisions, implies, however, that the application of the rules of special
jurisdiction laid down to that end by the Convention should not be extended to
persons for whom that protection is not justified.” [para. 65] No special
protection seems to have been contemplated with respect to contracts between a
reinsured and its reinsurer, both of whom are insurance professionals. In
addition, Article 8 which provides for litigation at the domicile of the
insured plaintiff is inapplicable here. “In the light of all the foregoing, the
answer to the second question must be that the rules of special jurisdiction in
matters relating to insurance set out in Articles 7 to 12a of the Convention do
not cover disputes between a reinsurer and a reinsured in connection with a
reinsurance contract.” [para. 76]
Citation:
Group Josi Reinsurance Co. S.A. v. Universal General Ins. Co. (UGIC), Case C‑412/98,
[2000] Int. Lit. Proc. 549, [2000] All E.R. (EC) 653
(European Court of Justice [6th Chamber]).
PATENTS
Supreme
Court of Canada dismisses appeal by General Electric from lower court findings
that it had infringed Canadian patents held by Whirlpool on its dual action
clothes washing machines
Whirlpool
Corporation during the 1970s came up with a clever dual action agitator for
clothes washing machines. It used the lower part of the shaft for the customary
back-and-forth oscillating activity but also put in an upper sleeve to serve as
a helical auger. In the manner of a post-hole digger, the auger turned in a
uniform direction, thus moving water and clothing down onto the oscillating
vanes of the agitator below to bring about more consistent scrubbing.
Due
to certain mechanical variations, Whirlpool was able to secure three Canadian
patents. It charged in litigation that General Electric and its subsidiary
Camco, Inc. (GE) had turned out an infringing mechanism in its washers which it
was marketing mainly in the U.S. and but also to some extent in Canada. The
first Whirlpool patent featured a drive shaft powering the dual agitator.
Secondly, patent ‘803 used a clutch device instead of a drive shaft. The trial
judge held that both of these patents provided for rigid vanes on the lower
agitator. The third patent (‘734) also furnished a choice of drive modes. In
one setup, the upper auger ran “intermittently” and in the other it operated
continuously. The trial judge held that the ‘734 patent was valid and that GE’s
devices were infringing it.
GE
then took the case to the Federal Court of Appeal. There it focused on two
challenges to the validity of the ‘734 patent. Its main point was that it amounted
to impermissible “double-patenting.” By this it meant that Whirlpool’s
intermittent drive claims were substantially the same as in the invention set
out in the earlier claims of the ‘803 patent. In the alternative, GE maintained
that the use of flexible vanes was an obvious and non-inventive twist to the
rigid vanes specified in the ‘803 patent, thus did not justify patent
protection. GE also denied that its devices were infringing the claims that
involved a continuous drive.
The
Federal Court of Appeal dismissed GE’s appeal and the latter obtained review in
the Supreme Court of Canada. Agreeing with the lower court, the Supreme Court
also dismisses the appeal.
In
the Supreme Court’s view, the first step in patent litigation is for a court to
construe the claims by “purposive construction” in the area of both validity
and infringement issues. This approach requires the courts to identify, aided
by the skilled reader, the specific descriptive words or phrases that the claim
uses to limn the “essential” aspects of the invention. The courts then
interpret these terms knowledgeably in the overall context of the claim. The
goal is to read the claims in a manner that is reasonable and fair to both the
patentee and to the public.
The
Supreme Court concludes that the trial judge did not stray in deciding in light
of the expert evidence that the claims of the ‘803 patent did not include
flexible vanes. Patent specifications do not speak to grammarians, etymologists
or to the man or woman in the street. Instead they communicate to skilled
workers in a particular field able to understand the technical nature and
description of the invention. Nothing in the record sets up a reason to reverse
the trial judge’s ruling.
The
claims set the boundaries to the monopoly. The difficulty, however, lies in
determining how “identical” two sets of claims must be to warrant a holding of
invalidity as to the second patent. The record supports the trial judge’s
conclusion that the subject matter of the ‘734 patent was not the same as those
in the ‘803 patent nor were the claims “identical or conterminous” with it.
A
second branch of the ban is “obviousness” double patenting. This less literal
and more elastic test bars the issuance of a second patent that contains claims
not “patentably distinct” from the prior one.
Here,
the Court believes that the trial judge did not err in spurning the evidence of
GE’s expert. The level of practical understanding of dual action washing
machines that was common knowledge in 1981 in this branch of the industry
failed to furnish a sound basis for the expert’s opinions. Nothing in the
record gainsays the trial judge’s bottom-line finding that GE had not come up
with enough proof to overcome the presumption of validity in Section 45 of the
Patent Act. The Supreme Court thus agrees with the Federal Court of Appeal and
affirms the validity of Whirlpool’s ‘734 patent.
The
Supreme Court also notes that GE failed to put on a witness to describe the
drive method used by the GE washing machines. The lower courts had to rely
mainly on a video that showed a rotating GE auger under a medium or light wash
load. Skimpy as this was, the Court of Appeal could reasonably decide that the
evidence provided an inference of continuous drive and rotation that infringed
Whirlpool’s continuous drive claims. There was no infringement, however, of
patent ‘803.
Citation:
Whirlpool Corp. v. Camco Inc., File No. 27208, 2000 S.C.C. 67 (Can. Sup. Ct.
Dec. 15).
PATENTS
German
High Court issues decision outlining how software may be indirectly patented
through use in patentable technology
On
May 17, 1990, the petitioner filed a patent application with the German Patent
Office (Patentamt) for a “Dialogue Analysis System for Natural Speech.” Based
on a previous patent application submitted in Japan, the system uses an input
system, a dictionary, and a grammar check to analyze the language input. The
Patent Office rejected the application and the petitioner appealed. The Federal
Patent Court (Bundespatentgericht) denied the patentability of the system on
May 17, 1998 (BPatGE 40, 62 und Mitteilungen 1998, 473).
The
German High Court (Bundesgerichtshof, BGH) agrees with the Patent Court that
the system at issue cannot receive a patent because it is not based on a
“technical achievement.” The system at issue is based on the word of linguists
who have analyzed language, identified grammatical rules and put the latter
into software form. Such activity is the application of data processing
knowledge and does not necessarily contribute to the “technological” state of
the art. For example, the system does not lead to new uses of data processing
hardware.
Furthermore,
under German and European Patent Law, only “technological inventions” can
receive patent protection. The term “technology,” however, is subject to
interpretation. It generally comprises commercially manufactured systems that
use energy. For example, a particular computer or a particular configuration of
a data processing system would fit within the notion of “technology.” In the
same vein, a system designed in a particular way that uses especially
configured software may constitute “technology.” What is significant here is
that the High Court’s interpretation may eventually lead to patent protection
for the software that is part of a particularly configured technology, even
though the software by itself could not receive patent protection.
Citation:
Bundesgerichtshof (BGH), Beschluss vom 11. Mai 2000, X ZB 15/98 -
Bundespatentgericht - Softwarepatentierung.
NATIONAL
SECURITY
Japan
and U.S. agree on new measures regarding U.S. forces in Japan under Treaty of
Mutual Cooperation and Security, providing inter alia for Japan’s payment of
expenses for requested relocations of U.S. military facilities
On
September 11, 2000, Japan and the U.S. signed an agreement regarding U.S. armed
forces in Japan, pursuant to the U.S.-Japan Treaty of Mutual Cooperation and
Security of January 19, 1960 [11 U.S.T. 1652, 373 U.N.T.S. 248], and their
Agreement on U.S. facilities and armed forces in Japan of September 27, 1995.
The
new Agreement determines that Japan will bear the wages for employees of the
U.S. armed forces in Japan, as well as electricity, gas, and water supply for
U.S. facilities. Japan will also cover all relocation expenses if it requests
the U.S. to change any facilities. [The latter provision appears of special
importance for Okinawa, where the presence of U.S. forces has created
tension.] The new Agreement will enter
into force on April 1, 2001, and remain in force until March 31, 2006.
Citation:
Agreement between Japan and United States concerning New Special Measures
relating to Article XXIV of Agreement under Article VI of Treaty of Mutual
Cooperation and Security between Japan and United States of America, regarding
Facilities and Areas and Status of United States Armed Forces in Japan
(September 11, 2000), available along with related information on internet
website of Japanese Ministry of Foreign Affairs “www.mofa.go.jp”.
SOVEREIGN
IMMUNITY
In
action by environmental organization to enforce provisions of Driftnet Fishing
Act, Federal Circuit decides, as matter of first impression, that President and
other executive officers are not immune from suit
The
Humane Society of the United States and two other environmental organizations
(jointly The Humane Society) filed suit in the Court of International Trade for
a writ of mandamus to direct the U.S. President to impose sanctions on Italy
for violating the Driftnet Fishing Act (16 U.S.C. Sections 1826-1826g (Supp. IV
1998)). [N.B. Driftnet fishing is the combination of gillnets for a length of
more than one mile that drifts with the current. This kind of fishing
indiscriminately catches all aquatic life, including fish, whales, dolphins, sea
turtles and sea birds.] The Driftnet Act authorizes the U.S. to impose
sanctions on foreign nations that use large-scale driftnet fishing on the high
seas.
In
this case, the U.S. and Italy held consultations on Italy’s driftnet fishing
and the U.S. Secretary of Commerce certified in January 1997 that Italy had
terminated the illegal practice. The Humane Society disagreed with the
certification and contended that Italy was continuing to use driftnet fishing.
It provided evidence of dozens of incidents that show Italy’s use of this
system.
The
Court of International Trade ordered the Secretary to again identify Italy as a
nation for which there is reason to believe that its nationals or vessels are
conducting driftnet fishing on the high seas (see Section 1826a(b)(1)(B)). The
Humane Society appealed those parts of the decision not in its favor. The U.S.
Court of Appeals for the Federal Circuit affirms.
An
interesting issue of first impression arose in the course of the litigation.
The Government argued that in an action under 28 U.S.C. Section 1581 [Court of
International Trade, civil actions against the U.S. and its officers] to
enforce the provisions of the Driftnet Fishing Act, the President and other
executive officers are immune from suit under the doctrine of sovereign
immunity.
The
Court of Appeals, however, agrees with The Humane Society that case precedent
and the legislative history of the Custom Courts Act of 1980 demonstrate that
Section 1581 itself amounts to a waiver of sovereign immunity. “In sum: (1)
Neither the President nor other executive officers are immune from suit under
28 U.S.C. § 1581 with regard to their compliance with the provisions of 16
U.S.C. § 1826; the grant of jurisdiction to the Court of International Trade
under § 1581 carries with it a co-extensive waiver of sovereign immunity. (2)
The statutory standard governing the President’s determination that
consultations leading to an agreement with an identified nation have been
‘satisfactorily concluded’ gives the President broad discretion; it is not a
standard that comes within the reach of a mandamus action.”
“(3)
The determination in the form of a certification by the Secretary of Commerce
that a nation has terminated the proscribed large-scale driftnet fishing is
subject to judicial review under the statutory standard for review of such
actions, focused on the actions taken by that nation under the negotiated
agreement with the President. On the facts found by the trial court in this
case, the Secretary’s determination did not violate the standard.” [Slip op.
39-40]
Citation:
The Humane Society of the United States v. Clinton, No. 99-1360 (Fed. Cir.
January 4, 2001).
WORLD
TRADE ORGANIZATION
WTO
Appellate Body reviews U.S.-EU wheat gluten dispute, finding that U.S. quota on
wheat gluten imports did not square with several provisions of Agreement on
Safeguards
The
Appellate Body of the World Trade Organization (WTO) has reversed parts of a
Dispute Settlement Report regarding the U.S. safeguard measures imposed on
European wheat gluten. See 2000 International Law Update 127. Wheat gluten is
used for high-fiber and multi-grain bread. A U.S. International Trade
Commission (USITC) investigation led to a quota on European wheat gluten
pursuant to Section 201 of the Trade Act of 1974 in response to a 1996-1997
surge in wheat gluten imports.
The
WTO Panel Report circulated on July 31, 2000 found that the U.S. quota imposed
on European wheat gluten is inconsistent with Articles 2.1 and 4 of the
Agreement on Safeguards because the causation analysis was flawed and did not
consider Canadian imports. The U.S. appealed, claiming among other things that
the USITC’s “causation” analysis complies with Article 4.2 of the Agreement on
Safeguards, that the U.S. properly excluded Canadian imports from the
application of the safeguard measures.
In
particular, the Appellate Body: (1) agrees with the Panel’s finding that the
U.S. acted improperly under Article 4.2(a) of the Agreement on Safeguards by
not evaluating the overall relationship between the protein content of wheat
and the price of wheat gluten as a “relevant factor” under Article 4.2(a); (2)
reverses the Panel’s interpretation of Article 4.2(b) of the Agreement on
Safeguards that increased imports “alone,” “in and of themselves,” or “per se”
must be capable of causing “serious injury”; (3) agrees with the Panel’s
finding that the U.S. acted inconsistently with Articles 2.1 and 4.2 of the Agreement
on Safeguards by excluding imports from Canada from the application of the
safeguard measures; (4) upholds the Panel’s findings that the U.S. acted
inconsistently with Articles 8.1, 12.1(a) and (b), as well as 12.3 of the
Agreement on Safeguards. The Appellate Body recommends that the U.S. bring its
safeguard measure into compliance with this report.
Citation:
United States — Definitive safeguard measures on imports of wheat gluten from
European Communities (DS/166/AB/R) (December 22, 2000). [Report is available on
WTO website “www.wto.org”; U.S. Trade Representative press release 00-95
(December 22, 2000).]
WORLD
TRADE ORGANIZATION
WTO
Dispute Settlement Panel issues report in U.S.-Korea dispute over alleged
dumping of cheap steel on U.S. market, concluding that U.S. had acted
inconsistently with Anti-Dumping Agreement in several respects
A
WTO Dispute Settlement Panel has issued a report in the dispute “United States
— Anti-dumping measures on stainless steel plate in coils and stainless steel
sheet and strip from Korea.” Korea had
brought the complaint on July 30, 1999, arguing that several determinations of
the U.S. Department of Commerce and the resulting anti-dumping duty orders of
16.26 percent on Korean steel plates and steel sheets were inconsistent with
WTO trading rules (N.B. the Anti-Dumping Duty Order was published in 64 Federal
Register 27756).
The
Panel sided mostly with Korea. It held, in particular that: (1) as for “local
sales,” the U.S. acted had inconsistently with Article 2.4.1 of the
Anti-Dumping Agreement in the steel sheet investigation by performing a
currency conversion that was not required; (2) with respect to the “treatment
of unpaid sales,” the U.S. acted inconsistently with the introduction to
Article 2.4 of the Anti-Dumping Agreement by making allowances for sales
through unaffiliated importers which were not permissible allowances for
differences affecting price comparability; and (3) the U.S.’ use of “multiple
averaging” periods in its investigations was inconsistent with the requirement
of Article 2.4.2 of the Anti-Dumping Agreement to compare “weighted average
normal value with a weighed average of all comparable export transactions.”
The
Panel therefore recommends that the U.S. bring its anti-dumping duties on
Korean steel plates and sheets into compliance with the Anti-Dumping
Agreements. Without giving specific instructions on how the U.S. should
proceed, the Panel merely suggests that revocation of the current anti-dumping
duties would be a possible solution, noting that there may be other options.
Citation:
United States — Anti-dumping measures on stainless steel plate in coils and
stainless steel sheet and strip from Korea (DS/179/R) (December 22, 2000).
Report is available on WTO website “www.wto.org.”
As
of January 1, 2001, changes in taxes and tariffs affect enterprises doing
business in Russia. Several recent changes in Russian taxes and tariffs
affect companies doing business in or with the Russian Federation (RF). (1)
According to a report of WorldTrade Executive (www.wtexec.com) circulated by
the U.S. Department of Commerce, the city of Moscow has exercised its right
under Article 8 of the RF Law No. 118-FZ of August 5, 2000, On the Entry into
Force of Part II of the Tax Code, and introduced an additional profits tax of 5
percent. According to the new Law No. 33 of the City of Moscow of October 18,
2000, the new profits tax beginning January 1, 2001, will be 32 percent for
financial institutions and insurance companies, and 24 percent for other
enterprises (including foreign entities). (2) According to another report of
the WorldTrade Executive, with an Order dated October 31, 2000, the Russian
Ministry of Finance has approved the Chart of Accounts for Business Activity
and the Instruction on the Application of the Chart of Accounts, proceeding
with its accounting reform program based on international accounting standards.
The accounting changes will became effective for companies (except credit and
budget institutions) on January 1, 2001. Companies must adopt a new Chart of
Accounts during the year 2001 which may affect how they account for assets,
liabilities, and their transactions. (3) Based on Government Resolution No.
866, new tariff rates took effect on January 1, 2001. These changes affect the
applicable duties on thousands of import items. It standardizes and unifies the
rates to four base rates of 5, 10, 15 and 20 percent. It also lowers the
maximum duty to 20 percent, except for a few items including foreign cars and
poultry for which the duty is 25 percent. The tariff rates are available in
Russian on the internet website of the Russian State Customs Committee
“www.gtk.ru”. Citation: Information disseminated by BISNIS section of
the U.S. Department of Commerce, website “www.bisnis.doc.gov”, Phone: (202)
482-2022.
U.S.
and Israel sign Air Service Agreement to permit code sharing. On January
10, 2001, U.S. Special Negotiator Thomas J. White and Israeli Civil Aviation
Administration Director General initialed a Protocol to the 1950 Air Transport
Agreement between the two countries. The purpose is to increase air traffic
between the two countries by code sharing and other cooperative marketing
arrangements. - Code sharing permits an airline to use the code of another
airline to service a market without operating its own aircraft in that market. Citation:
U.S. Department of State Media Note, January 11, 2001.
U.S.
President pardons fugitive billionaire. On Saturday, January 20, hours
before his term expired, President Clinton pardoned billionaire Marc Rich who
was indicted, but never tried, for evading $48,000,000 in federal taxes, for 65
counts of running a large oil price-rigging operation, and for illegally buying
oil from Iran during the 1979 hostage crisis. Rich fled the U.S. in 1983 for
Switzerland. That nation refused to extradite him (apparently based on the
absence of dual criminality) and also seized many documents located in
Switzerland that were under subpoena by the U.S. government. Three appellate
opinions dealing with some of these issues are: In the Matter of a Grand Jury
Subpoena Direct to Marc Rich & Co., 707 F.2d 663 (2nd Cir. 1983); In re
Grand Jury Subpoena Duces Tecum dated September 15, 1983, 731 F.2d 1032 (2nd
Cir. 1984); In re Marc Rich & Co., 736 F.2d 864 (2nd Cir. 1984).
Reportedly, Rich’s companies later entered agreed to pay the U.S. $150,000,000
and to forfeit $21,000,000 in fines to settle the charges. Rich is a citizen of
Israel but may have renounced his American citizenship. Citation: The
Wall Street Journal, January 23, 2001, page C1; The Wall Street Journal,
January 24, 2001, page A3.
U.S.
and EU renew Educational Cooperation Agreement, including Fulbright Program.
On December 18, 2000, during the U.S.-EU Summit, Secretary of State Madeleine
K. Albright, EU External Affairs Commissioner Christopher Patten, and French
Foreign Minister Hubert Vedrine signed the U.S.-EU “Program of Cooperation in
Higher Education and Vocational Education and Training.” It continues for five
years the cooperation between U.S. and European educational institutions,
including the Fulbright exchange program. Citation: U.S. Department of
State Media Note, December 20, 2000. [For further information contact Dr. Sam
Westgate at Bureau of Educational and Cultural Affairs, Office of Policy and
Evaluation, Phone: (202) 619-5305].
U.S.
treasury issues regulations for conversion to EURO. The U.S. Department of
the Treasury has issued final income tax regulations regarding U.S. taxpayers
who invest, operate, or otherwise conduct business in European countries where
the EURO is becoming the currency. The regulations instruct businesses on how
to make adjustments for their EURO-based transactions, and the tax effect of
holding EURO-denominated financial instruments. Citation: 66 Federal
Register 2215 (January 11, 2001).
Outgoing
Clinton administration signs treaty that would create permanent International
Criminal Court. On December 31, 2000, the U.S. signed the international
treaty to create a permanent International Court to try charges of genocide,
war crimes and other crimes against humanity (also referred to as the “Rome
Statute”). For the Treaty to be effective for the U.S., two-thirds of the
Senate must vote to consent (which seems unlikely in the near future) and the
President has to ratify it. The Rome Conference of the United Nations
Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court drafted the Treaty during June and July of 1998.
As of January 31, 2001, 139 nations have signed the treaty, but only 27 have
ratified it. The Treaty will enter into force on the first day of the month
following deposit of the 60th instrument of ratification. Citation:
U.S. Department of State Daily Briefing Index, Tuesday, January 2, 2001;
Washington Post, January 1, 2001, page A1. [Further information, including text
of treaty, is available on internet website of International Criminal Court
“www.un.org/law/icc”.]
EU
saddles more U.S. states with restrictions on horse imports. Based on
reports of equine “West Nile” fever in certain East Coast U.S. states, the EU
has enlarged to six the list of states from which there are special controls on
horse exports to the EU. The affected states now include New York, New Jersey,
Massachusetts, Connecticut, Rhode Island, and Pennsylvania. Citation: 2000
O.J. of the European Communities (L 290) 36, 17 November 2000.
EU
moves forward on acceptance of electronic signatures in e-commerce and
electronic data transfer. To further implement the acceptance of electronic
signatures, the EU Commission has published a Decision that spells out the
criteria for selecting institutions authorized to approve secure electronic
signature-creation devices. The EU had specified the criteria for such devices
themselves with Directive 1999/93/EC on electronic signatures. Citation:
Commission Decision 2000/709/EC, 2000 O.J. of European Communities (L 289) 42,
16 November 2000.
