Legal Analyses written by Mike Meier,
Attorney at Law. Copyright 2017 Mike Meier. www.internationallawinfo.com.
1997
International Law Update, Volume 3, Number 5 (May).
CHILD
ABDUCTION
Argentina
federal court interprets Hague Child Abduction Convention; orders child
returned to Germany as country of origin even though child has already spent 3
years in Argentina
Argentina
is a party to the 1980 Hague Convention on the Civil Aspects of International
Parental Child Abduction (see Ley 23.857, published in BoletÃn Oficial of 31
October 1990). An Argentine federal
court has recently applied the Convention in a case where the child's mother
found out that Lisa was staying with her paternal grandparents in Argentina
three years after the alleged abduction.
The question was whether the court should order Lisa returned to
Germany, the country of origin, even though she had already spent substantial
time in Argentina and did not speak fluent German.
A
German court in Mannheim had awarded custody to Lisa's mother. Flouting this decision, Lisa's father
abducted her from Germany and took her to his parents' home in Posadas,
Argentina. The German Embassy petitioned
the Argentine federal court in Posadas to return Lisa to her mother. [The
father is currently detained based on a request by Interpol, pending his
extradition to Germany for the offense of child abduction.]
In
the decision of April 2, 1997, the federal court in Posadas held that, based on
the German custody decision, the child's "habitual residence" was in
Germany. Under the Convention, a court
should turn the child over to the competent German authorities or to the
interested party. Here, the German
Embassy and the German Honorary Consul have both asked to take custody of
Lisa. The Argentine federal judge gives
custody to the German Consul, who serves as the "foreign
representative" in this case.
Since
Argentina has ratified the 1961 Hague Convention Abolishing the Requirement of
Legalization for Foreign Public Documents (20 I.L.M. 1405), the court gives
credit to the German court documents without further authentication
requirements.
Citation: Federal
district court of Posadas, Argentina, 2 April 1997 (Judge Casals). [Spanish text of the court decision submitted
by Donald Cramer, attorney in Munich, Germany.]
CHINESE
LAW
People's
Republic of China issues new law to govern garrison troops in the Hong Kong
Special Administrative Region (HKSAR)
On
December 30, 1996, the Standing Committee of the Eighth National People's
Congress passed a law to govern garrison troops (GT) that will provide defense
and security and will protect the territorial integrity of the HKSAR beginning
on July 1, 1997. They comprise Army,
Navy and Air Force personnel from the People's Liberation Army (PLA).
Among
the topics covered are GT duties, their relationship to the government of the
HKSAR, disciplinary regulations, and command jurisdiction. For example, Article 6 provides that the
central government may call upon the GT whenever a turmoil exists which the
HKSAR government is not able to control.
In
addition, Article 16 in part requires the GT to "respect organs of
political power of the HKSAR and respect the social system and lifestyle of the
HKSAR" as well as to "take good care of the public property of the
HKSAR and the private property of the Hong Kong residents and other
people." Under Article 18, the GT
is not to take part in profit-making activities.
Citation: Reuter Textline: BBC Monitoring Service:
Asia-Pacific, Jan. 9, 1997 (from release of text by Xinhua News Service, 30
Dec. 1996).
COMMODITY
EXCHANGE ACT
U.S.
Supreme Court rules against CFTC in its suit over allegedly fraudulent deals in
foreign currency options on grounds that Congress in "Treasury
Amendment" to Commodity Exchange Act had exempted such transactions from
CFTC regulation
The
Commodity Futures Trading Commission ("CFTC") brought suit against
Dunn and Delta Consultants (petitioners) as well as several other parties not
involved in this appeal. The CFTC
charged petitioners with operating a fraudulent investment scheme in violation
of the Commodity Exchange Act ("CEA"). Dunn had invested its customers' funds in
options to buy or to sell foreign currencies.
In what traders call "off-exchange" or
"over-the-counter" dealings, Dunn dealt directly with foreign
financial institutions, rather than routing its transactions through a
regulated board or exchange. Petitioners
and their customers suffered heavy losses.
The
District Court appointed a temporary receiver to take control of petitioners'
property. It then rejected petitioners'
defense based on the so-called "Treasury Amendment" to the CEA. The Amendment specifically exempted
"transactions in foreign currency" unless they involved a sale
"for future delivery" that was "conducted on a board of trade." Petitioners claimed that the Amendment
authorized their "off-exchange" deals. The Second Circuit
affirmed.
Petitioners
asked the Supreme court to determine whether congress has authorized the CFTC
to regulate "off-exchange" trading in options to buy or sell foreign
currency. The Court granted certiorari
on this issue and now reverses and remands.
Justice
John Paul Stevens, writing for the Court, held that "transactions in
foreign currency" do include options.
To hold otherwise would ignore the ordinary meaning of the text of the
statute, as well as the context in which congress had enacted the Treasury
Amendment.
First,
options give a buyer the right to buy or sell an agreed amount of a commodity
at a set rate at any time before its expiration. Thus, in Justice Stevens' view, an options
deal in foreign currency is a "transaction in foreign currency" under
the Amendment. The desire to profit by
the rise and fall of the value of these currencies creates the demand for trade
in these options. Thus, the CFTC is
wrong when it claims that the Amendment exempted only actual purchases and
sales of foreign currency but not options.
Second,
CFTC's restrictive reading of the statute would limit its exemption to
transactions that CFTC never did regulate under the pre-Treasury Amendment to
the CEA -- thus rendering the Amendment superfluous. Finally, the legislative history of the
Amendment indicates that Congress intended to exempt all
"off-exchange" foreign currency trading from regulation by the CFTC. While both sides have given weighty policy
arguments as to why CFTC should or should not be able to regulate foreign
currency options, they should address those matters to Congress not to this
Court.
Citation: Dunn v. Commodity Futures Trading Commission,
137 L.Ed.2d 93, 117 S.Ct. 913 (1997).
ENVIRONMENT
(MARINE POLLUTION)
Parties
to 1972 London Convention on Prevention of Marine Pollution by Dumping
promulgate extensive superseding Protocol at International Maritime
Organization headquarters
In
November 1996, forty-three states (including the U.S.) which are parties to the
London Convention of 1972 on the prevention of marine pollution [see text at 11
I.L.M. 1294] finalized an extensive Protocol in a Special Meeting at the London
headquarters of the International Maritime Organization (IMO). Sixteen non-member states and NGO's such as
Greenpeace and industry organizations also attended as observers. For the parties to the London Convention, the
new Protocol supersedes the Convention (Article 23).
The
Protocol focusses on preventing the dumping of various types of polluting
material into the high seas. Article 1
defines "dumping" as any deliberate disposal into the sea or
incineration of wastes or other matter from vessels, aircraft, platforms or
other man-made structures at sea as well as the deposit of man-made structures
into the sea such as ships and platforms.
The Protocol does not, however, regulate the deposit into the sea or
incineration of wastes resulting from the normal operation of ships, aircraft
or platforms.
As
part of the general obligations of contracting states, Article 3's
"precautionary" approach applies even in the absence of conclusive
proof of causation between the dumping of wastes and harm to the marine
environment. The Protocol also includes
the principle that the "polluter" should pay the costs of the
precautions and controls it calls for.
Moreover, parties are not to allow the transfer of pollution damage from
one part of the environment to another or the transformation of one type of
pollution into another. Finally, nothing
in the Protocol is to prevent parties from applying more stringent standards
subject to international law.
Although
the Protocol applies directly only to dumping into the high seas, Article 7
does require contracting parties to apply Protocol standards or their effective
equivalents to their marine territorial waters.
It also requests voluntary reports to the IMO on the extent of
compliance with Article 7.
Under
Article 10, parties undertake to prevent violations and/or punish violators
within their jurisdiction and to report other acts of marine pollution in
accordance with procedures to be developed.
The Protocol sets up a thorough scheme of scientific and technical
cooperation among parties looking toward reduction or elimination of marine
dumping. Article 16 and Annex 3 set up
detailed procedures for arbitrating disputes as to the interpretation or
application of the Protocol.
The
Protocol will be open for signature April 1, 1997 to March 31, 1998 and
thereafter for accession by any state.
It will enter into force one month after at least 26 states have
consented to be bound including at least 15 parties to the London Convention.
Citation: 1996 Protocol to the 1972 Convention on the
Prevention of Marine Pollution by Dumping of Wastes and Other Matter, 36 I.L.M.
1 (1997).
JURISDICTION
(FORUM SELECTION CLAUSES)
In
suit for damage to cargo, Fifth Circuit upholds enforcement of clause selecting
London as forum in unnegotiated bill of lading covering shipment of goods by
sea
Mitsui
& Co. bought steel in Russia and shipped it on the vessel Mira to New
Orleans. After cargo loading, Mitsui
received a bill of lading, without any negotiations. The forum selection clause in the bill chose London
as the place for adjudicating disputes under the contract. The choice-of-law clause, however, made U.S.
law (the Carriage of Goods by Sea Act, COGSA) applicable. Because of damage to the steel en route,
Mitsui filed suit in U.S. district court against the charterer as well as
against the owners and managers of the vessel (defendants). The district court granted the defendants'
motion for dismissal based on the forum selection clause. Mitsui appealed.
The
U.S. Court of Appeals for the Fifth Circuit affirms the dismissal. The U.S. Supreme Court has consistently held
that forum-selection and choice-of-law clauses are presumptively valid. Defendants may overcome the presumption by
showing that the clause is unreasonable under the circumstances. For example, the plaintiff may establish that
there was fraud, overreaching, or a violation of public policy, or that it
would not have a chance to present its case.
Here,
Mitsui argued that the forum selection clause (1) is invalid under COGSA, (2)
is an adhesion contract not freely negotiated, and (3) chose an inconvenient
forum.
As
for the first argument, the U.S. Supreme Court held in Vimar Seguros v.
Reaseguros, S.A. v. M/V Sky Reefer, 115 S.Ct. 2322 (1995) [see 1995 Int'l L.
Update 2 (December 1995)], that foreign arbitration clauses are normally valid
under COGSA. An arbitration clause
merely concerns the means of enforcing the carrier's substantive
liability. COGSA does not prevent the
parties from agreeing to enforce COGSA obligations in a particular forum. In the Circuit Court's view, Sky Reefer bears
on this case though it dealt with an arbitration clause rather than a forum
selection clause.
As
for Mitsui's second argument, the Fifth Circuit notes that Mitsui is a
sophisticated company that should have understood the function of
forum-selection-clauses in international bills of lading. Neither does the prospect of having a London
forum apply U.S. law invalidate the clause.
Finally,
London would not be an unduly inconvenient forum. All parties are international corporations
involved in the global transport of goods.
Increased costs and inconvenience are insufficient reasons for
invalidating the forum selection clause in this case.
Citation: Mitsui
& Co. (USA), Inc. v. Mira M/V, No. 96-31056 (5th Cir. April 28, 1997).
JURISDICTION
(JUDGMENT
ENFORCEMENT)
In
English insolvency proceedings, Court of Appeals holds that English courts have
jurisdiction to restrain English liquidators from interfering with judgment
creditors' efforts within U.S. to garnish debts owed to insolvent company by
its U.S. subsidiaries
In
September 1986, Messrs. Geoffrey Mitchell and Louis Holloway (appellants) sold
some (apparently valuable) shares in a business to Buckingham International
Plc. Though finalization was to take place in February 1988, Buckingham
apparently had a change of heart about the purchase price and began proceedings
against appellants. Six years later,
there was a trial of the matter and the English court awarded appellants
L3,600,000. Buckingham did not pay the
judgment. In April 1995, a bank
appointed joint administrative receivers for Buckingham.
Meanwhile,
appellants persuaded a Florida court to enforce their judgment. They then issued writs of garnishment in
various American courts against seven Buckingham subsidiaries to collect debts
the subs owed Buckingham. The English
receivers then filed for a winding up order and the court appointed respondents
Carter et al. as provisional liquidators and authorized them to appear in the
American proceedings. Three days later,
respondents went before a U.S. bankruptcy judge in Florida and got a temporary
injunction under § 304 of the Bankruptcy Act.
It forbade appellants from taking part in U.S. proceedings against
Buckingham and from prosecuting their garnishment proceedings against the seven
subsidiaries.
The
U.S. Bankruptcy court, however, stayed its proceedings pending the outcome of
the insolvency proceedings in the English court. Appellants then sought the instant order from
the English court to let them continue to litigate their claims in the U.S. and
to retain any sums collected thereby notwithstanding an English winding up
order. The lower court ruled that it
lacked jurisdiction to render such an order.
This appeal followed.
The
English Court of Appeals (Civil Division) allows the appeal. In the first opinion, the judge chides
respondents for an overly restrictive reading of the order sought. The primary question concerns the
jurisdiction of the English court to grant the relief sought. Although the section of the U.K. Insolvency
Act cited by appellants lacks extraterritorial effect, it is clear that the
court below has control over how the liquidators exercise their powers and that
claiming creditors can ask for judicial directions on this subject. Moreover, the issue of whether appellants
could retain any fruits of the American garnishments is for the English court
to decide under English law.
Finally,
it was appropriate at this stage for appellants to ask the court below to
declare whether appellants could keep any sums recovered in the U.S. If the answer is affirmative, the court has
jurisdiction to restrain the liquidators from opposing appellants in the U.S.
garnishment proceedings.
The
second judge agrees but for somewhat different reasons. He points out that judgment creditors can
defeat the English insolvency proceeding by their success in seizing the
insolvent's foreign assets, thus putting them beyond the power of the English
court. The English court has
jurisdiction to restrain them from doing this.
Since this amounts to an anti-suit injunction, however, the court should
be cautious about exercising this jurisdiction.
Moreover,
since the English court can authorize the liquidators to intervene in the
American proceedings, it can direct them to cease doing so. That is what appellants seek: to have the
lower court order the liquidators to stop obstructing their U.S. pursuit of
Buckingham assets. Since the English
court clearly has jurisdiction to do this, that being the only issue before us,
we need not reach the question of how and whether the court should exercise
this power.
The
third judge agrees with both of the above views.
Citation: Mitchell v. Carter, Court of Appeals (Civil
Division) (Smith Bernal Transcript, 21 February 1997).
INVESTMENT
Turkmenistan
issues new laws and regulations regarding privatization; permits some foreign
ownership of formerly government-held companies
On
April 7, 1997, the President of Turkmenistan, Mr. Niyazov, issued several
decrees regarding privatization, including two decrees regarding the
privatization of industrial enterprises.
The
Presidential Decree "on the decentralization and privatization of
industrial enterprises in Turkmenistan" aims to speed up the privatization
of companies and to lure foreign capital.
Accordingly, the government will auction off a number of state enterprises
or turn them into joint stock companies.
Foreign citizens may take part in the privatization process and become
owners of companies. The government,
however, will determine the allowable "share of participation" by
foreign owners in such companies.
A
related Presidential Decree includes a "provision on decentralization and
privatization of industrial enterprises in Turkmenistan," as well as a
list of companies that are to be privatized.
The
"provision" sets up the following requirements:
- A
"central commission" in charge of the privatization will organize
"working groups" in each company to be privatized. The working group will monitor and appraise
the company's assets. The government may
impose conditions on the sale of such a company. For example, it may require that the company
continue to produce particular goods or services for a certain period of time,
that it retain a certain number of workers, or that it meet particular
environmental concerns.
-
For companies with more than 100 workers, the Ministry of Economy and Finance
will be the joint stock company founder.
For such companies, workers may buy up to 10% of the ownership shares at
a nominal price.
"Administrators" of the company may purchase up to 5% of the
shares.
Pursuant
to the Decree, medium and large companies will be turned into joint stock
companies. [The permissible degree of
foreign participation will be determined later.]
Generally,
the state will sell companies that do not need investments at auctions. Companies that do need investments to be
competitive will be sold in investment tenders, requiring 50% of the purchase
price at the closing of the sale and the remainder over three to five years.
Citation: The
decrees of President Niyazov of Turkmenistan are available in a preliminary
English translation from the U.S. Department of Commerce, Russian Desk, Phone:
(202) 482-2296, or 482-4655; FAX: (202) 482-2293.
With
new law, Kazakstan seeks to promote foreign investment; grants tax holidays and
customs exemptions
The
President of Kazakstan, Mr. Nazarbayev, signed the Law of on State Support for
Foreign Investment in the Republic of Kazakstan on February 28, 1997. The Law makes major concessions to foreign
investors. For example, the Law grants
tax holidays for "approved investors with investments in priority
sectors," customs exemptions, and in-kind government grants.
The
State supports direct investments by legislative guarantees for investment activity,
privileges and preferences, and the establishment of a single State agency,
called "the Committee," to represent the Government on investment
issues (Article 4 & 14). The
"privileges and preferences" may include 5-year tax breaks, as well
as full or partial exemptions from customs duties for necessary equipment and
materials (Article 7). Among the
purposes of direct investment are the acquisition of new technology, the
improvement of the quality of goods and services, the increase of domestic
production, the development of an export-oriented economy, and the creation of
jobs. (Article 5).
The
Government agrees not to restrict the right of an "approved investor"
to freely transfer the property interest in a company, capital, profits and
other income. Nor will it create any
State monopolies that would interfere with the investment. Generally, the Government will control prices
or sales of raw materials.
"Approved investors" may maintain bank accounts in national
and foreign currencies. Currency conversions
necessary for the investment are unrestricted (Article 8).
If,
after the signing of an investment contract, the laws or regulations of
Kazakstan make contract performance impossible or substantially change its
economic conditions, the parties to the contract may amend it (Article 9). In
case of disputes, the laws of Kazakstan govern, unless otherwise agreed
(Article 17). Finally, if an
international agreement ratified by Kazakstan provides rules that conflict with
this law, then the rules of the international agreement prevail (Article 3).
In a
related Decree of April 5, 1997, the President declared that the "priority
sectors" are infrastructure, agriculture, light manufacturing, housing,
"objects in the social sphere," tourism, and investments related to
the transfer of capital.
Citation: The Law
on State Support for Foreign Investment in the Republic of Kazakstan was
published in the Kazakstan newspaper Pravda on March 1, 1997. [A preliminary English translation of the Law
and the related Decree is available from the U.S. Department of Commerce,
Russian Desk, Phone: (202) 482-2296, or 482-4655; FAX: (202) 482-2293.]
NATIONALITY
Where
person born in U.S. sought Canadian citizenship, Supreme Court of Canada holds
that statutes that require security checks for persons born of Canadian wives
but not of Canadian husbands violate anti-discrimination provision of Canadian
Charter of Rights and Freedoms
On
August 29, 1962, Mark Donald Benner was born in the United States of a American
father and a Canadian mother. In 1986,
Benner entered Canada and applied for citizenship. Because his mother was Canadian, the
citizenship process involved criminal clearance and background checks. These turned up pending murder charges
against Benner that resulted in the rejection of his citizenship
application. After Benner pleaded guilty
to manslaughter, the court sentenced him to three years in prison. In September 1993, the Canadian government
deported Benner to the U. S.
Benner,
however, appealed the denial of citizenship.
He claimed that requiring criminal clearance and background checks only
for offspring of married Canadian mothers but providing for automatic
citizenship for those born of Canadian fathers or unmarried Canadian mothers
violated § 15 (the anti-discrimination section) of the 1985 Canadian Charter of
Rights and Freedoms.
Moreover,
in 1977, Canada had amended its citizenship statutes to allow automatic
citizenship for anyone born of either Canadian parent outside Canada. The lower courts held either that the
provisions in effect in 1962 fixed Benner's status and that Benner was trying
to have the court apply the Charter retroactively to his birth date or that, in
any event, the older statute was not discriminatory.
The
Supreme Court of Canada, however, allows the appeal. While the Court cannot apply § 15 of the
Charter retroactively to 1962, the key date is the rejection of his citizenship
and thus the Charter applies to this case.
In setting higher hurdles for those born abroad whose mothers were
Canadian, gender discrimination impacts involuntarily on their offspring's
access to Canadian citizenship.
In
the Court's view, the legislation rested on the stereotype that men and women
are not equally able to pass on whatever traits it takes to become a Canadian
citizen. It suggests that the offspring
of married Canadian women are somehow more threatening than those of Canadian
fathers. The Court is thus unable to
discern a reasonable relationship between preserving Canadian security and
these statutory provisions.
Citation: Benner v. Secretary of State of Canada, 143
D.L.R. 4th 577 (Sup. Ct. 1997).
POLITICAL
QUESTION DOCTRINE
Eleventh
Circuit upholds dismissal of damage claims by Turkish sailors injured by U.S.
missiles during NATO exercises as involving political question
On
October 1, 1992, during 1992 NATO training exercises in the Mediterranean, a
Sparrow missile crew on the USS Saratoga accidentally fired two live missiles
that struck a Turkish naval vessel causing several deaths and many injuries.
Three
hundred survivors and representatives of victims sued the U.S. for damages
under the Public Vessels Act and the Death on the High Seas Act. The district court gave summary judgment to
the U.S. on the grounds that the case involved non-justiciable political
questions. The plaintiffs took an
appeal.
The
U. S. Court of Appeals for the Eleventh Circuit affirms. The justiciability of
a controversy does not depend upon the existence of a federal statute, but upon
whether judicial resolution of that controversy would be consonant with the
separation of powers. Foreign policy and
military affairs often implicate the political question doctrine. The U.S. Supreme Court has generally declined
to reach the merits of cases requiring review of military decisions,
particularly when those cases challenged the institutional functioning of the
military.
In
the Court's view, the case at bar involves a non-justiciable political
question. The underlying events deal with two nations taking part in a
simulated NATO training exercise. The
relationship of the U.S. with its political allies is a matter of foreign
policy which the Constitution commits to the executive and legislative
branches. Furthermore, there are no
judicially discoverable and manageable standards for resolving the question at
bar. To determine whether the U.S. Navy
was negligent, a court would have to determine how a reasonable military force
would have conducted the drill. Courts
have very little, if any, competence in this area. Courts also lack standards with which to
assess whether the Navy took reasonable care to achieve military objectives
with minimal risk of injury and loss of life.
This
case would require that courts second guess initial policy decisions which lie
in the area of military discretion. To
interject tort law into the realms of foreign policy and military
decision-making would unduly interfere with military effectiveness.
Citation: Aktepe v.
United States, No. 96-2167 (11th Cir. February 20, 1997).
TRADE
Mexico
publishes miscellaneous requirements for international commerce
The
Mexican Government has published a "Miscellaneous Resolution for External
Commerce 1997." This annual
Resolution, summarizes and publicizes government decisions and practices under
current laws and regulations that affect international trade.
The
various chapters of the Resolution address, for example:
- Customs: customs declarations, authority of customs
officials (Chapter 2).
- The
Customs Law: explanations regarding
the implementation of the Customs Law (Ley Aduanera, see 1996 Int'l L. Update
34), such as passenger flights, control of merchandise trade, and customs
valuation (Chapter 3).
- Tax
on the aggregate value of products (Chapter 5).
- Special
taxes for production and services (Chapter 6).
- Taxes
on new cars (Chapter 7).
The
requirements entered into force on April 1, 1997.
Citation: Resolución miscelanea de comercio exterior para
1997, Diario Oficial de la Federación [Mexican Official Gazette], March 24,
1997.
EC
issues new Integrated Tariff for the European Communities (TARIC)
The EC
Commission has published a new Integrated Tariff of the EC (TARIC), along with
an explanatory memorandum. TARIC first
came out in 1987 with EC Regulation 2658/87 [tariffs]. It lists the various rules applying to
specific products when imported into the customs territory of the EC or, in
some cases, when exported from it. It incorporates the provisions of:
-
The harmonized system,
-
The combined nomenclature (CN), and
-
Other EC rules for specific products.
TARIC
is based on the CN which has about 10,000 headings (8-digit codes) and serves
as the basic nomenclature for the Common Customs Tariffs. It contains about
20,000 additional subdivisions (coded with two extra digits, or an additional
code), needed for tariff suspensions, tariff quotas, countervailing charges,
export restrictions, and other purposes.
The
EC publishes TARIC in four volumes (issue C 102A). You may order it from sales
agents for EC publications.
Citation: Integrated tariff of the European Communities
(Taric), 1997 O.J. of the European Communities (C 102) & (C 102A) 1, 1
April 1997.
Beginning
July 1, 1997, WTO members agree to cut customs duties on computers and
telecommunication products based on WTO ministerial declaration
On
March 26, 1997, 40 governments agreed to implement the WTO Ministerial
Declaration on Trade and Information Technology Products (ITA). Those taking part include the U.S., Japan and
the EU. The purpose of ITA is to cut
customs duties on computers and telecommunication products beginning on July 1,
1997, and to eliminate them by the year 2000 on an MFN basis. In particular, ITA covers products such as
-
Computers
-
Telecom equipment
-
Semiconductors and manufacturing equipment
- Software
-
Scientific instruments
These
products account for 10.2% of the world merchandise trade. The tariff reductions apply not only to the
40 consenting governments (who account for 92.5% of the world trade in such
products) but also to all WTO members.
The
ITA provides a timetable for reducing tariffs in stages. The stages end on July
1, 1997, January 1, 1998, and January 1, 1999.
Complete elimination is to take place no later than January 1, 2000. ITA also calls for the abolition of other
duties and charges (ODCs) by July 1, 1997, unless otherwise specified in a
participating country's schedule. Some
participating countries have more flexible schedules that extend the
elimination deadline until the year 2005.
Citation: WTO Press
Release PRESS/70, 27 March 1997.
- U.S.
to ratify Chemical Weapons Convention.
The Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and Their Destruction (Chemical Weapons
Convention) was opened for signature on January 13, 1993. This Convention regulates the production,
processing, and use of chemicals with commercial uses that governments may use
as chemical warfare agents. The U.S.
Senate gave its advice and consent to the President's ratification of the
Convention on April 25, 1997. Citation:
Report relative to the Chemical Weapons Convention, 143 Cong. Rec. S 3748
(April 28, 1997); Frankfurter Rundschau
(German newspaper), page 1 (April 26, 1997).
[Readers may find the text of the Chemical Weapons Convention at 32
I.L.M. 800.]
- EU
and U.S. initial a drug precursor agreement. To increase transatlantic cooperation in
controlling chemical substances that serve as precursors for narcotic drugs and
psychotropic substances, the EU and the U.S. have initialled a "Drugs
Precursors Agreement." It is a
joint action within the framework of the 1995 New Transatlantic Agenda. It provides, for example, that both sides
will share sensitive information, and pool their resources to prevent the distribution
of such chemicals. Both sides will
consult before the shipment of such chemicals to "sensitive
regions." The parties will sign the
Agreement at the next EU-U.S. Summit in Amsterdam on May 28, 1997. Citation: Europe Union News press release, No. 22/97
(April 14, 1997).
- Internal
Revenue Service issues Notice on tax liabilities of expatriate Americans and
others. The IRS has published Notice
97-19 to provide guidelines as to the federal tax consequences under § 877 of
the tax code to those who lose U.S. citizenship or status as lawful permanent
residents. That section generally deals
with the tax liabilities of those who changed citizenship or residence status
during the ten years prior to the end of the current tax year. In general, the IRS taxes these persons on
all their U.S. sourced income unless a principal motive for the change in
status was not avoidance of U.S. taxation.
Notice 97-19 tells expatriates how to compute their taxes and net worth under
§ 877 and how to obtain a private letter ruling from the IRS that avoidance of
taxes was not a motive for the change of status. It also provides guidance on annual filing
requirements under § 877 and on the relationship between the new § 877 and a number
of U.S. tax treaties. Citation: Tax News Services, International Bureau
of Fiscal Documentation, March 25, 1997.
- EU
prepares comprehensive protection against subsidized imports. The EC Commission has published a proposed
Regulation to protect against subsidized imports from non-EU countries. It permits countervailing duties to offset
such subsidies (Article 1).
"Government subsidies" is broadly defined to include direct
transfers of funds, uncollected government revenue, government goods or
services, and "payments to a funding mechanism." The Regulation includes specific rules for
the investigation of subsidy cases, as well as an illustrative list of export
subsidies, along with several guidelines.
Citation: 1997 O.J. of the European Communities (C 99) 1, 26
March 1997.
- U.S.
and EU negotiate agreement on veterinary equivalence. Following the 1993 WTO Agreements in the
agriculture sector, the EU is negotiating veterinary agreements with its major
trading partners including the U.S. The
EU has already signed such an agreement with New Zealand. The purpose of those agreements is to
facilitate the trade in animal products by stating equivalents of food safety
requirements. By comparing food safety requirements
on both sides and determining the equivalents, products can be traded between
both signatories as long as the standards are equivalent. According to the EU, the U.S. and the EU have
not yet agreed on the issues of decontamination of animal products, the
chilling of poultry, and some red meat matters.
Citation: European News
press release No. 16/97 (April 2, 1997).
-
EU reviewing U.S. Antidumping Act of 1916 as possible trade obstacle. Based on a complaint received from a European
steel federation (Eurofer), the Commission is reviewing whether the U.S.
Antidumping Act of 1916 (15 U.S.C. 72) constitutes an obstacle to trade,
particularly to steel mill products.
According to the complaint, the Act prohibits the import and sale in the
U.S. of products "at a price substantially less than the actual market
value in the principal markets of the country of their production." Any person acting to injure a U.S. industry
is punishable by fine and/or imprisonment.
Any injured person may recover treble damages. The complaint alleges that the U.S. failure
to repeal the Act results in violations of the WTO Agreement. Citation: Notice of initiation of an examination ...,
1997 O.J. of the European Communities (C 58) 14, 25 February 1997.
- Test-Ban-Treaty
organization established in Vienna. With a headquarters agreement signed on
March 18, the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) has
begun its work to establish a global verification system (International
Monitoring System, IMS) to monitor compliance with the Treaty. It will include a network of 321 seismic,
hydroacoustic, infrasound and radionuclide stations to verify that no nuclear
tests are being conducted. The data will
be analyzed in an International Data Center (IDC) currently being constructed
in Vienna. The organization is not part
of the United Nations. The signatory
states provide the resources for this year's budget of $27.4 million. Citation: United Nations press release DCF/294 (19
March 1997).
- Flights
near the Democratic Republic of Korea. The Federal Aviation Administration
has prohibited certain flight operations within the airspace controlled by the
Democratic Republic of Korea (DPRK) by any U.S. carrier. On April 7, 1997, the U.S. government lifted
its prohibition on overflight payments to the DPRK and thereby effectively
opened that airspace for U.S. carriers.
Due to safety considerations, however, the U.S. is maintaining certain
safety measures such as a prohibition of flights near the capital
Pyongyang. Citation: 62 Federal
Register 20076 (April 24, 1997) [flights near DPRK]; 62 Federal Register 17548
(April 10, 1997) [overflight payments].
- Copyright restoration under WTO. The Copyright Office of the Library of
Congress has published a list of restored copyrights for which it has received
Notices of Intent to Enforce a Copyright restored under the Uruguay Round
Agreements Act. Under the Uruguay Round
General Agreement on Tariffs and Trade and the Uruguay Round Agreements Act
[Pub.L. 103465; 108 Stat. 4809 (1994)], copyrights in certain works that are
now in the public domain may be restored upon application. Citation: 62 Federal Register 20211
(April 25, 1997).
- Board
of Governors of Federal Reserve publishes additions to and deletions from the
OTC and Foreign lists. The List of
Marginable OTC Stocks (OTC) consists of stocks traded over-the-counter (OTC) in
the U.S. that are subject to the margin requirements of the Federal Reserve
regulations. The List of Foreign Margin
Stocks (Foreign List) consists of foreign equity securities that meet the
Board's eligibility criteria under Regulation T. Effective May 12, 1997, the Board has
published additions to and deletions from the previous OTC and Foreign
Lists. Citation: 62 Federal Register 22881 (April 28, 1997).
