American Bar Association Section of International Law COUNCIL MEETING Saturday, February 11, 2011

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1 American Bar Association Section of International Law COUNCIL MEETING Saturday, February 11, :00 a.m. 11:45 a.m. ET Ritz Carlton Atlanta, Georgia MINUTES Call to Order (Salli Swartz): The Chair welcomed Council members (including those participating in person and by phone). The Chair also welcomed guests present and then called the meeting to order. The Chair asked the Council to approve the vember 2010 Council Minutes as amended by Section Delegate Mike Byowitz. Upon a motion duly made and seconded, the minutes were approved unanimously. After remembrances by former Section Chair Aaron Schildhaus, the Chair asked the Council to observe a moment of silence for Chief E.B. Baderinwa of Nigeria who recently passed away. The Chair welcomed new Congressional Liaison to the Council Max Trujillo. Policy Initiatives for Consideration (Ron Bettauer): Lee DeHihns, Delegate to the House of Delegates from the Section on Environment, Energy and Resources Law (SEER), presented the recommendation and report from that Section on the Toxic Substances Control Act. The recommendation urges the Congress of the United States to promote a robust dialogue on the necessary principles and considerations in any future Toxic Substances Control Act (TSCA) reform legislation and to enact legislation amending TSCA that will reflect developments in the state of science and regulatory developments world-wide and will enhance the U.S. Environmental Protection Agency s (EPA) ability to ensure the safety of chemical substances in commerce while retaining U.S. competitiveness in the international marketplace for chemical substances and products produced using chemicals. Mr. DeHihns said that the proposed resolution is fully consistent with and reaffirms the policies established in the Association s 1985 Resolution on Scientific Knowledge and the 2002 resolution on the Rotterdam Convention on the International Trade in Chemicals. Mr. DeHihns said that prompt action on the ABA resolution will ensure the Association has the ability to communicate its position while the Obama Administration, federal policymakers, important stakeholders, and the new Congress are all reexamining their positions on what should be done in any potential TSCA reform. He urged SIL cosponsorship of the SEER resolution. Mr. DeHihns also noted that SEER had made changes 1

2 to the recommendation requested by SIL. Upon a motion duly made and seconded, the Council unanimously approved co-sponsorship of the recommendation. Lucy Thompson, member of the ABA Standing Committee on the Law Library of Congress, addressed the Council and asked for co-sponsorship of the Standing Committee s recommendation which supports efforts by the Law Library of Congress and the Library of Congress to create and continue programs that (1) develop, maintain and enhance the Law Library s services, facilities, operations and staff; (2) develop, maintain and enhance the Law Library s acquisition of materials and their preservation and care; and (3) utilize the best technologies and methods available for making accessible the Law Library s vast and growing collections. Ms. Thompson said that dating back to 1933, the ABA has adopted a number of policy positions supporting the Law Library of Congress. These have included general expressions of support for continued adequate funding for the Law Library and for its efforts to secure the level of appropriations necessary to enable both it and the Library of Congress to maintain and enhance their services. Ms. Thompson noted that this resolution is consistent with and builds on ABA policy concerning the Library of Congress and the Law Library of Congress as well as the ABA s promotion of the rule of law. She said that the Standing Committee developed the proposed policy position because current priority needs of the Law Library of Congress and the state of its collections concern matters beyond what is included in existing ABA policy. Ms. Thompson noted that the proposed resolution included reference to the maintaining and enhancing the Law Library s important collections of international and foreign laws. Ms. Thompson noted that in order for the ABA to be heard on matters of critical concern to the Law Library of Congress and thus of significance to the nation s lawyers and the public this policy resolution needs to be in place, Ms. Thompson added. Upon a motion duly made and seconded, the Council approved unanimously co-sponsorship of the recommendation. Jonathan Rusch, Chair, ABA Section of Administrative Law and Regulatory Practice, presented a recommendation and report which urges Congress to revise the definition of person in subsection 13(p) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(p)) to define a person subject to the requirements of that subsection as an issuer with securities registered under section 12 of the Exchange Act. He said that the SEC is currently under a statutorily imposed deadline, pursuant to section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act 1 (Dodd-Frank), to implement the requirements of the new subsection 13(p) of the Exchange Act no later than 270 days after the date of enactment (which was July 21, 2010). Timely identification of this issue for the 112th Congress will provide an immediate opportunity to correct this significant flaw in legislative language before that deadline. Mr. Byowitz and Mr. Farlow noted that the Resolution had been amended to take into account certain objections raised by the Section s Securities and 2

3 Capital Markets Committee, and on the understanding that with these revisions the Committee recommended not to oppose the recommendation. After discussion, the Council agreed not to oppose the recommendation. Policy Initiatives - Sense of the Council (Ron Bettauer): Policy Officer Ron Bettauer noted the recent report by the New York City Bar Association with regard to the amendment passed by Oklahoma voters in vember that would bar Oklahoma courts from considering Sharia or international law: UnconstitutionalityofOklahomaReferendum755.pdf. The report identifies several constitutional problems with the amendment which has been enjoined by a federal district court. Mr. Bettauer noted that Arizona, Wyoming and other states are considering a similar approach. He said a copy of the NYC Bar Association s report had been circulated to the committees and asked for the sense of the Council as to whether the Section should consider drafting a recommendation and report on this issue. There was general discussion supporting such an initiative, although Council members expressed different views on whether various forms of state action directing courts not to consider particular sources of law might be advisable, constitutional, or problematic. The Chair said she would be appointing a Task Force to draft a recommendation and report for consideration at the Spring Meeting. All interested members should let her know. Peter Ehrenhaft asked for a sense of the Council on a proposed recommendation and report that would encourage ABA entities not to accept requests from any other group, including those organized or supervised by foreign governments or international agencies such as the United Nations and its agencies, for assistance in the recruitment of ABA members for the performance of services if the request limits the equal opportunity of all ABA members to provide such services on grounds not objectively related to the ability of the provider to provide the services. After general discussion the Council declined to approve moving forward on this request. Policy Officer Bettauer then reported that the following recommendations and reports may be before the Council at the Spring Meeting: (1) Capital Replenishments of the International Financial Institutions, United Nations and International Institutions Coordinating Committee; (2) Convention on the Rights of Older Persons, Commission on Aging; (3) Legal Outsourcing, Task Force on Legal Outsourcing, Swartz; and (4) Federal Court Pleading Standards, Byowitz. He then said that a recommendation and report from the Center on Human Rights on the United Nations Protect, Respect and Remedy Framework is expected at the Annual Meeting. Finally, Mr. Bettauer noted several other policy issues on the horizon: (1) Certification of Law Schools in China, Section of Legal Education, Lutz; (2) Social Security Survivor Benefits to Overseas Survivors, U.S. Lawyers Practicing Abroad Committee; (3) Export of Legal Services, ABA Task Force on International Trade in Legal Services; and (4) Electronic Service of Process for Anonymous or Fictitious Owners of Commercial Internet Sites, Information Services, Technology and Data Protection Committee, McDonald. 3

4 International Models Project on Women s Rights Task Force (Sara Sandford): Diversity Officer Sara Sandford, reporting on behalf of the International Models Project on Women s Rights Task Force Chair Aileen Piscotta, updated the Council on Task Force s progress. She thanked Section staff members Christina Heid and Adam Vogel for their work and reviewed the Task Force s purpose and goals, also observing that the website for the Task Force is expected to be live very soon. Year-in-Review Update Year-in-Review Editor Mark Wojcik reported that the Year-in-Review issue would be out by May 2011 and asked that the Section consider some way to recognize committee editors. Government Liaison Reports Government liaison reports are appended to the online version of the minutes. Report of the Chair-Elect (Mike Burke): The Chair-Elect noted the Section will hold the third annual dispute resolution conference in Moscow on September 12, The Section s 2011 Fall Meeting will be held at the new convention center in Dublin October The Shelborne Hotel will serve as the Section headquarters hotel and the meeting will feature receptions at Dublin City Hall, Mansion House and the Guinness Storehouse. The President of Ireland Mary McAleese will open the meeting speaking at the Plenary Session and the Law Society of rthern Ireland has offered to host a program in Belfast immediately preceding the meeting regarding rule of law issues in the area. The 2011 ABA Midyear Meeting will be held in New Orleans. Mr. Burke is working with ABA-President Elect Bill Robinson on arranging a day of service for ABA members in New Orleans and other nearby areas to participate in community service activities.. The Section s 2012 Spring Meeting will be held in New York City and the 2012 ABA Annual Meeting and Section Leadership Retreat will be in Chicago. The Chair-Elect noted that he may propose an International Legal Exchange Briefing Trip to East Africa and possibly an International Bar Leaders Trip [did he say to where?]. Report of the Chair (Salli Swartz): The Chair reported on the actions of the Administration Committee. She noted that she has asked Section Delegate Josh Markus to Chair a Task Force on Strategic Planning. She encouraged the Council to register for the upcoming General Counsel Dinner, the Spring Meeting, ABA Day at the UN, and the Leadership Retreat and Annual Meeting in Toronto. She also noted the stand-alone conferences being sponsored this spring in Los Angeles, California; Eilat, Israel; and Munich. Germany. There being no further business, the Chair thanked all those present for attending and adjourned the meeting. 4

5 COUNCIL MEMBER ATTENDEES Salli Swartz Mike Burke Bart Legum Gabrielle Buckley Marcelo Bombau Lisa Savitt Ron Cass Adam Farlow Jason Matechak Ron Bettauer Marilyn Kaman Sara Sandford Robert Brown Steven Richman Glenn Hendrix Mike Byowitz Josh Markus Mitch Orpett John Attanasio Marc Steinberg Russ Kerr Jonathan Fried Lord Peter Goldsmith Jonathan Granoff William Taft Fiona Woolf Louraine Arkfeld Hans Corell David Crane Meyer (Mike) Eisenberg Fali Nariman David Stewart Laurel Bellows Karen Mathis Ved Nanda Robert Stein Louise Ellen Teitz Ruth Wedgwood Robert Brodegaard Isabella Bunn Ingrid Busson Albert Garrofe Melida Hodgson, by phone, by phone, by phone, by phone, by phone, by phone, by phone, by phone, by phone, by phone, by phone 5

6 Paul LaLonde Victor Mroczka Kevin O Gorman Anders Etgen Reitz Fiona Schaeffer Marcy Stras Mark Wojcik Jeffrey Golden Deborah Enix-Ross Maha Jweied Jeffrey Anderson Sam Okudzeto Linda Jacobson Harold Burman Keith Loken John Masterson Karla Simon Max Trujillo, by phone, by phone, by phone, by phone, b y phone GUESTS Gene Burd Lucy Thompson Jonathan Rusch Peter Ehrenhaft 6

7 John T. Masterson, Jr. : U.S. Government Liaison (International Trade Law) ABA Section of International Law Council Meeting February 12, The Fourth Round of Transpacific Partnership negotiations was held in Auckland, New Zealand in December On December 3, the President announced that the U.S. and South Korea had reached agreement on a Free Trade Agreement. The Administration has estimated that this Free Trade Agreement will increase American exports by $10 11 billion annually and support at least 70,000 American jobs. On February 10, the U.S. and South Korea exchanged legal texts, which are posted on the USTR web site. 3. On February 9, U.S. Trade Representative Ron Kirk testified before the House Ways and Means Committee. Ambassador Kirk announced that the President intends to submit the U.S. Korea Free Trade Agreement to Congress in a few weeks and secure Congressional approval this spring. He stated that the Administration would work to address outstanding concerns relating to the Panama and Columbia Free Trade Agreements with the goal of resolving these outstanding issues as soon as possible this year and then submitting the agreements to Congress immediately thereafter. He also testified that the Administration would work with Congress this year to grant Russia Permanent rmal Trade Relations, in connection with Russia s accession to the WTO. 4. Administration s Export Control Reform Initiative: a. On December 9, the State Department published in the Federal Register an Advanced tice of Proposed Rulemaking on revisions of the U.S. Munitions List (USML) to make it a more positive list, and less based on subjective and design intent criteria. The comment period closed on February 8. b. On December 10, the State Department published in the Federal Register a proposed revision of Category 7 (tanks and military vehicles) of the USML into a positive list. This is the first such USML category so revised and if finalized would be a template for future revisions of the USML categories. c. On December 9, the Bureau of Industry and Security (BIS) at the Department of Commerce published an Advance tice of Proposed Rulemaking seeking comments on how the Commerce Control List of dual use items can be made more positive and how the Commerce Control List should be screened into three tiers based on two primary elements the degree to which an item provides the U.S. with a military or intelligence advantage and the availability of the item outside the US., its close allies and multilateral export control regime partners. The comment period ended on February 7. BIS has received approximately 2,000 pages of comments in response to this notice.

8 d. On December 9, BIS published in the Federal Register a proposed license exception entitled Strategic Trade Authorization. The proposed license exception would allow license free exports, reexports and transfers (in country) of specific items to destinations that would pose little risk of unauthorized use of such items or diversion to unauthorized destinations. The comment period ended on February 7 and BIS has received approximately 500 pages of comments. 5. On January 25, BIS amended the Export Administration Regulations to reflect the vember 8 Bilateral Understanding between the U.S. and India announced by the President and Prime Minister Singh. BIS removed Indian defense and space related entities from the BIS Entities List (which imposed license requirements for particular entities) and realigned U.S. export control policy toward India.