American Bar Association Section of International Law

Transcription

1 American Bar Association Section of International Law Section Council Meeting Saturday, October 15, :00 a.m. 12:30 p.m Great Room, Shelbourne Hotel, Dublin MINUTES Call to Order and Preliminary Business (Mike Burke): The Chair called the meeting to order. The Chair asked the Council to approve the August 2011 Council Meeting minutes. Upon a motion duly made and seconded, the minutes were approved unanimously, subject to technical changes being offered by John Masterson and Michael Byowitz. The Chair introduced new Council members including Laurie Foster, Richard Andrews, Tim Bugg, Louise Ellen Teitz, Alex Blumrosen, and Hong Tang. Introduction of Distinguished Guests (Lisa Savitt): Liaison Officer Lisa Savitt introduced several Distinguished Guests. Ms. Savitt first introduced a number of guests who had attended the 2011 Section Fall Meeting but were unable to attend the Council meeting. These included Andre de Almeida, President of the Inter-American Bar Association; John Costello, President of the Law Society of Ireland; Brian Speers, President of the Law Society of rthern Ireland; rville Connolly, former President of the Law Society of rthern Ireland; Adrian Colton, Chairman of the Bar Council of rthern Ireland; and D Arcy Kemnitz, Executive Director of National LGBT Bar Association. Ms. Savitt then introduced the Distinguished Guests present at the Council Meeting. Ms. Savitt first introduced Tanja Jussila, President of the International Association of Young Lawyers (AIJA) and invited her to address the Council. President Jussila remarked that she was honored to have the opportunity to speak to the Council. She noted that there was a solid friendship between the two organizations, with great members and international interests in common, and that she looks forward to continued cooperation between the two organizations. Ms. Savitt next introduced Paul O Higgins, Chairman of the Bar Council of Ireland, and invited him to address the Council. Chairman O Higgins noted that the Bar Council of Ireland is mainly a referral organization that deals with advocacy, in contrast to solicitors. He pointed out that, over the past year, his organization has seen a large number of changes in the legal arena in Ireland due to the European Union economic bailout of Ireland the year before. In particular, he highlighted proposed sweeping legislation by Ireland s government to regulate Ireland s legal profession, under which it would no longer be independent. He noted that the Bar Council heard from the EU troika, constituted of the European Union, European Central Bank, and the International Monetary Fund, and was informed that these massive regulatory changes need only apply to finance in the legal profession. Chairman O Higgins continued that the current, proposed legislation goes much further than this, and 1

2 that it has the potential to significantly muzzle the legal profession in Ireland. Moreover enforcement measures proposed in the legislation include seizure of documents. Chairman O Higgins asked that the ABA give some thought and attention to this issue and the precedence that it might set. HE invited the ABA to provide constructive suggestions, encouraging careful consideration before affecting the independence of the bar. Chairman O Higgins concluded his remarks by welcoming everyone to Ireland and thanking them for their time and for the cordial tone of the entire Fall Meeting. A question was raised about how the ABA might help and Mr. O Higgins indicated that, as the specifics become clearer, some constructive commentary on those details would be helpful. Presentation of Leonard J. Theberge Award for Private International Law (Louise Ellen Teitz): Louise Ellen Teitz presented the Leonard J. Theberge Award for Private International Law to Professor Ronald Brand for his many contributions to the development of private international law. She noted that he had spent his entire career working, teaching, and writing about private international law. She noted that among his many accomplishments, he was the driving force behind the creation of the Center for International Legal Studies at the University of Pittsburgh, which he helped develop in conjunction with the US Department of State s programs to teach international arbitration in countries in Eastern Europe and the Gulf States. Professor Brand accepted the award for his work, thanking the Section for their consideration. He noted that his work attempts to use private international law to develop coherent international legal policy. Professor Brand gave the example of his current work in Jordan to help students from the universities of Amman and Baghdad to develop moot court teams and strengthen their law schools. He noted that the ABA has done a great deal of work to develop the role of private international law, citing the particular example of the Section s work on encouraging states to keep from banning all international law in US court rooms. He remarked that over the past decade, Europe has been taking on a greater leadership role while the US is beginning to lag behind and he encouraged the Section to keep up its good work to help the U.S. remain at the forefront. Professor Brand noted that the existence of this award is evidence of the Section and ABA s leadership in this arena and, in closing, he accepted the award with appreciation. ABA Center on Human Rights Justice Defenders Program (Mike Greco): The Chair of the ABA Center on Human Rights and past President of the ABA, Mike Greco, discussed the Center s Justice Defenders Program. Mr. Greco noted that lawyers historically have been integral to advocating, establishing, and preserving a just rule of law founded on universal human rights principles. In countries experiencing that struggle today, the technical and moral support of the broader legal profession can add significant weight and a measure of protection to the brave efforts of individual lawyers risking their professional and personal well-being for freedom, justice, and human dignity. To be truly effective, however, such support must not be ad hoc but be readily available, reliable, and sustainable over time. The program provides a vehicle for that support, deploying pro bono 2

3 expert lawyers to assist lawyers and advocates who are struggling to defend human rights under governmental oppression, and observing trials of human rights lawyers and advocates. Specifically, the program has the following objectives with related activities: (1) advise and support embattled human rights advocates, (2) observe and raise public awareness of trials and provide analysis of sensitive issues, and (3) collaborate with and expand upon existing pro bono networks. He emphasized through some examples what a difference these efforts can make to the people on the ground seeking to defend the rule of law and he reminded the Council of the importance of the Section and ABA as noteworthy international observers that give people hope. Mr. Greco also noted his support for the Section in its efforts to raise concerns about the recent ABA s Rule of Law Initiative (ROLI) proposal to the ABA Board of Governors. He noted that it seeks to remove the Section and other s seats on the ROLI Board of Directors, have the ROLI Board of Directors act as a clearing house for the Association s international rule of law activities, and require notifications of all international activities across the Association in any of the regions in which ROLI operates. Mike Burke mentioned that he is still on the ROLI Board. In that capacity, he updated the Council on the status of matters and also echoed Mr. Greco s comments. Salli Swartz noted that, in her role as the ABA SOC liaison to the Board of Governors Operations and Communications Committee, she will gladly work with Mr. Greco and others to do what she can to make sure that the Board of Governors understands the issues, so that the ABA can continue to protect people from torture and other mistreatment. ABA HOD Member Josh Markus noted that there seems to be an inherent conflict of interest occurring, and that the ABA was never intended to be a technical legal assistance company, but rather an organization made of volunteers who believe in certain legal principles that they would like to provide to people around the world. The Section will have a ten minute period before the Board of Governors in February during which the Chair will inform the Board not only of the Section s activities but discuss this issue, as well. Others voiced strong support for working to address the ROLI proposal, in a way that highlights the Section s continuing support of ROLI, but also makes sure that we address the friction points raised by the proposal and find a way to make sure that the ABA, the Section and the other Sections of the ABA can continue their important rule of law work that does not involve ROLI. The Chair informed the Council that the draft Jurisdictional Statement had been circulated and requested that everyone take a look and suggest where improvements could be made. Mr. Greco suggested that the Council produce a position paper on this issue immediately. Report of the Section Delegates on the 2012 Annual Meeting ABA House of Delegates Actions (Mike Byowitz, Josh Markus): Former Section Delegate to the HOD Josh Markus noted that the Section was spectacularly successful in terms of policy initiatives at the 2012 ABA Annual Meeting HOD Meeting. The Section had several resolutions adopted by the HOD 101C, 113A, 113B and 301, and a number of other resolutions the Section co-sponsored, such as the resolutions sponsored 3

4 by the Commission on Youth at Risk Resolutions 103B, 103C, 103D. He reminded the Council, however, that there is always some opposition from those who believe that the ABA should only deal with domestic issues, and that the Section should always be mindful that this opposition exists. Mr. Markus noted that after the meeting, Kristi Gaines has done a great job with implementation. Several letters regarding 113B were sent out to individuals such as the Chair of the Senate Foreign Relations Committee, and many other individuals on the Hill. Policy/Government Affairs Officer Ron Bettauer noted that similar follow-up on 113A will also likely occur as a number of states have moved forward with varying forms of legislation to prohibit consideration of any foreign law in state courts. He asked Council members for suggestions on how the ABA can work to oppose these state prohibitions of international law. Suggestions included filing amicus briefs, drafting a one pager that could be sent to state legislators and other government officials relevant groups, approaching the Department of Justice at a relatively early stage, work with the Uniform Law Commission since many of their members work for state legislatures and therefore would provide the ABA with direct access, reaching out to the international sections of various state bar associations, drafting an op-ed piece that could be replicated in important newspapers around the country, and developing a fact sheet on this issue that could be sent out to editorial boards. Mr. Bettauer noted he would follow up with the individuals who voiced suggestions. Section Delegate Mike Byowitz noted that much to the delight of top leadership of the Section, Josh Markus won a seat as an At-Large Delegate in the House of Delegates. This is viewed as a tremendous benefit to the Section, because, even though Mr. Markus is not a designated representative for the Section, he will be another delegate with the Section s interests in mind. The Council congratulated Mr. Markus. Mr. Byowitz also reported on developments relating to actions of the Section s International Human Rights Committee in response to blanket authority comments approved by the Section Council via on collective redress in EU member states. He reminded the Council that the comments had been developed in cooperation with the Section of Antitrust. He expressed the view that leadership of the International Human Rights Committee had mistakenly viewed the comments as being hostile to collective redress, when they actually focused simply on outlining the pros and cons of that process in offering other comments to the E.U. about draft antitrust regulations. Mr. Byowitz reported that the Committee, separate from the Section, presented two resolutions before the HOD, the first seeking to encouraging the European Commission to adopt rules allowing for class actions and a second prohibiting ABA sections in the future from issuing blanket authority comments to foreign governmental entities. The former resolution was postponed indefinitely, while the second was voted down by the HOD. Policy Discussions (Ron Bettauer): Mr. Bettauer invited Vice-Chair of the International Litigation Committee, Ken Rashbaum, to present the Report and Recommendation (R&R) from the Committee on data privacy and protection to the Council. Mr. Rashbaum noted that the R&R is supported by the Information Services, Technology and Data Protection Committee and International 4

5 Employment Law Committee, along with input from the Section of Litigation. The R&R calls for the ABA to urge that U.S. courts consider and respect the data protection and privacy laws of any foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data that is subject to preservation, disclosure, or discovery. Mr. Rashbaum noted that the R&R is being presented at this time because US courts are trending away from international law and are instead holding that the exigencies of US procedural law will take precedence over foreign substantive law. He noted that this can effect the litigants or place the litigants at risk because the have conflicting, inconsistent requirements from both their home countries and US courts. Finally, Mr. Rashbaum remarked that the current approach violates the principles that the ABA has stood for, because US courts are essentially demanding that a person produce information that is in violation of the laws of their own country. He noted that the number of cases in which this was a problem has been growing in frequency, even if this kind of court mandate is clearly contrary to Supreme Court precedent. Mr. Rashbaum commented that the risks of failing to take a position on this issue are quite profound, specifically noting its interference with the orderly progress of global commerce. Additionally, if the US does not respect and show cognizance for foreign law, other countries may follow suit and show the same disregard for US law. Council members suggested some changes to the R&R including highlighting the mechanisms that provide for practical guidance, toning down the focus on EU to US data transfer, making more references to strong ABA policy on upholding the rule of law around the world, making the resolution a bit more strongly worded, and highlighting the penalties to foreign entities if they break these laws. It was suggested that Mr. Rashbaum make the technical changes to the R&R and then re-submit to the Council for an electronic vote in advance of vember 15 th deadline for R&Rs to be presented to the HOD at the 2012 ABA Midyear Meeting. Upon a motion duly made and seconded, the Council unanimously approved the proposed R&R, subject to Mr. Rashbaum integrating the comments received today and circulating a revised version, to the Council by , affording Council members the chance to reject or approval the final version. Policy Issues on the Horizon (Ron Bettauer): Mr. Bettauer provided an update on policy issues on the horizon. He noted the leadership of the US Lawyers Practicing Abroad Committee is planning to present an R&R on social security benefits for spouses abroad to the Council at the 2012 Section Spring Meeting. Mr. Bettauer noted that Council Members Isabella Bunn and Bob Lutz have been working with the ABA Center for Human Rights on a draft to an R&R on corporate social responsibility. The new draft differs from previous versions as the United Nations Human Rights Council has adopted "Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework" proposed by UN Special Representative John Ruggie. The ABA Center for Human Rights is also working on how the ABA should appropriately interact with the new working group and annual forum set up by the UN Human Rights Council which will be reflected in the R&R. 5

6 Council Member and Section liaison to the ABA Section of Legal Education and Admissions to the Bar Bob Lutz is also working on several R&Rs with the Section of Legal Education. The first, on model rules for admission of foreign educated lawyers, has been put on hold while the drafters take into account the ruling New York state recently issued on this issue. The second, on the certification of foreign law schools, is on hold due to a controversy over whether the ABA should be certifying foreign law schools. The final, on standards for foreign law school programs (when a US law student studies abroad), is being drafted by the Foreign Programs Sub-Committee of the Section of Legal Education. Mr. Bettauer noted that a sub-committee of the International Trademark Association and the Section s International Intellectual Property Rights and Information Services, Technology and Data Protection Committees are working on an R&R on the electronic service of process of anonymous or fictitious owners of commercial internet sites. Vice- Chair of the Information Services Committee and liaison to the ITA Bruce McDonald is leading the drafting and is willing to share the draft with anyone interested. Mr. Bettauer noted that the Section s International Human Rights Committee is currently working on three potential R&Rs: (1) urging the prosecution of former Haitian President Jean-Claude Duvalier, (2) urging the adoption of a family reunification program for Haitian refugees similar to the program the US currently has for Cubans, and (3) raising human rights concerns regarding Armenian genocide. The Committee is also working on a new set of blanket authority comments to be submitted to the EC regarding collective redress. They have consulted widely with other concerned Committees and Sections. The Section s Mexico Committee will also likely develop a policy initiative on an anti-trust related matter. Member of the ABA Commission on Ethics 20/20 and Section Delegate Jeff Golden noted that the Commission has been very thankful for the interest and assistance that the Section has provided. There are a number of upcoming Commission proposals that he hopes the Section will support including the Outsourcing proposal, the Registration of In-House Council proposal, the proposal on admission pro hac vice of foreign counsel, and the proposal to move the model rule for foreign lawyer s to Rule 5.5, to increase the likelihood of its implementation. Council Member Discussion on Policy Issues for Future Consideration (Bart Legum): Chair-Elect Bart Legum noted that, although most of the Section policy is developed from the bottom-up by committees, the Council has tremendous insight as well and that the Section would benefit from development of some top-down policy, as well. Accordingly, Mr. Legum asked Council members to share the main issues they are seeing in the world today that they think the ABA should address. Ved Nanda suggested the Section be involved in setting standards regarding when and how governments should consider intervention actions (for purposes of protecting a population from its own government or from third parties that the government is either unable or unwilling to stop). 6

7 Inspired by the luncheon speech from Past President of Ireland, Mary Robinson, Isabella Bunn suggested a task force be created to examine how global climate change has affected people and if the ABA should take a policy stance on it. Jeff Golden suggested adoption of one or more R&Rs on private international law issues to further stability on a commercial level. These could cover a variety of topics. Child Abduction Mediation Task Force (Mike Burke): The Chair directed the Council to the written report from the Child Abduction Mediation Task Force included in the agenda materials. He thanked the Task Force for their work. Report of the Law Student Division Liaison (Rick Andrews): The liaison to the ABA Law Student Division, Rick Andrews, reported on the activities of the Law Student Division. Mr. Andrews thanked the Section for its support this past August in amending the ABA constitution to grant voting rights to the law student representative to the ABA Board of Governors. He also noted that he had been invited to work with the Membership Committee and expressed his appreciation to the Section for its attempt to attract law student members. Finally, he informed the Council that he had an opportunity to discuss the Section at a law student conference in San Diego where he talked about membership and some of the activities. He commented on three projects on which he is working: continuation of discounted rates for students, mentorship and access to the website to look for work opportunities and other information. Report of the Young Lawyer Division Representative (Hong Tang): The liaison from Young Lawyer Division, Mr. Hong Tang, reported that he is the newly appointed liaison between the two entities, and that he plans to do his best to promote the Sections programs and cooperation between the two entities and to report back on today s meeting to his Division. Government Liaison Reports (John Masterson, Max Trujillo): International Trade Law Liaison John Masterson noted that there were four main developments in the international trade area. The first was that on October 12, Congress approved the long pending Korea, Colombia, and Panama free trade agreements. The National Legislatures of Colombia and Panama have already approved their respective free trade agreements with the US, and the US-Korea Free Trade Agreement is pending before the Korean National Assembly. He noted that the trade agreements will enter into force when there is an exchange of diplomatic notes. The second development is that there continues to be a very high level of activity on the administration s export control reform initiative. He noted that the Departments of Commerce and State, in cooperation with the Department of Defense and other agencies, have been working on proposed rules that would transfer certain items, especially parts and components, from the State Department s U.S. Munitions List, to the Commerce Department s Commerce Control List, upon completion of the prior Congressional 7

8 notification and waiting period requirements under the Arms Export Control Act. The Commerce Department published a proposed rule on July 15 outlining how the Export Administration Regulations would be amended to control certain items that would be moved from State s U.S. Munitions List Commerce s Commerce Control List.. He noted that Commerce will be publishing additional proposed rules regarding export control reform in upcoming weeks. Mr. Masterson noted that the Anti-Counterfeiting Agreement was signed by the US and partners on October 1 st. This agreement builds upon the minimum standards in the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights, particularly with respect to criminal enforcement, border enforcement, civil and administrative actions, and distribution of copyrighted material on the internet. The Office of the US Trade Representative has determined that the Anti-Counterfeiting Trade Agreement is consistent with existing US trade law, and that it does not require any change to US law for its implementation. The final topic that Mr. Masterson covered was the America Invents Act, which was signed on September 16 th. Mr. Masterson noted that this is the most significant patent legislation in over 50 years. The new law has a number of key provisions in it, the most important of which from an international perspective is moving the US from a system in which patents are awarded to the applicant who was the first to invent, to the applicant who is the first to file. This is the system followed by virtually every other industrialized nation, meaning that interference practice will be eliminated. The new legislation also offers a fast track option for patent processing within 12 months. Congressional Liaison Max Trujillo reported that Congress had adopted the Generalized System Preference Extension, which included the Trade Adjustment Assistance Rule Act that allows the TAA to be extended to The Senate also passed the China Exchange Rate Oversight Reform Act, which seeks a currency policy change in China. It is uncertain whether the House will pick it up or not. Mr. Trujillo noted that both the House and Senate Appropriations Committees have acted on the State Department budget. The House is recommending $11.2 billion less than the President s request; and the Senate version is asking for $6.1 billion dollars less. Mr. Trujillo next turned to the UN reform bills. He noted that the UN Transparency and Accountability Act that passed the House Foreign Affairs Committee, is aimed at shifting funding for the U.N. from mandatory to voluntary funding over time.. It provides for transition time, but would eventually require the U.S. to hold back 50% of non-voluntary funds until the Secretary of State certifies that 80% of the overall regular budget of the U.N. is funded on a voluntary basis. It also notes that no funds from the US will be assigned to the International Criminal Tribunal for the Former Yugoslavia or for the International Criminal Court. Additionally, funds will be withheld to any UN entity that recognizes a Palestinian state or upgrades its status at the UN. He then talked about HR 2059, which cuts UN Population funds. The language in the bill has to do with abortions and the People s Republic of China s one child policy. Mr. Trujillo also briefly discussed the Peace Corps bill. 8

9 Report of the Vice Chair (Gabrielle Buckley): Marcello Bombau presented on behalf of Vice Chair Gabrielle Buckley due to her inability to be on the phone at that time. Mr. Bombau reported the Section Committees have been operating well this year and that Section Division Chairs continue to hold their monthly conference calls. Ms. Buckley has also been scheduling regular trainings, calls, and pod-casts with the Committee leaders on the three core P s of the section: policy, publications, and programs. The location and dates of the Section s 2013 Fall Meeting is yet not set, but there is a short list and Ms. Buckley has been seeking advice and suggestions on the best location. Report of the Chair-Elect (Bart Legum): The Chair-Elect Bart Legum noted that the 2011 Fall Meeting has been an extraordinary success, and that the 2012 Fall Meeting in Miami will have a lot to live up to. He noted that planning for the Miami meeting is advancing rapidly. He commented that they have already selected all of their venues for social events. Events will be held at the New World Symphony and at the Moore Building in the Design District. Technology Officer Robert Brown suggested that for future Fall Meetings, the Section invite law firms in potential cities to bid to have the meeting held in their city. The bidding process would not be the only factor considered in choosing a location, but might give the planning committees a better idea of who really wants to have the meeting in their city. This idea was supported by a number of the Council leaders and will be explored further. Report of the Chair (Mike Burke): The Chair highlighted several actions taken by the Administration Committee since the last Council meeting in August: (1) approval of the publication of three new books, and (2) reviewed a joint report from the Programs, Technology, and Communications Officers on how the Section can do a better job leveraging social media and other forms of communication that appeal to more of our members, especially the younger generations. The Administration Committee also met with the African Development Bank with which they developed a road map for the next year, including an outline of a series of projects for the African Region. The Chair noted that he expects the 2011 Section Fall Meeting to be a financial success, though final numbers would not be available for a couple weeks following the meeting. He noted that presiding over the meeting had been a great experience for him, and thanked the five Planning Committee Co-Chairs and excellent staff for their great job. The Chair noted several upcoming Section programs including (1) Live at the SEC on October 27, (2) a joint program with the Law Society of England and Wales on the future of capital markets in London on December 7, (3) a program in Mumbai on January 20, (4) the 2012 ABA Midyear Meeting in early February in New Orleans at which the Section will hold a number of programs and a joint reception with the ABA Judicial Division and Tort, Trial, and Insurance Practice Section, (5) the ILEX Briefing Trip to Dar es Salaam, Arusha, and Kigali March 4 14, 2012, (6) the 2012 Section Spring Meeting at the Grand Hyatt Hotel in New York City April with a gala reception at the Temple of Dendur at the 9

10 Metropolitan Museum of Art, and (7) the 2012 ABA Annual Meeting in Chicago in early August. There being no further business, the Chair thanked all those present for attending and adjourned the meeting. Respectfully Submitted, Sara Sandford Secretary/Operations Officer 10

11 COUNCIL MEMBER ATTENDEES Mike Burke Bart Legum Gabrielle Buckley Marcelo Bombau Lisa Savitt Marilyn Kaman Sara Sandford Adam Farlow Jason Matechak Ron Bettauer Bill Mock Gretchen Bellamy Robert Brown Steven Richman Salli Swartz Mike Byowitz Jeff Golden Josh Markus Mitch Orpett Sandra McCandless John Attanasio Marc Steinberg Catherine Doll Russ Kerr Louraine Arkfeld Hans Corell David Crane Meyer (Mike) Eisenberg Peter Goldsmith David Stewart Laurel Bellows Karen Mathis Ved Nanda Robert Stein Louise Ellen Teitz Ruth Wedgwood Alexander Blumrosen Isabella Bunn David Caron Ron Cass Yee Wah Chin Ingrid Busson-Hall Laurie Foster Albert Garrofé 11

12 Melida Hodgson Paul Lalonde Victor Mroczka Kevin O Gorman Anders Etgen Reitz Fiona Anne Schaeffer Marcy Stras Mohammed Syed Erik Wulff Glenn Hendrix Aaron Schildhaus Hong Tang Richard Andrews Maximillian Trujillo Meaghan McGrath Sutton Linda Jacobson Hal Burman Keith Loken John Masterson Tim Bugg STAFF Leanne Pfautz Katie Van Geem Julie Pasatiempo Kristi Gaines Angela Benson GUESTS Yvonne Fiadjoe Tanja Jussila Ronald Brand Peter Ehrenhaft Ken Rashbaum Funmi Oluyede Mike Greco Paul O Higgins Larry White Enid Adler Asiv Osuo Kieran Cowhey 12