ILS News (October 2020)

Dear ILS Members:

Welcome to the October 2020 ILS News. With the close of the Annual Meeting in September, we begin a new fiscal year. Toward the end of last year, we voted to modify the name of our Section, in recognition of the contributions of our members who practice immigration law, as well as to signal the many benefits that the section has to offer in that area of the law. However, we will still strive to serve the needs of all practitioners whose work is cross-border or multinational, and you will see a continuation of our efforts across a broad range.

Unfortunately, one thing that has not changed is the threat of COVID-19, which hangs over all that we do, both in our own practices and here in the Section. As you might expect, Executive Committee meetings have gone virtual, as have almost all of our other activities, and will remain so for the foreseeable future. The in-person activities of the past, including meetings, panel presentations, law school outreach, and awards ceremonies, are all moving online. Fortunately, many of our activities are already online, and we will play to our strengths in our Journal, our webinars, and not least of all, the ILS News.

It would be remiss of me to fail to mention how grateful I am, as incoming Section Chair, to have such wonderful people to work with in the coming year, both within the CLA and on the Executive Committee. This is especially true here, in the ILS News, and I would like to take this opportunity to express my appreciation to Tiffany and Bob for the excellent work that they have done over the past year, and for their commitment to continue in the present. As always, we welcome new members, as well as feedback from our current membership.

William Tolin Gay

The Practice of Transnational Law at Risk by Bob Lutz^[1]

The transnational practice of law — to which the efforts and work of this Section are largely dedicated-relies on a stable and accessible international system to function optimally and enable an international trade of legal services. Much effort by rule-of-law (“ROL”) advocates in the post-Cold War era concentrated on building new “democratic” foundations and institutions allowing for the interactive involvement of civil society internationally governed by a commitment to and the application of principles of the ROL.

The decade ahead presents questions about the sustainability of this international legal order, which has benefitted the transnational practitioner. The spate of countries that now are transforming to authoritarian societies under the guise of adherence to the ROL is growing and, increasingly, make it difficult to engage transnationally. As one commentator observed, these states reconfigure the ROL concept such that liberal forms (e.g., democratic elections) are used to encase illiberal content (e.g., subordination of judiciaries, suppression of news media, restrictions on organizing). The proliferating growth of these regimes jeopardize international law notions and may result in new norms reflecting the major concerns of authoritarian states. There is reason to be vigilant about such developments and, as a bar association, to aggressively support the advancement of the ROL not only in the US, but worldwide.

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[1] Treusch Distinguished Professor Emeritus of International Legal Studies, Southwestern Law School; Member, CLA-ILS Executive Board; Editor-in-Chief, California Lawyers Association-International Law (CLA-ILS) Newsletter; Former Chair, ABA Section of International Law and EIC, The International Lawyer; Current Co-chair, ABA-Senior Lawyers International Committee; and Member, U.S. State Department Advisory Committee on International Law.

Topics in this Segment:

INTERNATIONAL PRIVATE (COMMERCIAL) AND PUBLIC LAW DEVELOPMENT HIGHLIGHTS

CLA – International Law and Immigration Section Resolutions

• Diversity and Inclusion
• Affirming the UN Principles on Lawyers and UN Principles on the Judiciary
• ILS Resolution Regarding the International Criminal Court

United Nations

• 75th Anniversary
• UN International Day of Older Persons
• WHO Decade of Healthy Ageing, 2020-2030
• U.S. Withdraws from the World Health Organization (WHO)

OTHER INTERNATIONAL ORGANIZATIONS AND INTERNATIONAL AGREEMENTS

International Criminal Court (June – Oct 1, 2020) by Sean Butler

• US Executive Order 13928 for Sanctions Against International Criminal Court Personnel
• Ongoing trials
• Referral by Bolivia
• Flotilla to Palestine
• Sudanese Cooperation
• Search for a New Chief Prosecutor and Six New Judges
• Report of Independent Experts

Organization of Security and Cooperation in Europe (OSCE) — Election-Observing in US

US Withdraws from Paris Climate Change Agreement

OTHER INTERNATIONAL PRIVATE AND PUBLIC LAW DEVELOPMENTS

Council of Europe– European Privacy and an “Internet Ombudsman” by Dan Shefet, Cabinet Shefet-Paris

Brexit: Another Day, Another Letter: EU threatens legal action against the UK by Dr Vincent Power, A&L Goodbody

International Trade

• WTO and National Security Exceptions
• WTO Appellate Body and Future of the Dispute-Settlement Body

International Arbitration

• SCOTUS, NY Convention and Arbitral Agreement Non-signatories

Anti-Corruption

• New (Second Edition) Resource Guide

International Intellectual Property

• WIPO Lex Database

Use of Force

• Armenia v. Azerbaijan and Council of Europe

US Election

• “Foreign Relations and the Election: Future Challenges”

OFAC Update

• Publication of Xinjiang Supply Chain Business Advisory

In this column, we focus on developments that impact California transnational legal practice and/or California transnational legal practitioners. While the developments below bring your attention to those the editors found noteworthy, the ILS NEWS welcomes members identifying others and contributing short notes about them. Contact: rlutz@swlaw.edu about other developments and/or, if possible, contribute short blurbs about relevant developments.

ILS adopts the following declarations:

Diversity and Inclusion

Consistent with the stated purposes of the International Law and Immigration Section of the California Lawyers Association (ILS), the ILS Executive Committee solemnly proclaims and pledges to the ILS membership the following: We condemn racism and intolerance in all its forms (implicit and explicit) and seek through our efforts to eliminate any form of them from involvement in ILS activities and from the international and transnational practice of the legal profession; We seek to advance diversity and inclusion in the international and transnational legal profession and strive to cause equality and social justice in all actions and activities that we undertake; We will vigilantly guard, support and seek to advance the understanding and development of the rule of law in the United States and abroad; We commit to eliminating systemic racism and to advocate needed legal reforms through domestic and transnational legal professional structures and the judiciary involved. Recognizing that the United States’ legal system and its observance of rule of law principles has long stood as a model for other countries and that the ability to influence others for reasons of national and international interests consistent with these principles greatly depends on its actions at home and the projections of them abroad, we solemnly affirm ILS’ fundamental commitment to diversity, inclusions, social justice, and the elimination of systemic racism recited above, and to advocate for needed reforms in the United States and other countries.

Affirming the UN Principles on Lawyers and UN Principles on the Judiciary

In acknowledgement and celebration, the Executive Committee of the International Law and Immigration Section of the California Lawyers Association announces the Thirtieth and Thirty-Fifth Anniversaries, respectively, of the United Nations’ Basic Principles on the Role of Lawyers and United Nations’ Basic Principles on the Independence of the Judiciary.

The Basic Principles for Lawyers recite applicable international human rights law and instruments, and specifically identify the duties and responsibilities of lawyers as well as calling for their security in discharging their functions. It asserts that lawyers should not be identified with their clients’ causes when representing them. Especially noteworthy are provisions that lawyers are entitled to form and join self-governing professional associations to promote their continuing education and training and protect their professional integrity. Lawyers are to cooperate with Governments to ensure effective and equal access to legal services and lawyers are able, without interference, to counsel their clients in accordance with law and professional ethics. The Basic Principles for the Judiciary, while also referring to international human rights norms that apply to judges contained in international conventions and domestic laws, specify the singular importance of independent judiciaries and their ability to decide matters impartially, without improper influences of all kinds. Together these well-established documents represent the major sources of international practice reflecting the principles governing lawyers and judges. At a time when both these institutions, fundamental to the foundation and preservation of the rule of-law, are being maligned, threatened, and attacked domestically and globally, the ILS’ Executive Committee feels it is useful to remind ourselves of ILS’ commitment in its purposes to safeguard the legal profession and judiciary domestically and internationally, and to call-out governments everywhere that act to abuse them.

ILS Resolution Regarding the International Criminal Court

On June 11, 2020, President Trump signed Executive Order 13928, which imposes sanctions on employees of the International Criminal Court (ICC), including judges and prosecutors, and anyone who provides any form of financial assistance to them. President Trump took this executive action, without consulting Congress, by invoking the authority of the International Emergency Economic Powers Act and the National Emergencies Act. Under authority of those statutes, President Trump declared a national emergency based on his “finding” that the ICC threatens the national security of the United States. By taking this action, the President placed judges and prosecutors of the ICC under the same sanctions regime as international terrorists and drug dealers. President Trump issued the Executive Order in response to reports that the ICC is investigating possible war crimes and crimes against humanity that may have been committed in Afghanistan, including possible crimes committed by members of the U.S. armed forces, CIA, military contractors or other U.S. citizens. The Executive Order freezes the assets of any person who works at the ICC and who is involved in any way with investigating or prosecuting any U.S. citizen or the prosecution of the citizen of any ally of the U.S. that has not accepted the jurisdiction of the ICC. The Order also bans employees of the court from traveling to the United States and allows for penalties to be imposed on any person who provides any assistance to court employees who have been sanctioned. 123 countries are members of the ICC. While the U.S. is not a member, the ICC reflects the values that the U.S. championed when leading in the establishment of the Nuremberg Tribunal, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. The ICC is a respected and important international legal institution. Executive Order 13928 represents an unwarranted and counter-productive attack on the rule of law, a precedent that will be used by authoritarian regimes who wish to intimidate the court and an abuse of executive authority. The American Bar Association, a number of NGO’s, and dozens of countries have condemned the Executive Order.

The ILS requests that the CLA join them by calling for the rescission of E.O. 13928.

75^th Anniversary

On September 21, 2020, Member States of the United Nations held a high-level meeting celebrating the 75^th Anniversary of the United Nations. It adopted a forward-looking political declaration, negotiated via an intergovernmental process on: “The future we want, the United Nations we need: reaffirming our collective commitment to multilateralism.” See www.un.org. The United Nations officially came into existence on Oct. 24, 1945, and Oct. 24, 2020 is “UN Day” on which is celebrated the aims and achievements of the UN.

UN International Day of Older Persons

October 1, 2020 was the 30^th anniversary of “International Day of Older Persons”, which raises a question of what is the proper terminology for those over 60? “the Elderly”, “Older Adults”, “Seniors”, “Seasoned citizens”, “Second Season”. Pick your poison! Well, for those who care to know, the accepted reference used in United Nations’ circles is, “Older Persons”!

WHO Decade of Healthy Ageing, 2020-2030

The UN via the WHO declared that the decade ahead is an “opportunity to bring together governments, civil society, international agencies, professionals, academia, the media, and the private sector for ten years of concerted, catalytic and collaborative action to improve the lives of older people, their families, and the communities in which they live.” The Global Strategy and Action Plan on Ageing consists of the following ten priorities: build a platform for innovation and change; support country planning action, collect better global date on healthy ageing, promote research that addressed the needs of old people, align health systems to the needs of older people, lay the foundations for a long-term-care system in every country, ensure the human resources necessary for integrated care, undertake a global campaign to combat ageism, make the economic case for investment in healthy ageing, and develop the global network for age-friendly cities and communities.

U.S. Withdraws from the World Health Organization (WHO)

Giving the obligatory one-year notice, the Trump Administration formally notified the United Nations that the US will withdraw from the World Health Organization, effective July 6, 2021. This will deprive the organization of one of its largest sources of funding, but more significantly do harm to the need to have global responses to such pandemics as Covid-19. Blaming China and the WHO for an inadequate response to the coronavirus, the US’s tepid response to this dangerous virus-pandemic has resulted in 210,000+ deaths in the U.S. and more than a million worldwide (US = largest deathrate among major countries) as of publication of this newsletter. “It is what it is”.

US Executive Order 13928 for Sanctions Against International Criminal Court Personnel

On June 11, 2020, the Trump administration announced potential economic and travel sanctions against personnel of the International Criminal Court (ICC) involved in investigating the conduct of US personnel allegedly involved in war crimes or crimes against humanity in Afghanistan.

On September 2, 2020, sanctions were ordered against both the ICC Prosecutor, Fatou Bensouda, and the Head of Jurisdiction, Complementarity and Cooperation Division, Phakiso Mochochoko.

On October 1, 2020, the Office of Foreign Asset Control of the Dept. of Treasury issued regulations regarding the sanctions order.

The ICC authorized the investigation of the situation in Afghanistan, which includes investigation of alleged crimes committed by all parties to the conflict, including the Taliban and Afghan forces. The authorization includes conduct in Afghanistan after May 1, 2003 (the date Afghanistan became a party to the Rome Treaty) and in Poland, Romania and Lithuania, nations which are parties to the Rome Treaty since July 1, 2002 (the date those other nations became parties to the Rome treaty.)

The sanctions order was roundly condemned by a group of state parties (nations who are parties to the ICC treaty) including most of the NATO members involved in the operations in Afghanistan, by legal scholars, by bar associations and others, as improper intimidation of and interference with a duly constituted international judicial body and its officers.  [See above discussion about the ILS Resolution re these sanctions—Ed.].

An action was filed in federal court in the Southern District of New York challenging the sanctions order.

Ongoing trials

Four trials are currently underway at the ICC: Al Hassan (war crimes and crimes against humanity including torture, rape, sexual slavery, other inhumane acts, including, inter alia, forced marriages, persecution in Mali); Ongwen (war crimes and crimes against humanity of murder, rape, attacks on civilian populations, conscription of children under the age of 15, among others, in Uganda by the Lord’s Resistance Army): Ntaganda (war crimes and crimes against humanity in the Democratic Republic of Congo), and: Gbago and Ble Goude (crimes against humanity including rape, murder, persecution and other inhumane acts in post-election violence in Cote d’Ivoire) cases.

Referral by Bolivia

On September 4, 2020, Bolivia made a referral regarding alleged crimes committed by a blockade by a political party, Movimiento al Socialismo, as an organized attack on a civilian population.

Flotilla to Palestine

On September 15, 2020, Pre-Trial Chamber 1 rejected the application of Comoros to review the decision of the Prosecutor not to proceed with investigation of claims of crimes allegedly committed during the May 31 2010 interception of the flotilla bound for Gaza by Israeli forces.

Sudanese Cooperation

On August 25, 2020, Sudan announced that it would cooperate with the ICC in connection with the charges brought related to allegations of genocide, war crimes and crimes against humanity in the Darfur region of Sudan, including the agreement to surrender former leader Omar Al-Bashir to the ICC.

Search for a New Chief Prosecutor and Six New Judges

The ICC is in the process of selecting a new prosecutor and six new judges.

Report of Independent Experts

On September 30, 2020, the final report of the independent experts requested by the Assembly of State Parties was published with critiques and recommendations for the ICC.

Having received an official invitation to observe the general elections scheduled for November 3, 2020 in the US, the OSCE organized a mission to the US headed by the Polish Ambassador and containing eleven experts from ten participating States. It will assess whether the elections are held in line with OSCE commitments and other international obligation and standards for democratic elections, as well as national legislation. The OSCE has previously observed nine elections in the US, most recently the mid-term elections in November 2018.

On November 4, 2019, the Trump Administration submitted formal notification of its withdrawal from the Paris Climate accord to the United Nations, effective one year later (notably, November 3, 2020 Election Day). In withdrawing, the US noted that the Agreement imposed an unfair economic burden on American workers, businesses, and taxpayers resulting from the US pledges made under the Agreement. As the second largest global emitter of greenhouse gases, its withdrawal undercuts collective efforts to reduce emissions, transition to renewable energy sources and lock in future climate measures. 194 countries plus the European Union signed the Agreement; 188 countries and the EU (representing 97% of global greenhouse gas emissions) have ratified or acceded to the Agreement. China and India signed and, with the US which has noticed its withdrawal, represent 3 of the 4 largest greenhouse emitters and approximately 42% of all global emissions.

by Dan Shefet,^[2] Cabinet Shefet-Paris

[The idea for an “Internet Ombudsman” to advise regulation of the Internet, when confronted with social media uses encouraging radicalization and anti-social actions, explained below, originated with a report for UNESCO in 2016 prepared by Dan Shefet, a French lawyer. The policy recommendation was recently adopted by the Council of Europe. –Ed.]

Click here for the UNESCO Report.

The Report’s Policy Recommendation No. 1 was to create a “Content QualificationAssessment” to be performed by an “Internet Ombudsman”. The philosophy behind this recommendation is based on the recognition of: (1) the need to justify delegation of public authority and duties to the private sector (penal and or civil liability for third party use), while (2) protecting free speech. In practice it can be extremely difficult for social media and search engines to strike the balance between free speech and illicit content (e.g. radicalization, hate speech, sale of drugs, reputational harm) and regulation may easily lead to collateral blocking since the test in Europe is “actual knowledge”.

The proposed Internet Ombudsman is a body that will provide recommendations to both social media and search engines in cases where content is not “manifestly illicit” (as provided for under the e-Commerce Directive in Europe). If a social media or a search engine were to follow that recommendation, they would be relieved of any later legal sanctions (whether penal or civil). If on the other hand, they decide not to follow the recommendation, it might be exposed under a later court case (complying with due process) to sanctions, since not following the recommendation by definition would create “actual knowledge”. It is important to stress that said recommendation would be subject to judicial review and take into account the arguments in defense of the social media/search engine in question.

Click here for the relevant report. Click here for the resolution.

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[2] Individual Specialist to UNESCO, Adviser to the Council of Europe on the Internet Ombudsman.

By Dr Vincent Power,^[3] A&L Goodbody

When the history of Brexit is written, much will be made about the letters which have travelled between Brussels and London.

On 29 March 2017, the “Article 50 Letter” from the then UK Prime Minister (Theresa May) to the then President of the European Council (Donald Tusk) was carried by two UK civil servants on Eurostar (travelling First Class) at a cost of £985.50. The ultimate cost of that letter – to notify the EU that the UK intended to leave the world’s largest trading bloc – will be much higher.

On 1 October 2020, a letter was sent from Brussels to London giving formal notice to the UK that the European Commission believes the UK is in breach of the EU-UK Withdrawal Agreement – an agreement which only entered into force on 1 February 2020. The ultimate cost and implications of this letter could also be very high in setting the tone of the relationship between the divorced partners in the coming years. 

The EU is clearly concerned about doing another deal with the Johnson Government when the Johnson Government is seeking to undo the very agreement which it had negotiated and then endorsed in the last UK General Election as “oven-ready”. No one wants to be seen as the turkey in this fight over the oven-ready agreement.

It is now more likely than ever that the post-Brexit relationship between the parties will be characterised by lawsuits and court cases in various courts and forums whether they be in the EU or the likes of the World Trade Organization.

The background to today’s letter is the UK’s “United Kingdom Internal Market Bill” – proposed legislation currently going through the UK Parliament – which would, the EU believes, undermine the EU/UK Withdrawal Agreement [by revising the agreement regarding trade treatment of goods at the North Ireland-Republic of Ireland border—Ed.].

The EU has a point. The UK’s Secretary of State for Northern Ireland admitted in the UK’s House of Commons on 8 September 2020 that some provisions of the Bill would “break international law in a very specific and limited way”.  If there is a breach of EU law then the European Commission is the institution which brings the case – it is the so-called “guardian” of the treaties.

Today, the European Commission has said that the UK’s Bill “if adopted, would flagrantly violate the Protocol on Ireland/Northern Ireland, as it would allow the UK authorities to disregard the legal effect of the Protocol’s substantive provisions under the Withdrawal Agreement”.  The European Commission goes on to say that representatives “of the UK government have acknowledged this violation, stating that its purpose was to allow it to depart in a permanent way from the obligations stemming from the Protocol. The UK government has failed to withdraw the contentious parts of the Bill, despite requests by the European Union.” The European Commission believes that the UK is in breach of the commitments which the UK gave in that agreement.

The European Commission is largely relying on Article 5 (“Good Faith”) of the Withdrawal Agreement.  This article states the EU and the UK must deal with matters in “good faith” and refrain from any measures to jeopardise attaining the objectives of the Agreement. Specifically, Article 5 states:

“The Union and the United Kingdom shall, in full mutual respect and good faith, assist each other in carrying out tasks which flow from this Agreement.

They shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from this Agreement and shall refrain from any measures which could jeopardise the attainment of the objectives of this Agreement.

This Article is without prejudice to the application of Union law pursuant to this Agreement, in particular the principle of sincere cooperation.”

The UK has one month to reply to this formal notice. The Commission could then issue a “Reasoned Opinion”. Ultimately, it could go before the Court of Justice of the European Union (CJEU).  The UK might even – as strange as it might seem – refuse to participate in the court proceedings but that would be a very serious step indeed. The UK might argue that it has not breached the Agreement at all because the UK legislation has not yet been passed and it has certainly not entered into force so the EU was premature in its actions (i.e. arguing that the EU  has acted prematurely in what might be termed an “anticipatory breach”).

The case would ordinarily be heard before the EU’s CJEU, but that would be unprecedented in that the UK would have left the EU but would still be subject to the jurisdiction of the court. There are also procedures under the Withdrawal Agreement. Ultimately, it may be resolved politically through negotiations between EU and the UK. One could hardly see the EU agreeing easily to yet another agreement with the Johnson Government given the doubt hanging over a breach of another recent agreement.

In a weak hand, proposing the Bill gives the UK something extra to bargain with in the negotiations but it comes at a very high price. The UK might ultimately drop the offending provisions of the Bill as part of a negotiated outcome.

If the parties do not climb down then expect the case to intensify. The EU could take a further case on the basis of Articles 5 and 10 of the Protocol on Ireland/Northern Ireland. Article 5 of the Protocol relates to Customs and the Movement of Goods. Article 10 relates to State aid. There could also be breaches of Articles 4 and 184 of the Withdrawal Agreement.

The bottom line for businesses and everyone watching this Brexit process is that we are now entering a new phase – the dispute phase. The world has seen trade wars and spats before the likes of the World Trade Organization between nations and unless a line is drawn shortly, we could see the same type of activity between the UK and the EU. This would be very unfortunate for all.

For monthly updates on the Brexit Timetable, please click here.

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[3] Partner at A&L Goodbody’s EU, Competition & Procurement team.

WTO and National Security Exceptions

In June 2020, a WTO panel report in the case of Qatar v. Saudi Arabia involving challenges by Qatar to the legality of the national security exception under the WTO Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. In the case, Qatar alleged that Saudi Arabia prevented a Qatari business from obtaining legal representation in civil and administration enforcement procedures and that it failed to institute criminal procedures against the Saudi infringer. Saudi Arabia defended the action by invoking the security interest exception under TRIPS (Art. 73), basically claiming that its actions were justified because it had severed diplomatic and consular relations with Qatar to protect its national security from the dangers of terrorism and extremism.

The Panel, noting that SA’s jurisdictional defense asserting the TRIPS national security provision was identical to that of GATT Art.XXI, stated that the severance of diplomatic relationship does not necessarily result in non-application of the WTO’s legal framework. The Panel stated that “when a group of States repeatedly accuses another of supporting terrorism and extremism, … that in and of itself reflects and contributes to a ‘situation…of heightened tension or crisis’ between them that relates to their security interests.” The Panel reiterated that “the standard applied to the invoking Member was whether its articulation of its essential security interests was “minimally satisfactory’ under the circumstances”.

The use and interpretation of national security exceptions, appearing in multiple WTO Agreements, may play a larger role in subsequent dispute-settlement body proceedings there.

WTO Appellate Body and Future of the Dispute-Settlement Body

An impasse has existed for a number of years in the WTO Dispute-Settlement Appellate Body because of the US’s refusal of candidates to fill vacancies as they come due. The seven-member Appellate Body (AB) hears appeals in three-judge appellate panels from Panel Reports of the Dispute Settlement Body (DSB) arbitration panels. As a consequence of a variety of US complaints about its operation and the WTO’s attempted reform efforts, the US, in this organization functioning by consensus, has consistently rejected nominees to AB and proposals for a reformed appointment process in 2019 that was supported by 116 members. Now the WTO DSB is at a standstill: with AB unable to hear appeals, it is still unclear how the DSB will function in practice.

SCOTUS, NY Convention and Arbitral Agreement Non-signatories

In the “GE Power” case (GE Energy Power Conversion France SAS Corp., FKA Converteam SAS v. Outokumpus Stainless USA, LLC, 140 S.Ct. 1637 (2020)), the US Supreme Court unanimously ruled that the NY Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by non-signatories under domestic equitable estoppel doctrines. The decision resolves many years of conflicts among the Second, Third, Ninth and Eleventh Circuits with respect to the issue of whether only signatories to international arbitration agreements could enforce their terms. Important implications of this decision include: (1) it is consistent with the law in other major arbitral jurisdictions; (2) evidences the continuing pro-arbitration stance the USSC has demonstrated over the last several decades; (3) affirms that the NY Convention establishes a kind of “baseline” treatment that does not preclude more favorable standards; and (4) suggests the Court’s willingness to consider the manner by which foreign courts apply the NY Convention.

New (Second Edition) Resource Guide

The “A Resource Guide to the U.S. Foreign Corrupt Practices Act” (second edition) was updated and published in July 2020. It addresses a wide variety of topics, including who and what is covered by the FCPA’s anti-bribery and accounting provisions. The Guide sets out the factors considered by DOJ and the SEC when deciding to open an investigation or bring charges, such as voluntary self-disclosure, full cooperation, and timely and appropriate remediation, including implementation of an effective compliance and ethics program. It features detailed information about the statutory requirements as well as insight into DOJ SEC enforcement actions and policies and practices through hypotheticals, examples of enforcement actions and declinations, and summaries of applicable case law. See www.justice.gov  (resource guide).

WIPO Lex Database

The WIPO Lex database—a free source of intellectual property-related laws/legislation, statutes, rules, and regulations, and treaties–now offers top IP judgments. It is the “go-to” source for IP cases/case-law/decisions.

Ten member countries–Australia, Brazil, Chile, China, Costa Rica, Jamaica, Mexico, Peru, Republic of Korea, Spain—are included. Now you can search multiple countries and all the Judgments at once via the WIPO Lex Database Search.

Armenia v. Azerbaijan and Council of Europe

In the wake of attacks from Azerbaijan regarding the disputed territory of Nagorno-Karabakh, Armenia filed a request for interim measures against Azerbaijan regarding the conflict with the European Court of Human Rights on Sept. 28, 2020. The ECHR applied Rule 39 of the Rules of Court and called upon both countries “to refrain from taking any measures, in particular military action, which might entail breaches of the Convention rights of the civilian population, including putting their life and health at risk, and to comply with their engagements under the European Convention of Human Rights, notably Articles 2 (right to life) and 3 (prohibition of torture or inhuman or degrading treatment or punishment). Secretary-General of the Council of Europe implored “all sides of the conflict to immediately cease hostilities and implement without delay the interim measures decided by ECHR.” There is fear that this conflict, if unresolved, might expand to involve Turkey and Russia.

“Foreign Relations and the Election: Future Challenges”

As lawyers, we concentrate on law, legal frameworks, international agreements, etc. in the practice of our profession transnationally. But we also know that foreign legal cultures and foreign country receptivity to the involvement of US lawyers to doing international transactions and dispute settlement can be essential to our success to practice law transnationally. To advance understanding about the role of foreign relations, their legal, cultural, social, political and economic contexts, and the importance of these concerns in the upcoming national election, the program, “Foreign Relations and the Election: Future Challenges” will occur on Wednesday, October 14, at 8:30-9:30am, sponsored by International Committee of the ABA Senior Lawyers Division. All ILS members are invited to attend virtually for free; contact rlutz@swlaw.edu for further details and Zoom information.

Publication of Xinjiang Supply Chain Business Advisory

On July 1, the U.S. Departments of State, Commerce, Homeland Security, and Treasury issued an advisory on the risks for businesses with potential exposure in their supply chain to entities engaged in human rights abuses in the Xinjiang Uyghur Autonomous Region (Xinjiang). Businesses with potential exposure in their supply chain to Xinjiang or to facilities outside Xinjiang that use labor or goods from Xinjiang should be aware of the reputational, economic, and legal risks of involvement with entities that engage in human rights abuses, including but not limited to forced labor in the manufacture of goods intended for domestic and international distribution.

For more information on recent actions by the Office of Foreign Assets Control of the US Department of Treasury (OFAC), please click here.

War on H-4 Immigrants: The Tyranny of Bureaucracy by Payal Sinha^[4], Peace Over Violence

An Obama-era rule that allows H-4 applicants to apply for work authorization is modified— starting in March 2019, USCIS introduced a biometrics requirement to I-539 applications to extend their status as dependents of H1-B workers. It takes USCIS adjudicators an average of  24 minutes to process Form I-539 and 12 minutes to process Form I-765, yet it’s taking USCIS up to 12.5 months to adjudicate these applications according to current processing times.

The delay in adjudication has and will always put H-4 visa holding immigrants not able to secure status for three years, and not be authorized to work for three years, or be able to continuously work without interruptions. The loss of jobs is no fault of the H-4 holders, but rather of the system. Moreover, these delays are not only making H-4 holders jobless but putting them in a vulnerable position, especially during COVID-19 pandemic. Delays are making these immigrants helpless and depressed, as there seems no way out, especially where the failure is clearly of the adjudicating agency.

According to the 8 U.S.C. §1571, “It is the sense of Congress that the processing of an immigration benefit application should be completed not later than 180 days after the initial filing of the application, except that a petition for a nonimmigrant visa under section 1184(c) of this title should be processed not later than 30 days after the filing of the petition.” This means that Congress has specifically stated that it is  its intent that no immigration benefit should take longer than 180 days to adjudicate, (and most nonimmigrant visas (which includes H-1B, L-1, F-1, and the dependents like H-4 and L-2), should take only thirty days to adjudicate. That is why an applicant can only renew the status 6 months before it expires.

Since last year, hundreds of H-4 visa holders have sued USCIS over these wait times in mass litigation across the country. However, these suits have gathered little to no attention, because in most cases, USCIS has approved all of the plaintiffs’ applications before a judge had a chance to hear the case.

These delays resulted in preventing H-4 dependents from engaging in employment which can further lead to isolation, depression, anxiety, feelings of guilt, and a loss of self-worth.

Independence and equal opportunity are fundamental American values. A recommended call to action should be undertaken by the immigration bar to hold USCIS accountable for depriving spousal H-4 visa holders the ability to continue to pursue their careers.

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[4] ILS Executive Committee member and Editor of ILS monthly Immigration Updates.

Chair

William Gay

Vice Chairs

Margret Francisco, Tiffany Heah, and Cathy Carlisle

Secretary

Georgina Conheady

Treasurer

Richard Bainter

ILS Journal

Robert Pimm (Editor-in-Chief)

ILS NEWS:

Robert Lutz (Editor-in-Chief) and Tiffany Heah (Managing Editor)

Members:

Agustin Ceballos, Robert E. Lutz, Robert Pimm, Melissa Allain, Payal Sinha, Daniel Alef, Hon. James P. Kleinberg (Ret.)

CYLA Liaison

Valentina Yan

Immediate Past Chair

Joshua Surowitz

Section Coordinator

Nikki Smith

Administrative Assistant

Mycah Hetzler

Foreign Bar Relations Committee – Chairs: Richard Bainter and Joshua Surowitz

The Foreign Bar Relations Committee is in charge of fostering relationships with our friends outside the United States. Click here for the list of foreign associations of lawyers and legal professional who have signed friendship agreements with ILS.

Education Committee – Chairs: Melissa Allain and Agustin Ceballos

The Education Committee is in charge of organizing webinars, in person programs and career programs at local universities. Click here for a list of webinars organized by ILS. Don’t forget to take advantage of the free monthly CLE program organized by the CLA which is a perk of joining the ILS.

ILS Journal – Editor in Chief: Robert Pimm

The ILS Journal is one of the biggest perk for joining the ILS. We are constantly looking for articles to be included in the ILS Journal so if you have any topic of interest, please let us know.

ILS NEWS – Editor in Chief: Bob Lutz; Managing Editor: Tiffany Heah

The ILS NEWS is intended to quarterly update you on the happenings involving California international law practice and CLA-ILS activities. If you have anything of interest to the ILS members, please feel free to reach out to Bob Lutz, ILS NEWS editor, at rlutz@swlaw.edu.

Immigration Law Committee – Chair: Joshua Surowitz

The world is getting smaller nowadays and immigration lawyers inherently are international lawyers. We are starting a new sub-committee to fill in the gaps. The idea is to organize programs and events that would be of interest to those practicing immigration law. Currently, we have a special offer on webinars for those interested in learning the basics in immigration law. Click here for the monthly immigration updates.

If you are interested in joining any of the sub-committees, please feel free to reach out to the respective Chairs accordingly.

Warren Christopher Award Ceremony: Recipient Prof. Justin Brooks by Agustin Ceballos^[5], Seltzer Caplan McMahon Vitek.

On Friday, September 25, 2020, the Section’s Warren Christopher award that honors “outstanding contributions to international law practice” was awarded virtually to Professor Justin Brooks for his work domestically and internationally in seeking release of incarcerated innocent persons. Professor Brooks is the Director and Co-Founder of the California Innocence Project and Professor of Law at California Western School of Law in San Diego.

The ceremony was well attended having 90+ virtual attendees. Regardless of the challenging virtual platform, there was a feeling of intimacy and warmth, which was the direct result of the coordinated efforts of the Masters of Ceremony, Josh Surowitz, the current chair of the International Law and Immigration Section, and Jeffrey J. Daar, a past chair of the Section. Greg Kinnear (the actor who played Professor Brooks in the movie ‘Brian Banks’ that told the story of Prof. Brooks’ Innocence Project work) made a brief screen appearance honoring Professor Brooks, calling him a “great family man,” a “musician,” a “decent person” and a “man of different traits,” and ended his appearance with a pre-recorded thundering applause from his cellphone. The ceremony included videos, among which were: the ‘Brian Banks’ trailer, videos explaining the background of why Professor Brooks deserved the award, and how his work has made a difference in addressing systemic racism and helping many people that have run out of options.

The Warren Christopher Award (a beautiful, inscribed glass globe was then presented to Professor Brooks (virtually – although a physical award was sent to him), and he made an acceptance speech thanking his family and team; of particular note was Professor Brook’s statement that he “took other people’s problems, and made them his own.” The ceremony ended with a Q&A session, where (among other answers), Professor Brooks told us one of the happiest moments of his life/practice was a case he started at 29 years of age regarding a death row inmate. Twenty-six years later, he received a call from the Governor’s office informing him that the prisoner had been released as a result of his work.

Congratulations to Professor Brooks on receiving the 2020 Warren Christopher Award!

Agustin Ceballos

ILS Webinar Addresses U.S. Sanctions Against the International Criminal Court

President Trump signed an executive order on June 6, 2020 declaring that an investigation of U.S. military operations in Afghanistan by the International Criminal Court (ICC) poses a threat to the national security of the United States. The order authorizes the U.S. Treasury Department to impose financial sanctions and travel restrictions on lawyers, judges and other employees of the court. On September 2nd, the Treasury Department implemented the executive order by designating the ICC Prosecutor, Ms. Fatou Bensouda, and another high ranking attorney at the court as individuals who are under sanction. The sanctions that were imposed on the two ICC lawyers are the same as those imposed on hostile nations, foreign terrorist networks and international drug traffickers. Other judges and lawyers who work at the court, along with anyone else who provides assistance to the court, remain under threat of sanctions.

The executive order raises serious issues about the scope of presidential authority to declare a national emergency, the jurisdiction of the ICC, and threats to the independence of the judiciary in the international context. ILS organized a webinar in August to address these important issues. The program presented the legal basis for these sanctions as well as information about the ICC investigations that triggered the unprecedented U.S. action and the implications for the ICC and its staff. The program speakers were Adam M. Smith, a partner in the Washington DC office of Gibson, Dunn and Crutcher who specializes in OFAC sanctions and Kathleen Gallagher, Senior Legal Advisor at the Center for Constitutional Rights who represents victims of human rights abuses committed in Afghanistan. The live webinar was attended by over 90 people from many different countries and is now available as a recording in the CLA MCLE catalogue.

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[5] ILS Executive Committee Member and Chair of the Education Committee.

Foreign Relations and The Election: Challenges Ahead

Wednesday, October 14, 2020 |8:30-9:30am PT

Moderator/Co-chair of SLD- International Committee BOB LUTZ (Prof. Emeritus of Int’l Legal Studies, Southwestern Law School) invites you to join him and his guests for a stimulating discussion of this topic. It will feature:

WAYNE SANDHOLTZ, Professor of International Relations and Law at USC, and GREG TREVERTON, former Chair of the important National Intelligence Council and now an IR Professor at USC who is writing a book on future challenges for international relations.  The focus will be on future issues and concerns, not on the differences in the political parties and candidates. Click here to register for the event.

Oct. 17 – Entertainment Law and Business

Presented in Los Angeles, the world’s entertainment capital, the Institute on Entertainment Law and Business offers insider analysis, practical strategies and the industry’s leading experts. Click here for more information and to register.

Complying with US Export Controls – An interactive online learning seminar from the safety and comfort of your home or office by the Bureau of industry and Security

October 20 – 23, 2020 |9am to 12pm PDT (UTC-7) each day.

In partnership with the District Export Council of Southern California, and utilizing the power of virtual, interactive learning tools, BIS is now offering our popular Complying with U.S. Export Controls seminar as an online program. This interactive course delivers critical information for compliance with the Export Administration Regulations (EAR).

This seminar will be a live event: an opportunity to see and hear BIS Specialists present, have your questions answered, and participate in interactive exercises to expand your regulatory and compliance knowledge. Experienced BIS Specialists will deliver the training in four, three-hour sessions from 9am to 12pm PDT (UTC-7) daily. The information covered will include the same topics typically covered in the two day, in-person programs: Scope of the EAR, how to classify your items for export, how to apply for an Export License, understanding and using License Exceptions, Deemed Exports, de minimis and Direct Product rules, Export Clearances, Export Enforcement, and developing an Export Management and Compliance Program. This program will also feature a guest speaker from the Census Bureau to discuss the Automated Export System.

With the travel, budget, and time limits we all face, this program offers a timely, cost-effective, and highly accessible way to learn about the EAR and the steps to comply.

Participation Requirements:

• Reliable and stable internet connection
• Computer with audio to participate in the virtual seminar and digital learning exercises

This professionally designed and monitored platform will give access to all presentation materials and include real-time question and answer sessions. If you miss one of the days, sessions will be recorded and available for viewing to attendees. Minimum Continuing Legal Education credit (11 MCLE credits) is available for California State Bar members.

Registration fee: $ 430.00.

Last day to register: October 13, 2020. Register NOW: https://cvent.me/lVyr8r.

For questions regarding registration, please email BISSupport@decsocal.org.

For more information on how the program will work or questions on the topics to be covered, please call the BIS Western Regional Office at (949) 660-0144, (408) 998-8806, or by email.

Oct. 22 – USC Gould Alumni Association International Committee Virtual Reception

Are you a Gould alum living outside of the U.S.? The Trojan Network is lifelong and worldwide. Connect with the law school community living abroad in this virtual event hosted by the Alumni Association’s international committee.  For more information and to register, click here.

Oct. 29 – Real Estate Law and Business Forum

This is the one-day event real estate professionals can’t miss! For more than 10 years, this USC Gould School of Law Real Estate Law and Business Forum has been the most highly attended law and business conference in the Los Angeles area.  Programming is designed to appeal to both professionals and business people across the real estate field.  Click here for more information and to register.

New and Renewed Friendship Agreements by Richard Bainter⁶.

Ireland

The International Law and Immigration Section entered into its newest collaboration with a foreign bar when it signed a Friendship Agreement with the Law Society of Ireland in August. The agreement between the ILS/CLA and Ireland will promote collaboration, through publications, webinars and in-person visits between the members of the two organizations.

The Law Society of Ireland is the educational representative and regulatory body of the solicitors’ profession in Ireland. It exercises statutory functions under the Irish Solicitors Acts in relation to the education, admission, enrolment, discipline and regulation of the solicitors’ profession and it is the professional body for its solicitor members, to whom it also provides services and support.

ILS executive committee member, Gina Conheady, led the effort to establish this exciting new relationship. Earlier in the spring, she also organized an MCLE program on Brexit negotiations in collaboration with her colleagues in Ireland. A recording of that program is available in the CLA online catalogue: Brexit: Where are we now and where do we go from here? Key Considerations for International Business Lawyers

Viet Nam

ILS has enjoyed a long and close relationship with the Viet Nam Lawyers Association. ILS first entered into a Friendship Agreement with the VLA in 2015. Delegations of lawyers, judges and arbitrators from Viet Nam attended ILS events in California in 2017 and again 2018. ILS had hoped to receive another delegation at the CLA Annual Meeting this year, but the pandemic disrupted those plans. VLA members have also contributed articles to the California International Law Journal.

The original Friendship Agreement was set to expire in October 2020. ILS is pleased to announce that the agreement has been renewed for another five years. ILS looks forward to further collaboration with our colleagues in Viet Nam in the years to come.

American Bar Association International Law Section

CLA – International Law and Immigration Section and the American Bar Association International Law Section signed the Memorandum of Cooperation effective September 25, 2020 (“MOC”).

Pursuant to the terms of the MOC, each Section shall provide cross-promotion of events or programs. Each Section shall also identify opportunities for members of the other Section to publish in each Section’s publication.

We look forward to working together and organizing joint programs with the American Bar Association International Law Section.

COVID-19: International Issues & Policies

By David McFadden, Senior Reference Librarian, Southwestern Law School

Below, accompanied by links, is a brief bibliography on the topic of COVID-19 and the international legal and policy issues it raises. Happy reading!

Authoritarian Countries and COVID-19

Adina Ailoaiei, Is COVID-19 Paving the Way for Authoritarianism and Mass Surveillance ?, Privacy Hub (Sept. 25, 2020).

Ilan Alon, et al., Regime Type and COVID-19 Response, FIIB Business Review (May 28, 2020),

Mean Cox, States of Emergency and Human Rights During a Pandemic: A Hungarian Case Study, Hum. Rts. Brief, Summer 2020, at 32.

Shadi Hamid, How the Pandemic is Reinforcing Authoritarianism in Reopening the World: How to Save Lives and Livelihoods (John R. Allen & Darrell M. West eds., 2020).

Ingrid Nifosi-Sutton, Human Rights and COVID-19 Responses: Challenges, Advantages, and an Unexpected, Hum. Rts. Brief, Summer 2020, at 18.

OECD, Combatting COVID-19 Disinformation on Online Platforms (2020).

Jeffrey Smith & Nic Cheeseman, Arugment: Authoritarians Are Exploiting the Coronavirus. Democracies Must Not Follow Suit., FP (Apr. 28, 2020, 4:01 AM).

Andy Wang, Authoritarianism in the Time of COVID, HIR (May 23, 2020).

COVID-19 and International Health Issues

Kathy Gilsinan, CORONAVIRUS: COVID-19: How China Deceived the WHO, THE ATLANTIC (April 12, 2020).

Lawrence O. Gostin, et al., Has Global Health Law Risen to Meet the COVID-19 Challenge? Revisiting the International Health Regulations to Prepare for Future Threats: Global Health Law, 48 J.L. MED. & ETHICS 376 (2020).

Morgan Winsor, Timeline: WHO’s Response to the Coronavirus Pandemic and the Ensuing Controversy: The Organization has Faced Mounting Criticism Over Its Handling of COVID-19, ABC News (Aug. 15, 2020, 1:00 AM).

The Race to Produce a Vaccine

Julian E. Barnes & Michael Venutolo-Mantovani, Race for Coronavirus Vaccine Pits Spy Against Spy,  N.Y. Times (Sept. 5, 2020).

Thomas Curwen, Global Race is on for Coronavirus Vaccine; Nearly 160 Candidates are in the Running. Here’s a Closer Look at the Science Involved, L.A. Times, June 12, 2020, at A1.

Laura Spinney, How the Race for a Covid-19 Vaccine is Getting Dirty,  The Observer (Aug. 30, 2020, 7:52 AM).

Sui-Lee Wee & Mariana Simões, In Coronavirus Vaccine Race, China Strays From the Official Paths, New York Times (July 16, 2020).

Qiwei Claire Xue, & Lisa Larrimore Ouellette, Innovation Policy and the Market for Vaccines, J. L. Biosciences (May 18, 2020).

COVID-19’s Impact on Legal Education of Foreign Students

Karen Sloan, Due to COVID-19, Fewer International Students Could Hit Law Schools—Hard, law.com (Apr. 15, 2020, 4:40 PM).

Karen Sloan, Law Schools Say ICE’s Shifting Student Visa Rules Caused Unnecessary Chaos, Law.Com, (July 17, 2020, 1:42 PM).

Foreign Country Approaches to Dealing with the Virus

Kevin D. Dayaratna, et al., A Comparative Analysis of Policy Approaches to COVID-19 Around the World, with Recommendations for U.S. Lawmakers (2020).

Kat Devlin & Aidan Connaughton, Most Approve of National Response to COVID-19 in 14 Advanced Economies: But Many Also Say Their Country is More Divided Due to the Outbreak, Pew Rsch. Ctr. (Aug. 27, 2020).

Hannah Fischer & Sara M. Tharakan, Cong. Rsch. Serv. Insight, IN11481, COVID-19 International responses: Resources for Comparison with U.S. Policies (2020).

Tiaji Salaam-Blyther, Cong. Rsch. Serv., R46319, Novel Coronavirus 2019 (COVID-19): Q & A on Global Implications and Responses (2020).

Sophie Partridge-Hicks, 5 Countries That Are Getting COVID-19 Responses Right, Glob. Citizen (Sept. 11, 2020).

Michael A. Weber, Cong. Rsch. Serv., R46430, Global Democracy and Human Rights Impacts of COVID-19: In Brief (2020).

Make Next Year a Better One by Tiffany Heah,⁷ Law Office of Tiffany Heah, APC

Since this is the last edition of the ILS NEWS for 2020, here are some ideas of what to do to make next year a better one.

Meet with your Accountant

Find out what is your tax exposure for 2020 and figure out how to minimize your taxes and implement such changes in the final quarter of 2020.

If you operate your own law firm, you may find this checklist useful.

Clean Out Your Closet and Your Office

Make space for the new year by getting rid of things that you are no longer using. This applies to both your home and your office. It is refreshing to work in an environment that is clean and organized. You can also sell your unwanted items online and get something for them instead of occupying space in your home or office that you can use for something else.

If you need motivation to tidy up, check out this life-changing course by Marie Kondo.

Relook at your Finances

Now might be a good idea to figure out your monthly budget. It may be time to cancel subscription services that you no longer use. You may also want to consider moving if it means saving substantially on your rent.

Cash in On your Benefits

Most credit card companies provide you with points or cashback based on the amount spent. It may be time for you to redeem your benefits. If you shop regularly especially from a particular website, you may have points online that you should redeem before they expire. Do not forget to check your coupons and use them before they expire.

Check your Health

Make an appointment to see your doctor for your annual check-up. Getting a check-up from a dentist is also important. Make sure you get the flu shot too.

Check out the resources and content from the CLA Health and Wellness Committee to support attorney wellness.

Take Care of your Projects

If you started a project this year and you have not finished it, it might be a good idea to finish it before the year ends. Take care of those chores that you keep putting off, such as changing the light bulb, fixing the cabinet handles or getting rid of dead plants.

Reconnect with Friends and Clients

With the holiday season around the corner, now is a good time to update your contact list and reach out to your family, friends and clients. It is as easy as giving them a call or sending them a card.

Take a Vacation and Reflect

If you have any unused vacation days, use them to spend some time with your family and friends. Reflect on how the year went and how you can make it better. There is no better way to start the new year by recharging your batteries and starting the new year with a plan.

Here are 11 resolutions (proven by science) that you should consider to make next year better.

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[7] ILS Vice Chair and Managing Editor of ILS NEWS

Editor-in-Chief: Robert E. Lutz
Managing Editor: Tiffany Heah

Please submit articles (150-500 words), ideas, comments, notices, current developments and new publication announcements to the Editor at: 

Professor Robert E. Lutz
Paul Treusch Professor Emeritus of International Legal Studies
Southwestern Law School
3050 Wilshire Blvd.
Los Angeles, CA 90010
(213) 738-6758
OR email Prof. Lutz at: rlutz@swlaw.edu  

Opinions expressed herein are those of the authors and are not necessarily those of the California Lawyers Association or of the International Law and Immigration Section. Section dues are $95 per year. Law Students can join the Section for free.

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