April 14, 2010 No. 894 - Vol. 8
"Nothing is more fatal to health than an over care of it."
Benjamin Franklin
The third edition of Migalhas on International Arbitration, the premier newsletter which delivers the essential information, insights, and ideas on International Arbitration is now out. The editors, Mauricio Gomm-Santos and Quinn Smith of Smith International Legal Consultants in Miami present three articles.
First, Daniel Gonzalez and Maria Ramirez of Hogan Hartson in Miami, Florida, give a practical series of steps to enforcing foreign arbitral awards within the United States.
Second, Annmarie Grosshans from Schorndorf, Germany, gives readers an overview of interim measures under German law. The topic is a strong foundation in the legal underpinnings supporting the arbitral process.
Finally, Aliaksandr Danilevich from Minsk, Belarus, reviews the process for enforcing foreign arbitral awards in Belarus. His practical insights reveal a stable legal regime regarding the recognition and enforcement of foreign arbitral awards, including the use of the UNCITRAL Model Law on International Commercial Arbitration.
It is available here. Don’t miss it.
We look forward to your comments and suggestions.
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Read Migalhas LatinoAmérica in Spanish every Tuesday and Thursday. Visit the website at www.migalhas.com/latinoamerica
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Citizens opposed to health care law join lawsuit against democratic leaders
More than 1500 Americans have joined a lawsuit against Obama, House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid that challenges the constitutionality of the entire health care law. While several lawsuits are pending against the health care law, this lawsuit may be the only one taking broad aim at the law's constitutionality. Eighteen state attorneys general and other individuals have filed suits that attack only the specifics of the health care law. This is an attack on the law's very foundation, claiming that nothing in the Constitution grants the federal government authority to regulate health care. Therefore the plaintiffs claim the law violates the 10th Amendment that reserves powers not granted to the national government to the states.
Ninth Circuit rules prisoners have no right to fair pay
The US Court of Appeals for the Ninth Circuit on Friday ruled that federal prisoners are not entitled to a base level of compensation for work performed while incarcerated. Serra v. Lappin grew out of a challenge brought by attorney J. Tony Serra, who was imprisoned for failure to pay federal taxes. Serra and two fellow plaintiffs claimed that their rights were violated according to the Fifth Amendment to the US Constitution and various sources of international law. Judge Richard R. Clifton delivered the opinion of the Court: "We conclude that prisoners have no enforceable right to be paid for their work under the Constitution or international law, and we affirm the district court's dismissal of the action...The Constitution does not provide prisoners any substantive entitlement to compensation for their labor...Although the Constitution includes, in the Thirteenth Amendment,a general prohibition against involuntary servitude, it expressly excepts from that general prohibition forced labor "as a punishment for crime whereof the party shall have been duly convicted." In addition to rejecting a cause of action on the basis of the Constitution, the Court also ruled that the International Covenant on Civil and Political Rights (ICCPR), a UN document entitled Standard Minimum Rules for the Treatment of Prisoners and the law of nations "do not confer judicially enforceable rights."
Vatican releases Church response procedure for sex abuse cases
The Vatican on Monday released Church procedures for handling alleged cases of sexual abuse by priests, instructing, "Civil law concerning reporting of crimes to the appropriate authorities should always be followed." The "Guide to Understanding Basic CDF Procedures concerning Sexual Abuse Allegations" summarizes the procedures governing investigations by the Congregation for the Doctrine of the Faith (CDF) into allegations of sex abuse by clergy members. The CDF guidelines provide for interim measures meant to ensure the safety of others during civil authorities' investigations or legal proceedings: "During the preliminary stage and until the case is concluded, the bishop may impose precautionary measures to safeguard the community, including the victims. Indeed, the local bishop always retains power to protect children by restricting the activities of any priest in his diocese. This is part of his ordinary authority, which he is encouraged to exercise to whatever extent is necessary to assure that children do not come to harm, and this power can be exercised at the bishop's discretion before, during and after any canonical proceeding." The guidelines also outline a multi-tiered system of enforcement and appeals, including local bishops, the CDF, and the Pope himself.
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In response to our article on International arbitration losing its grip (ABA), published on Monday 4/12, Mauricio Gomm Santos and Quinn Smith of Smith International Legal Consultants in Miami commented that the concerns are misplaced for two reasons: 1) international commerce demands arbitration, and 2) US practitioners need to look in the mirror because they’re insistence on US style litigation practice in arbitration creates the problems the writer cites. We publish their response letter to the editor, hereunder.
*** Critics of international arbitration fall flat
Recent criticism of arbitration has grown fierce, citing increasing cost and lack of efficiency, but the main proponents of this invective largely have themselves to blame for failing to pursue the only true solution to international dispute resolution. Businesses, practitioners, scholars, judges, and observers must continue to support international arbitration to resolve international disputes. Arbitration is the only means to acquire a judgment enforceable in the 144 countries who are signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"). This convention binds the courts of all of these states and ensures a rate of enforceability far in excess of foreign judgments. Furthermore, the portability of the award allows a creditor to attach assets held in signatory countries, even if the debtor is from a non-signatory country. No judgment of any court has this kind of effect.
Arbitration has other intangibles. It remains the only form of dispute resolution that allows parties to capture cultural expectations and neutral decision makers through the choice of applicable law and arbitrator selection process. Arbitration allows the selection of a neutral forum, and it can provide a degree of confidentiality not available in most court proceedings. International business demands these features, and court proceedings cannot comply.
The recent complaints regarding costs take a narrow look at a problem generated largely by common law practitioners. Instead of viewing arbitration as a way to adapt the court system to create cost-effective controls on the process, many common law practitioners see arbitration as a sort of private court where they have a "right" to depositions, documents, and expert testimony. Arbitrators do little to stop the practice, often comporting themselves as private judges compelled to put more pressure on the parties to comply with discovery requests. Arbitration is a product of the will of the parties, and where all of the parties (and the arbitrators) decide to go down the road of private court, then they should expect the resulting costs and fees.
Arbitration can always become more efficient and cost-effective, and those involved in the process should consider themselves duty-bound to maximize the benefits of arbitration for their clients and the practice of law. But choosing to dump arbitration in favor of enforcing forum selection clauses will do little more than replace the problem of costs with the evils of unenforceable judgments, mistrust of judicial systems, and haphazard resolution of international disputes. Plus, it becomes increasingly doubtful parties from the United States will have the bargaining power to require litigation in United States courts in an increasingly decentralized world. Those pining for less international arbitration may only be the ones yearning for the past.
Mauricio Gomm Santos
Quinn Smith
Record
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MiMIC Journal
Sinopec invests $4.65bn in Canadian oil project
China's Sinopec oil company is to pay ConocoPhillips $4.65bn (£3bn) for a stake in a Canadian tar sands projects. The acquisition of the 9% stake in Syncrude Canada is one of China's largest investments in North America.
Geithner says China's Yuan peg `effectively lets' U.S. set interest rates
U.S.Treasury Secretary Timothy F. Geithner said China is likely to move toward a more flexible currency because its practice of pegging the yuan to the dollar limits the Asian nation's ability to conduct monetary policy. China's economy may have expanded 11.7 percent in the first quarter, the fastest pace in almost three years, making officials more likely to raise interest rates and scrap the yuan's peg to the dollar. The currencies should "roughly" track the market so that no country has an advantage in trade.
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Mitsubishi Corp y otras dos compañías japonesas planean invertir más de 50.000 millones de yenes para elevar su tenencia conjunta en la mina de cobre chilena Escondida a alrededor de un 12,5 por ciento.
Acuerdo
El ministro de Planificación Federal de Argentina, Julio de Vido, firmó un memorándum de entendimiento sobre cooperación en tecnologías de energía limpia con el subsecretario de energía de Estados Unidos, Daniel Poneman. El objeto es "facilitar la cooperación en los aspectos científicos, técnicos y políticos" de las energías limpias. (Presione aquí)
Licitación
La colombiana Interconexión Eléctrica S.A., Korean Electric Power Corporation (Corea), ASA Iberoamérica de España, Alapur Invetimento (Brasil) y Trascobel son las empresas precalificadas a participar del proceso de licitación que se realizará en Perú el 30/4 para dar en concesión la construcción, operación y mantenimiento de una línea de transmisión eléctrica en el país andino. La obra contempla una inversión de US$ 450 mlls. (Presione aquí)
Canal
En una década de administración panameña (1999-2009), la Autoridad del Canal de Panamá (ACP) ha invertido US$ 1. 111 mlls., en un conjunto de proyectos que han permitido modernizar la vía y mejorar el servicio a los usuarios.
Tech M.&A. shows more signs of rebounding
The number of technology mergers and acquisitions announced in the first quarter of the year rose to its highest level since the financial crisis first gripped the market. But the aggregate value of the transactions fell from the previous quarter as there were only a handful of big-ticket deals announced. Nevertheless, many technology companies are still sitting on the sidelines with large cash reserves, so deal activity could increase as the economy improves.
British PM proposes tougher takeover rules
Gordon Brown of Britain proposed changes to the country's takeover rules on Monday that could make it more difficult to acquire British companies. He suggested giving the government the power to block takeovers of any infrastructure or utility companies and to increase the threshold of shareholder support needed for such a takeover. The proposals represent a significant shift in a country that previously prided itself for its openness to foreign investment. Unlike the United States and France, Britain's government generally resisted getting involved in takeover battles. Many of Britain's gas and electricity suppliers, airports, ports and steel makers are now in foreign hands. But a public outcry over the closing of a factory run by a British confectionery maker, Cadbury, after it was bought in January by the American food giant Kraft put takeover rules on the political agenda.
Foreclosure-prevention program struggles to make impact
U.S. Treasury is still struggling to get its foreclosure-prevention programs off the ground. Nearly eight million households are behind on mortgage payments or already in the foreclosure process. The oversight panel estimated that Home Affordable Modification Program (HAMP) could prevent or at least delay 900,000 to 1.2 million foreclosures. But a majority of those households may default again later, the panel warned. The Obama administration has argued that HAMP is working. But the number of people being helped is "modest" in comparison with the scale of the problem. It is unclear how many foreclosures the government should try to prevent, given that many households are in homes that they can't afford.
Karadzic faces first trial witness
Karadzic, has cross-examined the first prosecution witness at the resumption of his war crimes trial at The Hague. Ahmet Zulic, a Bosnian Muslim, told the judges his elderly father-in-law had been burned alive by Serb forces. Karadzic, defending himself, asked Zulic a long list of questions and was told to "come to the point". Karadzic denies 11 charges of genocide, war crimes and crimes against humanity over the 1992-95 Bosnian war. In his opening statement last month, Mr Karadzic described the conflict as "just and holy", and blamed Bosnian Muslims for starting it. Prosecutors at the International Criminal Tribunal for the former Yugoslavia (ICTY) are expected to present evidence from some 410 witnesses, over several months.
Toyota suspends US sales of Lexus GX 460
Japanese carmaker Toyota has announced that it will suspend sales in the US of one of its luxury vehicles. The move came after a US consumer organization warned customers not to buy the Lexus GX 460 four-wheel drive because of fears it could roll over. The carmaker has recalled over eight million cars globally due to safety fears over faulty accelerators, floor pedals that stuck in mats and braking issues.
Vatican comment on paedophiles draws gay groups' anger
Gay rights activists have criticized a Vatican official who sought to link homosexuality to paedophilia when commenting on child sex abuse scandals. Cardinal Tarcisio Bertone had said homosexuality, not celibacy, lay behind the child sex abuse scandals.
Cuba liberalises barber shops and beauty salons
Cuba is turning over hundreds of state-run barbers shops and beauty salons to employees. All barbers and hairdressers in shops with three seats or fewer will be allowed to rent the space and pay taxes instead of getting a monthly wage. The move may be the start of a long-expected privatization drive, particularly of the small businesses.
US trade deficit widens as imports outpace exports
The US trade deficit widened to $39.7bn (£20.8bn) in February, as import growth continued to outpace exports. The trade figures confirm the trend of resurgent imports outpacing the rebound in exports as the US economy recovers from recession. Export growth was dominated by manufacturing, while imports were driven by consumption.
Kyrgyz president Bakiyev 'will resign if safe'
Kyrgyzstan's ousted President Kurmanbek Bakiyev has said he will be willing to step down in return for security guarantees for him and his family. Meanwhile Medvedev warned the country faced civil war if political uncertainty continued. In a speech in Washington, he said: "Some political leaders will have to make a decision about their fate." He did not elaborate, but correspondents say the Kremlin has been quick to offer assistance to Bakiyev's rival, Roza Otunbayeva, since she became interim leader.
Banks fight to block derivatives rules
Senate Democrats, resisting a last-ditch lobbying push from big Wall Street firms, are moving toward a sweeping revamp of financial regulation that would squeeze banks' lucrative derivatives-trading business.
Property loss pounds Morgan Stanley
Losses at a Morgan Stanley real-estate fund could wipe out nearly two-thirds of its $8.8 billion investments. It likely will rate as the biggest dollar loss in the history of private-equity property funds.
Swiss lawmakers bow to bankers urging support for tax settlement with U.S.
Swiss lawmakers, bowing to pressure from bankers representing 7.6 percent of the nation's gross domestic product, are poised to back the government's settlement with the U.S. over tax evasion resulting from a tradition of bank secrecy.
Tribune bondholder lawyer sees bankruptcy contempt hearing as `cage match'
The way attorney Robert J. Stark looks at it, today's contempt-of-court hearing in the Tribune Co. bankruptcy case is one more round in a "cage match." Edtor’s note: a cage match is an event in which wrestlers battle in a enclosed location escaping over the top to win.
Batista cancels EBX offering as billionaire changes plans after OSX plunge
Brazilian billionaire Eike Batista cancelled his planned initial public offering of holding company EBX Group Ltd. after raising $3.9 billion less than he first sought from the sale of shipbuilding unit OSX Brasil SA.
Russia judge involved in neo-Nazi trials killed
A Moscow City Court judge known for presiding over cases involving neo-Nazi groups was killed Monday morning while leaving his apartment. The murder of Judge Eduard Chuvashov is suspected to be a contract killing in light of the death threats he faced after presiding over the trials of members of neo-Nazi gangs. Last week, Chuvashov sentenced members of the Ryno Gang, a group known for attacking non-Russian immigrants, to 10-20 years in prison for the racially motivated killings of Central Asian immigrants between 2006 and 2007. In February, Chuvashov sentenced members of another ultra-nationalist organization, calling themselves the White Wolves, for committing similar crimes. On Monday, Chuvashov was set to begin the trial of a former police officer accused of plotting to bomb national monuments in Moscow.
Spain high court upholds suspension of investigation into 2002 Gaza bombing
The Spanish Supreme Court on Tuesday upheld a National Court decision suspending an investigation into a 2002 Israeli air force bombing in the Gaza Strip. The attack killed 15 people, including 14 civilians. The investigation was ordered in January 2009 after a National Court judge determined that the alleged bombing merited judicial investigation, but was suspended by the National Court in June. The Supreme Court's decision puts a definitive end to the controversial investigation.
Dutch PM proposes international nuclear tribunal
Dutch Prime Minister Jan-Peter Balkenende on Monday proposed the establishment of an international tribunal in the Netherlands to try countries suspected of supplying nuclear materials to terrorists. The tribunal would be set in The Hague, already home to several international judicial institutions, and would hold accountable nations that break international nuclear security treaties. A "nuclear court" would have to be established by a special treaty. According to Balkenende, US President Barack Obama reacted positively to the proposal during the Nuclear Security Summit currently being held in Washington, DC. The two-day, 47-nation international summit is intended to pursue a comprehensive nuclear security agenda while addressing concerns that terrorist organizations could obtain nuclear material.
Kyrgyzstan interim government suspends constitutional court
Kyrgyz interim prime minister Azimbek Beknazarov announced Tuesday that the temporary government has suspended the country's highest court until the country creates a permanent government. Beknazarov said that the Constitutional Court will remain temporarily dissolved because it allegedly supports ousted president Kurmanbek Bakiyev. Beknazarov also warned Bakiyev on Tuesday that he no longer has presidential protection from legal proceedings and that he would be arrested and face criminal investigation if he did not step down as president. A Kyrgyz court also issued arrest warrants for Bakiyev's brother and son and the country's former prime minister. In response, Bakiyev said Tuesday that he would admit defeat if the interim government assured the safety of his family. Bakiyev offered to meet with interim leader Roza Otunbayeva and called on the international community to investigate last week's coup.
Scores killed in China quake
Al Jazeera, Doha, Qatar
Visits to Improve Relations with Riyadh - Iraqi Sources
Asharq Al-Awsat, Pan-Arab daily, London, England
Mohammad: Developing human resources is vital
Gulf News, Independent daily, Dubai, United Arab Emirates
Report: U.S. confirms Syria gave Scuds to Hezbollah
Haaretz, Liberal daily, Tel Aviv, Israel
MIDEAST: Gazans Gassed by Silent Killer
IPS Middle East, International cooperative of journalists, Rome, Italy
Business with Israel pays off in Jordan
JPost, Conservative, Jerusalem, Israel
First batch of 'govt leaders' graduates
Khaleej Times, English-language daily, Dubai, United Arab Emirates
Malaysia keen to boost business ties with GCC
Middle East North African Network, Online financial portal, Amman, Jordan
300 Killed in Strong China Earthquake
Nahamet, Online news portal, Beirut, Lebanon
Panel formed on Lebanon poll law
Saudi Gazette, English-language daily, Riyadh, Saudi Arabia
Egypt says had no hand in Kuwait deportations
Times of Oman, English-language daily, Muscat, Oman
Al-Awlaki wanted by Yemen's authority
Yemen Observer, Sana'a, Republic of Yemen
Omani researcher Rafi'a Al-Tale'i: Arab workers are the only way to preserve the identity of the Gulf
Yemen Times, (Independent weekly), Sana'a, Republic of Yemen
Lib Dems to unveil 'fair' pledges
BBC News, Centrist newscaster, London, England
Sunny weather to remain until weekend
BreakingNews.ie, Online news portal, Cork, Ireland
Council blasted in child abuser row
Daily Express, Conservative tabloid, London, England
Fury after CPS drops prosecution of immigrant boy gang who molested girl, 14, as it's 'not in public interest'
Daily Mail, Conservative daily, London, England
Telecom Italia trims targets after results restatement
DMeurope, Online news portal, Amsterdam, Netherlands
CHINA: Strong quake kills dozens in north-western province
France 24, Issy-les-Moulineaux, France
How Turkey manufactured a coup plot
Hurriyet Daily News, (Liberal, English-language), Istanbul, Turkey
Glee's Lea Michele's New Look!
Look Magazine, London, England
Put your questions to Cumbria's election candidates
News & Star, Independent daily, Carlisle, England
Reports: Quake In Northwestern China Kills 300
Radio Free Europe, Prague, Czech Republic
Lib Dem Manifesto To Pledge Troops' Pay Boost
Sky News, Independent newscaster, Middlesex, England
Extreme Winter or Climate Change?: Experts Baffled by Mass Seal Pup Deaths
Spiegel International, Liberal newsmagazine, Hamburg, Germany
Lib Dems go to war with Labour over civil liberties
The Guardian, Liberal daily, London, England
Ousted Kyrgyz President will quit if given safety guarantees
The Independent, London, England
Oil climbs above $84
The Irish Times, Centrist daily, Dublin, Ireland
Adoption Flap Not Expected to Last Long
The Moscow Times, Independent daily, Moscow, Russia
Paedo bikini
The Sun, London, England
General Election 2010: Lord Alan Sugar gives Labour GBP 400,000 for campaign
The Telegraph, London, England
China earthquake kills hundreds
The Telegraph, Conservative daily, London, England
Hundreds killed as earthquake rocks China
Times Online, Conservative daily, London, England
Some 37 illegal immigrants nabbed in West Java
Antara News, News agency, Jakarta, Indonesia
Strong quake in western China's Qinghai kills 300
China Post, English-language daily, Taipei, Taiwan
10th Seoul International Financial Forum Kicks Off
Chosun Ilbo, Conservative daily, Seoul, South Korea
UN lobbies for more aid for displaced persons
Dawn, English-language daily, Karachi, Pakistan
Chinese Province Qinghai hit strong earthquake
Gazeta.kz, Official online newspaper, Kazakhstan
PM congratulates Gilani on passage of key legislation
Hindustan Times, New Delhi, India
Action on Tharoor only after checking 'facts': PM
India Express, News portal, Mumbai, India
Fire at plastic scrapyard in West Delhi
India Times, Conservative daily, New Delhi, India
Education with less latitude
Japan Times, Independent centrist, Tokyo, Japan
Hulu Selangor: Ex-MIC division deputy chief to contest as Independent
Malaysian Star, Online news portal, Selangor Darul Ehsan, Malaysia
Two drown during Hindu festival
New Zealand Herald, Conservative daily, Auckland, New Zealand
Commander surrenders
Pajhwok Afghan News, (Independent news agency), Kabul, Afghanistan
S Korea to advise activist against sending propaganda leaflets to DPRK (2)
People's Daily Online, English-language, Beijing, China
When intruder broke into Susan Boyle's home
Sify News, Chennai, India
Waterhouse to courthouse
Sydney Morning Herald, Centrist daily, Sydney, Australia
New euro fears push Asian markets lower
Taiwan News, English-language daily, Taipei, Taiwan
ECFA to be inked at SEF-ARATS talks
Taiwan Today, Government Information Office, Taipei, Taiwan
Discovery of 9 new planets challenges planetary formation theory
Thaindian News, Bangkok, Thailand
India wants ‘zero tolerance' of nuclear traffickers
The Hindu, Left-leaning daily, Chennai, India
Minister tells food importers adhere to standards or...'WE WILL DUMP THEM'
Antigua Sun Online, Independent daily, St. John's, Antigua
Details revealed in Jaffer plea deal
Canadian Broadcasting Centre, Toronto, Ontario
ICC World Twenty20 2010 matches selling out
Caribbean360, Online news portal, St. Michael, Barbados
Youth march focuses on West Bay
Cayman Net News, Online news portal, George Town, Cayman Islands
Personalities promote a vote of NO in next elections
Dominican Today, Independent daily, Santo Domingo, Dominican Republic
ARGENTINA: Fathers of the Plaza de Mayo - the "Rearguard"
IPS Latin America, International cooperative of journalists, Rome, Italy
'Avoid new taxes'
Jamaica Gleaner, Independent daily, Kingston, Jamaica
Peru: LAN to start operating Lima-Madrid-Paris route
Living in Peru, News portal, Lima, Peru
The infamous rainy season dawns
The Globe and Mail, Centrist daily, Toronto, Canada
Dion Phaneuf will wear the 'C' on his Maple Leafs sweater
Toronto Star, Toronto, Ontario
?Cultivate self control
Trinidad Guardian, Independent daily, Port-of-Spain, Trinidad
Somali radios take music off air
BBC News, Centrist newscaster, London, England
DR Congo bans export of concentrated mineral products from Katanga
CongoPlanet.com, Independent online news aggregator
Tema refinery shuts due to oil shortage
GhanaWeb, Online news portal, Amsterdam, Netherlands
Zim scraps 'shares' law
iafrica, Online news portal, Cape Town, South Africa
'ET's kindness led to his death'
Independent Online, News portal, Cape Town, South Africa
Without opposition leader Birtukan, Ethiopia's election is illegitimate
Jimma Times, Online news portal, Jimma, Ethiopia
Obama's nuclear summit: Good plan, action needed
Mail & Guardian Online, Liberal, Johannesburg, South Africa
Terre'Blanche: Lawyer denies discussing case
News24.com, Online news portal, Cape Town, South Africa
FG to build 54, 500 new houses, says Minister
Vanguard, Independent daily, Lagos, Nigeria
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