On the Job! Attorney Advisor position at U.S. Foreign Claims Settlement Commission

The United States Foreign Claims Settlement Commission, an independent quasi-judicial agency in the U.S. government that determines the validity and monetary value of claims of U.S. nationals for losses caused by foreign governments, is searching for an attorney advisor. For more information on the position, visit  http://www.justice.gov/legal-careers/job/attorney-advisor-international.
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Thawing of US-Cuba Relations: What to Expect Next?

On December 17, 2014, President Obama announced significant changes to U.S. foreign relations with Cuba. As noted in another ILG post by

Margaret Spicer, these changes reflect a new policy at the level of the U.S. Executive (the President). The sanctions imposed by U.S. Congress remain fully in place. In Washington DC’s politically-charged environment, US-Cubans and Republicans in Congress have been vocal about their opposition to any change in US-Cuban policy. Republicans assume control of both the House and the Senate in January, 2015.

So, what are the announced changes and what can we expect to happen next?

US-Cuba diplomatic relations re-established: High-level talks will begin in January, 2015 with the goal of re-establishing full diplomatic relations. President Obama announced plans to re-open a U.S. Embassy in Havana within a few months. Led by US-Cuban-American Senator Marco Rubio, opponents have threatened to block the required Senate confirmation of anyone nominated by President Obama as U.S. Ambassador to Cuba. US Congress also holds the purse strings and will need to fund the new Embassy. We will need to observe how much support these opponents will receive from other leading Republicans in the US Congress. Senator Bob Corker, incoming Chair of the Senate Foreign Relations Committee, has said only that he will be “examining the implications” of the policy change in the new Congress. Senator Orrin Hatch, presumptive new Chair of the Senate Finance Committee has issued a pro forma statement of opposition to the announcement. Representative Paul Ryan, incoming Chair of the House Ways & Means Committee (in charge of budgetary and trade issues in the House of Representatives) had, until 2007, voted to lift the embargo against Cuba. Senator Rand Paul (Rep.-KY) has been openly critical of Senator Rubio’s position. And Republican Senator Jeff Flake who flew to Havana to cement the prisoner exchange accompanying the deal, has been a vocal supporter of lifting the embargo. Flake and Paul both sit on the Senate Foreign Relations Committee. They, and others, will be heavily lobbied by US commercial interests lining up to take advantage of the announced policy and begin trade with Cuba.

In the event of a prolonged battle over funds and the nomination process, it is speculated that President Obama can take the interim step of scaling up the existing US Interests Section in Havana. Similarly, the Cuban Interests Section in Washington, D.C. will presumably be scaled up into an Embassy, headed by an Ambassador.

Increased travel and remittances to and small imports from Cuba: Travel to Cuba will still be restricted under the embargo. However, twelve categories of travelers currently authorized to travel to Cuba will no longer need to apply for permission (specific license) to do so: Continue reading

Read On!: International Commercial Contracts: Applicable Sources and Enforceability

Professor Giuditta Cordero-Moss has published the book “that she would have liked to have read when she started her career as an in-house lawyer in an Italian multinational Company about thirty years ago”; it is titled International Commercial Contracts and is available here.

Any practising lawyer and student working with international commercial contracts faces standardised contracts and international arbitration as mechanisms for dispute settlement. Transnational rules may be applicable, but national law is still important. Based on extensive practical experience, this book analyses international contract practice and its interaction with the various applicable sources: which role is played by the contractual regulation, which by national law, which by transnational sources, what is the interaction among these factors, and how does this all apply to contracts that refer disputes to international arbitration?

Giuditta was kind enough to respond to my request for an interview for IntlLawGrrls:

Q: You studied law in Rome and then pursued Phds in both Russia and Norway, what impelled you towards academic research and what did you write about?

A: I have always been interested in pursuing a deep and systematic understanding of the law. For the first decade and a half of my career I was a corporate lawyer, and I was very busy with drafting contracts , negotiating them and advising on their operation. Whenever interesting legal issues arose, they had to be addressed as efficiently as possible. There was no possibility to engage in extensive research, as the next contract and negotiation was waiting; the interesting legal issues were often avoided by commercial solutions. This gave me a long mental list of possible research topics. Many of these topics related to Russian law, as I was following my company’s (the Norwegian multinational Norsk Hydro’s) legal affairs in Russia. It was the beginning of the 90s, the Soviet Union had collapsed, the Russian legal system was undergoing important reforms, and it was very difficult to obtain reliable legal advise. To ensure that Norsk Hydro’s activity in Russia was relying on a certain competence of Russian law, the head of the Legal Department of Norsk Hydro agreed to sponsoring my studies of Russian law. That’s the background for my Russian PhD. The topic was the intersection between freedom of contract, the applicable law and arbitration. Back in Norway, I decided to continue working on the mental list of possible research topics that I had been compiling during all my years in practice.

 

Q: You have practiced as an international commercial lawyer in Italy, Norway and Russia. This must provide you with broad insight as the importance of context and culture on the interpretation and application of international commercial law- What is the most memorable (amusing, confusing, etc.) example from practice?

A: There is one red thread that has characterized my practice – be it the years as financial lawyer in Italy (at Fiat) or the years as international commercial lawyer in Norway and Russia: when contracts are being drafted and negotiated, all attention goes to the wording of the terms, and very little to the applicable law. You can be in a room filled with lawyers for all involved parties, both in-house and external, and they will negotiate for days, nights and weekends the amount of the penalty to be paid in case of delays in the production, or whether the termination clause should contain the word “reasonable”. At the very last minute before the signing, then, the applicable law may be decided, and nobody will pay attention to the circumstance that choice of English law will make all the negotiations of the penalty useless (because contractual penalties are illegal under English law), or that choice of German law will imply that the termination clause is based on reasonableness even if it does not say so.

 

Q: Your new book, International Commercial Contracts, seeks to explain how international contract law interacts with national law and how this affects international arbitration decision making and enforcement by national courts. Whereas one school of scholars view international commercial law as autonomous system, you seem to emphasize the importance of recognizing the field as transnational- where national rules and international norms interface. Can you explain the background for your vision?

A: The background is very practical, and appears from my answers to your first two questions: my research is based on the desire to clarify some of the questions that arose when I was drafting, negotiating and applying international contracts. It is certainly very empowering to draft the terms of a contract without taking into consideration the applicable law, as if the contract was part of an autonomous system. However, when differences arise between the parties, contracts need to be interpreted and enforced. It is in this phase, that the applicable law becomes important. Even when the contract contains an arbitration clause, the relevance of the applicable law may not be completely excluded. My interest in the interaction with national law is based on the desire to write contract terms that are enforceable in practice. To be able to do so, it is necessary to understand to what extent the contract terms are capable of being enforced simply on their own basis, and to what extent they depend on the applicable law.

 

Q: At present some international courts, such as the ICC, are experiencing legitimacy challenges. What are the key legitimacy challenges confronting international arbitration tribunals?

A: International commercial arbitration is very well established as a mechanism to solve disputes, not the least thanks to the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards. Nowadays, arbitration is being increasingly criticized for having become too well established, that is too regulated, too formalized, too time consuming, too expensive. There is a growing interest in alternative dispute resolution mechanisms, that are less rigid: conciliation, mediation, structured negotiations. These mechanisms cannot really compete with arbitration as long as their result in not enforceable, but they can be appropriate in situations where enforceability is not crucial.

 

Q: Your book presents many practical insights from practice on proper contract drafting. It seems that it will be a good textbook for students and reference for practitioners. Do you think we need to change legal education to focus more on the provision of practical skills – like contract drafting, oral argumentation (moot arbitrations), etc.?

A: Law is an applied science, and it can be very useful if the educational system may convey both aspects, the practical and the theoretical. In my opinion, for the theoretical part it is very important that students are taught the method to apply the law: if they understand the main principles, how to apply the principles to factual situations, which sources are relevant, how to interpret sources, etc., then they are given the possibility to orientate themselves in the legal landscape. I think it’s less important that we teach the specific content of every single provision – whether the term to present a certain request is 20 or 30 days, for example. This is something that they may look up when they need it. The practical side of teaching is also very important: it permits the students to apply in practice the method they have learnt in theory, which ensures a better pedagogical result. The systems of legal eduction vary considerably, in some countries there is very little emphasis on practical skills, in others there is more. It is certainly desirable to reach a balance between theory and practice, although it can take a lot of effort and time to introduce new elements in educational traditions.

Q: You are one the few women within international commercial arbitration. How can we recruit more women into this Field?

A: There are many more women of the younger generation within arbitration than there used to be a couple of decades ago.

 

Thank you for joining us on Intl Law Grrls!

 

Read On!: The Greening of European Business Under EU Law

Beate Sjåfjell and Anja Wiesbrock have just published “The Greening of European Business under EU Law”

The relationship between environmentally sustainable development and company and business law has emerged in recent years as a matter of major concern for many scholars, policy-makers, businesses and nongovernmental organisations. This book offers a conceptual analysis of the principles of sustainable development and environmental integration in the EU legal system. It particularly focuses on Article 11 of the Treaty on the Functioning of the European Union (TFEU), which states that EU activities must integrate environmental protection requirements and emphasise the promotion of sustainable development.

The book gives an overview of the role played by the environmental integration principle in EU law, both at the level of European legislation and at the level of Member State practice. Contributors to the volume identify and analyse the main legal issues related to the importance of Article 11 TFEU in various policy areas of EU law affecting European businesses, such as company law, insurance and state aid. In drawing together these strands the book sets out the requirements of environmental integration and examines its impact on the regulation of business in the EU.

The book will be of great use and interest to students and researchers of business law, environment law, and EU law.

More information on the book is available here.

Write On! International Business Law Scholars’ Roundtable at Brooklyn Law School (deadline June 13)

Call for Papers: 2014 International Business Law Scholars’ Roundtable at Brooklyn Law School

The Dennis J. Block Center for the Study of International Business Law will sponsor a Scholars’ Roundtable on October 10, 2014 at Brooklyn Law School. Scholars writing in a diverse range of fields related to international business law are invited to submit proposals to present works in progress for an intense day of discussion with other scholars in the field. Participants will be expected to read all papers in advance of the Roundtable and offer commentary on each of the presentations. Scholars selected for the Roundtable will receive a $500 stipend from Brooklyn Law School to defray the cost of attendance.

Requirements for Submission

– Applicants must hold a full-time tenured, tenure-track, or visitor/fellowship position at a university. Scholars from outside the U.S. are encouraged to apply. Scholars who anticipate holding a faculty appointment in the 2015-2016 academic year are also welcome.
– Applicants should submit a 3-5 – page proposal, abstract, or summary of the paper.
– All papers presented must be unpublished at the time of the Roundtable. Papers that have been accepted for publication but are not yet in print are welcome.
– Possible topics include international and comparative perspectives on:

o Banking
o Bankruptcy
o Commercial law
o Conflicts of law
o Corporate law
o Dispute resolution and arbitration
o Enforcement of judgments
o Intellectual property
o Regulation of corrupt practices
o Securities
o Shipping and maritime law
o Tax
o Trade

Applicants should submit a proposal to Robin Effron (robin.effron@brooklaw.edu) by June 13, 2014. Scholars selected to present at the Roundtable will be notified by June 30, 2014.

Sustainable Companies Project Conference: Business as Usual is Not an Option

I had the honour of attending the inspiring Sustainable Companies Project Conference in Oslo, Norway. This event was organized by Professor Beate Sjåfjell, of the University of Oslo. You can watch the presentations and debates which challenge us to imagine a new consciousness in which “business as usual is not an option” and committment is made towards realizing sustainable development here.

The aim of the Sustainable Companies Project (2010-2013) was to contribute to integrating environmental concerns better into the decision-making in companies, as one of the important jigsaw puzzles of sustainability. In an innovative approach, this project has had company law as its core, based on the hypothesis, which has been confirmed through our research, that environmental sustainability in the operation of companies cannot be effectively achieved unless the objective is properly integrated into company law and thereby into the internal workings of the company. At this conference, the results of the Sustainable Companies Project were presented by SC team members from around the world. The main topics of the conference included:

Sustainable Companies: The Identified Barriers and Possibilities

A brief presentation of the identified barriers and possibilities in core company law, in the regulation of groups, in accounting law and in financial market law.

Companies and Corporate Governance

A presentation of reform proposals on EU, US and national levels of core company law, notably on the purpose of the company, the role, competences and the duties of the company organs, and the regulation of groups. Topics include the duties of the board of directors, the interests of the company, employee involvement, life cycle analysis, risk management, due diligence and liability. Research on alternative corporate structures was also presented.

Companies and Reporting

A presentation of reform proposals on reporting, accounting, auditing and transparency, including a discussion of what integrated reporting can be and a discussion of the latest innovations in international and national guidelines and codes.

Shareholders and Financial Markets

A presentation of reform proposals on the role of shareholders and the regulation of financial markets. Topics included the role of state as shareholder and of sovereign wealth funds and institutional investors in general.

Supportive Measures

A presentation of reform proposals in areas such as insolvency law and public procurement law, which may support and encourage environmental sustainability in company decision-making.

Speakers included:

Professor Andrew Johnston (Sheffield, UK), Associate Professor Jianbo Lou (Peking, China), Professor Charlotte Villiers (Bristol, UK), Professor Celia Taylor (Denver, USA), Associate Professor Tineke Lambooy (Utrecht, The Netherlands), Associate Professor Surya Deva (Hong Kong, China), Associate Professor Lorraine Talbot (Warwick, UK), Idoya Ferrero Ferrero ( Spain), Professor Karsten Engsig Sørensen (Aarhus, Denmark), Dr. Priscilla Schwartz (London, UK), PhD student Carol Liao (Vancouver, Canada) and Professor Beate Sjåfjell (Oslo).

Go On! International Law Weekend, Oct. 24-26, 2013

New York City in the fall

New York City in the fall (Credit: Vivianna_love/Flickr)

From Ruth Wedgwood, for the American Branch of the International Law Association, partnering with the International Law Students Association, the Leitner Center of Fordham Law School, and the Association of the Bar of the City of New York, comes this invitation:

International Law Weekend 2013 — the world-famous autumn festival of the migratory flock of international lawyers, brought to you by the American Branch of the International Law Association and the International Law Students Association — begins on Thursday night, October 24, 2013, at the Great Hall of the Association of the  Bar of the City of New York, 42 West 44th Street, NYC, and continues at 9 a.m. Friday and Saturday, October 25-26, at the Lincoln Center facilities of Fordham Law School, at 140 West 62nd Street, NYC.   Advance Registration is available at http://ila-americanbranch.org/ or http://www.ilsa.org/conferences/16-conferences/16-ilw-new-york.

As always, admission is free for all students, faculty, lawyers, and staff from co-sponsoring institutions, as well as all members of the American Branch of the International Law Association, the International Law Students Association, and the Association of the Bar of the City of New York.  Staff members of the United Nations and Permanent Missions to the United Nations can also attend for free.  The registration fee remains a modest $175 for the two days combined for all other practicing lawyers and members of the public.  And for the first time, there will be 14 hours of Continuing Legal Education credit available to all lawyers in attendance, accepted by New York, Pennsylvania, and Virginia.  The CLE credits are also provided free.

This year’s theme is the “Internationalization of Law & Legal Practice.”   Academics and practitioners — and those who follow foreign policy — will enjoy the Weekend’s cornucopia of controversies in public and private international law and politics.

A blue ribbon opening panel begins the tempest at 6:30 p.m. Thursday night at the City Bar, debating and dissecting the proposed United Nations Arms Trade Treaty (recently signed by U.S. Secretary of State John Kerry, but still controversial with some in the U.S. Senate as well as the Prime Minister of Canada).  The panel will feature the U.N.’s undersecretary for disarmament affairs, the executive director of PEN, high ranking officials from the State Department and supporting countries, and a critic or two.  All fences will be mended afterwards, in a wine and cheese reception sponsored by the Mission of Mexico. Continue reading