Why Ukraine and Other Post-Soviet Countries Need Mediation

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By Frank Laney

Although mediation has strong societal values, mediation could be a very valuable and powerful tool to help the courts of Ukraine.  The Ukrainian court system is and has been going through a crisis.  Confidence in its fairness, objectivity, and impartiality is very low among Ukrainian citizens.  But at the same time, the courts are underfunded and overworked.  Many judges have more cases to handle and decide in a year than is humanly possible (over 350 cases per year per judge).  Although not a panacea, mediation may be helpful in building public confidence in the courts while also relieving the case load stress.  (Research in Maryland courts showed that in mediated cases the impression of the court’s fairness increased over cases that did not go to mediation.)

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U.S. and EU Publish Lists of Products That May Be Subject To Retaliatory Tariffs

By Stephen J. Orava, Bradford L. Ward, Rambod Behboodi, and Clinton R. Long

After more than a decade of World Trade Organization (“WTO”) disputes over aircraft subsidies, the United States and European Union have published preliminary lists of products that could face billions of dollars in retaliatory tariffs.  On April 12, 2019, and in response to WTO findings that the European Union has failed to bring its aircraft subsidies into compliance with WTO obligations, the U.S. Trade Representative (“USTR”) published a preliminary list of products – including aircraft and food, beverage, and other products – that could be subject to increased duties when imported from the European Union.  On April 17, 2019, and in response to similar WTO findings against the United States, the European Union published its own preliminary list of U.S. products – including aircraft, chemicals, and food and agricultural products – that could face increased duties when imported into the European Union.  The United States and the European Union have established upcoming deadlines for comments on their preliminary product lists.

WTO Litigation and Retaliation

For over 15 years, the United States and the European Union have been involved in multiple WTO disputes regarding alleged subsidies for commercial aircraft production.  In the two main disputes, the United States challenged alleged subsidies provided by the European Union and four EU member States (France, Germany, Spain, and the United Kingdom) in the dispute known as “DS316,” and the European Union challenged alleged subsidies provided by federal and state governments in the United States in the dispute known as “DS353.”  The WTO panels and the Appellate Body made findings and recommendations largely favorable to the complainant in each dispute, and they found in 2018 and in March 2019 that neither the United States nor the European Union have brought themselves into full conformity with their WTO obligations regarding subsidies.

In response to these rulings of non-compliance on the part of both the United States and the European Union, each party already invoked its right to retaliate against the other under WTO rules, and each party has sought WTO arbitration to determine the level of authorized retaliation.  The United States expects that the arbitrator will decide on the level of authorized retaliation by summer 2019, and a decision on the European Union’s authorized retaliation is not expected before the first quarter of 2020.  After each arbitration decision is released, the WTO’s Dispute Settlement Body will grant authorization for each party to impose countermeasures.

United States’ Preliminary List of Products

On April 12, 2019, USTR officially initiated an interagency investigation to determine whether and to what extent the United States should retaliate against the European Union for failing to bring its subsidies into conformity with its WTO obligations in DS316.  USTR proposed retaliating against the European Union and that the countermeasures include additional ad valorem import duties of up to 100 percent on a preliminary list of EU products.  Section 1 of USTR’s preliminary list includes certain helicopters, commercial aircraft, and aircraft-related products that – if originating in France, Germany, Spain, or the United Kingdom – would be subject to additional duties.  Section 2 of the list contains several food, beverage, and other products that would be subject to the duties if originating in any EU member State.

USTR seeks public comments on its proposal for retaliation, including the product list, and will hold a public hearing.  Requests to appear at the public hearing and a summary of testimony are due by May 6, and the public hearing will be held on May 15.  Written comments, including post-hearing rebuttal comments, are due by May 28.  Parties may comment on whether products should be retained, removed, or added to the list, the amount of any additional duties, and other topics.  After the release of the WTO arbitrator’s decision regarding the level of authorized retaliation, USTR plans to publish a final list of products taking into account the WTO arbitrator’s calculation and other information.

European Union’s Preliminary List of Products

On April 17, 2019, the European Union published its preliminary list of U.S. products that could be subject to additional ad valorem import duties of up to 100 percent in response to the U.S. failure to bring its subsidies into conformity with its WTO obligations in DS353.  The EU list covers a wide variety of U.S. products, including aircraft, chemicals, and agricultural and food products.  The European Union also initiated a public consultation on its preliminary list of products, and parties that may be affected by the additional duties may provide information by May 31.  The European Union’s notice did not mention a public hearing, and – similar to the United States – the European Union will not finalize its list until after the WTO arbitrator decides on the appropriate level of countermeasures.

Broader Context of U.S.-EU Relationship and Aircraft Subsidies

The U.S. and EU announcements come at a unique time in the U.S.-EU economic relationship.  On April 15, 2019, within days of the U.S. and EU announcements of potential tariffs, the European Commission announced that it received authority from EU member States to begin negotiations with the United States for two trade agreements.  The first agreement would focus exclusively on eliminating tariffs on industrial goods, and the second agreement would aim to make it easier for companies to conform their products to technical requirements from both parties.  However, negotiations might stall given that the United States is adamant that farm products should be part of the formal trade negotiations, and President Trump has suggested the possibility of additional tariffs on EU automobiles if agricultural products are not on the table.  Both the United States and the European Union are willing to discuss their retaliatory tariffs, and the possibility of increased duties likely will play a role in the broader trade negotiations between the parties.

Furthermore, considering the 15 years of WTO disputes between the two parties over aircraft subsidies, the objectives of the United States and European Union in announcing retaliatory tariffs may include establishing leverage to encourage discussions on an agreement to discipline subsidies to the aircraft sector.  USTR’s “ultimate goal is to reach an agreement with the EU to end all WTO-inconsistent subsidies to large civil aircraft.”

The International Law and Practice Section Is Now the International Practice Section

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We are pleased to announce that the International Law and Practice Section has a new name. The NCBA Board of Governors has approved our changing our name from the International Law and Practice Section to the International Practice Section. Being lawyers, much thought — and discussion — went into this name change.  Essentially, our new name is more accurate, incorporating diverse areas of legal practice such as immigration law. It also accurately reflects that many legal practices contain cross-border issues without being engaged in the practice of public international law. By changing our name, we position ourselves as a more inclusive Section that recognizes and provides value added to the diverse practices of our current and future Section members.

 

From Russia With New Evidentiary Rules

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By Thomas McCall and Emily Doll

Originally published 24 October 2018 by Law360. Updated by the authors March 2019.

In May 2010, the International Bar Association (“IBA”) adopted the IBA Rules on the Taking of Evidence in International Arbitration—a revised version of the original 1999 IBA Rules which, in turn, had replaced the IBA Supplementary Rules of 1983.  The IBA Rules serve as a resource to parties and arbitrators setting forth the procedures by which evidence is gathered and presented in international arbitration proceedings.  The IBA Rules were drafted in an effort to bridge the gap between “the procedures in use in many different legal systems,” which is “particularly useful when the parties come from different legal cultures” (IBA Rules, Forward).  By all accounts, that effort has been hugely successful.  Since their inception, countless arbitral tribunals—both commercial and investment—formed by members from different legal cultures—both civil and common law—have relied upon and applied the IBA Rules.  However, that success has not come without criticism, the loudest of which is the perceived dominance of the common law tradition over the IBA Rules.

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The State of US Immigration Law From I to V (ICE to Visas)

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By Jennifer Parser

The state of US immigration law is in the throes of tremendous change, under unprecedented stresses as an old system struggles to deal with today’s reality.  Mass migration is common and will only increase, the World Bank attributing 140 million alone due to climate change by 2050, seen today both by the professional seeking better career opportunities and the refugee grasping for personal security.  This article will parse through recent news and, due to article length constraints, focus on topics most relevant to employers and their counsel.

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e.l.f. Cosmetics Agrees To Pay Nearly $1 Million To Settle Apparent Violations Of U.S. Sanctions Against North Korea

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By Christine Savage, John C. Richter, J. Michael Taylor, Shaswat K. Das, Patrick J. Togni and Clinton R. Long

This enforcement action underscores the risks of sourcing products without comprehensive supply chain due diligence.

On January 31, 2019, the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury announced that e.l.f. Cosmetics, Inc. (“ELF”) agreed to pay a $996,080 settlement arising from 156 apparent violations of OFAC’s North Korea Sanctions Regulations (“NKSR”).  According to OFAC, between 2012 and 2017, ELF imported 156 shipments of false eyelash kits worth a combined total of over $4.4 million into the United States from two Chinese suppliers – importantly, however, those Chinese suppliers sourced materials for the kits from North Korea.  Upon discovering the apparent violations, ELF voluntarily disclosed them to OFAC.  The statutory maximum civil penalty amount for the apparent violations was $40,833,633, but OFAC agreed to settle with ELF for $996,080 as a result of ELF’s immediate disclosure and cooperation, among other mitigating factors.

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Wake Tech Hosts Workshop on the Legal Aspects of International Trade

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David Garrett spoke at the workshop.

On Feb. 12, Wake Technical Community College hosted a workshop on the Legal Aspects of International Trade at its Research Triangle Park campus. The workshop aimed to educate small businesses that wish to expand globally. The North Carolina Bar Association served as a sponsor of the event, and several NCBA members attended the event or presented on various topics.

It included sessions on intellectual property, government assistance, contracting, dispute resolution, and export control in the international realm. Fifty people registered to attend the event. The workshop was well-received, and Wake Tech hopes to make this workshop an annual event.

 

 

No Protection Under Law: The Unchecked Prevalence Of Violence Against Women In North Korea

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By Miranda Tarlton

The government of the Democratic People’s Republic of Korea, commonly referred to as North Korea, has found itself under international scrutiny and condemnation once again as the subject of a recent Human Rights Watch report. The report, entitled “You Cry at Night but Don’t Know Why,”documents the sad reality faced by many women in North Korea. Women are routinely raped, abused, and mistreated by men—many of whom are government officials—with impunity. The crimes all too frequently go unpunished and unreported, as rape is typically not investigated or prosecuted unless significant injury or death have also occurred. In North Korea, there are no services, safe houses, clinics, resources, or other forms of aid for victims. As a result, sexual violence and abuse is a widely tolerated and unaddressed part of daily life.

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The 60th Anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards: A Middle Eastern Retrospect and Emirati Prospect

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By Sara Koleilat-Aranjo and Issey Park

This year, 2018, marks the 60th anniversary of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). Last June, the United Nations Commission on International Trade Law (“UNCITRAL”) hosted a special event, understandably in New York, to commemorate the diamond jubilee of what one late Swedish arbitration lawyer, Dr. J Gillis Wetter, referred to as early as 1990 as “the single most important pillar on which the edifice of international arbitration rests”.

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The Consequences Of A Trade War With China

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By Sophie Allen

Last spring, Director of the White House National Trade Council Peter Navarro responded to a question about the risk of imposing unilateral tariffs saying, “I don’t believe any country is going to retaliate for the simple reason that we are the most lucrative and biggest market in the world. They know they’re cheating us, and all we’re doing is standing up for ourselves.”

Eight months and several rounds of tariffs later, the U.S. and China have failed to come to an agreement on trade between the two nations. While U.S. and Chinese leaders have expressed their interest in reaching a deal at the G20 Summit in Argentina on November 30, a lack of progress on key issues makes a cease-fire increasingly unlikely.

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