By: Lucien J. Dhooge
This article analyzes Canadian litigation captioned Yaiguaje v. Chevron Corporation which seeks recognition of an $18.2 billion judgment entered in Ecuador in 2011 in what has been labeled as one of the world’s largest environmental lawsuits. The article examines Chevron’s involvement in Ecuador through its predecessor in interest (Texaco) and the history of proceedings in Ecuador, Canada, and the United States and before the Permanent Court of Arbitration. The article then discusses the recognition of foreign judgments in Canada with emphasis upon the public policy defense. The article concludes that utilization of this defense presents significant issues affecting the reputation and credibility of the Canadian judiciary and its liberal approach with respect to recognition of foreign judgments.
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| Posted by Stephen A. Moore on Fri. November 8, 2013 8:00 AM
Categories: Canada
By: Matteo M. Winkler
The U.S. Supreme Court held in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), that the Alien Tort Statute (ATS), the well-known 200-years-old statute that entitles aliens to sue before federal courts for torts committed in violation of the law of nations, does not apply extraterritorially. The Court followed the 2010 decision in Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), that excluded from the reach of U.S. courts any F-cubed actions, i.e. actions that present three foreign elements such as foreign plaintiffs, foreign defendants and facts happened in a foreign forum.
Kiobel concerned claims for damages for grave violations of human rights allegedly committed against the Ogoni community in Nigeria by the subsidiaries of the Shell group operating in the country. It was a typical F-cubed case, and the Court found it very easy to apply Morrison as leading precedent.
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| Posted by Stephen A. Moore on Wed. November 6, 2013 8:00 AM
Categories: International Human Rights, U.S. Supreme Court
The
helicopters hummed along the broken Pakistani terrain, their mission
accomplished. Osama Bin Laden was dead and the entire SEAL
Team Six crew was safe. In three and a half hours the team had
entered Pakistani airspace, assaulted the compound in Abbottabad, and returned
to Afghanistan, all before the Pakistani government was ever aware of the
incursion. The Pakistani air defense never detected the
helicopters in its airspace. Some speculated it was this inability to
detect U.S. forces that most damaged U.S.-Pakistani relations, more than the
actual invasion of Pakistani territory. “Never had the [Pakistani] military, the
strongest institution in the country, been so humiliated since it lost three
wars to India.” Programmers and hackers stationed at U.S.
Cyber Command in Ft. Meade, Maryland, could have contributed to the undetected
incursion, using cyber technologies to infiltrate and turn off Pakistan’s air
defense system simultaneous to the U.S.’s physical assault.
It
would not be the first such cyber attack. In 2007, Israeli bombers flew undetected into Syria, blowing up what was
later determined to be a partially completed, North Korean-built nuclear
enrichment facility. The bombers flew undetected not due to some
new radar-absorbing technology, but because Israel used a complex cyber attack to mask its entry. Israeli programmers manipulated Syria’s air
defense so
that it would fail to report anything on the radar.
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| Posted by Stephen A. Moore on Wed. October 30, 2013 8:00 AM
Categories: Anonymous, Customary International Law, Cyberwarfare, Osama Bin Laden, Pakistan
By: Stuart Ford
The recent acquittals of Ante Gotovina and Ramush Haradinaj at the International Criminal Tribunal for the Former Yugoslavia (ICTY) have once again raised questions about the nature of the ICTY’s trials: are they predominantly legal or political? This Article attempts to answer that question through a first-of-its-kind empirical study of the ICTY’s indictments. It tests whether the ICTY’s trials are structural show trials by looking for statistically significant correlations between the components of the indictment and conviction/acquittal or sentence length. It also explores whether the indictments comply with the requirements of international criminal law, are internally consistent, and match what we understand about how serious violations of international criminal law are committed. Finally, it compares charging practices at the ICTY to charging practices in a number of domestic criminal justice systems that are broadly viewed as fair and finds that the ICTY’s charging practices fall within the range of those domestic practices. The results of this analysis suggest that the ICTY’s trials are not show trials, that they are fundamentally fair, and therefore predominantly legal in nature.
However, there is evidence that the Prosecutor has been affected by political considerations when deciding who to investigate and charge.
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| Posted by Stephen A. Moore on Tue. October 29, 2013 8:00 AM
Categories: ICTY, International Dispute Resolution, Yugoslavia
By: Pierce Lee
This article is a case study about the rules of origin (ROOs) dealing with products undergoing outward processing (OP) in the Kaesong Industrial Complex (KIC). OP refers to temporary exportation of goods for further manufacturing. As the word “temporary” indicates, the finished goods are usually imported back to the home country for domestic consumption or permanent exportation.
The KIC is an outward processing zone (OPZ) in North Korea in which South Korean companies have set up manufacturing plants and employ North Korean labor. The KIC plays a crucial role in inter-Korean relations, but its expansion has been limited because the products undergoing OP in the KIC are often determined to have originated in North Korea and are subject to high tariffs. To address this situation, the South Korean government has entered into many free trade agreements (FTAs) containing special provisions modifying the preferential ROOs applicable under the respective FTAs so that Kaesong products become eligible for duty-free treatment or preferential tariff rates.
A close observation of those so-called “outward processing provisions” raises several questions that are not only important for inter-Korean relations but also for international economic policy.
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| Posted by Stephen A. Moore on Mon. October 28, 2013 8:00 AM
Categories: North Korea, South Korea, World Trade Organization
While the debate on the U.S. approach to Syria’s chemical weapons dominated the headlines, one headline that quickly disappeared concerned a Syrian-based cyber attack against the New York Times. The Syrian Electronic Army (S.E.A.), “a group of hackers who support President Bashar al-Assad of Syria,” laid claim to intentionally bringing down the New York Times website for most of the day on August 27. The offensive included “an online attack on the company’s domain registrar” and “also forced employees of The Times to take care in sending emails.” Notably, the S.E.A. claims no ties to the Syrian government, though President al-Assad reportedly referred to the group as “a real army in a virtual reality.”
The S.E.A. previously attempted similar attacks against websites of other notable news sources, including the Washington Post, CNN, and the Financial Times. Perhaps most notably, the S.E.A. hacked the Twitter account for the Associated Press last April, posting a fake tweet which read, “Breaking: Two Explosions in the White House and Barack Obama is injured.” While the tweet was soon revealed to be false, the attack resulted in a 145-point dip in the Dow Jones Industrial Average.
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| Posted by Stephen A. Moore on Tue. October 8, 2013 8:00 AM
Categories: Cyberwarfare, Syria, U.N. Security Council