After a federal district court issued a confirmation judgment of an international arbitrator’s award under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the Third Circuit denied a motion made under Article V of the Convention to adjourn enforcement of the award, and altered the judgment to more closely adhere to the initial arbitration award.
See Admart v. Birch, 2006 U.S. App. LEXIS 24460 (September 28, 2006).
Permanent Court of Arbitration Continues Project to Make Award Decisions Accessible Online
The Hague’s Permanent Court of Arbitration has undertaken a project to make
available in electronic format the arbitration awards that it has granted since
its establishment in 1899. The documents will be provided through
www.haguejusticeportal.net. Several cases from the early twentieth century are
now available.
Judicial Federalism in the ECJ’s “Berlusconi” Case
Abstract:
In recent years, the general public in many countries has become increasingly aware of issues concerning business accounting and financial reporting. Americans hardly need to be reminded of the Enron debacle, where members of the company’s senior management engaged in fraudulent off-balance sheet transactions to disguise the true state of the company’s financial condition, a scheme that auditors failed to uncover until the company’s implosion. This and other major corporate governance cases involving questionable or fraudulent accounting practices led to the Sarbanes-Oxley Act of 2002. This law was an unprecedented Congressional intervention into corporate governance, an arena that had previously been left largely to Securities and Exchange Commission (“SEC”) rules and professional self-regulation (e.g., auditor independence requirements), or to state corporate law (e.g., requirements for board committees and their composition).
Accounting scandals are not, however, a phenomenon limited to the United States. As a result of similar events in some European states, accounting reform has recently appeared on their policy agendas as well. Italy is notable in this regard, due in large part to its home-grown Parmalat scandal—until now Europe’s most expensive financial scandal. At the end of 2003, a € 14.8 billion gap that had been disguised by the establishment of an offshore subsidiary was discovered in the firm’s accounts. Surprisingly—at least at first glance—at a time when other countries were strengthening their stance toward accounting fraud, Italy eased the grip of its criminal law on accounting fraud in a 2002 legislative decree amending the Italian Civil Code. The Italian courts have submitted this amendment to the scrutiny of the European Court of Justice (“ECJ”) for a preliminary ruling.
The objective of this note is to analyze the importance of three joint cases—one of them against the Italian Prime Minister Silvio Berlusconi—where the amendment of Italian law is now at issue, and to situate them within the bigger picture of the current state of corporate governance and financial reporting. Part I explains the legal context of these cases and outlines the opinion submitted by the Advocate General Juliane Kokott. Part II analyzes the three most important parts of the Advocate General’s opinion in detail: the application of E.U. law on the nondisclosure of accounts to the publication of false accounts, the need for effective enforcement, and the effect of the principle nulla poena sine lege—that there must be neither crime nor punishment without law. The Advocate General recommends that Italy’s judges should ignore the new Italian law, which takes a lax view of accounting fraud. On the one hand, this is surprising, as E.U. directives on corporate law and accounting do not address the issue at all. On the other hand, this strict approach to financial reporting is in line with increasing efforts toward stronger involvement of the E.U. “federal” level in corporate governance in general, in consideration of recent U.S. corporate governance developments as well as the economic underpinnings of accurate accounting. Part III then addresses the issue of how the Berlusconi case may contribute to an increased effectiveness of E.U. efforts to strengthen and harmonize corporate law.
Gambling with the Psyche
Abstract:
Legal action against those accused of committing brutal violations of human rights has flourished in the last decade. Saddam Hussein awaits trial in Iraq. Augusto Pinochet, Chile’s former military leader, has been pursued by European and Chilean prosecuting judges since Spain’s Balthasar Garzón sought his extradition for murder in October 1998. Meanwhile, at the International Criminal Tribunal for the former Yugoslavia (“ICTY”), Slobodan Milosevic is preparing his defense against charges of genocide and war crimes. Even U.S. Secretary of Defense Donald Rumsfeld, with other senior officials, has been accused in a privately filed criminal complaint in Germany of being responsible for the torture of prisoners held in Iraq. Such legal actions were almost unimaginable a decade ago.
These are only the most prominent cases. A dozen senior Baathist officials face prosecution by Iraq’s new government. In Argentina, a 2001 court ruling abrogated laws giving immunity to military officers who oversaw andparticipated in the kidnapping and secret execution (“disappearance”) of as many as 30,000 people between 1976 and 1983. Two years later, Argentina’s parliament annulled the laws, mooting a pending appeal and reversing nearly two decades of hostility by the country’s elected leaders to criminal prosecution of perpetrators of atrocities during the dictatorship. In 2001, a Belgian jury sentenced four Rwandans to prison for participating in the 1994 genocide of Tutsis and moderate Hutus. Victims of Chadian dictator-turned expatriate Hissène Habré brought a criminal complaint against him in Senegal in January 1999, alleging torture, barbarous acts, and crimes against humanity. While the case was dismissed, it opened up new possibilities for calling Habré to legal account in Chad, as the Pinochet case had in Chile.
In addition to national courts, international criminal tribunals have recently become important forums for human rights cases. The prosecutor of the new International Criminal Court (“ICC”), veteran Argentine human rights lawyer Luis Moreno Ocampo, is investigating atrocities in Uganda, the Democratic Republic of Congo, and Sudan. The ICTY and the International Criminal Tribunal for Rwanda (“ICTR”) have imprisoned dozens of perpetrators of unspeakable horrors after trials and guilty pleas11 and have delivered groundbreaking judgments advancing international law. “Hybrid” courts with varying degrees of international involvement and independence from national court systems are prosecuting perpetrators of human rights violations in East Timor, Kosovo, and Sierra Leone.
Anxiety and the Sidekick State
Abstract:
In a quirk of parallel evolution, the annual United Kingdom Materials on International Law (“UKMIL”) is organized according to Marx’s methodology, “rising from the abstract to the concrete.” For twenty years, however, for all the reams of material the government put out, nothing of substance could be found to fill the first section, the broadest philosophical category on the “nature, basis, [and] purpose” of “international law in general.” Then, in 2003, the UKMIL found its jurisprudential voice.
British Foreign Secretary Jack Straw waxed descriptive and transformative, in a burst of middlebrow messianism:
Events since September 11 . . . raise very large questions about the underlying assumptions of international relations . . . since the Peace of Westphalia . . . that the best guarantor of peace and security was to respect the territorial integrity of sovereign states . . . [W]e have to begin a discussion about how those principles are revisited in the modern environment because of threats posed other than by normally functioning sovereign states, posed by rogue states, posed by international terrorism, posed by others who are acting in an extremely oppressive way.
Almost simultaneously with Straw’s statement, sixteen scholars of international law signed a letter in The Guardian expressing grave reservations about the soon-to-be-launched Iraq War. This then led to the writing of “We Are Teachers of International Law,” an extraordinary piece of critical self-examination by four of the original scholars.
In its ten and a half pages, the authors ask sixty-five questions, none of which they answer; indeed, they conclude by asking whether the most important questions are those that should go unanswered. In its critical precision, and in its very angst, this article is perhaps the key document for the understanding of contemporary British thinking in international law, particularly when considered in conjunction with the government’s enthusiastic if lumpen analysis, as represented by Straw’s speech.
In the United Kingdom, public interest in international law has soared. Paradigmatic of this moment is the tension between the passionate evocation of a “new” international law by perpetrators of a war widely denounced as illegal and the deep anxieties about the law expressed by scholars of the field. In what follows, I attempt to map the recent moves of British international law, into a putatively new paradigm and back out again, and to the center of political debate. Illustrating how we got where we are might suggest which of the current approaches to the field are the most fruitful and, hopefully, where we might go next.
The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation
In recent years, courts around the world have relied on universal jurisdiction with increasing frequency to justify proceedings against alleged perpetrators of human rights offenses in foreign countries. The doctrine of universal jurisdiction holds that a nation can prosecute offenses to which it has no connection at all—the jurisdiction is based solely on the extraordinary heinousness of the alleged conduct. According to the doctrine, any nation can prosecute universal offenses, even over the objection of the defendants’ and victims’ home states. Examples of universal jurisdiction include Belgium’s indictment of Israeli Prime Minister Ariel Sharon for alleged responsibility for war crimes committed by Christian Arabs against Muslim Arabs in Lebanon and the conviction by German and Swiss courts of Serbian officials who committed war crimes against Bosnian Muslims.
Universal jurisdiction can have dangerous consequences, especially in the absence of generally accepted limitations on its scope. Unlike all other forms of international jurisdiction, the universal kind is not premised on notions of sovereignty or state consent. Rather, it is intended to override them. An assertion of universal jurisdiction can create conflict and possibly hostilities among countries because it can be construed as an encroachment on the sovereign authority of the country that has traditional jurisdiction over the offense. For hundreds of years, universal jurisdiction only applied to the crime of piracy. In recent decades, however, universal jurisdiction has been asserted over many human rights offenses. The expansion in universal jurisdiction’s scope has been accompanied by an increase in states’ willingness to use it.