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The World Jurist Association's Twenty-Third Biennial Congress on the Law of the World was held March 22-27, 2009 in Kyiv, Ukraine. This first Congress held in Eastern Europe brought together delegates from 26 countries, representing every region of the world. Our Host Committee was chaired by Valerij Yevdokymov, Chair of the Union of Lawyers of Ukraine.


World Law Day
World Law Day is a unique celebration of the importance of the Rule of Law; it is a fitting tradition for the World Jurist Association at the beginning of each world congress. This year's celebration was held Sunday, March 22, 2009, at the State Tax Academy where we were treated to dinner and a wonderful reception. We were entertained by students of the Academy who performed traditional Ukrainian dances, songs, and orchestra music.
  
The Opening Ceremony
The World Jurist Association’s 23rd Biennial Congress on the Law of the World opened on Monday March 23rd, 2009 at the Ukrainian House. WJA President Ronald M. Greenberg thanked all the dignitaries for their presence. The dignitaries present included: WJA Past and Honorary President, Avv. Lucio Ghia; Head of the Kyiv City Administration, Leonid Chernovetskij; Ombudsman of Ukraine, Nina Karpachova; Deputy Head of the Constitutional Court of Ukraine, Anatolij Golovin; Head of the Supreme Court, Vasyl Onopenko; Minister of Justice of Ukraine, Mykola Onishchuk; WJA President, Ronald M. Greenberg; Deputy Head of the Supreme Court, Olexander Lavrinovich; Deputy Prosecutor General, Head of the Union of Jurists, and WJA President-Elect Valerij Evdokimov; Sergij Vinokurov; Head of the High Council of Justice, Lidia Izovitova; Head of the Commission of Supreme Council of Ukraine, Sergij Kivalov.
 
Mr. Greenberg – WJA President – gave the welcome address. He thanked the dignitaries in attendance as well as sponsors Aerosvit and Chadbourne & Parke, LLP. He remarked that the WJA is "meeting during a time of nuclear threat, terrorism, etc. Despite the doom and gloom reality, we at the WJA meet today to promote a better tomorrow. Our mission continues to be a world governed by the Rule of Law, and specifically fair and just laws, not laws that oppress or discriminate. Such laws harm the individual and the nation. The greatest natural resource we have is… brainpower. The WJA looks forward to meeting the challenges of the 21st century. We have gathered the finest judges and lawyers from around the world.”
 
Valerij Yevdokimov - Chair of the Host Committee - then read a message from the President of Ukraine welcoming the WJA to Ukraine and praising the WJA for its role in promoting democracy and the Rule of Law. The President’s message concluded with a wish that wisdom and proficiency guide the WJA and the 23rd Biennial Congress on the Law of the World.
 
Mr. Yevdokimov then read a message from Vladimir Lidvin – Chair, Supreme Council – welcoming the WJA and emphasizing that the WJA “is the largest and most influential association that can raise a concerted effort from all nations. The representative nature of our forum is a key to your anticipated success.” The message concluded that it was an honor to have Kiev chosen as the site for the first Congress in the Eastern bloc.
 
The Minister of Justice of Ukraine, Mykola Onishchuk, read a message from the Prime Minister welcoming the WJA to Kyiv and noting his honor in being a lawyer and sharing the great responsibility of legal work. He noted that in Ukraine, lawyers in the government have ensured that the policies are written and laws are being harmonized; the proficiency and commitment of the WJA, he stated, will further international relations.
 
Speaking on his own behalf, Minister Onishchuk welcomed the WJA and its delegates and noted his pride that Kyiv was chosen as it supports Kyiv’s efforts to become more democratic. He explained that Ukraine has quickly joined democratic nations and that it has established rights of private property, individual rights, removal of state control, etc. Ukraine is committed to human rights and abiding by international law developments. Rule of law, he noted, is a core philosophy and key for constitutional development. In 1990, Ukraine declared state sovereignty; and, in 1991 it declared independence. The Constitution of Ukraine is in line with the European Union and Ukrainian nationals use EU courts to exercise their rights under international law. Still “discrepancies and loopholes exist and [we] must work to improve them. Once we created the government, the problems in our structure and process were evident. Civil participation is key. Trust in the judiciary is also missing right now. The Constitution in Ukraine is not good enough and we must rethink the system we have in order to make it more European-like.” Minister Onishchuk called on Ukraine to make the system more democratic, create a bicameral parliament, institute local self-governance, and establish judicial reform.
 
Deputy Head of the Supreme Court, Olexander Lavrinovich praised the WJA for choosing the right subjects for the Congress, as it is imperative to have the legal instruments to address the current crises. He beseeched everyone in attendance to meet, learn, and use this Congress to gather knowledge and connections from around the world.
 
Ombudsman of Ukraine, Nina Karpachova, welcomed the WJA and called on everyone to work “for poverty control, migration and rights of laborers, and anti-terrorism”. Ms. Karpachova then presented an award of the Ombudsman to out-going WJA President Ronald M. Greenberg for Human Rights.
 
Mr. Greenberg thanked Ms. Karpachova and announced that although the election results would not be available until the conclusion of the Congress, he would like to announce and honor that Valeriy Yevdokimov has been the elected the new President of the World Jurist Association.
 
Mr. Yevdokimov thanked Mr. Greenberg and expressed his honor to be the first President of the WJA to ever hold the position twice.
 
Panel One: Global Economic Issues
The first panel entitled "Global Economic Issues" was chaired by Iris Jones (USA) who noted that this topic impacts each of us on a basic human-needs level.
 
Igor Dryzchaniy (Ukraine) spoke first on current global economic outlooks noting "the crisis has hit the most sustainable institutions around the world" and "people are talking about it". He explained that true experts (Soros & Vollerstein) have called this the largest crisis ever experienced. Some say this is a cyclical problem; but, it does not matter if it is cyclical or fundamental. In these times everyone needs stability; and, the Rule of Law is a good source of that. Mr. Dryzchaniy explained how the market and capitalism can coexist with human rights. Efficacy of law depends how the law is implemented. There must be respect between government and institutions. Regional relations are also important. The role of lawyers, he stated, is to make the modern world better.
 
Mr. Dryzchaniy called on us all to protect the "average Joe" because tough measures to control crisis sometimes lose sight of individual rights. Law should be used to mitigate the negative impacts.  If professionals of the WJA help coordinate the systems around the world the crisis can be overcome. New rules of the game will lead to new laws and the global legal community must get involved in this dialogue. NGOs (non-governmental organizations) are well situated to help because they are not tied to the governments.
 
Mr. Dryzchaniy then called on the WJA to analyze the legal aspects of the crisis management including: (1) exchanging information and drafting laws, (2) analyzing the laws around the world, (3) preparing reports and writing papers, and (4) conducting independent consulting.
 
The next speaker was Adam Lindgren (USA) presenting a paper prepared by Steven Meyers (USA). Mr. Lindgren examined the idea that given the current economic climate this is a unique opportunity for lawyers to help their clients. Lawyers can help clients make rapid decisions when it comes to land-use planning and growth of cities. Lawyers must counsel their clients to function within the law and not ignore it. He claimed that uncontrolled growth in the west is not sustainable either environmentally or economically -- as global climate change increases we must refocus our development strategy.
 
Mr. Lindgren called for integrated transportation and planning -- cities should be built that focus on transportation hubs and not suburban sprawl. In the US, people have moved away from cities into suburbia and do not focus on compact city living. This model is being replicated around the world. The Euclidian zoning model provides for individual/single use living with an emphasis on parking standards. There is now a need to reduce government subsidies to support rural sububanization. Once a good plan is in place the question of funding arises. He pointed to Southern Brazil's bus system as an example of a positive shift towards sustainable transportation -- the World Bank also recognized it for its coordination.
 
Concluding the panel, Ms. Jones emphasized that we need to address this one bit at a time and challenged each WJA member to make solid recommendations for how to do so.
 
Panel Two: The Independence of the Courts
The second panel of the Congress was chaired by Deon Van Zyl (South Africa).
 
First to speak was Constitutional Court Judge Vladimir Kampo (Ukraine). Judge Kampo explained that in the Ukrainian Constitution of 1996, judicial independence is guaranteed and the court will declare unconstitutional any law impeding this independence. He considered the constitutional reforms that Ukraine is facing in an attempt to adjust to European standards. The judicial branch has become a source of individual rights; and, the application of the Rule of Law depends on an independent judiciary. But, he cautioned, that Ukraine’s judicial community must overcome the predominance of old Soviet traditions by completing the constitutional reforms to remove old elements of the system. Judge Kampo called for starting anew rather than updating the old laws because only once the government is responsible to face claims from civilians can they move to a more democratic model.
 
Judge Kampo then turned his attention to a discussion of the division of powers and the necessity of knowing which issues apply to which courts. He concluded that it is the role of the constitutional and administrative courts to protect citizens’ rights and freedoms and he again called for the need to ensure independence of the courts.
 
Judge Van Zyl commented that one of the recurring questions is “why must judges always fight for their independence?”
 
Pedro (Pete) Principe, Lawyer (Philippines) spoke next on how to balance an independent judiciary with state security. He emphasized that separation of power is the hallmark of a democratic society and is codified in the Philippine Constitution; and, a government should accept the decisions of the courts. He offered that because of the unique experience the Philippines has had under both martial and normal regimes that the Philippine experience is a good model through which to consider whether there can be a balance of an independent judiciary and state security.
 
Under Martial Law, the Philippine President kept the courts open but disbanded the legislature in an attempt to protect the executive from those seeking to overthrow the government. The Supreme Court there was respected for its independence; although it heard petitions filed against martial law, judicial rulings were in favor of martial law – he then noted that martial law was justified by the high tribunal even though there were contradictory laws. This resulted in safeguards being put in place.
 
Prof. Karel Klima (Czech Republic) then presented a comparative study on the independent judiciary. The transparent separation of the judiciary from other governmental powers is, he argued, a decisive and important sign of people's sovereignty. Parliamentary forms of government create a political connection between the legislative and executive powers that try to influence the judiciary in a political and administrative way. The political system is centered in parliament and although this is good it can have an impact on the independence of the judiciary. The constitutional courts and the administrative courts must play a role in protecting judicial independence.
 
Prof. Klima noted that European constitutional culture has created specialized constitutional review. He described constitutional courts in Europe -- the role they play, their composition, and their relationship to the government and to international treaties. Constitutional review must ensure that future legislation will not eliminate the independence of the judiciary. 
 
The last panelist was moderator High Court Judge Deon Van Zyl (South Africa) who spoke on judicial independence in the South African context. He agreed with the other panelists that a constitutional guarantee for independence is necessary. Judge Van Zyl explained that in 1986 he took an oath to the then existing, apartheid constitution and had to be re-sworn in under the new government in 1994 – a source of pride from him and his colleagues. Now however, judges are passing down judgments that the politicians do not like prompting them to call the legitimacy of the judge into question. He argued that the attack on the judiciary will undermine public confidence in the judiciary and that the constitution may need to be amended to prevent politicians from having the power to appoint judges.
 
 
Panel Three: The International Impact of Climate Change
 
The Panel The International Impact of Climate Change was chaired by Dra. Monica Grill (Argentina). Dra. Grill opened the panel with a discussion on the effects of degradation and deforestation. The World Bank has recently calculated that the means of subsistence of a fourth of the world's population depend directly or indirectly on the forests. She argued that this constitutes a motive for the creation of integrated schemes to reduce poverty through the sustainable management of the forests
 
The United Nation Conference on Environment establishes that environmental protection is a part of development. Development should aim to eradicate poverty and achieve an equilibrium between economic efficiency and sustainability. It is absolutely necessary, Dra. Grill asserted, that the forests of the planet be subject to sustainable planning.
 
She called for the establishment of a useful tool to stop deforestation and the adoption of mechanisms to enforce the law, including: monitoring compliance and assigning, distributing, and executing funds.

Leslie LoBaugh (USA) – Partner, Fulbright & Jaworski – spoke on the Global Implications of Climate Change. He discussed the studies being conducted by militaries around the globe to determine the effects that climate change will have on national security. These militaries project that if climate change is left unchecked that there will be a mass migration of people due to flooding and draughts. This migration, in turn, will shift the political stability of many nations.  Nations now recognize the possibility of a catastrophic disaster caused by climate change and are ready to be responsible to find a solution.
 
He then discussed to the various contributors to greenhouse gasses. Mr. LoBaugh described transportation as a dramatically increasing contributor. He claimed that building is the most important contributor and that green buildings will have a dramatic impact on lowering the emissions in this sector. He discussed various technologies that are available which can have measurable impacts without triggering social dislocation, radical degradation of standards of living, or placing huge economic burdens on the global economy.
 
Viktor Dovhan (Ukraine) then spoke on the UN Framework Convention on Climate Change (UNFCC). In noting that 184 countries have already ratified the Kyoto Protocol, he called on the United States to join in ratifying. He explained that the main feature of the protocol is reduction targets and that countries must use national measures to achieve reductions. Three market based mechanisms to achieve reduction targets are: (1) emissions trading, (2) clean development, and (3) joint implementation. He briefly discussed Ukraine’s emission policy and then turned his attention to the role that lawyers should play in the climate change discussion. He called on lawyers to: develop schemes for the projects, develop tradable ERUs and AAUs, advise on tax issues, conduct legal due diligence, draft project agreements, and assist with various licensing needs.
 
Alice Skipper (Australia) discussed the legal perspective of Australia’s response to climate change. She opened with pictures and a discussion of the rich biodiversity in her country and the effects that climate change has and will continue to have on it. Australia, she noted, has responded by ratifying the Kyoto Protocol and binding green house gas targets. However, Australia has a long way to go and is currently very reliant on “bad energy sources” and renewable energy accounts for less than 5% of total energy use.
 
The current target to reduce 5% from 2000 level is not aggressive enough; but, the government will only increase this target if major countries such as India and China will be bound. The legislature is currently setting up a cap and trade agreement and acts of 2007 require industries to report their energy production and/or consumption.
 
Ms. Skipper then discussed several court cases with important impacts in climate change law.  Gippsland Coastal Board v. South Gippsland Shire Council & Ors (No 2) (2008) VCAT 1545 allowed the Victorian Civil and Administrative Tribunal to refuse the development of six coastal dwellings due partly to the threat of increasing storm severity and rising sea levels caused by climate change. Walker v. Minister for Planning (2007) NSWLEC 741 overturned a decision by NSW planning minister allowing for a substantial property development along a section of coastline, due to the Minister’s failure to consider and address climate change issues. The judge argued that climate change is relevant to the public interest and therefore should be taken into account by ministers. The Supreme Court partially reversed saying that the principles of ecological development were not required in this case but it could be taken into account in some cases. The High Court is considering request for further consideration. 
  
Ms. Skipper concluded that there are enough cases to say that the principles of ecological sustainable development must be taken into account in Australia.
 
Robert Percival (USA) spoke on global environmental law and how it is affected by climate change. He argued that laws are becoming partially harmonized as countries are increasingly borrowing laws from other countries – creating a new kind of law that is not strictly domestic or international. Rather, it is a global law.
 
Global environment law is not an entirely new phenomenon and four current factors are accelerating its development. They are: globalization of environmental concerns, growth of international trade and multinational corporations, increased global collaboration of environmental NGOs and environmental officials, development and implementation of multilateral environmental agreements. Development in the field of global environmental law is also coming from non-governmental organizations (NGOs) that are multinational and can apply pressure from various corners of the world. He lauded the WJA for its involvement.
 
Professor Percival used India’s Tata Nano car as a case study to explore the relevant debates in environmental law. The Tata Nano is the world’s most affordable car; and, it gets 47 miles per gallon and meets India’s emission standards. But, it will double the use of cars in India. He raised the question whether the global environmental law community can deny this development (45% of the US population has a car compared to only 8% of the population in India) even though it will have a high cost on the environment.
 
Professor Percival urged that the economic crisis should not be used to lower environmental standards. The economic crisis will require us all to coordinate global regulatory policies; but many countries will be reluctant to impose costly environmental standards on their companies. He applauded the U.S. President for promoting new ‘green’ jobs to alleviate both the environmental and economic crises.
 
Although no one wants a bad economy, Professor Percival noted that economic downturns usually lead to a decrease in greenhouse gas emissions. With the environmental opportunities created, it will be easier to reach a consensus when the nations gather in Copenhagen in December to negotiate the Kyoto successor.
 
The floor was then open to a question and answer session. The panelists were asked for their views on a carbon tax. Mr. LoBaugh commented that Cap & Trade is a tax of sorts and that in the U.S. a Cap & Trade policy is more likely because of the politics of “tax” policy. Mr. LoBaugh also noted his personal objection to Cap & Trade because it will increase bureaucracy and make corruption more likely. Professor Percival responded that although most environmentalists agree that a tax would be more effective, in reality we will probably have some blend of the two.
 
It was then suggested by Myrna Dinaraman Vidal (Philippines) that nuclear testing is a concern and that the WJA should address whether it can make a strong recommendation under the UN convention on climate change that it is protesting nuclear testing in various countries. Professor Percival responded that nuclear testing and power development is having a damaging effect on the environment and must be done in a safer way. The problem, he claimed, will only get worse. Mr. LoBaugh noted the politics associated with nuclear power and commented that the Chairman of FERC says that it is not renewable energy but it is probably clean energy.
 
Panel Four: Protecting Human Rights While Combating Terrorism
The Panel “Protecting Human Rights While Combating Terrorism” was chaired by Ms. Eunice Gibson (USA) who opened the panel by commenting that although we all remain concerned with the economy we cannot lose sight of human rights.
 
The first panelist to present was Professor John Hall (USA) who spoke about the need for a free press. He cautioned that many states have fallen into a trap set by the terrorists by undermining the foundations of their systems in response to terrorism. He then praised the aggressive and diligent efforts of the free media for keeping us informed. He noted particular areas of legal concern: the right of confidential sources and the right to publish/disseminate information. He also considered the ancillary rights of facilitating the collection of information and freedom of association.
 
Professor Hall expressed his fear that since 9/11 the legal structure has been undermining the free press. A number of countries have also passed anti-extreme legislation that is used to control behavior that incites extreme behavior. In some states it is a breach of these laws to quote terrorists or to investigate terrorists. There has been a 400% increase in the number of documents labeled as state secret. Public debate is often controlled as is any statements against the government. In some cases the entire independent media has been silenced by, for example, defining opposition newspapers as terrorist.
 
Freedoms of expression are not absolute and can be limited in certain exceptional circumstances. But, Professor Hall concluded, post 9/11 laws around the world have been created with the specific intent to stifle legitimate political protest and to punish journalists for exposing government scandals.
 
Kim Quarles (USA) spoke next on behalf of Ron Robinson, Ms. Quarles discussed peaceable assembly, speech, and religion as guaranteed by the Rule of Law. She argued that the difference between a terrorist act and a criminal act is intent. She claimed that the intent of terrorists is to create fear and destruction – it is the word intent that separates civil descent and disobedience from terrorist acts. Terrorism intends to create fear and thus bring a nation to change its laws.
 
Ms. Quarles noted that courts have two functions: (1) to work as a mechanism to balance the exercise of power over individual rights and (2) to work to provide redress to anyone whose rights were violated. Consider the compensation efforts for the victims of 9/11; the victims did not have the right to go to a court of law to adjudicate fair compensation. Compensation was based on assets and created disparate results for similarly situated people. Ms. Quarles concluded by cautioning that this mechanism may be modeled for similar future tragedies.
 
Speaking about combating terrorism and the ensuing disrespect for individual freedom, Professor Nina Karpachova (Ukraine) called global terrorism a problem that knows no borders. Countries have responded by developing laws to combat this terrorism; but, the laws violate human rights. She noted that terrorism is now directly relevant to everyone. She considered the recent increase in pirate attacks off the coast of Somalia and said this proves that we can no longer condone some of the manifestations of terrorism. She challenged everyone to find new ways to combat this threat.
 
Professor Karpachova concluded by calling for a globalized definition of terrorism. There are 13 UN conventions but the lack of a proper definition prevents countries from taking the proper concerted actions. She noted that each country has it’s own definition and that it is something Ukraine is currently addressing.
 
Next to speak was Gemma Leticia Tablate (Philippines); she spoke on the human rights violations of Overseas Filipino Workers (OFWs). Currently there are 11 million OFWs spread throughout the world working white and blue collar jobs in healthcare, IP, education, caregiving, etc. The OFWs leave their families and face loneliness and cultural adjustment; but, they play an important role in Philippine economy. But, because of the economic crisis many are losing their jobs and returning home.
 
She decried the abuse of workers. The workers do not know where or how to voice complaints. Ms. Tablate called for an international law that would allow countries to protect their citizens in other countries. She concluded that her government is responding to the impact of the economy by taking measures to address the problems that will arise from these persons losing or not receiving job offers.
 
Theresa Uzokwe (Nigeria) spoke on “The Right to Die”. The right to life is fundamental in many international and domestic documents and this might prevent individuals from having the right to take their own lives. She explained that euthanasia is a medical term that can be either voluntary or involuntary and either active or passive.
 
Ms. Uzokwe noted that euthanasia may be more common in African countries; in a recent case a person was convicted of homicide after shooting a person who had asked for it. The law in Nigeria says that you can never help someone kill himself. In the United Kingdom, a victim’s consent does not provide a defense. In contrast, the Netherlands has legalized euthanasia; and so, under a strict set of conditions, a physician may assist a patient’s death. Colombia also has laws allowing one to end his life under certain conditions. The Vatican has, also, recognized the use of painkillers, even if they may lead to death.
 
Ms. Uzokwe opined that euthanasia has more negative that positive side effects; but, we must continue to engage in the debate.
 
Eunice Gibson concluded the panel with a presentation on Universal Jurisdiction- new cases and statutes in the US. She discussed three cases: Blackwater, Chuckie Taylor, and the Chiquita Case.
 
The Blackwater case arose when contractors working in Iraq and Afghanistan were accused of human rights violations. Under the Status of Forces Treaty, Blackwater employees did not have immunity. The Iraqi government expelled Blackwater; 5 of the employees have been indicted in the US for the killing of 17 Iraqis. The parties are preparing for trial leading to important jurisdictional objections.
 
Chuckie Taylor was arrested in the US under the Torture Victims Acts for torture and murder committed while with the paramilitary in Liberia. Under relevant law, torture by a US national or anyone found in the US is a crime. Chuckie was convicted and sentenced to 97 years in Miami, Florida.
 
In the Chiquita Case, a multinational corporation headquartered in the US (Ohio) owned a subsidiary, Chiquita, in Colombia. Chiquita paid millions of dollars to both the guerillas and the paramilitary during a civil war there. In 2007, the U.S. Department of Justice charged the Multinational Company with violating the Patriot Act (which made it a crime to make payments to a terrorist group). The survivors are now suing Chiquita in civil suits in the US under the Alien Tort Claims Act.
 
Ms. Gibson then explained that although the Alien Tort Claims Act (ATCA) was passed in 1789 it lay dormant until 1980. She discussed new legal developments under ATCA. A recent case held that the Foreign Sovereign Immunity Act does not protect a foreign defendant if s/he no longer holds office. Corporations can be sued under ATCA. A NY court has held that it is important to have a forum in US court for war crimes. And, several courts have allowed equitable tolling of the statute of limitations when victims could explain why it would be reasonable.
 
Panel Five: International Arbitration and Mediation Issues
The International Arbitration and Mediation Issues panel was chaired by WJA President Ronald M. Greenberg (USA).
 
The first panelist Dr. Ann Brady (UK) spoke on “Mediation Developments in Civil and Commercial Problems faced in the UK”. She noted the increase in the use of mediation across the European Union. A new EU Directive in 2008 related to civil and commercial matters seeks to create a workable light touch directive that reflects guidelines and best practice for mediators. The aims of the Directive are to: ensure the quality of mediation, promote the use of mediation, enforce mediation agreements by way of court orders, ensure confidentiality of mediation, and prevent expiry of limitation periods during the mediation process.
 
Dr. Brady then explained that for mediation in England and Wales involving non-family civil and commercial disputes, individual mediators may join a number of panels of mediation providers and they may charge a fee for their work. She noted that there are far more trained mediators than there is work. There is national mediation helpline funding by the Ministry of Justice for disputes above a threshold amount. Mediation providers, on a rotating basis, supply mediations for cases directed by the courts. But, some judges are still reluctant to use this service because of quality concerns. There are, also, some lawyers who are reluctant about mediation. To alleviate these concerns, there has been a proposal to register mediators in England and Wales. This scheme would be voluntary and aimed at quality control. See
www.collaborative-engagement.org/ceprogramsRes_wmp.php for information about a global study on mediation conceived at the WJA’s 22nd Biennial Congress in Beijing.
 
Justice Exiang Wan (China) spoke next on the “Relationship Between Arbitration and Adjudication in China”. China allows for judicial review of arbitration. He explained that in 1987 when China ratified the 1958 New York Convention on the Recognition and Enforcement for Foreign Arbitral Awards, it found that the Convention does not deny the rationality of judicial review of arbitration. However, he noted that Chinese judges should be moderate and restrict judicial power and so not engage in excessive review going beyond the Convention. China created a reporting system in which all Chinese courts are required to report to the Supreme Court when refusing to recognize and enforce foreign arbitral awards; this reporting system is meant to ensure that there is uniform application in the whole country.
 
Between 2002 and 2008, more than 60 international arbitration cases were recognized and enforced in China; 8 were denied (12 were refused by the lower court, the Supreme Court overruled 4).
 
Justice Wan then spoke of a huge breakthrough in the effectiveness of arbitration clauses – quoting an effective arbitration clause in another contract makes the clause take effect in the new contract.
 
Justice Wan concluded with a summary of arbitration law in China including: a 2 year time limit for applications for enforcement of arbitral awards, a choice of arbitral organization to make an arbitration clause effective, automatic appeal, and judicial sovereignty as public policy.
 
Jeremy Sharpe (USA) spoke next on international arbitration. He noted that 90% of international contracts include arbitration clauses and 95% of counsel expect to continue to include them. The larger the dispute, he argued, the more likely parties are to include arbitration clauses. The success of arbitration on an international scale is due to a cross-border legal culture that provides a more universal way of functioning.  
 
Although arbitration is a private affair, Mr. Sharpe described the role of states as indispensable – they establish the framework and they empower private entities to use arbitration. Almost all states have joined a global adjudication system. Iraq – a case study of a state hostile to international dispute resolution processes – has no international arbitration statute and therefore cannot participate in the global system and will have trouble participating in global trade commerce. Noting its importance, Mr. Sharpe called on Iraq to sign the NY Convention. State support is crucial unless national courts are willing to enforce arbitration agreements. He noted that in Ukraine, there is criticism that the national courts are too willing to allow people to put aside their agreements and not refer cases to arbitration. 
 
Senior Judge Guomei Zheng (China) spoke on the "Chinese Judicial Mediation System and its Application". In China, judicial mediation is also called litigation mediation; it is a litigation process during which both parties reach an agreement and solve civil disputes through negotiation on a voluntary and equal basis under the auspices of the judge. He credited much of the success of judicial mediation in China to its cultural background that promotes ideas like “cherish harmony” and "a helpful neighbor is better than a distant relative". He then described the legal history of mediation in China. 
 
Judge Zheng continued with an exploration of the functions of judicial mediation that can help resolve conflicts and disputes completely as well as build a harmonious society. In judicial mediation "the parties know best the merits of the dispute and their own interests. The compromise reached at their own discretion shall be more favorable for their interests and proximate to the substantive equality that the parties pursue." Judicial mediation helps improve judicial efficiency and economize judicial resources. Also, judicial mediation can make up for the deficiencies in civil and commercial legislation.
 
The next panelist speaking on arbitration and criminal law was Prof. Dr. Alexander Belohlavek (Czech Republic). He wanted to find an intersection between the two subjects as they are seemingly incompatible – arbitration is governed by private law and criminal law is a public law matter. He echoed other panelists’ sentiments that public policy is the point at which the two intersect. Although there is no definition of criminal law in any international law sources, he is of the belief that lawyers can understand what is meant by criminal law. He also noted that there is no international definition of public policy and that we can try to define it. 
  
Prof. Belohlavek discussed the International Criminal Court’s task force on criminal law and arbitration and noted several instances where criminal law and arbitration intersect: (1) when a crime was committed and the commencement of arbitration might have impacted the transaction, (2) when a crime is committed about a transaction is completed, (3) when the crime was committed during the transaction, (4) when the crime was committed in the course of the arbitral proceedings. Awards cannot be enforced when there was a crime committed by the arbitrator. He concluded that this topic has been subject to scientific research conducted by the Department of Law, Faculty of Economic TU Ostrava -- which is the University where Prof. Belohlavek lectures.
 
Ronald M. Greenberg (USA) spoke next on the developments of arbitration in California. There parties are free to select the law they want applied to their case and so you can spell this out in your arbitration clause and specify which law for procedure and which law for substance. If you want judicial review of arbitration awards on factual matters there must be a reporter in arbitration (much like a court reporter in trial); if you accept all the findings of fact and are only disputing the law, it is possible to not use a reporter. He concluded by noting that arbitration has done well in California because the courts are so congested people have to go elsewhere to air their complaints.
 
The floor was then open to questions. In response to a question concerning the imbalance of bargaining power between employers and employees, Mr. Greenberg explained that the parties are scrutinized and the courts look at the discovery ability of an employee and that form agreements - bank agreements, credit card agreements - are now being scrutinized. Prof. Belohlavek explained that in Europe there is a slightly different situation in each country and there is now some scrutiny to evaluate the fairness for the consumer of entering into the clause. Justice Wan commented that in China, arbitration is compulsory and employee agreements are mostly governed by the government so they have to arbitrate. Ms. Brady concluded the Q & A by noting that in the UK there are several forums for addressing these disputes.
 
Panel Six: Protection of Investments/Investment Disputes

Prof. Dr. Alexander Belohlavek (Czech Republic) chaired the panel “Protection of Investments/Investment Disputes". He spoke on the "Settlement of Investment Disputes" It is an area of law where the interaction of private and public law is very intensive. He particularly focused on jurisdiction and the nature of the law applicable to the merits, especially on an ICSID (International Centre for Dispute Resolution) platform. He considered the procedural stages to identify and determine the applicable substantive law and the steps and phases in the proceedings for the applicable law. He discussed the diagonal effects of investor-state arbitration.

Senior Judge Qiman Ling (China) delivered a paper on the "Protection of International Investment in the Framework of China's Legislative and Judicial System". The Hon. Judge Ling discussed China's intensifying efforts to protect international investment that has resulted in an appropriate legal system being set up with great importance attached to the judicial protection of international investment. The legal system in China to protect international investment from the legislative perspective includes three layers: special legislation, commercial legislation, and administrative rules and regulations.

Judge Ling then discussed the judicial protection of international investments in the Chinese system. Chinese courts apply special litigation procedures to commercial suits involving foreign elements. Commercial suits involving foreign elements are generally under the jurisdiction of specified intermediate courts to ensure quality of the hearing. Parties may select any court with a material connection to the case. Foreign parties are granted longer filing periods. Chinese courts emphasis the choice of law in commercial suits involving foreign elements. Judge Ling explained how "Chinese courts endeavor to nurture professionals who are competent to hear suits involving foreign elements".

Concluding with an exploration of the judicial principles that China has developed to resolve disputes arising from international investment, Judge Ling discussed issues that are relevant to judicial systems around the globe: the state sovereignty principle, the principle of conforming to international treaties and practice, the national treatment principle, the principle of equality and mutual benefits, and the principle of second instance being final, and the mediation principles. And finally, "China is now continuing her efforts to provide better legal protection for international investment. We are confident that this will surely come true in a steadily improved environment for investment."

Dr. Veijo Heiskanen (Switzerland) expressed his pleasure at being in Kyiv for the first time and attending his first WJA event. Since the 1980s, many countries enacted protection laws that included settlement dispute clauses. There was no contractual relationship between the investor and the host state. Today there are over 3000 bilateral investment treaties and no international treaty for foreign direct investment law.
 
According to Dr. Heiskanen, the conventional wisdom is that because there is no global treaty we cannot really talk about a system of free movement of investment law. There is no free movement of international capital. There is some protection for an investor once he enters a country in treaty with his, but admission can still be denied. When investing in a foreign country, the investor must still comply with the local law when entering the country. He concluded that in practice bilateral treaties operate as a regulatory framework for free movement of international capital.
 
Panel Seven: The Need for Legal Education to Ensure the Rule of Law
The Panel “The Need for Legal Education to Ensure the Rule of Law” was chaired by Prof. Karel Klima (Czech Republic). 
 
John Dakin (Ukraine), the first panelist echoed that Rule of Law is fundamental to a modern democracy. He emphasized that although Ukraine has taken steps to create a functioning executive and legislature it has never had a judiciary that has functioned according to the Rule of Law. Currently in Ukraine there is little respect for judges; and, because there is no precedential system, decisions are often arbitrary. He argued that only about five of the law schools provide enough standards that students can graduate and function well in international firms. Law courses in Ukraine do not encourage creative thinking. Law graduates can practice without an exam (an advocate can take an exam and join the Ukrainian Bar Association). Mr. Dakin further decried the fact that there are no professional standards that set up uniform standards and the opportunity to go abroad is not readily available to law graduates. 
 
Panel Eight: The Role of the Legal Profession
Edward J. Sullivan (USA) opened the panel with a paper entitled "Land Use in the United States: Evidence that the Rule of Law is Alive and Well". Contrary to popular belief and prejudice, lawyers prevent tyranny and chaos. He looked to land use law as evidence that the Rule of Law is alive and well according to the vision of Charles S. Rhyne, founder of the WJA. Land use typically unfolds as a "contentious" debate between landowners, developers, and conservationists. It is a vexing issue in the US because "the individual right to own and use property clash[es] with the modern day realities of protecting a nations' treasures and interests at the local, state, and national levels." Land use law directly affects local citizens and it is one of the few areas where lay individuals deal daily with the law.
 
Mr. Sullivan explored recent reforms to local land use law in the U.S. He discussed the role of the local comprehensive plan in countering arbitrary land use regulations. He then explored the evolution of takings jurisprudence to avoid far-reaching regulations. He then reviewed reforms to land use law. Land use law is an important example of the role that law and the legal profession play in the daily lives of citizens and so "land use law is where there is a great potential for change, for uniformity of purpose, and for a collective investment in law and how law shapes community structure.
 
Benjamin E. Griffith (USA) spoke on “The Development of the Rule of Law” and noted that “when we as lawyers and legal professionals do not complain when the Rule of Law is abused we become a part of the process. There are instances when we must come forward, times when lawyers themselves must put themselves on the line.” Law should be “accessible, precise, foreseeable in the way it is applied, it is just and equitable, it holds value and there is respect”. He noted that the Council of Europe has played a significant role in advancing the Rule of Law in nations. He pointed to elections as an indicator of Rule of Law. Mr. Griffith concluded that the WJA and other NGOs are working to promote the Rule of Law around the world.
 
Speaking on the solidarity of lawyers, Paata Tsnobiladze (Georgia) asked whether there is anything in common that makes such solidarity possible. Essentially, he answered, that all lawyers serve the Rule of Law is the most important starting point for solidarity, consolidation, and collaboration. A lawyer should, no matter what happens, remain a professional. Mr. Tsnobiladze remembered Charles S. Rhyne and praised him as a man who made lawyers from different countries of the world into one family to promote Rule of Law principles in anticipation of solidarity and consolidation. The Rule of Law is a philosophy as well as a legal matter. The pure legal formula is simple and clear – separation of power, freedom of the judiciary, social security, human rights, etc. These are also the standards of democracy.
 
Mr. Tsnobiladze continued, democracy is a journey not a destination and the standards are the same but wider and broader. Countries must start from the minimum standard and allow democracy to grow one level at a time. For example, consider elections. Even if an election was held in breach of democratic principles, we can often see that this election was more democratic than the last.
 
Yun-Sang Kim (Korea) concluded the panel with a talk on "The Role of the Prosecutor in Economic Crisis". He explored different types of crimes committed by Korean corporations when public funds are expended and discussed effective responses to the crimes. The Asian financial crisis hit Korea in 1997 and the government decided to use public funds to help keep corporations solvent. Afterwards, the government began to prosecute the individuals whose criminal actions -- tax evasion, bribery, slush funds, etc -- had caused the market collapse. He noted that "capitalism, by its nature, drives corporations to prioritize profit, sometimes even derived from illegal actions". Although he does not believe that corporate crimes can completely be eliminated, he called for transparency of corporate accounting because healthy corporations sustain the livelihood of citizens. There must be an extensive investigation into corporate crimes by prosecutors. Further, investigations and prosecutions should be aided by international cooperation especially in instances of globalized crime or assets being concealed in foreign countries. In the Korean case, Mr. Kim concluded that long-term investigation will improve accountability and governance and will "help them in gaining more trust from both domestic and overseas markets".

Panel Nine: Protecting Intellectual Property from International Piracy
Maren Christensen
(USA) chaired the panel “Protecting Intellectual Property from International Piracy”. She spoke on the problems associated with international film piracy – people bring camcorders into theaters and make illegal copies available. She demonstrated how quickly an illegal DVD can be reproduced and distributed around the world in mere days. The Rand Corporation think-tank has produced studies showing that organized crime is involved in many countries; and, the proceeds of this piracy support all kind of other criminal activities.
 
Ms. Christensen observed that the World Intellectual Property Organization – treaty 1996 – cannot keep up with technology and so the laws are outdated. Most countries do not have laws against camcorders in theaters; when the US passed a camcording law, the occurrence went down 40%. The pirates moved their practice to Canada; but, at least there are steps being taken in the right direction. Canada passed a similar law and there was a 60% decrease in film piracy there but it increased elsewhere as a result. Ms. Christensen stated her belief that international cooperation would make a difference; two countries with significant violations are the Philippines and Ukraine. 
 
Ms. Christensen then turned her attention to the problem of peer-to-peer file sharing – one computer uploads the software and then links the computers together to allow individuals to share files. She noted that because no one wants to sue their customers and because there would be too many people to sue, companies are asking the Internet Service Providers to help police the problem. ISPs can give companies the real address that matches the ISP address so that companies can write cease and desist letters. Doing so would, she concluded, warn violators that what they are doing is being watched.
 
Dong Zhang (China) spoke on the "Legal Perspective of Traditional Chinese Medicine Patent Challenge". One of the problems, she noted, is that it is rather hard to obtain one core patent on 'traditional Chinese medicine'. She spoke of the interruption by relevant administration, a scope of protection that is too narrow, and an imbalance in the commitment for public health care. In order for China to develop into a nation with developed medicine, it should make efforts to award foreign and domestic researchers and enterprises more patents and cultivate more Traditional Chinese Medicine Patents. She concluded that through revolutionary reform of patent legislation within five years China will realize its national strategy of promoting traditional Chinese medicinal development and internationalization.
 
Peter Marcus (USA) spoke on patents (to protect the idea), copyrights (to protect the expression of the idea), and trademark (to protect the identification of the source of a particular product or service). He focused his discussion on trademark – emphasizing that since the industrial revolution and the mass production of goods, consumers no longer have the ability to know their goods. So trademark law arose to protect consumers and inform them about the source and quality of the goods. For retail, this protection might simply be about prestige; for medicine it might mean the difference between health and death. For example, you see the logo of the WJA and you know the quality associated with it.   
 
Mr. Marcus defined counterfeiting and piracy by explaining that piracy speaks to copyright issues and counterfeiting speaks to trademark. Copying DVD content is a copyright infringement. When the pirates put the cover on it and put the artwork and the logo of the studio then it is trademark and counterfeit.
 
In concluding, Mr. Marcus repeated earlier concerns over the connections between counterfeiting and organized crime. In 2007, the UN warned of the relationship between the two. Terrorists groups often fund their operations through counterfeit sales. And, the loss of revenue can lead to economic crisis.
 
Demonstration Trial
 
The Demonstration Trial entitled “Nuclear Energy and Nuclear Weapons: Legal Right to Develop Nuclear Energy without Monitoring and Restrictions, and Legal Right to Develop Nuclear Weapons as long as other Countries have Nuclear Weapons” The court was a mock of the International Court of Justice with The Hon. Deon Van Zyl, The Hon. Chief Justice Yueng, and The Hon. Chief Justice Mangaze (presiding as chief justice) on the bench. Ethia Simha (Israel), Enrica Ghia, (Italy), and Ronald M. Greenberg served as counsel. The Demonstration Trial was moderated by Bruce Lubarsky (USA).
 
Mr. Lubarsky laid out the rules and called on all those in attendance to give the proceedings the same dignity and respect they would at the high courts of their own country. He then read the fact pattern: Alpha is a country that wants both nuclear energy and nuclear weapons. Alpha takes the position that there should be no monitoring or restrictions placed upon them.  Beta is a country that has both nuclear energy and nuclear weapons, and wants to prohibit Alpha from developing nuclear energy unless Alpha agrees to monitoring and restrictions.  Beta wants to prohibit the manufacturing of nuclear weapons by Alpha. Delta is a small country located next to Alpha, and is an ally of Alpha. Delta supports Alpha’s right to develop nuclear energy without restrictions because it will benefit from Alpha having such energy.  Delta opposes Alpha’s development of nuclear weapons.  Seeking international law guidance, and hoping to avoid an armed conflict, Alpha, Beta and Delta have submitted the following questions to the International Court of Justice:
1. Does Alpha have the right to develop nuclear energy without monitoring and restrictions?
2. Does Alpha have the right to develop nuclear weapons as long as other countries have nuclear weapons?

Mr. Greenberg represented Alpha. Ms. Ghia represented Beta. And Ms. Simha represented Delta.
 
Alpha's position was that the case is governed by the Convention on Physical Protection of Nuclear Material and the Convention on Nuclear Safety. Every nation, it was argued, has the right to develop for peaceful use and for safe international transfer. It was further asserted that a sovereign nation has the right to develop nuclear weapons. Mr. Greenberg claimed that the Nonproliferation Treaty is flawed because is ignores exceptions such as India, Pakistan, and Israel; and, it has not showed signs of meeting the promise made in the treaty to eliminate nuclear weapons. Mr. Greenberg insisted that Alpha has the same right of Self-Defense as any other nation. Because the ICJ has concluded that there is neither customary nor international law authorizing or prohibiting nuclear weapons, Mr. Greenberg, concluded that the same holds true for the development of nuclear weapons.
 
Delta's position was that it shares the need for nuclear energy which can be used in hospitals, to grown more food, to abolish disease, and to clean water. Ms. Simha argued that nothing should impede the inalienable right to nuclear energy for peaceful purposes. She asserted that we will all be victims if we do not use nuclear energy in engineering, in medicine, in agriculture, and in all walks of life. Ms. Simha then stated Delta's aversion to nuclear weapons because they are a threat to all humankind.
 
Beta's position was that nuclear weapons have disastrous effects -- the extent of which is not yet 100% clear. Ms. Ghia argued that Alpha was forgetting the global dimension to nuclear energy production; and, she questioned why Alpha feels the need to develop without monitoring and restrictions. Why, she asked, was Alpha not willing to join the group of states willing to share information?
 
Mr. Greenberg responded that it is a question of basic fairness and asked what right Beta has to tell Alpha 'you cannot have what I have'. The Court asked him why Alpha considered monitoring to be so much of a problem. Mr. Greenberg responded that Alpha has already declared its intention to develop nuclear weapons and so monitoring would be an illegal and unwarranted infringement. 
 
When the Court returned with its decision, it took care to note that question two (nuclear weapons) brings up ethical and moral considerations as well as legal ones. The Court concluded that Beta has weapons that are stockpiled to threaten or use and not for peaceful purposes. The Court discussed the illegality of owning nuclear weapons and looked to the human rights law: right to life, prohibition on torture, liberty, health standard, humanitarian law. It discussed proportionality and the inability for nuclear weapons to differentiate between civilians and combatants. It found that nuclear weapons have all the attributes of weapons of mass destruction banned under Hague. Every state has a duty to refrain from the threat or use of force against the sovereignty of another state. The Court thus held: Alpha has the right to develop nuclear energy for peaceful purposes, subject to monitoring and where necessary restrictions imposed by the IAEA; Although there is no express prohibition against the development of nuclear weapons, it is contrary to the spirit of human and humanitarian treaties and customary law. 
 
Panel Ten: The Place of Justice in the Legal Terrain of the State
The final panel was entitled "The Place of Justice in the Legal Terrain of the State". Alexander Pasenyuk (Ukraine) reviewed the judicial system of Ukraine and noted that the administrative courts take on all disputes that deal with actions of government officials. He examined the challenges facing Ukraine today and declared that it must right the wrongs from the Soviet era. The public administration should be accountable to its constituency. Things are moving forward for Ukraine - there were parliamentary elections and then special elections in 2007. Ukraine has been able to avert political pressures and the administrative courts operate impartially. The High Administrative Court of Ukraine was made the observer in a body including over 120 countries. Mr. Pasenyuk concluded that the WJA experience can help Ukraine take the next step forward.
 
Sergej Vinokurov (Ukraine) then spoke on the role of the public prosecutor in the Rule of Law in Ukraine. He considered optimal models for the public prosecutor's office in both the short and long term. A plan to create a new Public Prosecutor’s Office Law has been presented to Parliament -- it's provisions are not politically motivated and instead are all based on the Constitution and the principles of building a constitutional democratic state. The Prosecutor's Office functions in criminal prosecution and needs a new Criminal Procedure Code to be implemented. He concluded by thanking the WJA for organizing the Congress and promoting human rights.

Closing Ceremony

During the Closing Ceremony, Margaret Henneberry, Executive Vice President, announced the names of the newly elected Board of Governors, who will serve during the 2009-2011 term: Valeriy Yevdokimov, (Ukraine), President; Alexander Belohlávek (Czech Republic), First Vice-President; Paata Tsnobiladze (Georgia), Second Vice-President; Kim Quarles (USA), Third Vice-President; Deon H. van Zyl (South Africa), President for Africa; Luis Eduardo Boffi Carri Perez (Argentina), President for Americas; Gemma L. Tablate (Philippines), President for Asia; Enrica Ghia (Italy), President for Europe; Oleksandr Paseniuk, (Ukraine); President for CIS Countries; Bola A. Ajibola (Nigeria), President, WAJ; Klaus-Güenter Neumann, (Germany), President, WAL; Leonardo A. Quisumbing (Philippines), President, WALP; and Iris Jones (USA), President, WBA.

The World Jurist Association wishes to thank Valeriy Yevdokimov and the Union of Lawyers for hosting the 23rd Biennial Congress, without their tireless efforts, and the assistance of the many student volunteers this program would not have been possible. Additionally we thank each of our speakers, moderators and Demonstration Trial participants, their expertise ensured the success of our program. We also wish to recognize Manuel Alonso of Conference Travel International, the official WJA Travel Agent; Garry Hunter for preparing the Demonstration Trial materials; our sponsors, Aerosvit and Chadbourne & Parke, LLP; and our staff and volunteers, Folake Ogunyemi, Rachael Gubernick, and Gita Pancholy.

 

 

 

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