Páginas

segunda-feira, 30 de dezembro de 2013

Article: Legal Writing for the Real World: A Practical Guide to Success

Mercer University - Walter F. George School of Law

Indiana Tech Law School

2013


Abstract:

One of the most significant complaints among practicing attorneys is that newly admitted lawyers are not effective writers. Many young attorneys also express concern that their law school experience did not adequately prepare them to be good legal writers. This Article is designed to bridge the gap between the law school classroom and the law firm experience. In so doing, this Article is more practical rather than pedagogical, based on experience rather than theory, and founded upon “real-world” examples rather than abstract constructs.

Number of Pages in PDF File: 46

Disponível em: <http://ssrn.com/abstract=2363507>. Acesso em 19 dez. 2013.


sexta-feira, 27 de dezembro de 2013

Article: What is Extraterritorial Jurisdiction?

Southern Methodist University - Dedman School of Law

December 4, 2013


Abstract:

The phenomenon of extraterritorial jurisdiction, or the exercise of legal power beyond territorial borders, presents lawyers, courts, and scholars with analytical onions comprising layers of national and international legal issues; as each layer peels away, more issues are revealed. U.S. courts, including the Supreme Court, have increasingly been wrestling this conceptual and doctrinal Hydra. Any legal analysis of extraterritorial jurisdiction leans heavily on the answers to two key definitional questions: What do we mean by “extraterritorial”? And, what do we mean by “jurisdiction”? Because the answer to the first question is often conditional on the answer to the second, the questions are probably better addressed in reverse order, that is: What type of “jurisdiction” is at issue? And, is its exercise “extraterritorial”? 

This Article aims to supply legal thinkers, practitioners, and decision-makers with tools to go about answering these increasingly prevalent and multi-layered questions of U.S. law — the answers to which hold potentially massive consequences for a rapidly and diversely growing number of cases and fields, from corporate and securities law, to human rights, to anti-drug trafficking and terrorism. The Article addresses major issues of constitutional law, statutory construction (including the Supreme Court’s most recent decisions in Morrison v. National Australia Bank and Kiobel v. Royal Dutch Petroleum), and common law choice-of-law methodology.

The proliferating phenomenon of extraterritoriality across diverse fields has thus far resisted trans-substantive and systematic analysis. Yet the legal and practical stakes of resolving a mounting array of extraterritorial jurisdiction issues have never been higher. This Article seeks to approach extraterritoriality as a fundamentally singular phenomenon with myriad doctrinal manifestations instead of a scattershot smattering of discrete legal issues in isolated areas. My principal aim in doing so is to help legal thinkers and decision makers not only to resolve extraterritoriality issues but also to comprehend how their resolutions fit within a larger jurisprudence on increasingly important questions of when and how the United States may exercise legal power beyond U.S. borders.

Number of Pages in PDF File: 42

Disponível em: <http://ssrn.com/abstract=2363695>. Acesso em 13 dez. 2013.

quarta-feira, 25 de dezembro de 2013

Article: SIFIs and STATES

University of Texas at Austin School of Law

November 1, 2013

Forthcoming, 49 Texas International Law Journal Issue 2. 

Abstract:

Although regulators have made strides in reducing the likelihood that global financial institutions will collapse, too little has been achieved in constructing a framework for managing the financial resolution of these institutions if and when regulation fails. Given a long history of regulatory capture or fatigue, such a system is essential to protect the world’s financial infrastructure. Two propositions are central to creation of a workable approach. First, government funds will generally be necessary to permit an orderly resolution, if only to provide temporary liquidity and market confidence, despite official reluctance to concede that reality. 

Second, no resolution system for global institutions will be workable unless regulators are prepared to give deference and cooperation to one national regulator as the leader of the global effort. From those two propositions, it follows that the jurisdiction prepared to provide the bulk of the necessary funds for resolution must also be given that leadership role. Success or failure of such a system may depend upon advance commitments as to both financial responsibility and regulatory deference and that commitment is unlikely unless it is multinational.

Number of Pages in PDF File: 24

Disponível em: <http://ssrn.com/abstract=2351236>. Acesso em 13 dez. 2013.

segunda-feira, 23 de dezembro de 2013

Article: Due Process, General Personal Jurisdiction, and F-Cubed Litigation: The Extraterritorial Reach of American State Courts Over Foreign Nation Corporations for Alleged Human Rights Violations

University of Texas School of Law

October 7, 2013

1 Preview of Supreme Court Cases 23 (Oct. 7, 2013) 

Abstract:

This article discusses the Supreme Court’s consideration in October 2013 of the appeal of DaimlerChrysler arising out of alleged human rights violations committed in Argentina between 1976 and 1983. The case concerns the extra-territorial reach of American courts in litigation brought by foreign plaintiffs for acts committed by foreign defendants in foreign countries. The Court will have to evaluate whether an American state court, consistent with the Due Process Clause of the Fourteenth Amendment, can exert general personal jurisdiction over a foreign corporation for alleged human rights violations in another country, based on the fact that an indirect corporate subsidiary performs services on behalf of the corporation in an American state.

The DaimlerChrysler appeal returns the Supreme Court to its evolving body of personal jurisdiction jurisprudence. And, the year after it considered the extra-territorial reach of American courts for foreign violations of human rights in Kiobel, the Court will return to that theme in the personal jurisdiction context. Thus, the DaimlerChrysler case presents the court with another so-called F-cubed litigation: lawsuits where foreign plaintiffs invoke the jurisdiction of American courts to vindicate human rights claims against foreign defendants committed on foreign soil. This appeal does not concern the subject matter of the California court. Although the federal claims under the Alien Tort Statute and the Torture Victim's Protection Act have been extinguished by recent Court rulings, the plaintiffs’ state and Argentine claims remain in the federal court’s supplemental jurisdiction. 

The large number of amicus briefs filed by corporate entities, foreign business associations, defense counsel, the Department of Justice and others in support of DaimlerChrylser demonstrate the significance of this appeal. In the past two years, in at least four major decisions dealing with subject matter and personal jurisdiction, the Supreme Court has consistently registered its distaste ― if not discomfort ― with extending the territorial reach of American courts to provide the forum for resolution of any and all litigation in the world. While the Court’s jurisdiction jurisprudence has indeed proceeded on a plodding case by case basis, the over-arching policy implications of the extra-territorial reach of American courts is difficult to ignore.

On the one hand, the Court may resolve the Daimler appeal on the narrowest basis, reviewing the Ninth’s Circuit’s novel agency test for assertions of general jurisdiction over foreign corporations lacking direct presence in the United States. In so doing, the Court also may consider the Ninth Circuit’s application of the Asahi reasonableness factors. On the other hand, the Court might address the plaintiffs’ recasting of the entire litigation as a question of democratic authority. In this regard, the plaintiffs seem to be suggesting that the Court cannot and should not resolve this case by judicial policymaking through yet another refinement of personal jurisdiction jurisprudence. Instead, they challenge the Court to consider that democratic theory mandates that such jurisdictional rules be accomplished through the democratic processes of Congress or state legislative bodies. This is a very provocative theory and a novel approach to the Court’s entire jurisdictional body of precedents. Were the Court to consider this challenge, this would question if not undermine several decades of careful case-by-case doctrinal development by the Court.

Number of Pages in PDF File: 6

Disponível em: <http://ssrn.com/abstract=2335510>. Acesso em 13 dez. 2013.

sexta-feira, 20 de dezembro de 2013

Article: Postwar

Robert Chesney University of Texas School of Law

September 27, 2013

Harvard National Security Journal (2014 Forthcoming) 

Abstract:

Does it really matter, from a legal perspective, whether the U.S. government continues to maintain that it is in an armed conflict with al Qaeda? Critics of the status quo regarding the use of lethal force and military detention tend to assume that it matters a great deal, and that shifting to a postwar framework will result in significant practical change. Supporters of the status quo tend to share that assumption, and oppose abandoning the armed-conflict model for that reason. But both camps are mistaken about this common premise. For better or worse, shifting from the armed-conflict model to a postwar framework would have far less of a practical impact than both assume. 

Consider lethal force first. The Obama administration has made clear that lethal force would remain on the table even under a postwar model, and more specifically that it would remain an option against “continuous” terrorist threats. This in itself is not surprising; the U.S. government took a similar position for decades preceding 9/11. What is surprising is the capaciousness of the continuous-threat framework, and the extent to which it turns out to be consistent with the government’s existing approach to targeting even while we remain within the armed-conflict model. The capaciousness is not new. It was built into the continuous-threat model all along, in fact, as a review of key events in the 1980s and 1990s reveals. But the flexibility of the continuous-threat model was thoroughly obscured in the pre-9/11 period thanks to certain non-legal constraints, including especially the limited technology then available to carry out airstrikes in denied areas and the paucity of actionable intelligence. A variety of technological and institutional changes over the past dozen years — particularly the emergence of armed drones and the expansion of CIA and JSOC capabilities — have sharply eroded those constraints, altering what it would mean in practice to operate under the continuous-threat model once more. This helps explain why the government, though still maintaining the relevance of the armed-conflict model as a formal matter, has in fact already returned to the continuous-threat model as a matter of policy for operations outside of Afghanistan. There was relatively little cost to doing so in terms of operational flexibility, and by the same token there would be surprisingly little loss of operational flexibility should the underlying armed-conflict framework be abandoned. 

The situation with respect to military detention is different, but only marginally so. The demise of the armed-conflict model will certainly matter for the dwindling legacy population at Guantanamo (and, perhaps, for a handful of legacy detainees in Afghanistan). It will not matter nearly so much for potential future detainees, however, for the simple reason that the United States long-ago got out of the business of taking on new detainees outside of Afghanistan. There are several reasons for the demise of long-term military detention as a policy option, including the fact that it has become unattractive compared to alternatives such as prosecution, the use of lethal force, and encouraging detention in the hands of other countries. The theoretical loss of legal authority to detain in the postwar period will have comparatively little real consequence in light of this larger dynamic. 

None of this is an argument for or against declaring an end to the conflict with al Qaeda. The debate over that issue is badly distorted, however, by the shared and mistaken assumption that status quo targeting and detention policies depend on the armed-conflict model. Moving to postwar would not generate the sea change that advocates seek and opponents fear.

Number of Pages in PDF File: 27

Disponível em: <http://ssrn.com/abstract=2332228>. Acesso em: 13 dez. 2013.



quarta-feira, 18 de dezembro de 2013

Article: The Project Model of Clinical Education: Eight Principles To Maximize Student Learning and Social Justice Impact

University of Tulsa College of Law

November 19, 2013

Clinical Law Review, Vol. 20, pp. 39-94, 2013 

Abstract:

In clinical legal education, there is growing interest in the development of project-based clinical work, which includes a broad range of activities, such as legislative and policy reform, community economic development and community legal education. In the project model, students use non-litigation advocacy strategies to solve challenging legal problems for clients and engage a broad range of multidimensional legal skills, including complex problem-solving, strategic planning, project management, and professional communication skills. Clinical scholarship on project-based learning has suggested that key pedagogical methods, particularly maximizing role assumption and student ownership of clinic work, must be compromised in projects due to the inherent complexity of the model. Because the project model holds such great potential for creating systemic change and serving communities, clinicians who develop projects often struggle to navigate the balance between social justice impact and pedagogical goals. In response to these and other challenges of projects in clinical education, this article argues that through intentional and goal-driven planning, clinicians can design project-based learning experiences that meet social justice goals while also maximizing student ownership and learning. To assist clinicians in developing projects that are successful from pedagogical and social justice perspectives, this article offers eight pedagogical principles, transferable across clinical contexts, for the design and supervision of this emerging model of clinical education.

Number of Pages in PDF File: 56

Disponível em: <http://ssrn.com/abstract=2356999>. Acesso em 9 dez. 2013.

terça-feira, 17 de dezembro de 2013

Book review: More Apology than Utopia. Reviewing Curtis A. Bradley, International Law in the U.S. Legal System

Vanderbilt University - Law School

October 23, 2013

108 American Journal of International Law (2014 Forthcoming) 

Abstract:

Curtis Bradley’s book, International Law in the U.S. Legal System, provides a skillful description of its topic in a much-needed contribution to several fields of law. This short review provides an overview of the book, notes its many strengths, and points out a few minor weaknesses in coverage. It concludes by offering some thoughts on an issue largely unaddressed by Bradley: how to evaluate as a normative matter the controversial doctrinal developments he describes.

Number of Pages in PDF File: 16

Disponível em: <http://ssrn.com/abstract=2344142>. Acesso em 5 dez. 2013.

segunda-feira, 16 de dezembro de 2013

Article: Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends

Northwestern University Law School

November 11, 2013


Abstract:

The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious and dynamic aspects of U.S. foreign relations law, the Alien Tort Statute (ATS). Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy – the presumption against extraterritoriality. 

Amazingly, despite an extensive academic literature on the ATS, the winning issue in Kiobel had never been examined in a law review until a 2003 student note. No court ruled on it until 2010. Indeed, the issue had not even been part of the litigation in Kiobel until the Court sua sponte raised it during oral argument. Finally, the Court’s unanimous endorsement of an extraterritoriality limitation came as yet another surprise to most observers, who predicted a split along more ideological lines. 

The story of the extraterritoriality issue in ATS litigation is a case study in the path dependence of legal doctrine and of agenda-setting by the Supreme Court and the Justice Department. This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of international trends in universal jurisdiction. The Article also considers possible reasons for this academic oversight. While normative approval of ATS litigation no doubted contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. It demonstrates the power of sub silentio decisions: while courts had never dealt with presumption in ATS cases, most observers assumed the issue to have been settled.

The Article argues that one reason the extraterritoriality presumption might have come to mind is that ATS suits involved universality, something more extreme than “mere extraterritoriality.” Thus Kiobel can be understood as involving a rather obscure – and yet unnamed – statutory presumption, the “presumption against universality.” This understanding of the case has significant implications for the disagreement on the Court about the application of the statute to conduct by Americans abroad.

While Kiobel was a surprise from a domestic law context, it fits perfectly into broader patterns in international law. Universal jurisdiction, which had seemed an ascendant doctrine in the 1990s, has in the past decade encountered a significant backlash, leading ultimately to its destabilization and retrenchment. Universal jurisdiction today rarely results in the exercise of jurisdiction, and is increasingly not universal, but sharply contested by African and Asian states. On this background, Kiobel is no surprise, but merely the latest step in a withdrawal from universal jurisdiction by nations that had most aggressively exercised it.

Number of Pages in PDF File: 21

Disponível em: <http://ssrn.com/abstract=2353226>. Acesso em 4 dez. 2013.

sexta-feira, 13 de dezembro de 2013

Blog Post: US Supreme Court Rules on Forum Selection Clauses

By Verity Winship

Verity Winship is Associate Professor, Richard W. and Marie L. Corman Scholar at Illinois University College of Law

The US Supreme Court just issued a unanimous decision in Atlantic Marine Construction Co. v. U.S. District Court for the Western District of Texas about the effect of forum selection clauses in US federal courts. The Court has considered these clauses only three times before, and this is the first opinion on the subject in 25 years. In this case, the parties agreed that suits would be litigated in the state of Virginia. The plaintiff, however, brought suit in federal court in Texas. Among other things, the defendant moved to transfer the case to federal court in Virginia based on a statutory provision (28 USC 1404(a)). The parties did not dispute the validity of the clause, but disagreed about whether it mandated transfer to the designated forum.

The Supreme Court held that forum selection clauses should have controlling weight absent “extraordinary circumstances unrelated to the convenience of the parties.” US courts ordinarily consider both private and public interest factors in determining whether a case should be transferred among federal courts. The Court concluded that the presence of a valid forum selection clause changes the analysis. First, plaintiff’s choice of forum receives no weight. Second, courts should not consider the convenience of the parties, but only public factors, which “will rarely defeat a transfer motion.” Third, although transferred cases normally get the choice-of-law rule of the pre-transfer court, the Court established an exception for cases filed outside the contractually designated forum in an attempt to limit forum shopping. Although the statutory provision at issue governs movement among courts in the US federal system only, the Court indicated that the same analysis applies to motions to dismiss for forum non conveniens when the designated forum is a US state or non-US court.

quinta-feira, 12 de dezembro de 2013

Article: Chronicle of a Death Foretold: The Future of U.S. Human Rights Litigation Post-Kiobel

University of California, Berkeley, School of Law

October 30, 2013


Abstract:

For thirty years, the Alien Tort Statute (ATS) has provided U.S. courts’ civil jurisdiction over human rights abuses committed abroad and a small group of victims a modest measure of justice. The Supreme Court’s April 2013 decision to limit the extraterritorial reach of the ATS in Kiobel v. Royal Dutch Petroleum prompted declarations from experts that human rights litigation in the United States is dead. Post-Kiobel legal commentary has focused on doctrinal questions about which claims under the ATS will survive Kiobel and whether transnational tort litigation in state courts is a viable substitute. This article argues that reports about the death of U.S. human rights litigation are an exaggeration.

This article explores the implications of Kiobel for the interests of those most affected by human rights violations – the victims – and identifies strategies for how human rights victims can best use existing legal remedies in the United States to vindicate their rights. First, the article defines a metric to evaluate the significance of U.S. legal strategies from a victim-centered perspective. The metric is based on the most prominent international standards related to victims’ rights – the rights to truth, justice, and reparations.

Second, the article catalogues the multiple legal strategies available in the United States to hold perpetrators accountable for human rights abuses committed abroad. Post-Kiobel, the United States still is the only country in the world where a non-national victim can bring a civil action against a non-national perpetrator for human rights abuses committed on foreign soil. U.S. courts also have extraterritorial jurisdiction over international crimes, such as genocide, war crimes, torture, and the recruitment of child soldiers. Under crime victims’ rights legislation, the foreign victims of these crimes have participatory rights in criminal proceedings. Immigration authorities have denaturalized, deported, and criminally sanctioned hundreds of human rights perpetrators discovered in the United States.

Third, the article looks beyond the mere existence of these formal opportunities to explore how available legal mechanisms can advance the rights of human rights victims. The article uses a victim-centered metric to dissect the myriad of vague and unproven claims about the objectives of human rights litigation and identify concrete opportunities to advance victims’ rights to truth, justice, and reparations through legal advocacy.

Number of Pages in PDF File: 46

Disponível em: <http://ssrn.com/abstract=2347213>. Acesso em 4 dez. 2013.

quarta-feira, 11 de dezembro de 2013

Blog post: ECtHR Rules on Return of a Child to Her Country of Origin under the Hague Abduction Convention

by GILLES CUNIBERTI on DECEMBER 2, 2013

On 26 November 2013, the Grand Chamber of the European Court of Human Rights (ECtHR) delivered its judgment in the case of X v. Latvia (application no. 27853/09).

The case concerned the procedure for the return of a child to Australia, her country of origin, which she had left with her mother at the age of three years and five months, in application of the Hague Convention on the Civil Aspects of International Child Abduction, and the mother’s complaint that the Latvian courts’ decision ordering that return had breached her right to respect for her family life within the meaning of Article 8 of the European Convention on Human Rights (ECHR).

The Court considered that the ECHR and the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 had to be applied in a combined and harmonious manner, and that the best interests of the child had to be the primary consideration. In the present case, it considered that the Latvian courts had not complied with the procedural requirements of Article 8, in that they had refused to take into consideration an arguable allegation of a “serious risk” to the child in the event of her return to Australia.

It may be worth noting that since the case concerned the relationship between Australia (as requesting State) and Latvia (as requested State), the special regime applying between member States of the EU bound by the Brussels IIbis Regulation was inapplicable. This explains that the obligations that Article 8 of the ECHR implies for the requesting State applied in this case, contrary to what was the case in Povse v Austria, where the incidence of the Brussels IIbis Regulation was at stake.

Disponível em: <http://conflictoflaws.net/2013/ecthr-rules-on-return-of-a-child-to-her-country-of-origin-under-the-hague-abduction-convention/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+conflictoflaws%2FRSS+%28Conflict+of+Laws+.net%29>. Acesso em 3 dez. 2013.


terça-feira, 10 de dezembro de 2013

Article: Effects of Foreign Judgments Relating to International Arbitral Awards: Is the 'Judgment Route' the Wrong Road?

Queen Mary, University of London, Centre for Commercial Law Studies

July 1, 2013

Journal of International Dispute Settlement, Vol. 4, No. 3 (2013), pp. 587–628 

Abstract:

This article examines and critically assesses the 'judgment route' in international arbitration. The 'judgment' route refers to a growing trend in many jurisdictions to grant effects to foreign judgments relating to international arbitral awards, such as judgments setting aside, confirming, recognizing or enforcing an arbitral award (called 'award judgments' for the purposes of the article).

Although there is abundant commentary on the effects of set aside judgments, very little attention has been paid to the other equally important situations where courts confirm, refuse to set aside or simply recognize or enforce an award. This article aims to fill this gap. It is submitted that national courts often err when they grant effects to foreign award judgments. On a theoretical level, the judgment route ignores the distinctive, ancillary nature of award judgments: award judgments differ from other judgments insofar as they relate to a prior adjudication — the award — and thus need to be treated differently. Moreover, on a practical level, the judgment route risks encouraging forum shopping and the multiplication of parallel proceedings, and it increases the likelihood of conflicting decisions. On the basis of these findings, the article concludes that the judgment route taken by courts in many jurisdictions is often the wrong road.

Number of Pages in PDF File: 42

Disponível em: <http://ssrn.com/abstract=2348658>. Acesso em 3 dez. 2013.


segunda-feira, 9 de dezembro de 2013

Article - Choice of Law: An Empirical Analysis

Yale Law School

October 21, 2013

Abstract:

I propose a new measure to study the law and economics of choice of law: ''relative use of law.'' Relative use of law measures the extent to which a state's laws are disproportionally over- or under-utilized in contract. It is constructed by normalizing the distribution of choice of law clauses by the extent of contracting activity within each jurisdiction.

Using this measure, I study choice of law by analyzing the nearly 1,000,000 contracts that have been disclosed to the Securities and Exchange Commission between 1996-2012. These are all contracts that companies registered with the SEC deem ''material.'' I find that from 1996 to 2012, (1) only two states are relatively over-utilized: Delaware (an extreme outlier) and New York, and (2) there has been significant and robust convergence both in firms' choice of law and relative use of law toward Delaware, New York, and Nevada.

I offer hypotheses for this convergence that are based on (1) lock-in effects of the choice of state of incorporation and (2) positive network effects of using the same law. I present suggestive evidence that lock-in effects explain convergence toward Delaware and Nevada, while network effects explain convergence toward New York.

Number of Pages in PDF File: 46

Keywords: Choice of law, contract, transactional law

Disponível em: <http://ssrn.com/abstract=2325706>. Acesso em 1 dez. 2013.

sexta-feira, 6 de dezembro de 2013

Legal Research: Restatements: An Influential Secondary Source

Brigham Young University - J. Reuben Clark Law School

November 7, 2013

Student Lawyer, Vol. 42, No. 2, pp. 19-20, October 2013 

Abstract:
Written for the ABA's Student Lawyer magazine, this column examines Restatements and their value to legal researchers. A product of an enormous amount of time, effort, and expertise, Restatements can be highly influential in the courts. Legal researchers should be familiar with Restatements and what they offer. This column examines the basics of Restatements, including some of the difficulties in researching them on WestlawNext and Lexis Advance.

Number of Pages in PDF File: 3

Disponível em: <http://ssrn.com/abstract=2351383>. Acesso em 28 nov. 2013.

quinta-feira, 5 de dezembro de 2013

Blog post: German Federal Court of Justice refers question on lis-pendens-rule to ECJ

By Jonas Steinle, LL.M.


Jonas Steinle is a doctoral student at the chair of Prof. Dr. Matthias Weller, Mag.rer.publ. at the EBS University for Economics and Law in Wiesbaden and a scholarship holder at the Max Planck Institute for Intellectual Property and Competition Law in Munich.


On 18 September 2013 the German Federal Court of Justice (Bundesgerichtshof) referred the question for a preliminary ruling to the European Court of Justice (V ZB 163/12) as to whether the lis pendens-rule in Art. 27 para. 1 Brussels I Regulation does apply even if the court second seised has exclusive jurisdiction under Art. 22 of the Brussels I Regulation.


The facts:


The claimant seeks to enforce a land charge (Grundschuld) against the defendant’s real estate, which is located in Hamburg. He therefore brought an action in the regional court (Landgericht) of Hamburg. However, before this claim in Hamburg was launched, the defendant had already brought proceedings against the claimant in a court in Milan, seeking a negative declaratory relief that the land charge is invalid and that it therefore must not be enforced. As a result of this, two proceedings were pending simultaneously in Hamburg and in Milan.

The landlord and defendant in the Hamburg-based proceedings accordingly argued that the court in Hamburg must stay its proceedings according to Art. 27 para. 1 Brussels I Regulation until the court in Milan (which had been seised first) has ruled on its own jurisdiction. This application for suspension was rejected in all instances and finally was referred for final appeal (Rechtsbeschwerde) to the Federal Court of Justice.

The Federal Court of Justice takes the view that the regional court in Hamburg has exclusive jurisdiction under Art. 22 Brussels I Regulation to hear the case. However, as the regional court in Hamburg had been seised second, the Federal Court had doubts as to whether the regional court in Hamburg must stay its proceedings under Art. 27 para. 1 Brussels I Regulation even if it has exclusive jurisdiction under Art. 22 Brussels I Regulation.


Comments:


The manoeuvre which was performed by the defendant in this case is not new at all. The defendant launched what is called in international procedural law an ‘Italian torpedo’. However, the circumstances in which this torpedo was used are new and therefore have set a precedent.

The ‘Italian torpedo’ is a litigation tactic whereby the presumptive defendant of a claim anticipates the proceedings against him by bringing an action against the presumptive claimant on his part. Such claim usually consists of an application for a negative declaratory relief in a jurisdiction other than the one where the presumptive defendant is going to be sued. The objective in doing so is simply to delay the proceedings in the venue where the proceedings in the end will take place, since the court at that place which has been seised second must stay its proceedings according to Art. 27 para. 1 Brussels I Regulation until the court first seised has ruled on its jurisdiction. Usually, the courts in the jurisdiction where the Torpedo-claim is brought are known for being somewhat slow on the draw.

In the case at hand, there was hardly any connection to the courts of Italy. The enforcement of the land charge is a purely domestic claim under German law and the reason why the negative declaratory relief was sought in the courts of Italy in particular seems more like a flimsy excuse than a real substantiation of that claim. Accordingly, the appeal court (Beschwerdegericht) in Hamburg rejected to stay the proceedings because it alleged that the defendant in the Hamburg-based proceedings hat brought a vexatious claim in the courts of Milan, solely to delay the proceedings in Hamburg. The situation at hand can therefore very well be classified as an example of an ‘Italian torpedo’-claim.

In the past, the tactic of the ‘Italian torpedo’ often was used to thwart a jurisdiction agreement according to Art. 23 Brussels I Regulation. This was due to the Gasser case (C-116/02) in which the ECJ had ruled that even where the court second seised had exclusive jurisdiction according to a jurisdiction agreement, it must nevertheless stay the proceedings until the court first seised has decided on its jurisdiction. This ruling had opened up a debate about the lis-pendens-rule which finally induced the European legislator to introduce an exception to the lis-pendens-rule for jurisdiction agreements under Art. 31 para. 2 of the revised version of the Brussels I Regulation (Regulation (EU) No 1215/2012) which for the most part comes into force on 10 January 2015. The revision of the Brussels I Regulation will finally bring an end to the ‘Italian torpedo’ in connection with jurisdiction agreements.

The case at hand shows however, that the story of the ‘Italian-torpedo’ is not yet finished. Although this case is based on the same tactical considerations, the context is a slightly different one. It addresses an issue that had been left open by the ECJ in previous cases (C-351/89 – Overseas Union Insurance, para. 20 et seqq.; C-116/02 – Gasser, para. 44 et seqq.) and which has been subject to a controversial debate in legal literature (e.g. Weller in Hess/Pfeiffer/Schlosser, The Brussels I-Regulation (EC) No 44/2001, para. 403; see also the sources in para. 18 of the reference of the Federal Court of Justice).

It is conceivable that the ECJ will give precedence to the lis-pendens-rule yet another time and adopt the formal approach that it has been taking since the Gasser-case. The wording of Art. 27 para. 1 Brussels I Regulation does not provide for an exception in cases where the court second seised has exclusive jurisdiction under Art. 22 Brussel I Regulation.

The key consideration that justifies the very formal approach towards situations of lis pendens by the Brussels I Regulation is to avoid the risk of irreconcilable judgments in the European judicial area. Since decisions from other Member States are recognized and enforced on a regular basis under the Brussels I Regulation, the situation of irreconcilable judgments must by any means be prevented by hindering parallel proceedings from the scratch.

However, in the case at hand there appears to be one crucial difference to this argument and that is Art. 35 para. 1 Brussels I Regulation. According to Art. 35 para. 1 Brussels I Regulation a decision must not be recognised if it conflicts with Art. 22 Brussels I Regulation which is exactly the case in the proceedings at hand. If the ECJ is going to give precedence yet another time to the lis-pendens-rule, the Court cannot rely anymore on its argument that the lis-pendens-rule must prevail for the sake of hindering the issuance and recognition of conflicting decisions.

In fact, for the situation in the present case, the court in Milan is obliged to decline jurisdiction according to Art. 25 Brussels I Regulation if the Federal Court of Justice is right in holding that its requirements are fulfilled and the court in Hamburg therefore is competent to hear the case under Art. 22 Brussels I Regulation. One can however see in the case at hand that courts sometimes do not immediately use the tool provided in Art. 25 Brussels I Regulation (also the court of first instance in Milan did not use it) and that one possibly can litigate on whether the requirements of Art. 25 Brussels I Regulation are fulfilled. This does not make things easier for the present case and it is to be awaited how the European Court of Justice will decide on the issue. Eventually a decision can be expected in the near future since the higher regional court (Oberlandesgericht) München had already referred exactly the same question to the ECJ already in February 2012 (OLG München, 16 February 2012 – 21 W 1098/11).

quarta-feira, 4 de dezembro de 2013

Article: Peter Birks and Comparative Law

McGill University - Faculty of Law - Paul-André Crépeau Centre for Private and Comparative Law; Dickson Poon School of Law

October 3, 2011

Forthcoming, (2014) Revue de droit de l’Université de Sherbrooke 

Abstract:

This paper was presented to the 50th Anniversary Conference of the Quebec Association of Comparative Law at the Faculté de droit, Université de Sherbrooke, in October 2011, within the conference theme “The jurists who have shaped comparative law: their dreams, works, successes and failures.” It studies aspects of the thought of Peter Birks in relation to comparative law, Roman law, legal scholarship and legal education. Birks valued comparative law, and thought that it could be more thoroughly integrated into research and teaching in law. About Roman law, however, he was passionate. He viewed it as a fascinating object of study and reflection, and as an essential part of undergraduate legal education. He deprecated the decline of Roman law as part of the law school curriculum. In this paper, I suggest that one reaction to the decline of Roman law in legal education could be a more comprehensive embrace of comparative law. If comparative law were integrated carefully into the curriculum, it could bring to students all of the benefits that Birks found in the study of Roman law.

Number of Pages in PDF File: 10

Keywords: comparative law, roman law, legal education

Disponível em: <http://ssrn.com/abstract=2349286>. Acesso em 19 nov. 2013.

terça-feira, 3 de dezembro de 2013

Article: Goodbye Christopher Columbus Langdell?

University of Denver Sturm College of Law

November 4, 2013


Abstract: 

The call of this Article was to take "A Prospective Look" at Environmental and Natural Resources Law for the next 40 years with a special focus on law school teaching. Daunted by the hubris involved in prognosticating so far into the future, this piece more modestly explores three areas in which law school teaching is currently changing: I. Methods of Presentation; II. Use of Skills Exercises; and III. Influence of Digital Technologies and the Internet. To add an empirical component, the author canvassed AALS members about pedagogies they used both in class and outside of classroom time, as well as teaching tools they have employed, ranging from traditional exams or writing assessments to electronic devices, online teaching tools, and social networking. The Article summarizes the results of the survey as well as relevant research on effective teaching to provide glimpses into the law school classroom of the future.

Number of Pages in PDF File: 12

Dispopnível em: <http://ssrn.com/abstract=2349754>. Acesso em 19 nov. 2013.

segunda-feira, 2 de dezembro de 2013

Report: Climate Change and the International Court of Justice

Yale University - Law School

August 14, 2013


Abstract: 

This Report focuses on the international campaign, initiated by the Republic of Palau, to secure an advisory legal opinion from the International Court of Justice (ICJ) on climate change. Palau, with a growing coalition of nations, requests that the United Nations General Assembly seek an ICJ opinion on the question of state responsibility for transboundary harm caused by greenhouse gas emissions. The urgency of climate change, coupled with widespread frustration at the lack of binding international commitments secured through the United Nations Framework Convention on Climate Change process, inspired the multistate coalition.

The Report is the product of a course taught in Fall 2012 at Yale Law School in New Haven, Connecticut, by Ambassador Stuart Beck of the Permanent Mission of Palau to the United Nations; Aaron Korman, Palau’s Legal Adviser; and Douglas Kysar, Joseph M. Field '55 Professor of Law at Yale Law School. Eighteen graduate students enrolled at Yale Law School, the Yale School of Forestry and Environmental Studies, and Yale University contributed to the final Report, which was compiled and edited by Halley Epstein, Yale Law School '14. The Report aims to outline the legal, political, and scientific justifications for the coalition’s request and why the ICJ should issue an opinion on the matter.

Part I, The Brief, presents the advocacy components of a request for an advisory opinion from the ICJ. Drawing from Intergovernmental Panel on Climate Change reports and other sources, the Brief outlines the scientific evidence of climate change and its transboundary effects, with attention to the effects of a warming world on some of the most vulnerable nations — Palau included. After explaining how to frame the legal question presented to the ICJ, the Brief evaluates the proposed question in the context of prior ICJ advisory opinion requests and responses. Finally, the most authoritative sources of law are analyzed for their value as advocacy tools in this process.

Part II, Background, offers an array of contextual and supporting materials. It introduces the Justices serving on the ICJ and provides insight into their international law experience, prior judicial decisions, and scholarship that might inform their approach to the climate change responsibility question. Next, the Report traces the principle of transboundary harm generally, in U.S. and European courts and across international agreements and conventions. Its analysis suggests that legal authorities support the application of the well-established principle of transboundary harm to the climate change context. The final Background section focuses on policy arguments likely to be persuasive to one of the campaign’s most strident opponents as a way of illustrating why all nations would stand to benefit from application of the rule of law to the climate change context.

Number of Pages in PDF File: 103

Disponível em: <http://ssrn.com/abstract=2309943>. Acesso em 19 nov. 2013.

sexta-feira, 29 de novembro de 2013

Blog post: ECJ Defines Concept of International Character of Consumer Contracts

by GILLES CUNIBERTI on NOVEMBER 18, 2013



On 14 November 2013, the Court of Justice of the European Union delivered its judgment in  Armin Maletic and Marianne Maletic v lastminute.com GmbH and TUI Österreich GmbH.

The issue for the Court was whether the Brussels I Regulation applied to a consumer contract concluded with a professional based in the same jurisdiction as the consumer.

On 30 December 2011, two Austrian consumers, the Maletics, booked and paid for themselves, as private individuals, a package holiday to Egypt on the website of lastminute.com for EUR 1 858 from 10 to 24 January 2012. On its website, lastminute.com, a company whose registered office is in Munich (Germany), stated that it acted as the travel agent and that the trip would be operated by TUI, which has its registered office in Vienna (Austria).

The booking concerned the Jaz Makadi Golf & Spa hotel in Hurghada (Egypt). That booking was confirmed by lastminute.com, which passed it on to TUI. Subsequently, the Maletics received a ‘confirmation/invoice’ of 5 January 2012 from TUI which, while it confirmed the information concerning the trip booked with lastminute.com, mentioned the name of another hotel, the Jaz Makadi Star Resort Spa in Hurghada. It was only on their arrival in Hurghada that the applicants in the main proceedings noticed the mistake concerning the hotel and paid a surcharge of EUR 1 036 to be able to stay in the hotel initially booked on lastminute.com’s website.

On 13 April 2012, in order to recover the surcharge paid and to be compensated for the inconvenience which affected their holiday, the applicants in the main proceedings brought an action before an Austrian Court seeking payment from lastminute.com and TUI, jointly and severally of the sum of EUR 1 201.38 together with interest and costs.

The Austrian court retained jurisdiction over Lastminute on the ground of Article 15 of the Brussels Regulation, but declined it with respect to the Austrian party, ruling that the Regulation did not apply to a domestic dispute, and that another Austrian court had jurisdiction pursuant to Austrian civil procedure.

The CJEU held that the dispute was international in character.

28 If, as stated in paragraph 26 of this judgment, the international character of the legal relationship at issue need not necessarily derive from the involvement, either because of the subject-matter of the proceedings or the respective domiciles of the parties, of a number of Contracting States, it must be held, as the Commission and the Portuguese Government have argued, that Regulation No 44/2001 is applicable a fortiori in the circumstances of the case at issue in the main proceedings, since the international element is present not only as regards lastminute.com, which is not disputed, but also as regards TUI.

29 Even assuming that a single transaction, such as the one which led the Maletics to book and pay for their package holiday on lastminute.com’s website, may be divided into two separate contractual relationships, first, with the online travel agency lastminute.com and, second, with the travel operator TUI, the second contractual relationship cannot be classified as ‘purely’ domestic since it was inseparably linked to the first contractual relationship which was made through the travel agency situated in another Member State.

30 Furthermore, account must be taken of the objectives set out in recitals 13 and 15 in the preamble to Regulation No 44/2001 concerning the protection of the consumer as ‘the weaker party’ to the contract and the aim to ‘minimise the possibility of concurrent proceedings … to ensure that irreconcilable judgments will not be given in two Member States’.

31 Those objectives preclude a solution which allows the Maletics to pursue parallel proceedings in Bludenz and Vienna, by way of connected actions against two operators involved in the booking and the arrangements for the package holiday at issue in the main proceedings.

Ruling:

The concept of ‘other party to the contract’ laid down in Article 16(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning, in circumstances such as those at issue in the main proceedings, that it also covers the contracting partner of the operator with which the consumer concluded that contract and which has its registered office in the Member State in which the consumer is domiciled.


quinta-feira, 28 de novembro de 2013

Press release: ECJ Rules on Effect of Icelandic Legislative Moratorium on Payments in France

by GILLES CUNIBERTI on NOVEMBER 14, 2013

On 24 October 2013, the Court of Justice of the European Union delivered its judgment in LBI hf, formerly Landsbanki Islands hf v Kepler Capital Markets SA and Frédéric Giraux (case C-85/12).

The Court issued the following press release:

The moratorium on payments granted to the bank LBI by the Icelandic authorities produces in France the effects which the Icelandic legislation confers on it

The directive on the reorganisation and winding up of credit institutions does not preclude that the effects of that moratorium retroactively cover interim protective measures in France

The directive on the reorganisation and winding up of credit institutions provides that, in the event of insolvency of a credit institution that has branches in other Member States, the reorganisation measures and the winding-up proceedings are part of a single insolvency procedure in the Member State where the institution has its registered office (known as the home Member State). Therefore, in principle, such measures are subject to a single law on insolvency and they are applied according to the law of the home Member State and are effective in accordance with that law throughout the EU, without any further formalities. For that purpose, States party to the Agreement on the European Economic Area, like Iceland, are treated in the same way as Member States of the EU.

In the context of the collapse of the financial system in Iceland following the international financial crisis in 2008, the Icelandic legislature adopted a series of reorganisation measures for various financial institutions established in that country. In particular, a Law of 13 November 2008, first, prohibited proceedings from being brought against financial institutions under a moratorium on payments and, second, ordered the suspension of proceedings pending. By a Law of 15 April 2009, the Icelandic legislature placed financial institutions under a moratorium subject to transitional rules seeking to apply a specific winding-up scheme to their situation, without them being actually wound-up before the expiry of that moratorium.

LBI hf (formerly Landsbanki Islands hf) is an Icelandic credit institution to which a moratorium on payments was granted on 5 December 2008 by the District Court, Reykjavik. Shortly beforehand, on 10 November 2008, LBI was the subject of two attachment orders in France at the request of a creditor residing in that Member State. LBI contested those two attachments orders before the French courts and claimed that the directive made the reorganisation measures adopted in Iceland directly enforceable against its French creditor. In addition, the District Court, Reykjavik declared, on 22 November 2010, the opening of winding-up proceedings against LBI.

Against that background, the Cour de cassation (Court of cassation) (France), which considered that case at last instance, referred to the Court of Justice the question whether the reorganisation or winding-up measures resulting from the transitional rules in the Law of 15 April 2009 are also covered by the directive, the aim of which is the mutual recognition of reorganisation measures and of winding-up proceedings taken by the administrative and judicial authorities. Moreover, the French court seeks to ascertain whether the directive precludes the retroactive application of the effects of a moratorium on interim protective measures adopted in another Member State before it was declared.

In today’s judgment, the Court notes, first, that the administrative and judicial authorities of the home Member State are alone empowered to decide on the implementation of reorganisation measures for a credit institution and on the opening of winding-up proceedings against it. Accordingly, only the measures decided by those authorities are the subject, under the directive, of recognition in the other Member States, with the effects which the law of the home Member State confers on them.

However, the legislation of the home Member State relating to the reorganisation and winding-up of credit institutions can, in principle, take effect in the other Member States only through specific measures taken by the administrative and judicial authorities of that Member State against a credit institution.

In today’s judgment, the Court notes, first, that the administrative and judicial authorities of the home Member State are alone empowered to decide on the implementation of reorganisation measures for a credit institution and on the opening of winding-up proceedings against it. Accordingly, only the measures decided by those authorities are the subject, under the directive, of recognition in the other Member States, with the effects which the law of the home Member State confers on them.

However, the legislation of the home Member State relating to the reorganisation and winding-up of credit institutions can, in principle, take effect in the other Member States only through specific measures taken by the administrative and judicial authorities of that Member State against a credit institution.

As regards the transitional rules of the Law of 15 April 2009, the Court states that, by adopting those rules, the Icelandic legislature did not order, as such, the winding-up of the credit institutions placed under a moratorium, but conferred certain effects linked to winding-up proceedings on the moratoria which were in force on a specific date. Likewise, it follows from those transitional provisions that, unless a judicial decision has granted or extended a moratorium for the benefit of a credit institution before that date, they cannot produce any effects. Accordingly, those rules take effect not directly but through a reorganisation measure granted by a judicial authority for a credit institution. Therefore the moratorium granted to LBI is capable of producing, under the directive, the effects which the Icelandic legislation confers on it in the EU Member States.

As regards the question whether the transitional rules must be able to form the subject of an action in order to take effect in the EU Member States, the Court notes that the directive establishes a system of mutual recognition of national reorganisation and winding-up measures, without seeking to harmonise national legislation on that subject. It points out that the directive does not make the recognition of reorganisation and winding-up measures subject to a condition that it be possible to bring an action against them. Similarly, the law of a Member State may not make that recognition subject to a condition of that type for which its national rules may provide.

Next, as regards the question whether the directive precludes the retroactive application of the effects of a moratorium on interim protective measures adopted in another Member State, the Court observes that the effects of reorganisation measures and winding-up proceedings are, in principle, governed by the law of the home Member State. That general rule does not, however, apply to ‘lawsuits pending’ which are governed by the law of the Member State in which the lawsuit is pending. As regards the scope of that exception, the Court states that the words ‘lawsuits pending’ cover only proceedings on the substance and that individual enforcement actions arising from those lawsuits remain subject to the legislation of the home Member State. In that respect, the Court states that the interim protective measures taken in Franceconstitute individual enforcement actions and, therefore, the effects of the moratorium granted to LBI in Iceland on those interim protective measures are governed by Icelandic law.

Moreover, the fact that those measures were adopted before the moratorium at issue in the main proceedings had been granted to LBI cannot invalidate that conclusion as it is Icelandic law which also governs, under the directive, its temporal effects. The directive does not prevent a reorganisation measure, such as the moratorium, from having retroactive effect.

quarta-feira, 27 de novembro de 2013

Article: Trips and Development


Daniel J. Gervais 

Vanderbilt University - Law School

August 21, 2013

Vanderbilt Public Law Research Paper No. 13-46 

Abstract:
This brief chapter in the (forthcoming) SAGE Handbook of Intellectual Property examines available data and analyses concerning the impact of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) on development. The chapter considers distinctions among types of countries and industries, and the role of the World Intellectual Property Organization (WIPO).

Number of Pages in PDF File: 31

Disponível em: <http://ssrn.com/abstract=2313836>. Acesso em 16 nov. 2013.

terça-feira, 26 de novembro de 2013

Article: Duty in the Litigation Investment Agreement: The Choice between Tort and Contract Norms When the Deal Breaks Down

Anthony J. Sebok 

Yeshiva University - Benjamin N. Cardozo School of Law

W. Bradley Wendel 


Cornell University - School of Law 

November 4, 2013

Vanderbilt Law Review, Forthcoming 

Abstract:

Litigation investment, which is also known as “litigation finance” or “third party litigation finance,” has grown in importance in many common law and civilian legal systems and has come to the United States as well. While many questions remain about both legality and social desirability of litigation finance, this paper starts with the assumption that the practice will become widespread in the US and explores the obligations of the parties to the litigation finance contract.

The first part of the article uses an example to illustrate the risks imposed by one of the other party on the other which should inform the formation and enforcement of the litigation investment contract. The risks are: (1) Information Asymmetry; (2) Shirking; (3) Control; and (4) Opportunities Forgone. As we explain in the article, it is not obvious that careful contract drafting can do anything other than minimize these risks. Since their elimination is impossible (or at least prohibitively costly), the question the article turns to is how should disputes over the realization of any of these risks be handled by the courts?

The article canvasses a range of legal responses, including tort, contract, and regulation, and focuses on the tort and contract regimes as resources for legal doctrine to provide guidance to lawyers and judges. We review the history of tort liability in pure economic loss cases involving the performance of contracts, and focus in first and third party insurance “bad faith” doctrines as the most promising analog. We conclude that, despite some superficial similarities, the relationship between a claim owner and an investor in a legal claim are sufficiently different from that of an insurer and an insured such that tort law should not be followed in the case of litigation finance disputes.

Finally, we review the possibility of using contract law to resolve disputes between funders and claim owners. The key challenge to anyone who defends the adequacy of contract law is to properly define the nature of the contract, since different kinds of contracts yield different obligations and different remedies. We argue that litigation investment contracts are ‘relational contracts’ since they possess certain features that are a hallmark of this legal family, such as a concern to allow for the renegotiation of terms in order preserve the contract as an ongoing relationship. With this in mind, we conclude by drawing upon the relational contract literature to sketch out broad contract law principles to apply to disputes over the performance of litigation investment contracts and the remedies that courts should order in the event that a contract breach is found.


Number of Pages in PDF File: 58

Disponível em: <http://ssrn.com/abstract=2344914>. Acesso em 16 nov. 2013.


segunda-feira, 25 de novembro de 2013

Blog "Beyond the Hague" - Direito Penal Internacional

Estou acrescentando Beyond the Hague à lista de blogs para pesquisa.

Os posts nele publicados tratam de Direito penal Internacional.

Sobre si, dizem os autores:

"Beyond The Hague is written by a team of lawyers and researchers who were previously working in The Hague but are now off living and working in various other corners of the international justice field. All views expressed here are, of course, only those of the individual author."

Disponível em: <http://beyondthehague.com/>. Acesso em 14 nov. 2013.

sexta-feira, 22 de novembro de 2013

Blog post: From Justice Delayed to Justice Denied: Katyń in Strasbourg (From Justice in Conflict)

Posted on October 31, 2013, by Mark Kersten


In April 1940, the Soviet secret police initiated a secret massacre of some 20,000 Polish officials and officers. The struggle to establish the truth of what happened in the Katyń forests came to dominate much of contemporary Polish political life and played a leading role in the struggle to wrench the country free from the shackles of communism. JiC is thrilled to welcome Maria Radziejowska for this  guest-post on the recent ruling at the European Court of Human Rights on whether Russia has sufficiently investigated the Katyń massacre. Maria is currently working for the Polish Institute of International Affairs in Warsaw where she conducts research and analysis focusing on international security and justice issues. She also blogs at Beyond the Hague

Katyn monument in Jersey City (Photo Mark Grabowski)
The Katyń massacre took place between April and May 1940 when 20,000 thousand Polish officers and officials were executed by NKVD, the Soviet special police. After decades of denial, Russia publicly acknowledged Soviet responsibility for the massacre in 1990. But the entire truth about what happened in the forests of Katyń has remained out of reach. Many believe Russia has not done enough in coming clean about the massacre.

Last week, the Grand Chamber of the ECHR delivered its final decision in Janowiec et al. v. Russia (other comment here). The case before the ECHR concerned the quality of investigations conducted by Russian authorities into the Katyń massacre. These started in 1990 and ceased in 2004, following the decision of the Russian authorities to re-classify as “top-secret” 36 volumes of files and to discontinue the investigation. The applicants before the Court argued that Russian authorities breached their rights by failing to carry out an effective investigation into the death of their relatives and displayed a dismissive attitude towards the applicants’ requests for information about their relatives’ fate.

The final outcome of the case has turned out to be a bitter disappointment for the victims’ families and the human rights community, especially in light of the first instance decision partly granting the applicants’ claim pertaining to the way they were treated by Russian authorities. Many observers reacted to the Court’s decision with disappointment. So too did the dissenting judges who proclaimed that this decision turned a “long history of justice delayed into a permanent case of justice denied.”
The Grand Chamber confirmed that the Court has no temporal authority to examine the efficiency of the investigations carried out by the Russian authorities into the massacre. The majority considered that in certain circumstances, a state-party may be obliged under the Convention to investigate unlawful or suspicious deaths, even if such occurred before the state in question was bound by the Convention (Šilih v. Slovenia which I recently discussed in more detail here). However, not without limits. The Grand Chamber clarified that the time lapse between the crime and the entry into force of the Convention for the obliged state must not exceed ten years (!). Moreover, the major part of the investigation must be carried out after the Convention became binding for the state (paras 140-151). To this end the applicants pointed out that the Court should have given due consideration to the “Ukrainian list” pertaining to 3,435 victims, discovered and conveyed to the Russian investigation authorities in 2004, or to the very decision to classify parts of the files (para. 113, statement by victims’ representative, Ireneusz C. Kamiński in Polish). Nevertheless, the majority upheld the previous finding that the most crucial part of the investigations into the Katyń massacre took place before Russia ratified the Convention in 1998 (para. 159).


To the dismay of those who had hoped to invoke the “humanitarian clause” to seek justice for grave human rights breaches of the past, the verdict is clear. Even when the crime in question is so grave that it negates the very foundations of the Convention, the Court is not competent to examine state parties’ obligation to investigate war crimes and crimes against humanity that predated the adoption of the Convention (4 November 1950) (para. 151). The multitude of arguments one could make for or against this finding is displayed in the majority judgment, the dissenting opinions as well as in the third party submissions (i.e. Open Society Justice Initiative or Amnesty International). The arguments raised elaborate on the content and interpretation of the non-retroactivity of treaties, the non-applicability of statute of limitations to war crimes, the values and the intended purpose of the Convention, the customary law status of the crimes in question. All that being said, it seems that the Court has chosen to definitively close the door to victims of gross human rights violations that occurred prior to the Convention.

The brutally ironic result is that following the applicants’ decision to appeal, the Grand Chamber negated the first instance finding that the manner in which the applicant’s enquiries were dealt with by the Russian authorities “has attained the minimum level of severity to be considered inhuman treatment within the meaning of Article 3 of the Convention”. In view of the Grand Chamber this would be justified only if the fate of the applicants’ relatives was uncertain. However, their death was publicly acknowledged in 1990 and has become an established historical fact by 1998 (para. 186).

To assess the level of one’s suffering in order to see whether it falls under certain legal qualification, is surely a difficult task. The same holds for assessing whether some procedural steps or developments constitute a “major part of an investigation” or not. On the other hand, it is important to point to the historical conditions to which the Grand Chamber should have given greater attention in its considerations. Indeed, when Russia ratified the Convention in 1998, the applicants knew that their relatives, who had been missing for 58 years, were killed by the NKVD pursuant to Stalin’s order. However, the applicants’ first serious attempts to gain more detailed information about their fate were made after years of living a politically orchestrated lie, years of knowing that any efforts to establish the truth would be refused but very likely punished. After the investigations were instigated in 1990 by the Soviet and then Russian authorities, corpses were excavated in Kharkov, Mednoye (Tver), Katyń. Evidence was collected and some witnesses were interviewed. The applicants were finally given an opportunity to learn what actually had happened to their grandfathers, fathers, brothers or husbands. Yet, they were confronted with an uncooperative attitude, lack of transparency, classified decisions, confusing legal qualifications, misinformation and refusals to recognize the applicants as injured parties.
Katyn Memorial (Photo: Mike Church)
Katyń plays a significant role not only for the relatives of the victims but also more generally in Poland’s contemporary historical identity. It remains an unsettled part of the past, although, one may now speak about and discuss it freely. Not all of the relatives of the victims demand investigations, but continuous lack of open reckoning persists. Katyń also continues to haunt the rather chilly Polish – Russian relations. Could this judgement be an opportunity to warm them up?
According to the Russian authorities, the investigations conducted into the Katyń massacre were in fact conducted “in breach of the [Russian] criminal procedure requirement, for political reasons, as a goodwill gesture to the Polish authorities” (para. 109). So why cease them? This is the question that Poles – and not just the applicants in the case –ask themselves. Given that states bear the primary responsibility for investigating and prosecuting war crimes; given the non-applicability of statute of limitations to war crimes; given, that at this juncture the main purpose of the proceedings in question would be simply to establish the truth and to legally rehabilitate victims of the massacre; given all of this, why not continue this “goodwill gesture”? In a way, this judgement burns the bridge between the past and present, thus allowing the state not to confront its less glorious part of the Stalinist past. However, the verdict does not actually bar the Russian authorities from taking further steps, even if not based on the obligation anchored by the Convention.
Radek Sikorski, the Polish minister of Foreign Affairs has declared (here in Polish) that regardless of the verdict Poland will continue to request the Russian authorities to conduct legal rehabilitation of victims of the Katyń massacre and to handover the relevant investigation files. Perhaps the case is lost before the Court, but it has not yet been dropped.


Disponível em: <http://justiceinconflict.org/2013/10/31/from-justice-delayed-to-justice-denied-katyn-in-strasbourg/>. Acesso em 14 nov. 2013.