A PUBLICATION OF THE LACBA INTERNATIONAL LAW SECTION

●  Volume 1, Number 6 ●  LACBA E-Publication ●  August 2010 ● Newsletter Archive

 


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Inside This Issue:

ARTICLES

INTERNATIONAL LAW SECTION CALENDAR OF UPCOMING EVENTS

•  LACBA International Law Section’s Executive Committee monthly meetings take place the second Wednesday of every month, alternating between LACBA offices downtown and Fox Rothschild in Century City. The next scheduled Executive Committee meeting will take place after the summer hiatus on September 8, 2010, 6:00 p.m. at LACBA, 1055 W. 7th Street, Suite #2700, Los Angeles. All are welcome!

•  The International Association of Young Lawyers (AIJA) will hold its 48th Annual Congress in Charleston, South Carolina on August 24-28, 2010.

•  The International Bar Association’s 4th Biennial IBA Conference on Construction Projects from Conception to Completion will take place in Brussels, Belgium on September 17-18, 2010. Its annual conference will be held in Vancouver, Canada on October 3-8, 2010.

•  The International Association of Business Communication has its 2010 Corporate Communication and Social Media Summit in New York, New York on October 8, 2010.

•  The Institute on Entertainment Law and Business will be offering various workshops on October 23, 2010 from 7:30 a.m.-5:00 p.m. This institute offers insider analysis and practical strategies for working in the entertainment industry. CLE credits available. See http://lawweb.usc.edu/events/ for more details.


INTERNATIONAL LEGAL UPDATES

•   Applied Medical Distribution Corporation v. The Surgical Company BV (9th Cir. 2009) 09-55155.  Plaintiff distribution company (DC) appealed the U.S. District Court for the Central District of California's judgment denying injunctive relief (an anti-suit injunction) against defendant, its European distributor (ED), that would have prevented the ED from pursuing its suit in Belgium for statutory termination damages for termination of the parties' distribution agreement (DA), allegedly available under the 1961 Belgian Distributor Act. The appellate court ruled that: findings that the California choice-of-law clause and forum selection clause (FSC) were valid were not appealed, but the wrong standard was applied by requiring that the claims in two actions be "identical." The correct inquiry was dispositiveness. The present action was dispositive because all the Belgian claims arose out of the DA, and were subject to the FSC. The issues were functionally the same. The Belgian action sought damages for (1) indemnity in lieu of notice, (2) goodwill indemnity, (3) costs and other indemnities, and (4) repurchase of stock, which only occurred due to termination and precluded by the DA. It was only due to termination that the ED sought goodwill indemnity damages. Despite the ED's tangential claim that a Belgian court was required to disregard the limitation-on-liability provision, the binding contract providing for California law and a California forum controlled in the first instance. The ED did not argue that Belgium's interest in protecting its distributors through Belgium law could not be vindicated by applying Belgian law where appropriate; comity would not be impacted by an anti-suit injunction. The appellate court reversed the denial of the anti-suit injunction and remanded the case for the district court to enter an anti-suit injunction. (Cited from Lexis-Nexis.)


•  Embassy of the Arab Republic of Egypt, et al. v. Mohamed E. Lasheen, et al. (9th Cir. 2010) 08-15486
.  The Arab Republic of Egypt, the Embassy of the Arab Republic of Egypt, and the Embassy of Egypt Cultural and Educational Bureau sought reversal of the U.S. District Court for the Eastern District of California's judgment denying their claim of immunity under the Foreign Sovereign Immunities Act, 28 U.S.C.S. §§1602-1611, from claims brought by appellees, company, and the estate of an Egyptian national. The district court found that it possessed subject matter jurisdiction over the Arab Republic of Egypt, the Embassy of the Arab Republic of Egypt, and the Embassy of Egypt Cultural and Educational Bureau (Egyptian defendants) under both the commercial activities exception and the waiver exception to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.S. §§1602-1611. The appellate court found that by contracting with a company to manage a health benefits plan and agreeing to indemnify that company, the Egyptian defendants did not act with the powers peculiar to a sovereign but instead acted as private players in the market. Further, the fact that the company and the Embassy of Egypt Cultural and Educational Bureau were physically located in the United States led to the conclusion that Egypt's commercial activities had substantial contact with the United States. 28 U.S.C.S. §1603. Therefore, because the company's claims arose out of the Egyptian defendants' commercial activities within the United States, the Egyptian defendants were not immune from the jurisdiction of the courts of the United States under the commercial activities exception to the FSIA, 28 U.S.C.S. §1605.The appellate court affirmed the district court's determination that the Foreign Sovereign Immunities Act (FSIA) did not deprive the federal courts of subject matter jurisdiction over the company's claims against the Egyptian defendants, reversed the determination that the issue of whether the FSIA immunized the Egyptian defendants against the estate's claims was not before it, and remanded it to make that determination in the first instance. (Cited from Lexis-Nexis.)

  EU Court Rules on Payment Standards for Pregnant Workers.  The European Court of Justice (ECJ) recently ruled in two judgments that under EU law a pregnant worker temporarily transferred or granted leave on account of her pregnancy is entitled to pay equivalent to the average earnings she received before her pregnancy. The ECJ also called for improvements at the workplace for the safety and health of pregnant workers and workers who have recently given birth or are breastfeeding. The suits were filed by Austrian doctor Susanne Gassmayr and Finnish airline flight attendant Sanna Maria Parviainen, who both suffered losses at work after becoming pregnant. Gassamayr lost on-call duty allowances, and Parviainen lost allowances after being transferred to ground staff. The ECJ's ruling is binding on all EU member nations. (Cited from article available at http://jurist.law.pitt.edu/paperchase.)

•  Israel’s Committee on Compensation and Royalties Issues Decision Regarding Employee's Right to Royalties in a “Service Invention.”  On February 3, 2010, an important ruling was rendered affecting the employee-employer relationship with respect to patents in which the employees are inventors. The committee deliberated on the issue whether an employee may waive his right to remuneration for a “service invention,” or was such right an inherent right that can not be waived, as it is part of the protective labor laws. The committee established that an employee's waiver of his right to royalties must be explicitly agreed on. Furthermore, the committee established that since the employment agreement in the case before it did not specifically refer to service inventions, it could not be construed as a waiver of the employee's right to royalties. The Committee also rejected the second argument raised by the employer and determined that to establish the right to remuneration there is no need for actual exploitation of the service invention, and the potential for exploitation is sufficient. (See article by Miriam Hackmey and Kobie Refaeli at http://www.imakenews.com/iln/e_article001734073.cfm?x=b11,0,w .)


•  U.N. Security Council Passes Fourth Round of Iran Sanctions.  On June 9, 2010, the U.N. Security Council passed by a vote of 12-2 a fourth round of sanctions against Iran in response to that country’s nuclear enrichment program. Lebanon abstained from the vote, and Brazil and Turkey voted against the measure. The resolution follows weeks of negotiations among permanent members of the U.N. Security Council concerning the details of the [Iran Briefing] sanctions. The new sanctions target Iran’s defense and financial industries. The provisions prohibit Iran from buying heavy weapons such as attack helicopters and missiles and bar Iran from participating in nuclear proliferation activities. Language in the resolution reinforces an earlier measure calling for member states to authorize their naval and coast guard forces to board ships on the high seas in search of contraband items headed to or from Iran. The sanctions also toughen rules on financial transactions with Iranian banks, and increase the number of Iranian individuals and companies targeted by asset freezes and travel bans. The new provisions build on previously enacted sanctions but do not place an embargo on oil or other petroleum products or services. A proposed fuel swap negotiated with Iran by Brazil and Turkey, under which Tehran would have deposited low-enriched uranium with Turkey in return for reactor fuel, was formally rejected by the permanent members of the Security Council and Germany. Many members of the Security Council considered the deal a ploy to stave off another round of sanctions. Iran called the latest sanctions resolution “politically motivated” and appears intent on pursuing its nuclear ambitions. (Cited from article by J. Scott Maberry, Stephen M. McNabb, Thaddeus Rogers McBride, Mark L. Jensen, Gwen Shirl Green, and Stefan Reisinger of Fulbright & Jaworski, LLP available at http://www.fulbright.com/index.cfm?fuseaction=publications.detail&pub_id=4523&site_id=494&detail=yes.)


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Get involved with Standing Committees:
Communications—Jason Cirlin, jcirlin@gmail.com
Membership and Outreach—Qiang Bjornbak, qbjornba@yahoo.com
Programs—Malhar Pagay, mpagay@pszjlaw.com

ILS 2010-11 Section Officers:
Chair—Malcolm McNeil, MMcNeil@foxrothschild.com
First Vice-Chair—Constance Kim, ckim@connonwood.com
Second Vice-Chair—Kathy Hao, kathyhao@sbcglobal.net
Secretary—Mariana Noli, mpn@eclipsegrp.com
Treasurer—Malhar Pagay, mpagay@pszjlaw.com

Readers are advised that changes in the law may affect the accuracy of this publication or the functionality of links after the publication date.