Resolutions with Reports
The Section has been very busy with developing new R&Rs, including an R&R on targeted killing by drone strikes, currently being drafted by an inter-committee drafting group led by Alex Blumrosen. R&Rs on the Arms Trade Treaty and election monitoring are also being drafted, spearheaded by the International Human Rights Committee.
In addition, an intercommittee drafting group is working jointly with the ABA Commission on Sexual Orientation and Gender Identity in developing an R&R on anti-homosexuality laws and practices in jurisdictions around the world. The genesis of this policy initiative came about from the Olympic Games and Russia’s anti-gay laws. The purpose of the proposed resolution is to put the American Bar Association on record as recognizing the rights of LGBT persons as basic human rights. It also opposes anti-LGBT laws, regulations, customs, and practices, and, in support of the LGBT community, urges an end to them. During the Section’s April 2014 Council Meeting, held during its Spring Meeting, the resolution was unanimously approved for submission to the ABA’s House of Delegates.
An R&R on the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled is being drafted; it is spearheaded by SIL Diversity Officer Lelia Mooney. The Treaty focuses on copyright exceptions to facilitate the creation of accessible versions of books and other copyrighted works. It sets a norm for countries ratifying the Treaty for a domestic copyright exception covering these activities, and it allows for the import and export of such materials. The ABA Commission on Disability Rights has been working on a draft recommendation since last summer in the hopes of urging the U.S. Senate to approve the Treaty. The Council also unanimously approved this resolution during its April meeting, subject to small tweaks in language if agreeable to the primary sponsors and co-sponsors, and in concert with the Section delegates.
The Section worked closely with the Section of Science & Technology Law to refine an R&R on attestation and verification of signatures in cross-border contexts; the goal is to submit it to the House of Delegates at the 2014 Annual Meeting in August. A working group was created to facilitate close collaboration between SIL’s Europe and U.S. Lawyers Practicing Abroad Committees, the Section of Science & Technology Law, and the Business Law Section. The SIL and Section of Science & Technology Law Councils approved this resolution as co-sponsors during their respective meetings in April.
The SIL is also supporting other ABA sections. It is, for example, working with the Business Law Section on its R&R on Model Business Policies on Labor Trafficking and Child Labor, which passed the House of Delegates at the 2014 Midyear Meeting in February. The R&R includes model principles and urges businesses to adopt into their own business and supply chain policy terms consistent with the ABA model business policies put forth in the R&R. Since adoption of the R&R by the House of Delegates, the Business Law Section has been working with the ABA Human Trafficking Task Force to make the information widely available for use.
The impact of the Section’s policy activities can be seen in an appellate court’s recent reinstatement of political violence charges in Haiti against former President Jean-Claude Duvalier. The court recognized that the statute of limitations does not apply to crimes against humanity, which was the position of a Section-sponsored R&R adopted by the House of Delegates last year.
Other Policy Activities
The SIL also joined with the Section of Antitrust Law on Blanket Authority statements regarding the German Federal Cartel’s Office Draft Guidelines on Domestic Effects in Merger Control and the Brazilian Administrative Council of Economic Defense’s proposed amendments to the Brazilian Merger Regulation.
The Section has created a Working Group on the Restatement of Foreign Relations Law of the United States to provide input to the American Law Institute’s ongoing project to update the Restatement in three areas: domestic effect of treaties, jurisdiction and enforcement, and sovereign immunity. The Section nominated Peter Winship, the James Cleo Thompson Sr. Trustee Professor of Law at Southern Methodist University, to be an adviser to the Uniform Law Commission Alternative Payments Study Committee. (ILN Editor-in-Chief Richard L. Field will also be an ABA adviser.) The International Litigation Committee is providing input to the U.S. Department of State regarding its response to the questionnaires relating to the Service, Evidence and Access to Justice Conventions issued by the Permanent Bureau of the Hague Conference on Private International Law in preparation for a special commission on those conventions.
Another new development that will benefit all SIL members is the release of a new, updated Section Policy Manual (see “Leadership Resources/2013–14 Policy Manual” at http://www.americanbar.org/content/dam/aba/uncategorized/international_law/policy_manual.authcheckdam.pdf). The Manual includes a “how to” guide, as well as a list of Section Reports and Recommendations, Blanket Authority Comments since 2010, and Technical Comments from the last two years. This year, we also created a listserv exclusively for Policy that allows the Section’s policy officer and deputy officer a direct line of communication to Section Committee Policy vice chairs and helps facilitate communication between the Policy vice chairs. We also held two boot camps this year, attended by Policy vice chairs and other Section leaders, to discuss policy.
Advice for Committee Leaders Interested in Drafting and Submitting Blanket Authority Statements
In the previous “Policy Matters” column, we featured former International Human Rights Committee Co-chair Becky Farrar, who wrote about her experience spearheading the committee’s successful R&R on Statutes of Limitations for Genocide, Crimes Against Humanity, and Serious War Crimes. In this column, we feature the following insight regarding the Blanket Authority process from Lisl Dunlop, vice chair of the International Antitrust Law Committee and Section Liaison to the ABA Section of Antitrust Law (SAL).
“The Blanket Authority process helps enormously when responding to foreign government consultations on antitrust issues, of which there are many. Non-U.S. agencies are usually very welcoming of the views of ABA sections, as we are perceived as expert and relatively objective in our approach, which takes into account the views of members from a broad range of jurisdictions. These consultations often have relatively short deadlines, typically on the order of two to three months, and so waiting for House of Delegates meetings to approve comments as statements of ABA policy is not an option if the comments are to be submitted so as to be useful to the foreign authority.
“The Section frequently works on comments in cooperation with other sections with expertise on the issues, notably the Section of Antitrust Law. In 2013, SIL and SAL submitted joint comments on 11 occasions to regulators in China, Europe (EC, Netherlands, Ireland, and UK), Africa (COMESA), and Australia. Frequently, we draw on the expertise of other ABA groups. For instance, in January 2013, we submitted joint comments on the People’s Republic of China’s consultation draft of Regulatory Measures on National Standards Involving Patents with the Sections of Intellectual Property Law and Antitrust Law. In May 2013, we submitted comments with the Sections of Antitrust Law, Intellectual Property Law, and Science & Technology Law on the European Commission’s public consultation regarding its draft proposal for a revised block exemption for technology transfer agreements. In each project, SIL took a leading role in coordinating sections’ input.
“Within SIL, in addition to the International Antitrust Committee, several other committees, including Privacy, E-Commerce and Data Security and various regional committees, may be interested in the consultation. Organizing and coordinating a drafting group and developing an integrated set of comments acceptable to the leadership of all involved sections often takes several weeks, particularly when the consultation is broad and complex. We work backwards from the Blanket Authority submission date to develop a drafting and approval schedule that works for the drafting group and leadership of the participating sections and committees.
“Participating in comment drafting is a fascinating and valuable exercise, and provides key insights into different antitrust regimes, as well as exposure to the views of other members of the drafting group who may be from different jurisdictions or different ABA sections. If you have the opportunity to work on a set of comments, I encourage you to get involved!”