The Right to be Forgotten, Revisted

The recent decision of the Court of Justice of the European Union, in Google Spain SL v. Agencia  Espanola de Proteccion de Datos (“AEPD”), C-131/12 (May 13, 2014), available at, has received extensive media coverage, with commentators suggesting that the ruling is “ground-breaking,” “astonishing,” and “upsetting.”  Those descriptions may greatly overstate the significance of the ruling, especially for U.S. businesses.

The decision grows out of a complaint by a Spanish citizen against a Spanish newspaper and Google Spain, claiming that a 12-year-old story about his former financial troubles should be removed from the internet and links to the story extinguished.  AEPD, the Spanish data protection authority, denied the request as to the newspaper (which had lawfully published the story), but granted the request as to Google.  The Court of Justice affirmed, on both points.  The decision turns on the conclusion that Google Spain is subject to European Union (“EU”) regulation, and that its service “retrieves, records or organizes” data (within the meaning of the EU Data Protection Directive), such that Google is thus a “controller” of data, subject to regulation under the Directive.  The Directive, moreover, establishes fundamental rights of privacy, including the right to expungement of information that no longer serves its original purpose.

What the decision does not do is establish a broad and unequivocal “right to be forgotten.”  First, the territorial coverage of the ruling is limited.  Because the case involved a Spanish citizen, Spanish newspaper, and Spanish internet operation (a Google subsidiary in Spain), the decision on jurisdiction was relatively easy.  Whether European data protection authorities would seek to extend jurisdiction to other cases with weaker connections to Europe remains for further development.

Second, the Court did not suggest that validly-created news content must ever be altered.  Quite the opposite.  The Spanish newspaper was permitted to display its original story via its website.  The removal of Google links to the story, moreover, does not absolutely prohibit access to the story.  As to future cases, moreover, the Court suggested that a balancing process must apply, in which the interests of internet users may override the interests of data subjects in protection of data concerning their private lives.  Thus, where the data subject plays a role in public life, or other public interests arise, such interests may tend to decrease the data subject’s right to claim protection for sensitive information and the removal of internet links that may not be required.

Finally, the ruling is not self-enforcing.  To obtain similar relief from Google or any other web operator, the data subject must make a request to the company.  The company must evaluate the request (conducting the “balancing” test suggested by the Court), and determine whether relief appears required.  Only if the data subject is unsatisfied with the results, and only if the data subject can convince data protection authorities that the result is improper, might there by additional rulings directing similar relief.  Because data protection authorities vary in their views from country to country the availability of the remedy may also vary greatly.

The Google Spain decision is surprising in at least one regard.  The EU has under consideration revisions to its Data Protection Directive (adopted in 1995).  The general purpose of the revisions is to update the data protection regime, in light of new technologies and practices, and to make more uniform the treatment of data protection across the national systems in Europe.  One feature of the revisions under consideration is recognition of a “right to be forgotten.”  These and other revisions have been the subject of intense political in-fighting, as well as lobbying efforts from foreign companies potentially affected by more stringent regulations.  The recent Snowden/NSA revelations have only added fuel to the controversy.  In that context, the European Court’s decision to wade into a controversial area, which arguably could be better settled through the political process, appears unusually bold.

The stakes are high in this arena.  The Data Directive reform proposal includes significant enforcement procedures, including (potentially) fines of up to five percent of a company’s global turnover for violations of the law.  The proposed revisions also seek to clarify that EU data protection law may apply to any services directed at EU citizens, regardless of where the service controller is located.  Thus, even though most US businesses may conclude that they are not immediately affected by the Google Spain decision, they should pay careful attention to European developments that may affect their operations.

The author is a partner at Park Jensen Bennett LLP, in New York City.  The views expressed are solely those of the author, and should not be attributed to the author’s firm, or its clients. 

Corporate Liability for Human Rights Violations After Kiobel: Judge Scheindlin Opens the Door

By Neil A.F. Popović

On April 17, 2014, District Judge Shira Scheindlin, perhaps best known for her ruling on New York City’s stop-and-frisk policy, issued another decision sure to provoke strong reactions on both sides. In In re South African Apartheid Litigation, No. 02-MDL-1499 (SAS) (S.D.N.Y.), Her Honor ruled that “corporations may be held liable” under the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). More specifically, the court held that Ford Motor Company and IBM might face liability for aiding and abetting violations of international norms by manufacturing military vehicles and computers for South African security forces during the apartheid era. What does that mean, and why does it matter?

The ATS confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. In 2010, the Second Circuit Court of Appeals decided Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), holding that the ATS does not allow claims against corporations, and dismissing claims by Nigerian nationals alleging various corporations aided and abetted human rights violations in Nigeria. The Supreme Court granted certiorari on the question of corporate liability and heard oral argument in 2012. After oral argument the Court directed the parties to submit supplemental briefing on a different question—“whether and under what circumstances the ATS allows courts to recognize a cause of action for violations of the law of nations occurring” outside the United States—and it scheduled another round of oral arguments.

The Supreme Court issued its opinion in Kiobel on April 17, 2013, affirming the Second Circuit’s judgment of dismissal “based on . . . the second question” and ruling that the “presumption against extraterritoriality applies to claims under the ATS.” 133 S. Ct. 1659, 1663 (2013). The Court held that: “all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” 133 S. Ct. at 1669. The Court went on to say: “Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” Id. The Court’s opinion did not directly address the issue of corporate liability under the ATS.

The South African Apartheid case was pending in the Second Circuit when the Supreme Court issued its opinion in Kiobel. After considering post-Kiobel supplemental briefing, the court of appeals remanded the case to the district court, stating: “The opinion of the Supreme Court in Kiobel plainly bars common-law suits, like this one, alleging violations of customary international law based solely on conduct occurring abroad.” Balintulo v. Daimler AG, 727 F.3d 174, 182 (2d Cir. 2013). On remand, Judge Scheindlin dismissed the remaining foreign defendants and ordered the remaining parties—plaintiffs and the American company defendants—to brief the question whether corporations can be held liable under the ATS after Kiobel.

Deciding that question required two steps of analysis. First, the court had to consider whether the question of corporate liability remained open in light of the Second Circuit’s Kiobel decision precluding corporate liability, followed by the Supreme Court’s decision dismissing plaintiffs’ claims based on the presumption against extraterritoriality. Judge Scheindlin surveyed recent case law, including the Supreme Court’s decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), in which the High Court rejected ATS claims against a German company because the company lacked sufficient U.S. contacts to support personal jurisdiction, but made no reference to corporate liability. Id. at 763.

Judge Scheindlin concluded that the Supreme Court’s decisions in Kiobel and Daimler “directly undermine” the Second Circuit’s holding that corporations cannot be liable under the ATS. According to Her Honor, by “explicitly recognizing that corporate presence alone is insufficient to overcome the presumption against extraterritoriality or to permit a court to exercise personal jurisdiction over a defendant in an ATS case,” the Supreme Court implied that “corporate presence plus other factors can suffice” to overcome the presumption against extraterritoriality and justify exercising personal jurisdiction. The standards “may be difficult to meet in all but the most extraordinary cases,” but the Supreme Court’s explication that certain factors could overcome the presumption or justify personal jurisdiction would not make sense if corporations were otherwise immune from ATS liability.

Second, having determined that corporate liability remains possible notwithstanding the Second Circuit’s opinion in Kiobel, the court concluded that corporations are subject to liability under the ATS. Citing Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1019 (7th Cir. 2011), Judge Scheindlin distinguished between: (a) “whether the alleged conduct violates a definite and universal international norm,” which is governed by international law; and (b) who can be held liable for a violation of the norm, which is governed by federal common law. The court specifically disagreed with the Second Circuit’s opinion in Kiobel, stating that the appellate court had misread the famous footnote 20 from Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004), in which the Supreme Court posed the question “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” In Judge Scheindlin’s analysis, footnote 20 does not suggest that corporate or individual liability is a substantive element of international law, but rather indicates that some norms of international law may only be actionable when violated by the state, as distinguished from private actors, corporate or individual.

On the question of who can be liable, the court found it “obvious” that corporations are subject to tort liability. The court rejected proposed analogies to actions brought under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), because Bivens addressed liability of individual federal officers, or the Torture Victims Protection Act (“TVPA”), because the TVPA refers specifically and only to liability of “individual[s].” It did not matter to Judge Scheindlin that there may have been few past cases establishing corporate liability for violations of international norms. She flatly rejected the notion that a private actor could shield itself from liability for violation of universal norms by incorporating.

Judge Scheindlin authorized plaintiffs to move for leave to file an amended complaint against the remaining defendants, stating, “plaintiffs must make a preliminary showing that they can plausibly plead that those defendants engaged in actions that ‘touch and concern’ the United States with sufficient force to overcome the presumption against the extraterritorial reach of the ATS, and that those defendants acted not only with knowledge but with the purpose to aid and abet the South African regime’s tortious conduct . . . .” Thus, the court left the door ajar for plaintiffs to pursue corporate defendants under the ATS, but it did not make it easy for them to squeeze through. Even if plaintiffs can overcome the presumption against extraterritoriality and establish the requisite “purpose,” it remains to be seen whether the Second Circuit—and perhaps the Supreme Court—will explicitly recognize corporate liability under the ATS.

For American companies doing business overseas, the South African Apartheid decision serves as a reminder that they cannot ignore human rights violations associated with their overseas activities, lest they face potential liability in U.S. courts under the ATS. And for foreign plaintiffs seeking compensation in U.S. courts under the ATS, the decision serves as a reminder that they must be able to establish not only that the defendants’ conduct violates universally established and sufficiently precise norms of international law, but also that the conduct “touches and concerns” the United States with sufficient force to overcome the presumption against extraterritoriality, and that defendants acted “not only with knowledge but with the purpose to aid and abet” the norm-violating conduct.


The Potential of U.S. Policy on Mass Atrocity Prevention

By Maggie Byrne

How does the United States make its policy on human rights? A group of eight Berkeley Law students traveled to Washington, DC over spring break last week to investigate. We conducted interviews with government officials whose work involves the creation, influence, or implementation of U.S. human rights policy. We met with officials from several agencies, particularly the Departments of State and Defense, as well as practitioners who work in Congress and non-governmental organizations. The trip was organized as a field research expedition, part of a semester-long seminar in the U.S. policymaking process on human rights and democratization with Professor Jamie O’Connell.

Three key factors emerged in our interviews that revealed the complexity of U.S. human rights policy making. First, human rights concerns can be viewed as irrelevant, if not opposed, to the priority of national security in foreign policy. Second, human rights issues involve competing interests across many government branches, particularly various agencies within the Executive Branch. Third, Americans are ambivalent about the extent to which the United States should be the leader of human rights and democracy around the world, as opposed to focusing on domestic issues, such as the American economy.

There is potential for the Atrocities Prevention Board (“APB”), created by President Obama in 2012, to mitigate issues stemming from all three key factors as they pertain to mass atrocities prevention. The APB was established in Presidential Study Directive 10 (“PSD-10”), which opens with the declaration, “Preventing mass atrocities and genocide is a core national security interest and a core moral responsibility of the United States,” directly addressing the first and third factors. PSD-10 proposed the creation of the APB in recognition of the fact that today, over sixty years since the Holocaust and twenty years since the Rwandan genocide, the U.S. had still not developed a comprehensive, interagency approach to prevent and respond to mass atrocities. The APB also addresses the second factor because it includes representatives from across the interagency and requires that the representatives at various levels meet regularly to discuss brewing threats. This level of regular information sharing is unusual, and preparation for the meetings sparks dialogue and research at the various agencies.

Although such conversation does work to improve interagency collaboration, the APB’s influence is inherently limited. Most significantly, the APB’s asserted role in national security is discrete. In part, this is because national security efforts tend to be reactive to threat reporting, and the APB is an attempt to stem threats before they form. Prevention efforts rarely make headlines because success is a non-event rather than a newsworthy disaster. Moreover, the dominant view in national security is formed predominantly by military, intelligence, and economic issues. In this framework, it is difficult to make the argument that mass atrocities in the Central African Republic, for example, threaten U.S. national security in terms of counterterrorism or global political pressure.

At another level, the APB’s influence may not spread beyond the small, human rights-focused offices within massive government agencies that send representatives to lower level APB meetings. This could change if senior principals at the agencies buy into the central importance of mass atrocity prevention and demand their normalization and incorporation. However, the mandate of departments like State and Defense is so broad, it is unlikely they will ever share a high priority in a sub-issue like mass atrocity prevention.

Finally, the APB is largely invisible to the American public. This is in part by design; the APB is “cost neutral,” and so draws no attention as a new or great expense. Moreover, the APB is an opaque bureaucratic tool, within which members rely on confidential briefings to make confidential reports. While the APB might be executing an American moral principal against mass atrocities, its model of operations avoids public attention. In doing so, however, the APB does bypass the opportunity to establish a strong reputation and develop domestic support for its work beyond Washington.

The APB is one of many ways the U.S. government designs human rights policy. Its efforts to bring together the interagency through a coherent, less reactive method will be interesting to watch as the ABP matures.

This Week in Review

European Union Top Court Strikes Down Data-Retention Law

On Tuesday, the European Court struck down a law that required telecommunication providers to retain user mobile data for two years for law enforcement purposes. The Court emphasized that while holding onto data to “fight crime” was compliant with European Union (EU) law, the overbroad scope of the law as well as the lack of clear boundaries violated EU citizens’ “fundamental rights to respect for private life and to the protection of personal data.”

United Nations May Approve Deployment of Peacekeeping Forces in the Central African Republic

The United Nations (UN)’s Security Council unanimously approved the deployment of nearly 10,000 UN soldiers and 1,1800 policemen to the Central African Republic (CAR). This peacekeeping force will take over from the current African Union force of 5,000 soldiers on September 15th. For the past year, Christian and Muslim militiamen have been fighting after the Muslim forces staged a coup and briefly retained power of the CAR government. The resolution cites a number of human rights violations both groups committed, including killings, torture and sexual violence against women and children. and seeks to identify and prosecute specific perpetrators.

Citigroup under federal investigation after disclosure of fraudulent loans in Mexico

The Federal Bureau of Investigation and federal prosecutors have opened a criminal investigation after Citigroup disclosed their discovery of a fraudulent loan in its Mexican subsidiary Banamex. Oceanografía, a Mexican oil services contractor for Mexico’s state-owned Pemex, took out the $400 million loan using false invoices. Authorities are investigating if Citigroup was a victim or an enabler.

US Trade Report Points to US-Korea Tensions Regarding Bilateral Treaty

The annual US Trade Report on trade barriers claims that an allegedly government-funded Korean business group has been restricting the growth of US restaurant chains in South Korea for the past year. The National Commission for Corporate Partnerships (NCCP) gave US chains a choice of opening only 5 branches per year in Korea or opening only in certain geographic zones. The NCCP claims that its funding comes from private business donations, not from the government.

Bipartisan Bill Banning Iran’s United Nations Envoy From Entering The United States Passes Senate Unanimously

The Ted Cruz and Charles Schumer-sponsored bill (I think “A bill sponsored by Senators Ted Cruz and Charles Schumer” sounds better) aims to keep Hamid Aboutalebi, recently appointed United Nations (UN) representative to Iran, from taking his post at the New York UN headquarters. Aboutalebi allegedly belonged to the student group that led the seizure of the US embassy in Tehran in 1979. The US State Department mentioned they have voiced their concerns with the nomination to the Iranian government.

This Week in Review

Goldman Sachs Fined for Price-Fixing

The European Union fined Goldman Sachs and a group of major high-voltage power cable makers $412 million for operating a price-fixing cartel. The move follows a recent $1.3 billion penalty for car-parts manufacturers, and a record $2.34 billion last year for banks that rigged interest-rate benchmarks.

World Bank Announces Increase in Lending Ability to Middle-Income Countries

Speaking at the Council on Foreign Relations (CFR) in Washington, World Bank Group President Jim Yong Kim announced that the bank will nearly double its lending to middle-income countries, from $15 billion to a maximum of $28 billion, increasing its lending capacity to $300 billion over the next ten years.

Middle East Peace Talks in Crisis

Palestinian officials have submitted letters of accession to fifteen international conventions and treaties, complicating the Obama administration’s Middle East peace negotiation efforts. The move follows the Palestinian Authority announcement that it will unilaterally seek further UN recognition unless Israel agrees to release Palestinian prisoners.

Samsung Chairman Ordered to Appear in India Case

India’s Supreme Court ordered Samsung Group’s Chairman Lee Kun-Hee to appear before judges in a dispute over a $1.4 million payment. The dispute stems from a complaint by an Indian consultancy firm that a Samsung subsidiary in Dubai failed to make the payment. If found guilty, Mr. Lee could face two years in prison and fines. 

UNCTD Hosts Meeting on Green Economy

The second meeting on green economy and trade will be held at the Palais des Nations April 3-4. The meeting, organized by United Nations Conference on Trade and Development, will address issues related to the use and effects of trade remedies on renewable energy goods;#1865;%23Green%20Economy;%231637;%23Trade,%20Environment%20and%20Development;%231385;%23International%20Trade%20and%20Commodities

This Week in Review

NATO Chief: Crimea a “Wake Up Call”

NATO Secretary General Rasmussen said NATO is concerned by Russia’s annexation of Crimea and wary Russia might also invade eastern Ukraine. Rasmussen described Russia as increasingly aggressive and land-hungry, and said two NATO surveillance planes have begun flying over Poland and Romania to help the two countries better monitor their airspace and borders.

Push for Reform in War Reparation Law

Alain Monteagle and his family have launched an “unprecedented” effort to amend Swiss law and compel the restitution of a John Constable painting taken from their home in Nice, France during World War II. It hangs in the Musée des Beaux-Arts, where museum administrators acknowledge the painting was looted. The Monteagle family has already recovered eight other looted paintings from a private owner and museums, including the Louvre and the Kimbell Art Museum in Fort Worth.

African Court on Human and Peoples’ Rights to Hear Freedom of Expression Trial

Starting March 20, the case Lohé Issa Konaté v. Burkina Faso will take up the alleged violation of Mr Konaté’s rights under Article 9 of the African Charter on Human and Peoples’ Rights and Article 19 of the International Covenant on Civil and Political Rights. Courts in Burkina Faso convicted Mr Konaté, Chief Editor of the weekly newspaper L’Ouragan, for defamation, public insult, and insulting a magistrate due to two articles he published in his paper in August 2012.

Jamaican Aid for Crime Reduction

The World Bank announced a new, $42 million initiative to improve services and crime prevention in Jamaican urban centers. The effort is part of a collaboration with the Kenyan government to counter rising homicide and youth unemployment rates. In Kingston, poverty doubled from seven percent in 2008 to more than fourteen percent in 2010.

Japan Trade Deficit Greater than Expected

The news comes just before the start of a scheduled April sales-tax increase that likely will affect domestic demand. The $7.9 million trade deficit reflects an increase in imports by nine percent, while exports rose approximately ten percent.


The Psychology of Negotiations: Managing Conflict and Personalities in International Transactional Lawyering

By Kelly Woolfolk

This post is a reflection on Professor Jay Finkelstein and Professor Hilary Gevondyan‘s Berkeley Law course, International Business Negotiations.

In the most general sense, negotiations are about problem solving. From the onset of preparing for a negotiation, particularly when the situation highlights cultural and personal distinctions as in cross-border transactions, evaluating strategies for dealing with and drafting even preliminary communications to an opposing party is a critical step in creating a fertile, receptive environment for the exchange of ideas. Whether one is open or obliged to consider input from multiple sources—through colleagues, superiors, data or other parties to the deal—and synthesize that input into a cohesive plan of action, significant challenges will undoubtedly arise and require skillful maneuvering throughout the process.

Lawyers are paid to identify, mitigate or eliminate risks and obstacles to transactions. At first glance, one might assume that the source of most problems in a transaction hails from external forces. In fact, many of the most significant problems that arise often come from within one’s own team. Deciding what style of communication to embrace and how tough to be on certain issues may be consistent sources of tension and dissension within a firm or organization. This failure of consensus can create wide enough divides to permeate communications to opposing parties and present a team as unstable; not a desirable quality for high-stakes international business deals. In essence, negotiating teams need to communicate “in a single voice.”

Where parties face stringent internal discord, lawyers can increase their value during a transaction by finding ways to eliminate the appearance of instability within a corporation or other organization, smoothing the path to a deal, and even making the deal sweeter for the parties involved. When a party to a transaction recovers a sense of confidence about making the deal, often even greater benefits than initially contemplated may result. In this sense, the role of bridge-builder or facilitator cannot be overstated. Thus, negotiators must also be bridge-builders.

The key to most successful business ventures is good relationships. People tend to do business with people that they like. So, while each party to a transaction may have formidable resources, reputations, or positions with which to bargain, if there is no movement in advancing the deal, then none of that matters. An impasse is a death sentence in transactional practice signaling a failure of potential to generate revenue or develop relationships. A keen lawyer-negotiator will assess where and why the breakdown occurred, then attempt to repair the rift through savvy and strategic relationship building and cultivation. This bridge-building skill, perhaps above all others, is where many transactions succeed or fail. Many traditionally trained lawyers never focus on or appreciate the immense value of developing relationships and suffer professionally as a result. Even where perceived rivalries exist, a savvy practitioner can find a niche of commonality with an opposing party and thereby create an “in” with the other side—something which may, at the end of the day, save an entire deal. Conversely, where lawyers view strategy as an US vs. THEM undertaking, and where this atmosphere is satisfactory, even second-nature, holding ground for many, it would behoove the wise to overcome this deeply-felt positioning if they are to accomplish anything.

Despite any apparent or historic rivalries among parties, the most challenging negotiations often faced come from within one’s own team or organization, as previously identified.  The struggle for consensus and for getting people to abandon the hardcore approach against an adversary may be an exercise in one’s ability to manage her own expectations of others, pull back on one’s own reins and not force a position when instincts scream that the team is off course. In effect, a level of negotiating with oneself, trusting that allowing others to forge ahead despite one’s opposition to their method would nevertheless provide an opportunity for one to assert one’s opinion later in the process, when team members may be more receptive. In other words, sometimes, in order to be most effective, you have to let people discover their own missteps. Learning is often far more valuable when it develops organically, as opposed to having someone rub your nose in your mistake.

Successful negotiation is something of an art. The best negotiators often utilize less quantifiable but highly effective skills such as flexibility, grace under pressure, a keen sense of when to pull back and when to press forward, and intuitive strategic abilities. While practice can sharpen many of these skills, most are the result of individual personalities, which may explain why some people are more suited to litigation or other careers where “softer” skills and personal interaction are less important.

Observing the many personalities among a team can be extremely useful in determining how to address issues that require attention. Without information about how different people approach consensus building and conflict resolution, the team may choose the wrong person for a pivotal role in the negotiation and potentially blow the deal. Therefore, taking a back seat in some of the decision-making that occurred may be a great opportunity to listen and learn about a team. Listening is a skill that doesn’t normally receive the attention it deserves. But what a difference it makes. At times, we may be more invested in “controlling the process” or advancing our interests than in gaining whatever advantage there might have been by listening for clues. Most people are willing to admit that they can be better listeners. However, it is very easy, especially as a trained advocate, to dismantle an argument and prepare a seamless line of reasoning, all while staring at the moving mouth of an adversary. But when a party feels unheard or we simply have failed to pay proper attention to the cues inherent in speech and body language, we miss great opportunities to find common ground and make progress.

Finally, engaging in “back channel” negotiations can be an invaluable and even fun part of a negotiating experience. U.S. culture generally teaches aggression and offense as effective methods of achieving a goal. The “We are Americans, world dominators!” mentality is apparent throughout U.S. culture. Having this inbred identity makes it hard for many of us to consider a more docile approach. Gentleness becomes weak, a loser’s posture, setting oneself up as prey. In fact, words such as “weak” and “losing” routinely describe the notion of approaching a negotiation from a less aggressive standpoint. Yet when negotiations occur after easygoing and friendly back-channel or sidebar type meetings, there may be a spontaneously sense that something has gone tremendously right, that the deal is proceeding much better. Taking a softer, more personal approach can be effective after all. In order to avoid envy or distrust, communication within a team or organization should be open and continuous so as to create a feeling of unity within the group. Overall, negotiations begin and end with broad considerations of others, whether they are across the table, the office, or the world.


Moldova Might Become Putin’s Next Target

By Ido Kilovaty

After weeks of tension in the atmosphere around the Ukrainian Crimean Peninsula, a referendum on the question of separation from Ukraine and the annexation to Russia yielded 96% votes in support of joining Russia. Right after the referendum, Russian president Vladimir Putin has accepted Crimea’s petition to join the Russian Federation. The response from the United States and the European Union has been weak so far, from suspending Russia from the G8 to very concrete and narrow economic sanctions on some Russian officials. However, the annexation of Crimea can mark a dangerous precedent in the future of the region.

Is the annexation of Crimea legal?

The answer relies on two sub-questions. First, is the annexation legal under international law? Second, is it legal under Ukrainian law? The answer is “no” to both.

Article 2(4) of the United Nations Charter prohibits the use or the threat to use force. Immediately after the outbreak of violence in Ukraine, Russia has mobilized troops to Crimea and demanded the Ukrainian troops to surrender. Not only does the presence of Russian troops in Ukraine violate Ukraine’s sovereignty (and hence violate the principle of non-intervention), but it is a clear violation of the prohibition on the use of force. In the Nicaragua case, the International Court of Justice remarked that an intervention is prohibited when it:

“bear[s] on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State.” (Emphasis added.)

Apart from the violation of the prohibition on the use of force, Russia cannot rely on the grounds of protecting the Russian community in Crimea in its annexation. A well-established norm in international law prohibits the acquisition of territory by armed force. In 1967, the United Nations Security Council reaffirmed the “inadmissibility of the acquisition of territory by war.” The annexation of Crimea following Russia’s military intervention in Crimea is a clear case of acquisition of territory by the use of force.

Moreover, Article 73 of the Ukrainian Constitution reads: “Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum.” Such an all-Ukrainian referendum did not take place, and a solely Crimean referendum is invalid in this case.

Therefore, the annexation of Crimea to Russia is illegal both under international law and under Ukrainian law.

Moldova as Putin’s next target

The Transnistrian Region in Moldova is a region very similar to Crimea, both in its demographic and political composition. Since Moldova’s declaration of independence following the separation from the USSR, Transnistria held separatist political views due to its Russian population. Moldova lost control over Transnistria following a four month war between the two in 1992. Since then, Transnistria has been autonomous though still a part of the internationally recognized territory of Moldova. Currently no member of the United Nations recognizes the sovereignty of Transnistria. As a result, Transnistria, along with other post-soviet regions with dense Russian population, might turn into the next Crimea. The Russian military is already present in Transnistria, and it may be only a matter of time until Russia attempts to annex Transnistria, too. As in Crimea, a 2006 referendum in Transnistria showed 97% support of joining to Russia, a shocking resemblance.

Moldova, is not alone in the list of potential targets. Other regions of post-Soviet States have a large populations of Russians, such as Georgia, Kazakhstan, and Belarus. Similarly to the Crimean crisis, Russia has not been held accountable for its war in Georgia.

The potential crisis in Transnistria also gives rise to concern in neighboring Romania. Romanian Prime Minister Victor Ponta said “Romania together with its EU and NATO partners should show their commitment to supporting Moldova’s independence and territorial integrity.” This shows not only the concern of post-Soviet States, but also of neighboring States which were not part of the Soviet Union, such as Romania and Poland.

The inability of the United States and the European Union to effectively deter Russia from its aggression may have adverse effects in the future following Russia’s imperialistic aspirations.

A possible solution?

For obvious reasons, the United Nations Security Council will be ineffective in addressing the Crimean crisis as well as Russia’s aggression. However, other measures are available to prevent Russia from further aggression towards other States in the region.

First, while the European Union is highly dependent upon Russia, the European Union is also Russia’s biggest trading partner, accounting for 267 billion Euros worth of trade in 2012. (Meanwhile China, which is the second biggest trade partner of Russia, had only sixty-four billion Euros worth of trade in 2012). The European Union can effectively reduce future trade with Russia and deter Russia from future violations of sovereignty and aggression. However, the European Union will have to find another source of crude oil and gas, a task that might be virtually impossible to accomplish.

Second, the North Atlantic Treaty Organization has to reaffirm that an attack against one of its members (which include potential victim States such as Estonia, Lithuania, Latvia, and Poland) is an attack against all members, which invokes the right to collective self-defense, as enshrined in Article 5 to the Washington Treaty as well as Article 51 of the United Nations Charter. Such declaration will serve to set limits to Russia’s future aspirations.

Moreover, the international community is capable of suspending Russia from various international organizations, such as the World Trade Organization, the International Monetary Fund, the World Bank and more.

All in all, it does not appear that the United States or the European Union is interested in engaging in a war with Russia, however, use of their economic powers may reduce and suspend future trade with Russia. Such measures can be effective as they harm Russia’s economy without using armed force or exacerbating the situation. Unfortunately, the current sanctions are inadequate.


It seems that the Crimean crisis is only the beginning of a future international crisis in the region. Russia has no negative incentive to stop using force to intervene in other regions. Only time will tell how efficient the current sanctions are, but it appears that they are insufficient in deterring Russia from annexing Crimea. What is clear is that Russia’s actions are of concern of all the States in Eastern Europe, which by themselves, appear unable to defend their vital interests against the Russian aggression.



Review of Events, Past and Upcoming

Seminars on Private International Law Jointly Organized by the Federal University of Minas Gerais and the Department of Law of the University of Ferrara

Under the patronage of the Italian Chamber of Commerce of Minas Gerais and with the support of Coordenação de Aperfeiçoamento de Personal de Nível Superior (“CAPES”), a seminar discussing the National Codification and Regional Unification of private International Law took place at the Federal University of Minas Gerais (“UFMG”), in Belo Horizonte, Brazil, on 13 March 2014. The seminar’s topic was “National Codification and Regional Unification of Private International Law: Complementary or Conflicting Trends?”

London Court of International Arbitration (“LCIA”) Conference

The LCIA conference will take place on 21 March 2014 at the Sheraton Palace Hotel Moscow Hall in Saint Petersburg, Russia. The conference theme is “The resolution of disputes at the LCIA: Practical aspects” and the discussion topics will be: (1) Introduction to the LCIA and the LCIA Arbitration Rules; (2) Advantages and issue of application of the LCIA Arbitration Rules and English arbitration law; and (3) Partners or enemies? The practice of Russian courts’ assistance to foreign arbitration. The seminar will take place in Russian; however, a simultaneous Russian–English translation will be available.

Asia Pacific Regional Arbitration Group (“APRAG”)’s Tenth Anniversary Conference

The Asia Pacific Regional Arbitration Group will hold its Tenth Anniversary Conference in Melbourne, Australia, on 26-28 March 2014. The Australian Centre for International Commercial Arbitration (“ACICA”) will present the event. In a welcoming spirit, the ACICA expects to gather friends and colleagues from all over the world to join in celebrating APRAG’s successes and discuss opportunities and challenges for the next decade.

The Permanent Court of Arbitration (“PCA”) Will Host Vis Pre-Moot in April, 2014

On 7-8 April 2014, the PCA will welcome practice moots to prepare students for the Twenty-First Annual Willem C. Vis International Commercial Arbitration Moot in Vienna from 12-17 April 2014. During the two-day event, the teams will have the chance to plead at least twice as Claimant and Respondent. Experienced international arbitration specialists from different jurisdictions will serve as arbitrators. At the end of the practice game, a specialist will score and rank each of the teams by their performance and will also provide individual comments. In past years, universities from all continents participated in the project. Travaux’s Lead Editors Amy Belsher and Brittney Lovato participated in Vis last year and have been coaching the team that will represent Berkeley Law this time around. Break a leg!

Young International Arbitration Group (“YIAG”) Symposium

This symposium is designed to interactively provide an opportunity to share news and views on developments in the field of international commercial arbitration. The London Court of International Arbitration will request topics for discussion from the delegates prior to the symposium. On the day of the event, delegates will be asked to introduce their topic for debate under the guidance of the four YIAG co-chairs (Ruth Byrne, James Freeman, Rémy Gerbay and Anna-Maria Tamminen). The event will take place at Tylney Hall Hotel, in Hampshire, United Kingdom, on 9 May 2014. This is one in a series of YIAG symposia.

Strait Talk: Turkey’s Unexpected Influence Over the Crimean Crisis

By: Jessica Caplin and Richard Weir

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As of 8 March 2014, USS Truxtun, a US Navy destroyer, had crossed Turkey’s Bosphorus Strait and entered the Black Sea. Although the US Navy called the mission routine and unrelated to the crisis, tensions in the region between Russia and both the United States and NATO allies have increased in response to the crisis currently embroiling Ukraine and Russia over Crimea. Since the removal of Ukraine’s president on 22 February 2014, the Russian Parliament has focused its attention on this region of Ukraine, approving President Vladimir Putin’s 1 March request to deploy Russian troops into Crimea. Significantly, however, an international convention from 1936 prevents non-Black sea state vessels of war from entering the Strait and remaining in the Black Sea indefinitely and indiscriminately. Under the Montreux Convention of 1936, the USS Truxtun has twenty-one days before it must leave or face violation of international law.

Terms of the Convention

The Montreux Convention of 1936 grants Turkey full power to control access to the Bosphorus and Dardanelles straits.  Under the original terms of the convention, Turkey had authorization to close the Straits to all foreign vessels of war during times of war in which Turkey was a belligerent or when threatened by “imminent danger of war.”  Since Turkey could determine for itself whether or not it was “threatened,” this clause lent Ankara considerable power to control access to Straits.  After Turkey adopted the Straits Regulation in 1982, this power to close the Straits at Ankara’s discretion was expanded to peacetime, as well.

While the Bosphorus Strait is open, several restrictions apply for vessels of war belonging to nations that do not border the Black Sea.  Each individual ship transiting through the Strait must weigh under 15,000 tons.  There can be no more than nine non-Black Sea state warships passing through the Strait at any one time.  The aggregate tonnage of all non-Black Sea state vessels of war in the Black Sea must be less than 30,000 tons.  Thus, if one US vessel of war weighing just under 15,000 tons is already in the Black Sea, all other vessels of war from all non-Black sea states must weigh an aggregate of less than 30,000 tons in order to enter.  Additionally, irrespective of total tonnage of these vessels of war, the convention specifically notes that no submarines or aircraft carriers from non-Black Sea states may enter theSstrait.  Finally, once a ship has entered the Black Sea, it is only permitted to stay for not longer than twenty-one days.  Vessels of war entering the Straits  thus required to notify Ankara several days in advance in order for Turkey to keep watch over these vessels as they enter and exit.

Within the context of the current crisis, Turkey is likely to enforce the terms of the convention, while remaining largely neutral, much like it behaved during the 2008 crisis between Russia and Georgia.  During that crisis, Turkey’s government played a careful balancing act with Russia and NATO allies.  Ultimately, Turkey did facilitate US naval and air movements into the Black Sea and the Caucasus, but it demanded full coordination in advance of US or NATO movement and expressed its desire to avoid confrontation with Russia.  Turkey’s hesitancy stemmed largely from a historic reticence to confront the Russians, as well as its dependence on Russia for roughly fifty-five percent of its natural gas and twelve percent of its oil.

In the current crisis, this measured approach toward Russia will likely rest on the same concerns of energy dependence.  It will be further bolstered by the existence a large Crimean Tatar diaspora in Turkey, which is a Turkic ethnic group in Eastern Europe and Northern Asia. This diaspora, numbering in the millions, will likely demand strong Turkish opposition to Russia in the event Russian forces kill Tatars remaining in Crimea, and Anakara will be forced to balance the demands of both NATO and Turkey’s own population on the one hand with demands of Russia on the other. As a result of this diplomatic balancing, Turkey is likely to stand firm in its execution of the Montreux Convention, demonstrating its respect for an international convention to which Russia is also a signatory.  Such efforts are most likely to help Turkey avoid becoming embroiled in the Crimean conflict while facilitating NATO efforts to deescalate hostilities.

Implications for the United States and NATO

Tonnage restrictions for non-Black Sea vessels of war during times of peace, set at 15,000 for one vessel and 30,000 in the aggregate, severely limit the ability of other nations to come to Ukraine’s aid or to provide a significant show of force in the Black Sea. Indeed, Article 10 of the convention specifically limits the types of vessels, in times of peace, to “light surface vessels, minor war vessels and auxiliary vessels,” regardless of whether they are operated under a Black Sea or non-Black Sea flag. Although modern vessels of war posses a greater capability to inflict damage relative to their size, the tonnage restrictions prevent large ships carrying significant numbers of troops and aircraft from entering the Straits. Thus, while these restrictions allow non-Black Sea countries to place vessels capable of delivering precision strikes, they restrict the same from being able to launch significant military operations from those vessels.

Practically speaking, 15,000 tons is small for a vessel of war. According the US Navy, the standard weight for the largest class of aircraft carriers in the US fleet is around 100,000 tons. Aircraft carriers of this size carry approximately eighty aircraft, many of which are attack aircraft. Vessels of war that are designed and deployed specifically, but not exclusively, by the United States to respond to crises where ground troops could be necessary often exceed the tonnage limitations. For example, US Marine Expeditionary Units, which are a conglomeration of Naval and ground forces deployed together in order to respond to a variety of crises, deploy in a three-ship group. The ships often include one larger vessel, which is capable alone of launching ground forces and airstrikes, and two smaller vessels which are capable of launching helicopters and smaller contingents of ground forces. The larger vessels often referred to as “Amphibious Assault Ships,” weigh in excess of 39,000 tons. The smaller vessels, either an “Amphibious Transport Dock” or a “Dock Landing Ship,” weigh in excess of 17,000 tons. Given the restrictions on tonnage set forth in the convention, none of these types of vessels could enter the Straits. While this restriction seriously constrains US and NATO’s options, it does not eliminate all of them.

Standard tonnage for US Cruisers and Destroyers, both of which are capable of launching guided missile strikes, is around 10,000 tons. This means that, with the permission of Turkey, non-Black Sea countries could place as many as three of these types of vessels in the Black Sea at any given time. Three vessels of this nature would likely be an imposing specter for any country, but these ships can only remain in the Black Sea for twenty-one days at a time. This makes providing a credible threat difficult unless non-Black Sea countries (read: NATO) places ships on a continuous and rigorous schedule of transiting the straits and loitering in the Black Sea, with Turkey’s permission. This would undoubtedly be difficult to coordinate and will likely decrease NATO’s ability to present a credible threat to the Russian government and any attempts it might make to assert control over Crimea.


The Montreux Convention of 1936 has significant implications for the current crisis in Crimea. The United States and its NATO allies, wishing to put pressure on Russia while it tries to exert its influence and “protect its interest” in Crimea, must work within the bounds of the convention. If the situation escalates further, the United States and its allies will be increasingly constrained by the convention and its tonnage restrictions from resorting to traditional methods of exerting pressure. Absent the ability to use these traditional methods, diplomatic channels will become ever more vital as the United States and its allies seek to maintain pressure on the Russian government and show their support for the newly minted Ukrainian government.