The 2009 ABA Section of International Law Spring Meeting was held 14-18 April 2009 at The Fairmont Hotel in Washington, D.C. There were 80+ CLE programs, a series of networking events every day and evening, and special events at The Kennedy Center and the U.S. Department of State. I tweeted (#ABA) from the event. This blog posting provides short summaries of some of the sessions. Topics of special interest are separate blog postings. I greatly enjoyed the Spring Meeting and meeting so many of you. Please feel free to email me using the link on the left side of the page. I welcome additional summaries of any session(s) you attended.

Conference Details

2009 ABA Section of International Law Spring Meeting
14-18 April 2009
Fairmont Hotel
2401 M Street, N.W., Washington, D.C. 20037
Website: http://www.abanet.org/intlaw/spring09/

Program Committee Co-Chairs:

• Meaghan McGrath Beaumont, International Finance Corporation, Washington, D.C.
• Lori Sostowski, Hogan & Hartson LLP, Washington, D.C.
• Marcy Stras, Baker & Hostetler LLP, Washington, D.C.

Session Summaries

Re-Shaping the Human Rights Agenda: Opportunities in the New Administration

Speakers:

• Jeffrey L. Bleich, Special Counsel to President Barack Obama in the White House (Moderator)
• Santiago Canton, Inter-American Commission on Human Rights, Washington, D.C.
• William Davis, UN Information Centre, Washington, D.C.
• Chip Pitts, Amnesty International (USA), Houston, Texas
• Ambassador Karen Stewart, Bureau of Democracy, Human Rights and Labor, U. S. Department of State, Washington, D.C.

This session covered a broad range of topics with Jeffrey L. Bleich asking the panelists to respond to upcoming proposals, contemporary legal topics, country-specific situations, and possible international institutional reform. The session ended with a fast-paced "lightning round," during which panelists quickly provided suggestions for short-term concrete action by President Obama to promote human rights, domestically or internationally. Bleich provided few comments, with the exception of a concluding remark that some of the advice was better than what he generally gets from special counsel. The panelists provided reflections and recommendations with respect to the Durban Review Conference, the Human Rights Council, the UN Office of the High Commissioner of Human Rights, the International Criminal Court, the Alien Tort Claims Act, China, Sudan, Cuba, and actions for the Obama administration to take within the next 30 days. Read a more in-depth summary and analysis.

Can Carbon Trade Save the World (or Does the World Need to Be Saved from Carbon Trading)?

Speakers:

• Michael Gerrard, Columbia University School of Law, New York, New York
• Jeffrey Gracer, Sive, Paget & Riesel, P.C., New York, New York
• Kenneth S. Rivlin, Partner, Allen & Overy LLP, New York, New York
• Joseph Dellapenna, Villanova University School of Law, Philadelphia, Pennsylvania (Moderator)

ABA-provided description: Within the past year, support has emerged for cap-and-trade as the most politically viable technique for reducing or eliminating the emission of heat-trapping gases. Yet, we live in a world in which markets have rather spectacularly failed with the dot.com bubble, the California energy fiasco, and the current financial meltdown. Would a carbon market, or markets for other greenhouse gases, really solve the problems for which they are proposed? Markets could harness private capital and ingenuity to address the most serious crisis currently facing humanity, but carbon trading is so fraught with uncertainties and contingencies that perhaps no amount of regulation can manage adequately the potential for gaming the system. Between these positions are a range of views about how to frame measures to create and maintain a properly functioning carbon market.

This session, sponsored by the International Environmental Law Committee, focused on the pros and cons of carbon caps, tax, and regulation through command and control. The 20-30 attendees included foreign lawyers from Brazil, Canada, the Netherlands, Mexico, and Portugal. Michael Gerrard presented the current legal and regulatory landscape and introduced the proposals currently being considered by the White House and Congress. Jeff Gracer and Ken Rivlin identified the virtues and defects of the several possible responses.

Rivlin agreed with Gracer that a carbon tax is the most efficient solution but the least politically viable. Both expressed concern related to Obama's recommendation to use the profits for health care. Gerrard disagreed with the other panelists that a hybrid approach, combining both carbon cap-trade and carbon tax approaches, could be used. He argued that carbon caps can control the maximum emissions, whereas carbon taxes can control the pricing. The bottom-line, he argued, is that "you cannot have both." Gerrard identified 15 "design issues" of any carbon cap-and-trade system. One attendee remarked that the list was the most comprehensive and useful one he had seen.

During question and answer, attendee Gabriella Merla advocated for a hybrid approach. David from Vancouver agreed that a hybrid approach is likely the most appropriate outcome. He recommended following the upcoming May 2009 election in Vancouver because the pivotal political issue across the major two parties is the carbon cap-and-trade system versus a carbon tax. Alejandro expressed concerns related to states' obligations and the possibility of the U.S. imposing obligations on others. Marisa raised the foreign products dilemma, by which the United States needs to address how domestic products will compete with foreign products not subject to the additional eco-costs arising from the carbon caps or tax. David from the United States observed that the financial crisis illustrates that we do not know which institutions should govern, nationally and internationally, and what the role of those institutions should be to ensure good governance. Read a more in-depth summary.

Drafting and Negotiating International Agreements

Speakers:

• Pierre-Yves Gunter, Python & Peter, Geneva, Switzerland
• Calvin Hamilton, Hamilton Abogados, Madrid, Spain
• Florian Jörg, Bratschi Wiederkehr & Buob, Zurich, Switzerland
• Fabiano Deffenti, Carvalho Machado Timm & Deffenti Advogados, São Paulo, Brazil (Moderator)
• Erik B. Wulff, DLA Piper LLP, Washington, DC (Moderator)

ABA-provided description: This program will address common pitfalls in negotiating and drafting international agreements, such as transplanting and adapting foreign legal concepts and using dual language contracts and ensuring enforceability of the parties' intent. Emphasis will be given to specific problems that the speakers have encountered in drafting international agreements and how they are resolved at the negotiation stage and otherwise subsequently dealt with by courts or arbitrators.

Panelists discussed the impact of cultural differences in negotiating and drafting contracts and provided various real-life "war stories" from their practices about how cultural misunderstandings led to material breaches, failed negotiations, and litigation. During the last five minutes, panelists briefly identified pragmatic tips for contractual provisions and answered questions from the attendees. Read a more in-depth summary.

Laptop/PDA Searches and Seizures at the Border: Best Practices

Speakers:

• Susan Kohn Ross, Mitchell Siberberg & Knupp LLP, Los Angeles, California (Moderator)
• Stewart Baker, Steptoe & Johnson LLP, Washington, DC
• Cyndee Todgham Cherniak, Lang Michener LLP, Toronto, Ontario, Canada

As one attendee remarked to me later, Baker and Cherniak offered two extremes. Baker endorsed a "trust us" approach to laptop searches by authorities. Cherniak advocated taking extensive measures to prevent any data viewing, yet alone data seizure, by authorities.

Baker argued that data privacy related to border control has not entered a new paradigm with electronic media. He said that it is hard to argue laptops searches are uniquely intrusive compared to searching diaries, papers, and other items permissible for the past 100 years. He contends that a successful argument would need to argue that laptop searches are equivalent to a "body-cavity search." He cited 11 reported decisions by the courts, including two losses on a civil liberties argument in the liberal 9th Circuit. The U.S. border control, he argues, has plenty of experience in keeping information confidential, including trade secrets, and upholding the attorney-client privilege. In response to his challenge for any attendee to give him one case where a laptop search has breached attorney-client privilege, no one responded. He recommended allowing customs agents to search the laptop.

In sharp contrast, Cherniak asserted that a prudent and reasonable lawyer shall take affirmative steps to protect the viewing or seizure of client data at border crossings. She recommends carrying NO DATA at all across borders. She says that she stores no data on her laptop and resets her Blackberry to factory settings without any personal data when she travels. Her firm locks the laptop with a password that is available only at her destination, with the intent of allowing her to deny knowledge of the password if asked by the customs agent. To that, Baker joked about how that practice invites reasonable suspicion when you inform customs that your "organization" will send you the password only after your arrival. The crowd laughed heartily. Cherniak's advice is pragmatically wise if you want to reduce the risks of data capture by foreign or domestic authorities, since they could download your data or seize your equipment. Cherniak recommended the tips in "Secure Your Laptop" available at http://www.cba.org and USB keys that self-destruct after 10 incorrect login attempts.

Attendees expressed strong viewpoints, making this one of the more lively sessions and illustrating how emotional data privacy can be. There was no clear answer as to what extent lawyers need to take affirmative steps to protect access by customs authorities at international borders to client data, contacts in address books, meeting information in schedule planners, and images.

Breaking Through the Glass Ceiling – Successful Women in Their Field

Speakers:

• Preeta Bansal, Skadden Arps Slate Meagher & Flom, New York, New York
• Jamie Gorelick, WilmerHale, Washington, D.C.
• Roberta Liebenberg, Fine, Kaplan and Black R.P.C., Philadelphia, Pennsylvania
• Jane Luxton, Former General Counsel, National Oceanic and Atmospheric Administration (Bush Administration)
• Fiona Schaeffer, Weil, Gotshal & Manges LLP, New York, New York
• Laura Stein, The Clorox Company, Berkeley, California
• Elisa Kearney, Davies Ward Phillips & Vineberg LLP, Toronto, Ontario, Canada (Moderator)

Summary kindly provided by Melanie K. Tiano, Duquesne University School of Law, J.D. Candidate, May 2009:

Of Pensieves and Privacy: The Clash of Fundamental Rights in the Post 9-11 World

Speakers:

• Justice Carolyn Berger, Delaware Supreme Court, Wilmington, Delaware
• Robert Brodegaard, Thompson & Knight LLP, New York, New York
• Jessica Darraby, Darraby Law, Los Angeles, California
• Glenn P. Hendrix, Arnall Golden Gregory LLP, Atlanta, Georgia
• Elena Norman, Young Conaway Stargatt & Taylor LLP, Wilmington, Delaware
• Steven Richman, Duane Morris LLP, Princeton, New Jersey (Moderator)
• Susan Kohn Ross, Mitchell Silberberg & Knupp LLP, Los Angeles, California(Moderator)

This session presented a fictitious oral argument in U.S. civil court on privacy rights in the context of the post-9/11 legal framework. The program chairs and participating panelists developed legal briefs, motions, stipulations of facts, and related court documentation. One judge remarked that, with the numerous preparatory documents, the participants treated the preparation as if it were a real case. The purpose was to explore "one of the great paradoxes of our time, governments (and in common law jurisdictions, courts) simultaneously have expanded rights of privacy and data protection while, at the same time, require more and more disclosure of confidential individual information."

Attendees received the 14-page legal brief outlining three cases:

• McGonagall vs. Skeeter
  Rita Skeeter takes a photo using a telephoto lens of Professor Minerva McGonagall with an odd expression on her face and uses it for commercial purposes in her news article and as artwork. McGonagall brings suit in Rowlingsland on defamation, harassment, and invasion of privacy.
• Potter v. Skeeter
  Rita Skeeter takes a photo using a telephoto lens of Harry Potter with his former girlfriend, Cho Chang, in close physical contact. Potter sues Skeeter in the United States for invasion of privacy, false light and defamation.
• Hogwarts Academy v. Skeeter
  Rita Skeeter takes photos of Hogwarts, despite a law prohibiting photos of the building based on security concerns. Hogwarts sues for injunctive relief in the United States seeking to compel return of all copies of the image that it contends poses a threat to its security and to otherwise enjoin distribution of the photograph.

At the end of the session, attendees were asked to vote on the outcome, but there was insufficient participation to draw conclusions about any consensus in the room. The three "judges" then provided their observations.

I found several parts of the hearing difficult to hear because there was frequent off-microphone dialog among the participants in the front of the room. At times, the discussion became very technical on specific rules of procedure in U.S. courts, which seemed to frustrate or bore some of the foreign lawyers. Roughly one-third of the room indicated that they were from foreign countries and did not practice in the United States. The format seemed better suited to a classroom setting, with time to read the documents in advance and to discuss how the arguments implicated the pragmatic integration of civil procedure, client advocacy, and substantive law.

From the High Seas to the Internet: Combating Piracy and Enabling Content Usage in the Digital Environment

Speakers:

• Jessica Darraby, Darraby Law, Los Angeles, California (Moderator)
• Steven R. Englund, Jenner & Block LLP, Washington, DC
• Steven Tepp, Office of Policy and International Affairs, U.S. Copyright Office, Washington, DC
• Fritz Attaway, Motion Picture Association of America, Washington, DC
• Scott Bain, Software & Information Industry Association, Washington, DC

Tepp said that he is "confident" that the 111th Congress will pass legislation permitting the use of orphan works. He also briefly discussed three top issues: accessibility by the blind, WIPO treaties, and statutory damages. Attaway said he was on the panel to provide the "30,000 foot" perspective. He raised the questions of "What is an orphan work?" and "Should the new work be required to be transformative?" He pointed out that photographers and artists may be difficult to identify for the purposes of copyright. He argued for the use of watermarks for copyrighted digital images. He also brought up the controversy over the reauthorization of satellite TV's distant signal compulsory license. England asserted that the United States may not be in compliance with its treaty obligations under Article 8 of the WIPO Copyright Treaty and Article 14 of the WIPO Performances and Phonographs Treaty because the United States does not "make available right." Bain argued that unlimited TLDs threaten the stability and security of the Internet. Bain called for eliminating "anonymous" or "private" WHOIS registrations.

During question and answer, one unnamed attendee said he copied DVD movies, only to be corrected by Tepp and Attaway that his actions were not lawful. The unnamed attendee then tried to clarify that he copied them "before it became unlawful," only to find himself corrected again by Tepp and Attaway that his actions were never lawful. If you were uncertain about what constitutes "fair use," think about the fact that even an IP lawyer was unaware of what constitutes fair use of digital media, particularly as compared to copies made by VCRs. How adequate are the old laws and policies in the context of new and emergent technologies?

One interesting question that arose was whether a court judgment would be required to require ISPs or content providers to remove harmful or allegedly unlawful content from the server or to disable public access. If the content is disabled, how long? all ISPs? just that ISP?

Corporate Expatriations Can Be Very Costly!!! Latest Tax Planning Techniques in the International Arena

Scheduled Speakers:

• Rebecca Armour, Hogan & Hartson LLP, London, United Kingdom
• Carl Dubert, PricewaterhouseCoopers, Washington, DC
• Ricardo Leon Santacruz, Sanchez DeVanny Eseverri, S.C., Morterrey, Mexico
• Klaus Sieker, Flick Gocke Schaumburg GmbH, Bonn, Germany

Program Chairs:

• William D. Rohrer, Carlton Fields PA, Miami, Florida (Moderator)
• Lennaert Posch, Stibbe P.C., New York, New York (Moderator)

This session was geared to experienced international tax specialists.

One of the main tips from this session: U.S. Internal Revenue Code section 7874 makes no distinction between US and foreign owners and applies to a business owned by a domestic partnership. It does not matter if the business is U.S. or foreign-owned. The panelist recommended not creating any U.S. entities unless absolutely necessary. A U.S. entity will "taint and infect" the entire group. If you do have a U.S. company, do not move it around within the structure to avoid accidentally triggering anti-inversion rules. Almost ironically, although Section 7874 was added under the American Jobs Creation Act of 2004 to thwart the perceived abuse of inversions of U.S. corporations into foreign corporations, it appears to me that its overreaching approach deters the formation of U.S. companies or the creation by U.S. companies of potentially beneficial joint ventures with foreign businesses.

Another tip: One of the troublesome triggers is accidentally migrating "the place of effective management and control" by having board meetings outside, and in some cases, within the jurisdiction.

Armour identified 4 reason to expatriate from her experiences in the United Kingdom:

• Increasingly uncompetitive compared to regimes in other jurisdictions;
• Gaps between the local tax rate and the U.K rate, via the dividend credit system;
• Controlled foreign company (CRC) rules may apply to tax offshore profits at the U.K. tax rate, which otherwise would suffer low tax liability or no tax at all; and
• Corporation tax headlines higher when compared to other jurisdictions
.

China: The Road Ahead

Speakers:

• Adam Bobrow, Signal Capital Group, Limited, Turkey (Moderator)
• (? replacement speaker Liu?)
• Yee Wah Chin, Ingram Yuzek Gainen Carroll & Bertolotti, LLP
• Ding Fa "David" Liu, Jun He Law Offices, Shanghai, China

Great session! Despite being the last session of the conference, it was well-attended. The panelists covered several regulatory changes related to anti-monopoly, bankruptcy, labor, corporations, investment, and foreign exchange. They provided a broad summary of changes and then delved into each subject matter, providing pragmatic advice for practitioners.

Chin identified the 5 big problems, known as the "Drafters' Dilemma," in constructing regulatory reform:

• Draft a modern statute
• Deal with state-owned-enterprises (SOEs)
• Respond to "administrative monopoly"
• Sell reforms to the public and business sectors
• Create an effective scheme of administration

She identified the three pillars: (1) restrain trade, (2) handle abuse of dominance in the marketplace, and (3) merger control. Problems, she said, still remain: crisis cartels, unfairly high prices of "dominant" actor, and national security review of mergers. Administrative monopolies may be "very local," even localized to a city, such as in Shanghai. Administrative monopolies can block new market entrants or frustrate the efforts of new outside firms by taxing them more than local businesses or by over-inspecting them. She quoted a Chinese expression, "The mountain is high and the emperor is far away."

Liu, the replacement speaker, asked, "Who will administer the law?" The answer, he said, is unclear. The State Council (Cabinet) has designated three entities: the State Administration of Industry and Commerce (SAIC), the National Development and Reform Commission (NDRC), and MofCom (pronounced "Moff-Com", which has jurisdiction over mergers). He pointed out that none of the three entities has jurisdiction over administrative monopolies. The public publication of MofCom's opinion in InBev, he said, is a "good omen."

David Liu had a mere 8 minutes to present all his content, but the attendees remained riveted and thankful for his rapid speed. He covered changes in tax laws, particularly related to the environment, energy, and high-tech. He gave advice related to the loss-carryover period of five years. He also outlined what constitutes "effective management and control" and how that could accidentally trigger tax implications. Further, he noted that there is a very low threshold for "doing business" in China, which exposes corporations and nonprofits to income tax not covered by the US-China tax treaty. An exemption may be possible but must be secured in advance.

The session gave me the feeling that China is emerging as a stronger financial authority within the global arena through its domestic reforms.

ABA Section of International Law, Afternoon on Capitol Hill

Program Chairs:

• Ronald A. Cass, Cass & Associates, P.C., Great Falls, Virginia
• Kristi Gaines, ABA Legislative Counsel, Washington, DC

Note: The event was off the record. My summary is limited to factual information about the speakers and facts already in the public domain. The event was held in United States Capitol Building, H-137 (Ways and Means Committee Meeting Room).

Ron Cass, Section of International Law Program Chair, provided a short welcome. Nilmini Rubin, professional staff member of the Senate Foreign Relations Committee spoke for roughly 30 minutes on the 111th Congress. For the remaining 30 minutes, she fielded and answered many questions. Seth Bloom, General Counsel for the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights, spoke on the key agenda items for the Subcommittee, which can be found in the 25 March 2009 press release by Senator Herb Kohl. In particular, Bloom highlighted discount retail pricing of consumer goods, railroad competition (H.R. 146), "reverse payment" patent settlements in which manufacturers pay generic drug companies to keep their drugs off the market after the patent expires (H.R. 369), cellular telephone text messaging, competition consolidation related to Internet companies and online advertising, and international enforcement of antitrust. Ryan Triplette, Chief Intellectual Property Counsel for Ranking Member Arlen Specter (Senate Judiciary Committee), spoke on IP issues yet made no mention of Obama's recent reliance on Executive Order 12958 (1995) to assert that discussions of the proposed Anti-Counterfeiting Trade Agreement are "classified in the interest of national security." (CNET story 3/12/2009). Joseph Zogby, Chief Counsel to Senator Richard Durbin and Staff Director to the Senate Judiciary Subcommittee on Crime and Drugs, concluded the one-hour session on IP and antitrust. The remaining hour focused on international trade and economic policy. Angela Ellard, Chief Trade Counsel, and Jason Kearns, Trade Counsel, for the House Ways and Means Committee provided carefully prepared remarks, but they also answered a few questions. David Kavanaugh, Tax and Trade Counsel for Senator John Ensign, was the last speaker and answered many questions.

I shared my table with David H. Brill, Gabriella G. Merla, Caryl Ben Basat, Lucy Liew, and Pat (from the EPA).

Networking in D.C. (aka "Speed Networking")

Tuesday, 14 April 2009, 4:30-6:00 p.m.

Similar to speed dating, the session fostered 5-minute discussions between two attendees. When signaled, half the room switched to the next seat. The session attracted 80+ people and filled every available chair, and then some. Janet Moore, from International Lawyer Coach Inc., provided three tips to participants: (1) think of what you want to convey to the other person as your "elevator speech" and remember to include something memorable about yourself, (2) listen to what the other person says and try to find common ground, and (3) think of how you can help the other person. The fast, structured format made it easy to network. The session also put everyone in the mood to network during the break and at the subsequent reception. I was not the only person to run out of a large stack of business cards. One attendee saved his last card and ran to Kinko's the following morning to get more made. Several people remarked on how fast the time flew and how they would like to see the program become a permanent fixture of future meetings. I concur. I particularly liked the timing of the event on the first evening because it encouraged people to get a better understanding of the background of other attendees. People also arranged meet at a particular session, to get together during a specific break, and to have breakfast/lunch/dinner later in the week to continue their discussions on common legal interests.

Among the people in my rotations, I met Aaron Schildhaus who serves as the current ABA Section of International Law Chair, Walter Stuber from Brazil, Melanie King with NOAA, Alpita Shah with the IFC, Bert Chanesta from South Africa, Jared Shephard currently a law clerk in Alaska, Shruti Rana at the University of Maryland School of Law, Aegyoung Jung with the WTO, and Susan Buscarnera with National Corporate Research. Thank you all for the lively conversations.

Congratulations to Cyndee Todgham Cherniak with Lang Michener LLP in Toronto, Ontario, Canada and Jennifer Wills with the U.S. Environmental Protection Agency in Washington, D.C. for their efforts to plan and implement this networking session.

Dinner/Dance Reception at The Fairmont Washington, DC with the Johnny Esquire Band

The big amplifiers in the small venue proved to be a barrier to communication. Like many others, I tried shouting to no avail. Even shouting into ears at close range did not work. I had multiple people tell me that they were leaving because of the sound level. Also, a few first-time attendees who relied on the conference description about all events being "business casual" (myself included) were surprised to discover that some people wore evening gowns and their best evening suits with black silk lapels.

The Nigerian delegation presented a gift to Aaron Schildhaus, who was dressed in Nigerian textiles for the occasion.

Aaron Schildhaus announced that Michael Burke will be the 2011 Chair of the Section of International Law.

Chair's Closing Reception at the U.S. Department of State

Splendid event with great opportunities to network with U.S. and foreign lawyers and diplomats in the grandeur of the 18th-century style Diplomatic Reception Rooms on the top floor of the State Department. The weather cooperated so attendees were able to stroll on the outdoor balcony with magnificent views of The National Mall and its monuments. I delighted in the opportunity to see the desk on which the Treaty of Paris, ending the American Revolution, was signed in 1783.

Young Lawyers Interest Network After-Hours Reception

The event, sponsored by Salmen Navarro & Associates, was attended by lawyers of all ages and from numerous countries. The space was intimately small, but the noise level was fortunately less than Friday's reception. My main critique is that the venue's narrow staircase prevented some attendees from participating due to accessibility issues. Overall, a good time was had by all.


Inside Justice Resources

• Twitter - I tweeted Live from ABA Section of International Law Spring Meeting
• 2009 ABA Section of International Law Spring Meeting: Re-Shaping the Human Rights Agenda: Opportunities in the New Obama Administration
• 2009 ABA Section of International Law Panel Discussion: Can Carbon Caps/Trade/Tax Save the World from Global Warming?
• 2009 ABA Section of International Law Spring Meeting Panel Discussion: Drafting and Negotiating International Agreements

2009 ABA Section of International Law Spring Meeting Resources

• 2009 ABA Section of International Law Spring Meeting
• Full Program Schedule
• CLE/CPD Accreditation
• Sponsors and Partners
• American Bar Association Section of International Law
• American Bar Association