International Section Executive Committee Blog

1. “Custodian” of New York Law as an International Standard. It is said that more international transactions are governed by New York law than the law of any other jurisdiction in the world. While New York can be proud of the reception that its law has received throughout the world, this fact carries a corresponding responsibility to make New York law as strong, flexible and useful for purposes of structuring cross-border business and personal transactions as possible. The process here should be reciprocal and not competitive. There is after all no copyright on New York law; other jurisdictions can incorporate New York legal concepts or provisions that they deem meritorious. At the same time, New York must learn about and be willing to adopt meritorious provisions of laws that other jurisdictions have adopted or recommended.

2. “Guardian” of the New York Convention on the Enforcement and Recognition of Arbitral Awards and the international arbitral process. The United Nations Convention on the Enforcement and Recognition of Arbitral Awards was negotiated, drafted and signed in New York City and hence it is better known as the “New York Convention.” The New York Convention is the key to what has made international arbitration such a force in private and even public international law because, with it, has come substantial assurance about the enforceability of arbitral awards through national courts even where the courts have not rendered the awards whose enforcement is sought. With the help of our chapters we should be able to maintain up to date information about the implementation of the New York Convention throughout the world. We should also take a lead in discussions and proposals about updating the Federal arbitration act, other national arbitration statutes, and the arbitral process itself.

3. “Monitor” of International Law Development at the United Nations. The United Nations is headquartered in New York as well as the Secretariat of the International Law Commission. It is important that the international bar be knowledgeable about and involved in the process of law formation and treaty development that occurs through the United Nations and its agencies, such as UNCITRAL and UNIDROIT. For this purpose the Section should take the lead in assuring that NYSBA, or at least the International Section, has NGO status at the United Nations (as the ABA and the NYCBA already have) and, once achieved, plays an active role in the UN discussions and debates on matters of importance to NYSBA International members and their varied practices and civic concerns.

Approved by the NYSBA International Executive Committee
September 15, 2009

Posted on behalf of Chair Michael Galligan, Esq.

Michael W. Galligan
May 12, 2009

Twenty-one years ago, Lauren Rachlin and a group of like-minded individuals won approval from the NYSBA leadership to unite the International Law and International Practice Committees of the NYSBA into one unified section, the International Law and Practice Section (recently renamed “the International Section”). As the Section approached its twenty year anniversary in 2006, Chair Jack Zulack, and Chair-Elect Ollie Armas, announced at the Executive Committee’s Annual Retreat the launching of Task Force 2026 (“Long-Range Planning Task Force of the International Law and Practice Section/The Next 20 Years”) – a project aimed at imagining and planning for what this Section might and should look like twenty years into the future. Under Chair Marco Blanco’s leadership in 2008, the Section focused strongly on articulating the mission and goals of our Committees, revived our Foreign Lawyers Committee (formerly the “Counsel of International Legal Consultants”) and with the assistance of Executive Vice-Chair (now Chair-Elect) Steven Krane, established formal ties with the International Bar Association.

This year, we are working to bring this Section to a new level of effectiveness and impact by moving vigorously in: two, superficially contradictory, but profoundly complementary, directions: to increase the Section’s level of service and involvement with the legal community of our home state of New York and, at the same time, to expand and fortify the Section’s outreach to legal communities throughout the world. Just as the depth of the roots of the great maple trees that grace the broad landscape of this State supports the wide expanse of their branches, we aim to intensify and expand our activities and profile in this state in order to also support the vigor of our outreach to South as well as East Asia, Eastern as well as Northern Europe, Africa as well as Latin America and the Middle East.

Our efforts to intensify and expand our activities and profile in New York include:

1. Leadership and support from this Section to afford continuing international legal education in New York that is practical and concrete. We began this year with plans for two full day programs in the Spring: (1) Fundamentals of International Practice, primarily designed for new attorneys and seasoned attorneys who are for the first time dealing with cross-border clients, legal issues or transactions that involve the law of different countries, and (2) the International Practice Institute, designed for attorneys with at least some experience in international practice, which was to focus on the new issues and prospective challenges to the transnational practice of law posed by the Great Credit Crisis of 2008 and 2009. The Fundamentals was a great success but surprisingly drew very strong attendance from the more experienced attorneys whom we expected to be more attracted to the Institute. The Institute, which offered a wide range of panels and sessions related to the Great Credit Crisis but took place only two weeks after Fundamentals, regrettably drew a lower than expected registration, causing us, in connection with the NYSBA CLE Department, to have to cancel the event to contain any financial losses for the Association. We know from the very favorable reception to Fundamentals that there is a real need and interest in strong and vigorous CLE in the international arena. It may be that the more interdisciplinary and interactive format that framed the Institute is more appropriate for colloquia for specially-invited international practitioners. Thus, while our first experience in offering these types of programs was not an unalloyed success, we have learned valuable lessons that we can use as we continue to plan for strengthening our educational offerings to the New York international bar.

2. Leadership from this Section to make the law of this state affecting cross-border commerce, dispute resolution, communications, and personal relationships as good as it can be. “International Law” surely affects multinational enterprise, commerce and investment but it just as assuredly affects thousands upon thousands upon thousands of businesses, families and individuals throughout New York: possible topics of study include the enforcement foreign currency judgments in New York courts, the qualification of foreign persons as guardians of minor children residing in New York, correlating Articles 8 and 9 of the New York UCC with the laws of non-U.S. jurisdictions (most noticeably Ontario law), developing guidelines for discovery in international arbitration, streamlining procedures for transfers of bank accounts of foreign decedents to heirs in civil law countries, and the registration of trusts in New York to secure U.S. taxpayer status.

On the Federal level, there are also opportunities to help fashion and improve international law. To take one example suggested recently by our Committee on the International Intellectual Property Law, there may be significant work to be done in trying to harmonize the disparate treatment of intellectual property assets in the bankruptcy proceedings of different countries. I believe that this Section should be at the forefront in the fashioning of whatever legislation eventually emerges in response to the continuing efforts of the OECD, especially through the Financial Action Task Force, to more closely scrutinize and track the activities of private companies, partnerships and trusts to prevent private entities from becoming conduits to finance terrorism and money-laundering. Imbedded in at least some of these proposals are “gate-keeper” provisions that could seriously impair the principles of client-attorney privilege and confidentiality: to these provisions we must be willing to give intense scrutiny and a spirited defense of the core principles of our profession.
No less important is the work of our Committees dedicated to the work of public international law, human rights and international organizations - particularly the United Nations – the most visible and the most important (even if at times controversial) of today’s international institutions, which is headquartered in our own State and City of New York. Notwithstanding the private practice focus of perhaps the majority of our members, a vibrant law-based, global society can only flourish in a world where war is prevented, human rights protected and world-wide mechanisms to support civil society as well as personal freedom, creativity and originality are promoted.

Our efforts to strengthen and vitalize our outreach to the many jurisdictions outside our state and national borders include:

1. Strengthening the Section’s extensive network of Chapters outside the United States, with special attention to the Chapters the Section approved in 2008 such as India, Thailand and Vietnam and in 2007 such as Australia, Finland and Iceland. This year, we seek to expand our network of Chapters in Asia, Eastern Europe, Africa and the Middle East. Moreover, this year, our annual fall meeting will take place in Singapore, poised at the intersection of so many trade, financial and personal and passage ways between and among the diverse countries, cultures and religions of the region as well as China, India, Australia and Oceania. We hope that this meeting will be not only a splendid opportunity for legal education and client-development but for building a long-lasting network of Asian jurisdictions for which the support of this Section and the law of this state of New York is significant. Plans as also well advanced for the first “All India NYSBA International Conference,” sponsored by our new India Chapter, which will take place in New Delhi from June 4-6. Several NYSBA International members from New York and abroad will be traveling to New Delhi to assist with the programming.

2. Leadership in the effort to coordinate the work of the State Bar Associations throughout the United States that have sections or divisions dedicated to some aspect of what we comprehensively refer to as “international law.” We have approached the leadership of each of the other twenty-nine State Bar Associations that appear to have some form of multinational or foreign law sections to work with this Section in learning about the structure, purposes and program of each Section and in finding ways in which we can assist and support each other. A first telephone conference is scheduled for May 21. It is too early to predict the shape that these contacts may take. However, I propose to you that, in a nation that ratifies international treaties and conventions much less frequently than it signs or even proposes them, our State Bar Associations are uniquely situated to educate local communities throughout our country about the contributions to their own well being, even at the most local and domestic levels, that international law can make.

Let me conclude by mentioning two particular innovations taking place this year that, perhaps more than anything else already mentioned so far, will “change the face” of this Section: our new Announce List-Serve, which was initiated on March 9, and our new website membership directory, which will be launched momentarily. The Announce List-Serve allows every one of our 2,200 members to have up to date information and news about our Section that only our Executive Committee had a few months ago. The Directory will be a particularly good tool for legal referral and networking needs, complemented also by the “Linked-In” NYSBA International discussion group initiated by James P. Duffy, III and Jonathan Armstrong.

In concluding, I would like to acknowledge and thank the many members of the NYSBA Headquarters staff who have been very resourceful and cooperative in dealing with the “winds of change” coming from the International Section this year – of course our Section and Meeting Liaison, Linda Castilla and also Terry Brooks and Linda Staub (CLE), Barbara Beauchamp (Web) and Megan O’Toole (Membership).

We have all been dismayed, shocked and scandalized by the cruel and vicious attack on many people both of Indian and non-Indian descent in the city of Mumbai, which started a week ago this evening. We have shared in the grief of those who have lost loved ones and the suffering of those who have been injured. This indiscriminate - but clearly coordinated and premeditated - attack underscores the challenges we continue to face as we seek to forge a world in which respect for the humanity of every person transcends all differences in national, racial, religious and cultural background.

1. India Chapter: Hardly had the news about the attacks in Mumbai come across the internet then there occurred a small - but I hope important - event that points in the exact opposite direction than these attacks. This was the occasion of the first extended meeting between Karavaj Singh, the new chair of our New Delhi/India Chapter, and the Section's leadership. Mr. Singh traveled to Singapore to meet with Eduardo Ramos-Gomez, our Vice Chair for Chapters in Asia and Principal Co-Chair of our 2009 Singapore Conference. I had the privilege of taking part in this conference by telephone late Thanksgiving Eve from New York City. Mr. Singh has been very thoughtfully and carefully recruiting members of the bars of the various Indian states and cities to become members of our Section and the NYSBA. We also had a very good discussion about possible sources of resistance to the growth of the Chapter in India and the way we can deflect any such resistance by working to build up a solid network of communication and cooperation between the lawyers of India and the lawyers of New York. Mr. Singh expects to be joining us for our Executive Committee meeting on January 27, 2009 and our Annual Program, Luncheon and Awards ceremony on January 28, 2009.

2. Upcoming Conferences. The attacks in Mumbai could give rise to security concerns related to our 2009 Conference in Singapore and 2010 Conference in Dubai. We must not do the work of the terrorists who attacked Mumbai by retreating from our plans for these Conferences. But we also intend to do everything we can to make sure appropriate security concerns are addressed. The Singapore government is very focused on security matters. We have the support of the Singapore Ministry of Law for the 2009 Conference and we expect the range of government support to grow as plans for the Conference develop. As to Dubai 2010, which is further off right now, we already have indications from the Dubai International Financial Centre that they will work closely with us on the 2010 Conference. The 2010 Conference leadership will also be taking up security issues with the Authority and other government bodies.

3. Work for our Section Committees: The attacks on Mumbai underscore the continuing effort we face to find the right way at the international and domestic level to balance the legitimate and pressing needs to protect everyone from the type of wanton physical attack and violence we witnessed last week while safeguarding the civil rights of all. Although our Section is perhaps better known for its efforts in promoting the vitality and strength of private international practice, our Section should lead the way in helping the New York legal community, and the many other legal communities with which we are affiliated through our worldwide network of Chapters, in thinking through the challenges to the international and domestic rule of law that events like the attacks on Mumbai pose. I hope that our Committees on International Human Rights (with its new leadership just approved at our last EC meeting), our new Committee on the International Human Rights of Women, as well as our Committees on Public International Law and the United Nations and International Organizations can develop a suitable plan of study and action. Mike Pisani, Steve Krane and also Linda Castilla and her colleagues at NYSBA headquarters are working with me on plans to assist all our Committees to "gear up" for a very active 2009. You will be hearing more on this soon!

Thank you for your attention to these thoughts. Your comments and suggestions are always welcome.

Michael

Michael W. Galligan, Esq.
PHILLIPS NIZER LLP
666 Fifth Avenue
New York, New York 10103-0084
Phone: (212)841-0572
Fax: (212)262-5152
Email: mgalligan@phillipsnizer.com
www.phillipsnizer.com

This letter, which was first posted on the Executive Committee Listserve, has caused some considerable controversy within the Section. The Listserve is not the place to discuss this document. It is posted here for that purpose.

Transition Letter to President-Elect Obama dated 11-24-08

Please feel free to comment on this letter on this blog.

The Executive Committee's November 12th meeting was a great success, thanks to Membership Committee Co-Chair Joyce Hansen who arranged for the New York Fed to host the meeting. Thanks to John Hanna, we have a few pictures of the meeting:

First Picture

Second Picture

Third Picture

We have Drew Jaglom to thank for these pictures.

http://www.kodakgallery.com/I.jsp?c=xeol83i.87ju0bxi&x=0&y=gdkfk1&localeid=en_US

Unfortunately, not all of them are good, but those of you who attended might see yourself in one or two.

http://www.kodakgallery.com/I.jsp?c=14o987lm.akwyulyu&x=0&y=-woczen&localeid=en_US

Here is a questionnaire that would be helpful to the Section's leadership, particularly, if you are not a member of the Section.

By: Travis S. Borquez, Sandra Day O’ Connor College of Law, Arizona State University

SARL Louis Feraud Int’l. v. Viewfinder, Inc., 489 F.3d 474 (2nd Cir. 2007)

Under New York law, a foreign judgment will not be recognized if the cause of action on which the judgment is based is repugnant to the public policy of New York. The U.S. District Court for the Southern District of New York found that a French judgment that violates the First Amendment should, therefore, not be recognized. The U.S. Court of Appeals for the 2nd Circuit held that in order for the District Court to determine the French cause of action repugnant to New York law, the District Court must first determine: 1- what level of protection public policy in New York provides under the First Amendment, and 2- whether the foreign law provides comparable protections. Because the District Court must first determine whether “fair use” factors provide First Amendment protection as a matter of law, the lower judgment is vacated and remanded for further proceedings.

BACKGROUND

In SARL Louis Feraud Int’l. v. Viewfinder, Inc., 406 F.Supp.2d 274 (S.D.N.Y. 2005), Feraud sought to enforce a French default judgment after Viewfinder failed to answer the complaint or appear in the foreign proceeding. Id. at 277. The French judgment consisted of costs, damages of 1mm francs, and a fine of 50,000 francs per diem for failure to remove the images of Feraud’s designs from Viewfinder’s website. Id. (The USD equivalent of $183,007.42 at the time of the foreign judgment.) The District Court granted defendant Viewfinder’s motion for summary judgment, finding that the judgment was repugnant to the First Amendment. Id. at 276.

In Viewfinder’s motion to dismiss, Viewfinder alternatively moved for summary judgment based on lack of finality of the French judgment and repugnance of the foreign compensatory remedy. Id. Viewfinder argued the remedy was repugnant because it was excessive and inconsist with American copyright and intellectual property law, and counter to the protections afforded by the First Amendment. Id. at 278. The District Court rejected all Viewfinder’s claims except the Constitutional argument, and granted the motions to dismiss and summary judgment. Id. at 276.

While the District Court emphasized the importance of “comity” and respect for the judicial acts of foreign nations, the court nevertheless found the foreign judgment repugnant to the public policy of New York. Id. at 279. (“New York courts have refused to enforce English libel judgments that would be inconsistent with the First Amendment and the equivalent provision of the New York constitution.”) C.f. Bachchan v. India Abroad Publ’ns Inc., 154 Misc.2d 228 (Sup. Ct., NY Co.,1992) The Court found Viewfinder’s publication of images containing Feraud’s designs as providing to the public information about which it has “considerable interest.” Id. at 285. Moreover, even if plaintiff had copyright protections, the images are ‘newsworthy matters’ afforded a fair use exception under the First Amendment. Id. at 284. Accordingly, the District Court held the French judgment impinged upon free speech rights and was repugnant to the public policy of New York and the “special place” American legal tradition places the freedom of speech. Id. at 281-282.

DISCUSSION

The 2nd Circuit found the District Court erred by failing to determine:1) what level of First Amendment protection a fair use exception to Viewfinder’s activities New York public policy requires, Viewfinder, 489 F.3d at 481-82 (determining fair use requires “balancing the competing interests of copyright laws and the First Amendment . . . before a court can conclude that a foreign copyright judgment is repugnant to public policy”), and 2) whether French copyright laws provide comparable levels of protection under the fair use exception, Id., assuming that Viewfinder’s unauthorized use of Feraud’s designs would have constituted fair use under US law.

The District Court erred in permitting Viewfinder’s unauthorized publication of Feraud’s images, Id. at 479 (“We cannot second-guess the French court’s finding that Viewfinder’s actions were ‘without the necessary authorization’.”), because they are ‘newsworthy matters,’ Id. at 482, See Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (Nation’s use of verbatim quotes from upcoming Gerald Ford memoir regarding Watergate scandal was not fair use even though material related to matter of public importance). The 2nd Circuit determined that being a newsworthy matter is but one factor in determining whether a fair use exception to copyright law applies. Viewfinder, 489 F.3d at 483 (under 17 U.S.C. § 107, factors in determining fair use are: 1) purpose of the use, 2) nature of the work, 3) portion used in relation to the whole work, and 4) the effect of the use on the copyrighted work’s value, potential and actual). Id. at 482. The District Court must further develop the factual record and using all fair use factors, determine whether Viewfinder avails itself of the fair use exception of the First Amendment which permits unauthorized publication of otherwise protected materials. Id. at 483.

On remand, if the District Court determines Viewfinder’s actions fall under the fair use exception of United States law, the court must then determine whether French copyright law provides comparable fair use protections to copyright infringers. Id. at 483. If Viewfinder’s actions have no fair use protection under U.S. law, the comparison of French law becomes moot. Id. (if Viewfinder’s publication in this case is not fair use under U.S. law, then French law prohibiting the conduct cannot be “repugnant to public policy”). Alternatively, if Viewfinder’s publication of images containing Feraud’s designs has fair use protections, the District Court must identify which French statutes underlie the foreign judgment. Id. at 478. Only then may the court compare protections afforded copyright infringers by New York and French law and whether French law is repugnant to the public policy of New York. Id. at 479.

CONCLUSION

The 2nd Circuit concluded that a two step process must be followed to determine whether a foreign judgment is repugnant to the public policy of New York and therefore unenforceable. The District Court must first determine whether appellant Viewfinder’s actions fall under the fair use exception to copyright law and are therefore protected under the exercise of free speech. The court must then determine whether French law provides similar protections. If it does not, only then may a judgment be considered repugnant to public policy.

The 2nd Circuit remanded the case for further proceedings but noted that the repugnancy argument rarely results in a lack of enforcement of a foreign judgment. Id. (“the ‘public policy inquiry rarely results in refusal to enforce a judgment unless it is inherently vicious, wicked, or immoral, and shocking to the prevailing moral sense’.”), quoting Sung Hwa Co. v. Rite Aid Corp., 7 N.Y.3d 78, 82 (N.Y. 2006).

The Court of Appeals rightly declares generally “under New York law [,] . . . foreign decrees and proceedings will be given respect . . . .,” Viewfinder, 489 F.3d at 479. A District Court in New York cannot find a foreign judgment repugnant to New York public policy if it does not first identify what New York public policy is and compare it to its foreign equivalent. The District Court cannot rely on U.S. Constitutional tradition, Viewfinder 406 F.Supp.2d at 282 (“among the basic human rights protected by the United States Constitution, the First Amendment occupies a special place”), to decline to enforce a foreign judgment. It must take the judgment through proper statutory analysis to determine whether it is repugnant to the public policy of New York.