October 19, 2009

Remarks from the Madrid Reception

REMARKS ON THE OCCASION OF THE OCTOBER 5, 2009 RECEPTION IN HONOR OF THE INTERNATIONAL SECTION OF THE NEW YORK STATE BAR ASSOCIATION
AT THE OFFICES OF CUATRECASAS, GONÇALVES & PEREIRA IN MADRID

Distinguished colleagues and ladies and gentlemen:

It is a great pleasure to greet all who are attending this reception in honor of the members of the International Section of the New York State Bar Association, sponsored by the distinguished and eminent law firm of Cuatrecasas, Gonçalves & Pereira, on the morning of the opening of the 2009 annual Conference of the International Bar Association in Madrid, Spain. Our first order of business has to be to render grateful acknowledgement and rightful praise to the Cuatrecasas law firm for not only sponsoring this wonderful reception but for its consistent support of the work of the New York State Bar International Section (“NYSBA International” for short).

Cautrecasas, as many of you know, has an office in New York. The head of the New York office, Albert Garrofé, chairs our Committee of Foreign Lawyers, which works to bring together the many lawyers from around the world who come to New York City to represent their countries and their law firms in the legal community and market of New York City. Albert is an active, contributing member of our Section’s Executive Committee and well exemplifies the contributions that many lawyers, nonresident as well as resident members of the New York State Bar Association, make to the life and mission of NYSBA International.

This reception, taking place on the morning of the 2009 IBA Conference, gives me an opportunity to briefly comment on two topics: first the special identity of NYSBA International in the international legal community as a whole and, second, the relationship between NYSBA International and other international bar associations such as the IBA.

I. The Distinctive Identity of NYSBA International
Let me first comment on the identity of NYSBA International. At first glance, NYSBA International seems to conduct a great number of activities that parallel activities of organizations like the IBA and the UIA and even ABA International. We have many Committees, we put on programs of interest in many practice areas for our members through out the year, we have a major conference in a major international city every year – in fact, in Madrid in 2000 - and this year, in just a couple of weeks, in Singapore (and may I take this opportunity to urge all of you to attend our Singapore Conference from October 26 to 29!).

Our distinctive identity, I believe, arises from our unique blend of the local and the global. We have very firm routes in the law and the legal community of the State – and of course also the City – of New York. At the same time, we project a word-wide outreach through our more than fifty chapters around the globe (exemplified by our Madrid Chapter, chaired by Calvin Hamilton and Clifford Hendel).

At the September 15, 2009 meeting of NYSBA International’s Executive Committee in New York City, the Executive Committee adopted three (non-exclusive) long-range missions for the Section that exemplify this unique synthesis of New York affiliation and worldwide orientation: These are (1) Custodian of New York law as an international standard, (2) Guardian of the New York Convention on the Enforcement of Arbitral Awards and the general international process, and (3) Monitor of developments regarding private as well as public international law in the United Nations system.

The first mission recognizes that New York is very frequently used as the law governing cross-border commercial, financial and contractual transactions. It recognizes that this is not something that New York lawyers or anyone else should simply take for granted. We must work to ensure that the many characteristics of New York law that make it attractive to lawyers throughout the world are developed and improved and that it is also enriched by lessons we can learn from the laws of other countries, especially those that are part of our world-wide network of chapters.

The second mission honors the fact that the New York Convention is the cornerstone of the international arbitration process and that the Section should be in the forefront of efforts to sustain and enlarge adherence to the Convention and also to improve and develop the procedures and the institutions that make the whole international arbitral process possible.

The third mission recognizes that New York is the home of the United Nations: We, together also with the assistance of our Geneva and Vienna chapters, are in a unique position to disseminate knowledge and encourage discussion about the treaty-development and rule-making activities of the organs of the United Nations devoted to international private as well as international public law and to their affiliated or allied organizations.

II. NYSBA International and Other International Bar Organizations
Now I want to briefly comment on the second topic, which is the orientation of NYSBA international to other major international bar associations. First, .we welcome the efforts of other international bar associations who want to establish connections with the New York international legal community. We are very happy to be co-sponsoring with the UIA in September of next year in New York City a one and a half day conference on international investment law, including cross-border finance, mergers and acquisitions and trade. We would be very happy to entertain co-sponsoring similar events with the IBA and other international bar associations. We hope our experience with the UIA Conference will help us to establish a good template for such events by the IBA, the Inter-American Bar Association, the Inter-Pacific Bar Association and others.

Second, we welcome the participation of members of other international bar associations in helping us to develop our distinctive missions. Everyone one of these missions, while having what one might call a “New York angle,” has great interest and significance for legal practitioners and scholars around the world, whether in the nature of developing good law for international transactions and relationships, strengthening the mechanisms for international dispute resolution, or helping to lead the way towards the development of significant and productive international treaty law through the UN system. I would also like to mention that this also holds true with regard to our friends in ABA International as well as the international chapters of the other state bar associations, with whom we have launched a special initiative for communication and cooperation this year.

And finally, on a very practical level, we think it would be very salutary for the major international bar organizations that sponsor major annual conferences to develop a mechanism to avoid having annual conferences that conflict and overlap with each other. This year, incredibly enough, there are three major conferences (UIA, ABA and our own) all occurring on the same days in the last week of this month! While this is all surely unintentional, we would all enlarge the opportunities and choices of our members by avoiding these unnecessary and counterproductive scheduling conflicts.

Let me now conclude by thanking you all for attending this wonderful reception, by renewing my thanks and appreciation to the great firm of Cuatrecasas for being our host, by wishing you all a great Conference here in Madrid, and by inviting all of you to become active members and supporters of the missions and goals of NYSBA International. Thank you all!

Michael W. Galligan, Chair

Posted on behalf of Chair Michael Galligan, Esq.

Long-term Missions for the Section

Dear Members of NYSBA International,

The purpose of this message is to share with you the news that our Executive Committee, at its meeting on September 15, adopted for the Section the following "long-term missions":

1. Custodian of New York Law as an International Standard.

2. Guardian of the New York Convention on the Recognition and Enforcement of Arbitral Awards and the international arbitration process in general

3. Monitor of International Law Development in the United Nations System.

I have copied at the end of this message below and also attached as a WORD document the description of each mission that was adopted by the EC. Please keep in mind that these missions by no means exclude others but we hope they will help to define some of the areas of activity and focus that help to define the distinctive identity of the Section and its unique contributions to the international legal community.

Here are some of the first steps we envisage to begin to implement these Mission:

1. Custodian of New York Law: The EC, at the September 15 meeting also approved the formation of a new Committee of International Contract and Commercial Law. We will soon be sending out an invitation for leaders and members and organizing a first meeting to take place in November or early December, once the Singapore Conference is concluded. While many of our Committees can contribute to this Mission, we expect the new Committee to have a special focus related to this Mission. See the second WORD document attached to this e-mail.

2. Guardian of the New York Convention: Our Committee on International Arbitration will have a very special role with regard to this Mission. The January 27, 2010 Annual Meeting Program will be devoted to this topic. I would like to see us set up a clearing g house for information about case law and legislative developments in the countries where we have chapters,. Ideally, each Chapter will have a “reporter” on developments in its country.

3. Monitor of UN Legal Developments:
Our Committee on the United Nations should play a leading role. We are planning on a joint meeting of the leadership of our Committee, NYSBA officers, the leadership of the United Nations Association of New York and other interested parties, probably in nearly December, to move on this front. We had had a generous offer from Denise Scotto, co-chair of our Committee on International Women’s Rights, to assist with a possible application for NGO status.

Please spread the word about these three mission to your colleagues and friends. I hope these missions will encourage many of you to become more active in the Section and also to help you identify colleagues for whom the adoption of these missions would be an important reason to become members of NYSBA International. In pursuing threes missions, let me make it clear that we welcome the participation and cooperation of other New York international bar associations, including but not limited to the international committees of the New York City Bar Association, the New York County Bar Association, the Federal Bar Council, AFLA, ASIL, and County Bar Associations throughout New York State.

Posted on behalf of Chair Michael Galligan, Esq.

July 4, 2009

US Independence Day 2009 & NYSBA International

On July 4, 1776, New York, together with the other North American colonies who were assembled in Congress that day, made its first entry into the sphere of international law, declaring that it was the intent of the United States "to assume among the powers of the earth the separate and equal status to which the Law of Nations and Nature's God entitled them." It is a pleasure to wish all our members who are celebrating the US Independence Holiday a "Happy Fourth."

At the opening session of the India Chapter Meeting a month ago in New Delhi, NYSBA President-Elect Stephen Younger, Former NYSBA International Chair James P. Duffy III, and I had the opportunity to reflect on the role of New York law in international law and the role of NYSBA International in the support of what I call, in my address, "international civil society." I thought, on this weekend of festivity and rest, it might be appropriate to share these thoughts with all of our members who are linked to us on this announce-listserve.

While the pace of the Section's programming slows during the summer months, the level of planning for the coming months and years continues unabated. In a couple of weeks, you will each receive the formal program for the Section's annual overseas conference in Singapore (October 26-29). Our Committees are working on programs for next fall . Proposals are coming in for joint programs with other international bar groups for the next year. The Helsinki Bar will be visiting us in early October. Tentative plans are underway for a gathering of members of the Section attending IBA in Madrid next October. Important outreach programs to international law firms, LLM candidates and others are in process. We have done some important "groundwork" for expanding our chapters in Asia and are about to begin efforts to open some chapters in Africa. The NYSBA International Executive Committee will next meet on July 22 to continue to work on some of the many recommendations and ideas that emerged from our day-long "Retreat" Meeting in New York City last May 16.

Over the balance of the summer, I also plan on sending all our members occasional e-mails inviting your ideas and interest in some new projects, some in cooperation with existing Committees, aimed at enhancing the role of NYSBA International in the articulation and development of "private international law" in the fuller and broader sense of the term that I described in my remarks in New Delhi as well as public international law.

Please note, as Steve Younger duly noted in delivering his remarks last June 5, that Singh and Associates, together with Trustman & Co. and FoxMandel Little, was a sponsor of the India Meeting.

"Happy Fourth" and a "Happy Summer!"

Michael

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OPENING REMARKS OF STEPHEN P. YOUNG, PRESIDENT ELECT

IT IS A GREAT PLEASURE FOR ME TO BE HERE IN DELHI
REPRESENTING THE NEW YORK STATE BAR.
[THANK CHAMBER OF COMMERCE, PRESIDENTS OF INDIAN
BARS, SUPREME COURT AND HIGH COURT?] I WANT TO THANK OUR
COLLEAGUE KAVIRAJ SINGH FOR ALL HIS EFFORTS IN ORGANIZING THIS
WONDERFUL EVENT. KAVIRAJ HAS SPENT MANY HOURS ORGANIZING THIS
PROGRAM. I ALSO WANT TO THANK BOTH THE TRUSTMAN LAW FIRM AND THE
MANDAL LITTLE LAW FIRM FOR ALL THEIR SUPPORT OF THIS PROGRAM. IWANT
TO COMMEND THE INTERNATIONAL SECTION LED BY MIKE GALLIGAN AND JIM
DUFFY FOR THEIR FORESIGHT IN SIGHTING THIS PROGRAM HERE IN INDIA.
IT MAY COME AS A SURPRISE TO YOU, BUT ONE QUARTER OF THE
NEW YORK STATE BAR'S ALMOST 80,000 MEMBERS LIVE OR WORK OUTSIDE NEW
YORK. AS A RESULT, THE GLOBALIZATION OF OUR ASSOCIATION – INDEED THE
GLOBALIZATION OF THE LEGAL PROFESSION – IS A TOP PRIORITY FOR US AT THE
STATE BAR. [5% OF STATE BAR MEMBERS ARE LOCATED OUTSIDE THE U.S. –
3,384]
INDIA HAS THE WORLD'S SECOND LARGEST POPULATION OF
LAWYERS WITH ONE MILLION LAWYERS AND 70,000 NEW LAWYERS EACH YEAR.
GIVEN THE GROWTH IN INDIA, INDIA WILL SOON PASS THE UNITED STATES IN
TERMS OF LAWYERS.
SOME HAVE ATTACKED THE U.S. FOR THE PROLIFERATION OF
LITIGATION. HOWEVER, A LOT OF LAWYERS CAN BE A GOOD THING. IT MEANS
THAT OUR CLIENT CONTRACTS ARE ENFORCED, OUR COUNTRIES' LAWS ARE
ENFORCED AND THE RULE OF LAW IS PROTECTED. THE INDIAN TRADITION OF
FOLLOWING THE COMMON LAW IS OF GREAT BENEFIT TO THIS NATION'S
PROMOTION OF INTERNATIONAL COMMERCE.
LET ME TOUCH ON ONE OF THE FOCUS AREAS OF THIS
CONFERENCE. EVERY DAY LAWYERS IN INDIA REVIEW CONTRACTS OR
TRANSACTIONS THAT ARE GOVERNED BY NEW YORK LAW. THERE IS GOOD
REASON FOR THIS. FOR MANY MANY YEARS THE NEW YORK COURTS HAVE
PRODUCED A STABLE AND RELIABLE BODY OF COMMERCIAL LAW THAT
BUSINESS PEOPLE CAN DRAW ON. THUS, IT IS TO BE EXPECTED THAT
COMMERCIAL ENTITIES – PARTICULARLY FINANCIAL INSTITUTIONS OR JOINT
VENTURE PARTNERS IN THE UNITED STATES – WOULD WANT TO RELY ON NEW
YORK LAW. THIS DOES NOT, HOWEVER, RULE OUT INDIAN LAW AS A
COMPLIMENTARY VEHICLE. FOR EXAMPLE, IN A FINANCING TRANSACTION IN
WHICH EQUITY IS BEING SOLD, NEW YORK LAW MAY GOVERN THE FINANCING
DOCUMENTS, BUT INDIAN LAW MUST STILL GOVERN THE INTERNAL
GOVERNANCE OF AN INDIAN COMPANY. THE TWO BODIES OF LAW CAN BE
HARMONIZED AS MANY OF US HAVE SEEN IN OUR OWN PRACTICES IN DISPUTES
INVOLVING ENTITIES IN OTHER COUNTRIES.
EVERY DAY BUSINESS LAWYERS IN INDIA MUST ADVISE THEIR
CLIENTS ON WHETHER TO AGREE TO PARTICULAR VENUES IN WHICH TO
LITIGATE OR ARBITRATE DISPUTES THAT MAY ARISE IN A COMMERCIAL
RELATIONSHIP. BUSINESS LAWYERS HAVE A WIDE VARIETY OF OPTIONS FROM
WHICH TO CHOOSE. FIRST, THE CLIENT MUST DECIDE WHETHER THE DISPUTES
NEED TO GO TO COURT OR ARBITRATION. SECOND, THE CLIENT MUST DECIDE
WHAT PART OF THE WORLD TO SITE THE DISPUTE RESOLUTION PROCESS.
NEW YORK HAS MUCH TO OFFER IN THIS REGARD. FIRST, OUR
STATE COURT SYSTEM HAS A SPECIALIZED COMMERCIAL DIVISION WHICH
INCLUDES HIGHLY TRAINED JUDGES WHO ARE EXPERIENCED IN HANDLING THE
RESOLUTION OF COMMERCIAL MATTERS. THIS DIVISION WAS FORMED AT THE
RECOMMENDATION OF A TASK FORCE OF OUR STATE BAR. THE JUDGES IN THIS
DIVISION HAVE ADDITIONAL RESOURCES, INCLUDING EXTRA LAW CLERKS, TO
HANDLE THE PAPER-INTENSIVE PRACTICE OF A COMMERCIAL LITIGATION AND
THEY CARRY A SMALLER DOCKET.
ON THE ARBITRATION SIDE, NEW YORK HAS MANY FINE
ARBITRATORS WHO CAN HEAR AND RESOLVE COMMERCIAL DISPUTES. WE
HAVE ORGANIZATIONS SUCH AS THE AAA, CPR AND THE ICC, ALL OF WHICH
OFFER ATTRACTIVE ARBITRATION FORUMS. THE PROCESS IS A FLEXIBLE ONE
SO THAT PARTIES CAN APPOINT THEIR OWN ARBITRATORS – SAY AN
ARBITRATOR FROM INDIA TO SIT ON THE PANEL IN A HEARING HELD IN NEW
YORK. EXPERTS CAN BE BROUGHT IN TO OPINE ON FOREIGN LAW ISSUES SO
THAT INDIAN LAW QUESTIONS, FOR EXAMPLE, CAN BE RAISED DURING THE
PROCESS.
THUS, IN SHORT, NEW YORK OFFERS A STABLE BODY OF LAW AND
A SOUND AND FAIR LEGAL SYSTEM FOR THOSE WISHING TO RESOLVE DISPUTES
IN INTERNATIONAL TRANSACTIONS.
IN CLOSING, IT IS MY GREAT PRIVILEGE TO APPEAR HERE AT THIS
CONFERENCE AND I LOOK FORWARD TO PARTICIPATING OVER THE NEXT TWO
DAYS.
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ADDRESS OF MICHAEL W. GALLIGAN, NYSBA INTERNATIONAL SECTION CHAIR,
FIRST MEETING OF NYSBA INTERNATIONAL INDIA CHAPTER
NEW DELHI, JUNE 5, 2009

Dear Distinguished Colleagues and Ladies and Gentlemen:

If you take the time to access the website of the International Section of the New York State Bar Association, “NYSBA International,” you will read that the Section “is dedicated to the promotion of the international practice of law in all phases of international life – whether commercially or for the common good – and to the promotion of the rule of law throughout the world.” This morning, at the inception of this historic first meeting of the NYSBA International India Chapter, I would like to consider and discuss with you the meaning of these major goals of our organization.
I. Strengthening International Civil Society By Promoting the Rule of Private as well as Public International Law
Many of us no doubt were first drawn to an interest in international law by issues that are commonly said to involve “public international law,” such as building peaceful relations between states based on the fundamental principles embodied in the Charter of the United Nations – respect for the territorial integrity of nation states, non-aggression, respect and promotion of the civil, political, social and economic rights of every individual and cooperation among states in order to build the conditions for human dignity and prosperity throughout the world. Now, in those parts of the world where states do not claim to occupy every part of economic and social life but support the flourishing of an autonomous civil society, there developed in the years after World War II an exponential increase in travel, communication, sharing of information, cross-border financial investment, commercial transactions and corporate affiliations among private persons, families and business entities, under many different circumstances and in a wide variety of forms, what I think can best be called “international civil society,” of which this meeting is a splendid reflection and example. The scope of this mass of transnational activity became almost universal when the major countries built on the premises of state socialism and one party rule either adopted many of the tenets of “liberal democracy” or at least switched to an emphasis on market forces in the planning and development of their economies.
This proliferation of transnational contact and commerce has created the field of what can rightly be called “private international law” – not just in the more restricted sense of conflicts or choice of law as that term is often used by our colleagues from continental Europe – but in a much more comprehensive and dynamic sense. This includes (1) seeing the various countries of the world as they develop their own law related to the increasing internationalization of all aspects of life as laboratories of legal invention and experimentation from which all of our respective countries can learn and benefit (2) building a network of agreements between countries that seek to rationalize and harmonize the legal traditions of the state parties in areas of commercial and personal law so as to encourage and not inhibit transnational private activity, and (3) where desirable and convenient, to establish transnational structures that coordinate and regulate specific areas of international commerce – for example, in the areas of trade, environment and even immigration. In truth, as you can see, the old distinction between public international law and private international law is itself breaking down as the diplomatic resources of states are more and more dedicated to issues outside the province of public international law in the traditional sense and are dedicated to the promotion and facilitation of the activity of international civil society.
The International Section of the New York State Bar Association stands firmly rooted and has its reason for existence in the vitality and broad reach of international civil society. It is committed to the development and strengthening of an inter-related set of legal principles, structures and policies that support each level and type of international civil relationship, transaction and project – from the exalted world of complex international financings and corporate acquisitions to the lowly efforts of a crew member of an ocean cargo ship or a migrant worker to access a bank account in a port of call or temporary place of work, even to the more intimate sphere where lovers from different countries attempt to formalize their relationships in marriage or similar forms of personal union. This, of course, does not mean that NYSBA International has forgotten the still very critical issues that need to be addressed to strengthen of the rule of law at the level of the formal relations of states and to promote a worldwide system to protect international human rights – for these issues and needs still undergird the whole international system, including that of international civil society.
II. The Structure and Strategic Objectives of NYSBA International
To see how NYSBA International in general – and the India Chapter in particular – can contribute to these objectives, let me explain a little about the structure and strategic activities of the Section.
The Section has five major organizational components: (1) substantive law and regional law committees, (2) national chapters, (3) conference steering committees, (4) the Executive Committee and (5) the Section’s web-based membership communities.
1. Law and Regional Committees. The section has over thirty committees each devoted to a substantive area of private or public international law or to the legal issues of special relevance to a region of the world. Every member of the Section, whether living in New York or anywhere else in the world, can serve as a m ember of as many committees he pleases. Each Committee should generally has two co-chairs and a steering committee.
2. National Chapters. The Section endeavors to have a chapter in every county and in countries like India, to have co-chairs from every important city of that country. Membership in a chapter is intended primarily for Section members residing in that country but there is nothing to prevent Section members residing in New York or other countries from joining one or more particular chapters.
3. Program Committees. The organization of a major Conference – such as the four day “Annual Seasonal” Conference that will take place in Singapore in the last week of October this year and our major continuing legal education conferences in New York – such as “Fundamentals of International Practice” and “International Practice Institutes” – require the leadership of a steering committee organized well in advance of the event. Membership in these committees draws from our worldwide membership.
4. Executive Committee. The Executive Committee is the steering committee for the entire Section. Its members include all chairs of the substantive law and regional committees, the national chapters and the program committees as well as the Section officers.
5. The Web Communities. I cannot underestimate the importance of the web communities because these are the means, made possible by the revolution in international communications over the past couple of decades, by which every member of the Section can have a voice and be aware of all the opportunities the Section offers. The Section Listserve, while not organized at this time as an interactive site, is still the way in which the Section’s leadership can “scan” the section membership for volunteers, ideas and important news. For example, without the ability to reach out so quickly to our members on the Section Listserve for volunteers to join this Meeting in India, we might never had sufficient participants from outside India to enable this first Meeting of the India Chapter to go forward. Every Committee and Chapter can have its own listserve, organized through NYSBA headquarters. In addition, there are also over 300 members who are part of an inter-active web-based community through Linked-In. We are also expecting momentarily the installation of a web-based membership directory that will enable Section members to identify and communicate with fellow members in specific countries and cities and a web-based project using the new “Google Knolls” technology that will enable eventually all Section members to share with each other articles and studies that they have authored in all the areas of international practice and law with which the Section is concerned.
Now let me turn to what I world call the strategic activities of the Section:
1. Education: While the core principles of the law we learned years and even decades ago have not changed, the application of these principles is open to new challenges every day to a plethora of issues were not even thought of just a little while ago. Moreover, especially in international practice, no legal counsel can be an “island” in his or her area of specialty. Every Committee and Chapter is encouraged to organize events that will deepen the legal knowledge of our members and also broaden their international horizons and perspectives. These programs can include lunchtime or breakfast events with a single speaker to more formal programs approximating a half day or even a one or two day conference like this Meeting of the India Chapter, possibly in association with other committees, chapter and even other bar associations.
2. Networking: Members of NYSBA International want not only to learn about and understand international practice but to help create the relationships and transactions that make much up international practice and also assist each other in the legal work that must be accomplished to make transnational relationships and transactions succeed. Committees and chapters can organize receptions and other social, events – in conjunction with educational events or not as they see best. The Annual Seasonal Conference is a also a splendid opportunity for this type of inter-action. Perhaps, in the long run, our web-based communications portals will provide methods of interaction that we have yet even thought of at this time.
3. Development of Law: NYSBA International seeks to shape law and assist in the development of the international legal systems that make international practice possible. This includes reform and change in the law of (1) New York, the home jurisdiction of the Section, (2) the federal law of the United States, (3) the relevant federal and local law of its “chapter countries,” (4) the law of treaties affecting private international law as well as public law, including but not exclusively those developed through the Hague Conference on Private International Law, UNCITRAL and UNIDROIT. NYSBA International, for example, was influential in changes to the rules of New York law about the granting of judgments in foreign currency. NYSBA International has been actively involved, through its Committee on International Estates and Trusts, in efforts to secure support of US ratification of the Hague Convention on the Recognition of Trusts. Projects that are now under consideration includes (1) study of the Model UNCITRAL Arbitration Statute as a model for a reform of the US Federal Arbitration Act, (2) study of the advisability of a possible treaty concerning the protection of intellectual property assets in national bankruptcy proceedings, (3) study of legal instruments that simplify the procedures for executing against property serving as security for registered obligations in countries that do not necessarily have jurisdiction over the financial obligation so being secured, (4) reform of New York and other state law provisions dealing with cross-border distributions of estate assets to heirs in civil law countries and (5) procedures for the appointment of non-US persons to be guardians of orphaned children in New York and other states.
4. Reform of Rules Affecting the Ability to Practice Law: International practice does not always fall neatly within national and state rules about the authorization to practice law, the limits of competence to render legal opinions and the ability to appear in courts outside the jurisdiction where a lawyer is normally admitted to practice law. NYSBA International is in the process of considering how best to institute a new version of a New York State Bar Association Committee on Cross-Border Practice that recently worked on these issues for several years.
5. Promoting the Rule of Law. Despite well-conceded weaknesses and being the subject of criticism of from many quarters in the world, the United Nations, which is headquartered in New York City, represents the most comprehensive world-wide organization devoted to the promotion of peace and the welfare of peoples. The United Nations is the home of the International Law Commission and UNCITRAL which has been the sponsor of a number of important treaties that affect the private practice of international commercial and financial law as well as the resolution of private legal disputes. NYSBA International is investigating the possibility of the New York State Bar Association attaining NGO status at the United Nations, the better to have a voice and in and better understand the newest developments that affect the rule of law domestically and internationally at the United Nations and its member organizations.
III. India’s Dedication to the Rule of Law
Dear colleagues, it is especially appropriate that we meet here in New Delhi, in India, to discuss the involvement of our new India Chapter in the work of NYSBA International. In 1959, the International Commission of Jurists met here and issued the “Declaration of Delhi” on the rule of law. In that declaration, the Commission said that it reaffirmed the principles that an “independent judiciary and legal profession are essential to the maintenance of the Rule of Law and to the proper administration of justice.” The Commission also went on to declare that “the Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which the legitimate aspirations of men and women may be realized.”
No one can read the story of the meetings of the Constituent Assembly that met here In New Delhi and drafted the Constitution of India from 1946 to 1949 without being convinced that dedication to the ideal of the rule of law runs very deep in the modern history of this country, even if the great pluralism of religions, ethnic groups, languages, political philosophies, historical and modern class and caste distinctions have posed major challenges to its implementation in the every day life of the nation. Your Constitution reflects the priority of the rights of the individual over group or class or community affiliations and a recognition of the key role of the judiciary in the development of the civic and political life of the nation. The increasingly important role assigned to private markets and international investment here also reflects a growing integration of the peoples of India into what I have been calling international civil society.
This history and these developments makes us all the more eager to have the benefit of your ideas, your insights, and your contributions to the development of fair and workable legal systems that facilitate the types of international communications and exchanges in all walks of life - commercial and non-commercial - that make up international civil society. We in New York are, of course, very proud of what we believe is the deep commitment and passion for the rule of law that lies behind the history of our state and our country, even as we are aware that we too have certainly not mastered all the challenges that the varieties of prejudice, discrimination and class distinctions that are part of our history – so much shorter than your history – have posed and even though our own U.S. Supreme Court – just like the Supreme Court of India – has perhaps not yet said the “last” word about the proper role of the judiciary in our own constitutional system.
Nonetheless our pride, which you may detect in certain comments you may hear during this Meeting about the strengths and attributes of “New York law” or even “United States law” by no way means that we cannot benefit, learn from and even be corrected by, the insights and the contributions of the bar of India and the bars of the other many countries in which NYSBA International has chapters. In this respect, I hope you will allow me to apply to our experiment in attempting to build a truly international bar association with its roots in New York State the words a certain lawyer, first admitted to the Inner Temple of London and later a legal practitioner in South Africa before returning to India, the country of his family’s origins, once said in regard to his own love of India:
“My patriotism is not an exclusive thing. It is all-embracing and I should reject that patriotism which sought to mount upon the distress of the exploitation of other nationalities. The conception of my patriotism is nothing if not always, in every case, without exception, consistent with the broadest good of humanity at large.”
Of course, I refer to the words of none other than Mohandas G. Gandhi, the Mahatma, and with these words I am also happy to thank you for your attention this morning and for the extraordinary hospitality and generosity of the Indian lawyers and law firms who have made this extraordinary meeting possible.
Thank you, again!
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Opening Remarks of James P. Duffy, III, Former Chair, International Section

As we begin our New Delhi Chapter’s first conference, it is only fitting to take a few minutes and reflect on the great common heritage that New York and India share through their use of the common law which we both acquired from our respective past links with England.
As you probably know, New York was one of the original thirteen States of the United States of America. However, before becoming part of the United States, New York was an English colony until 1776 when these thirteen English colonies declared their independence from England.
Even though New York and its twelve sister States wanted to be free of certain oppressive aspects of English rule, and fought at long and hard war with England to do so, New York did not want to be free of many aspects of English culture, heritage, and tradition. Among the things New York wanted to retain was the English language and the English system of common law. While I am not as knowledgeable of the history of India, this may be similar to what happened in India, which also chose to maintain English as a working language and to keep English common law as the foundation of its legal system when India became independent from England.
Thus, it is not surprising that lawyers from India and New York would seek to enrich their common legal heritage by working more closely together and by sharing more fully their knowledge and understanding of the elements the common law legal system adapted from the English. As a New York lawyer, I am most pleased to be here this week to meet and discuss important issues with my colleagues from India. I very much want to learn from my Indian colleagues about their version of common law. I am also pleased to be able to have a few minutes to share with you some insights into New York’s version of common law.
Obviously, India and New York have each put their own mark on the common law system they received from the English, but both systems still have their foundation in stare decisis, the primary guiding principal of common law. Simply put, unlike civil law which is code driven, common law seeks to assure that, if two different groups of litigants go into court with the same facts, both groups will leave court with the same result – something that is not always assured in civil law. Although this is a simple concept, it is what makes the common law legal system we both share so vibrant.
For well more than two centuries, New York has been a leading center of finance, commerce, and industry. For example, the New York Stock Exchange, one of the world’s leading stock exchanges, was founded in 1792 , when 24 New York City stockbrokers and merchants signed the Buttonwood Agreement. In colonial days New York was also a major port, and the metropolitan New York area remains so today. While New York City is not the largest city in the world and probably never was, New York City was always a large city with an enormous concentration of highly skilled business and professional people who often had to rely on the legal system of New York to adjudicate the disputes and differences that inevitably occur in all aspects of commercial life. Because of this, New York’s version of common law, aided by those of its sister States and the federal government of the United States of America, has remained at the forefront of legal thinking as it relates to business, finance, and commerce.
As a consequence, New York law is highly evolved, well understood, and is widely practiced by a large number of lawyers who are generally perceived as being highly skilled and competent. Perhaps, most important, is that New York law is administered by courts that are generally perceived as dispensing justice according to the highest standards. Like India, New York is firmly committed to the Rule of Law.
Thus, it is no surprise that New York law has achieved a certain prominence in important transactions, including international transactions. While there is no hard evidence I know of to support these statements, it is widely understood that about ninety percent of the world’s most important transactions are conducted in the English language and that ninety percent of those English language transactions are subject to New York law as the governing law, with English law governing most of the rest. Whether you accept these anecdotal figures or not, there can be no serious dispute that New York law governs a large percentage of the world’s business transactions.
Because of the role New York law plays in international finance, business, and commerce, it is understandable that New York attorneys have a strong interest and concern in seeing that New York law is not only properly understood around the world but is also practiced correctly whenever it is chosen to govern a transaction. Put another way, the improper application of New York law tends to destroy its integrity and its utility as a reference legal system. Thus, if the parties to a transaction elect to have the transaction governed by New York law, they should also make sure that they get proper New York legal advice. If they do not, they may not achieve the benefits they seek. Instead, they may experience some rather disastrous consequences as would usually be the case if any body of law were incorrectly applied to the question at hand.
Also, it is important to know when New York law is the same as or different from another version of common law, because there may be times when New York law may not be the most appropriate law and some other law might serve better. There may also be times when a particular version of civil law is preferable to common law. As lawyers, we all know that there can be majority views and minority views on many important subjects. Sometimes, even within a majority or minority view, there are further differentiations. While these differences may seem subtle on occasion, the outcome can be most surprising, if they are disregarded. Thus, it is important to know whether New York law is appropriate or not in any particular circumstances.
We are very fortunate that we have a number of outstanding speakers at this conference who are well able to explore the nuances of both New York law and Indian law and help us understand the similarities and the differences of these two important bodies of law. More important, our panelists will help us appreciate the richness and depth of both New York law and Indian law. This will undoubtedly facilitate better understanding and cooperation between New York lawyers and Indian lawyers as India becomes increasingly more involved in the world economy.
Thank you for your attention, and I hope you find this to be an interesting and enjoyable conference at which you will meet many interesting people, many of whom will become your friends.

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