By Boris Lubarsky
Patent & Trade Secret Law
- The European Unitary Patent would allow the European patent office to issue a single patent with unitary effect for all participating EU members. Brexit temporarily stalled expectations for its ratification and rollout, however, in November the UK announced it would continue with ratification. 11 of the 13 required member states have ratified the underlying Unified Patent Court Agreement.
- Ely Lily Sues Canada under NAFTA. Ely Lily brought a 2013 suit alleging that Canada’s judicial interpretation of its patent law breached Canada’s Obligations under the TRIPs agreement by imposing a further requirement that a patent must fulfill any “promise” set out in the specifications. The hearing on the merits took place in June 2016 and a final decision is still pending.
- Exporting Patent Infringement. The U.S. Supreme Court heard arguments in December to determine if a domestic exporter can be liable for infringement if it provides a single component of a patented invention to buyers abroad. The decision is still pending.
- New U.S. and E.U. Trade Secret Law. The U.S. enacted the Defend Trade Secrets Act seeking to expand protections and remedies to trade secret owners. While the E.U. passed the Trade Secret Directive which strengthens and standardizes trade secret protections across member nations.
- European Trademark Reform. In March, the EU passed a new regulation to harmonize Trademark Law across the 28 member states. The reforms contain wide ranging changes to registrability, filing procedure, fee structure, and infringement proceedings.
- Disparaging Marks in the U.S. In December a U.S. Circuit Court held that prohibitions on disparaging trademarks are in violation of constitutional free speech protections. This now puts the U.S. at odds with most international trademark laws and is expected to be appealed to the U.S. Supreme Court.
- China Trademark Enforcement. The Supreme People’s Court of China invalidated a trademark registration of Michael Jordan’s surname by an unaffiliated Chinese sports company, sending a clear message that China will respect and enforce IP rights.
- UK Repeals 25 year cap on Industrial Copyright Protections. Previously copyrighted work that has been applied industrially was limited to 25 years of copyright protection. In accordance with the EU direct, the UK repealed this section in July – thus extending copyright protection to 70 years after the artist’s death.
- Fair Use of Application Programming Interfaces. In May, a U.S. Federal Judge found that Google’s use of Oracle’s API (bits of programming code) was protected under fair use – which cleared Google of an $8.8 billion liability form a previous trial. The Federal Circuit is now reviewing the case.
- EU Clarifies Copyright Standard for Hyperlinking. In September the Court of Justice of the European Union issued a landmark decision clarifying that commercial and individual users are held to different standards when they hyperlink to an infringing work.
Trans-Pacific Partnership Abandoned. In January 2017, President Trump formerly withdrew the US from the TPP, a multilateral free trade agreement that had been in negotiations since 2008. The TPP had extensive provisions aimed at standardizing IP rights and protections across all 13 member countries. The US withdrawal, signaling the demise of the entire agreement, now leaves many unanswered questions about the state of international intellectual property rights.
March 29, 2017
By Anthony Ayres
2016 was a difficult year for international organizations and international governance. Many international institutions that have come to define the current world order suffered hits to their legitimacy.
The United Nations General Assembly
The United Nations General Assembly had a notable year in that it elected a new secretary general in a surprisingly quick decision. All fifteen ambassadors from the security council unanimously supported António Guterres, the former Portuguese Prime Minister, for the position. Many observers expected the selection process to last much longer, and some believed that Russia would block Guterres in favor of an eastern European. However, Russia seemed to favor the prospect of the decision coming during their time as president of the Security Council. Guterres is the former head of the United Nations High Commissioner for Refugees (UNHCR). He served in that position for ten years and as such vowed to carry on being a spokesman for refugees and those who suffer. As the head of UNHCR he appealed to the conscience of the international community over the worst refugee crises since World War II. It remains to be seen whether he will continue to speak out for human rights as the Secretary General.
Guterres ended 2016 by appointing three women to high level leadership positions. Amina Mohammed will serve as his deputy, Maria Luiza Ribeir Viotto will serve as his chief of staff, and Kyung-wha Kang will serve as the special adviser on policy. Guterres has made achieving gender parity a priority of his tenure.
The United Nations Security Council
Outside of their support for Guterres, the United Nations Security Council did not reach much consensus in 2016. The most significant example of this has been the Security Council’s continued inability to meaningfully address the six-year civil war in Syria. After an entire year in which the United States and Russia were unable to come to any real agreement on the situation, the Security Council finally agreed to support a ceasefire that was formed not by the Security Council, but by Russia and Turkey. The Security Council remains deadlocked on any sort of international accountability for the war crimes carried out in Syria by both sides of the conflict.
The International Criminal Court
The International Criminal Court experienced a crisis of legitimacy this past year as South Africa became the second African country to announce that it planned to leave the International Criminal Court. Many supporters of the institution saw this as a decision that could lead to a mass exodus from the Court. South Africa’s main critique of the Court is that it focuses disproportionately on Africa, as all the people it has convicted so far have been African. The attempt at withdrawal by South Africa has since been blocked by South African courts.
The European Union
The European Union suffered a blow this past year with the UK voting in a referendum to leave the Union. Britain had not played a significant role in the governance of the European Union, with France and Germany playing more of a role as members of the Eurozone. But the UK was one of the most powerful countries in the European Union. Their vote to leave had immediate ramifications and continues to today. However, the nation has yet to leave the European Union as the negotiations on their departure have been slow moving.
March 28, 2017
By Jordan Federer
After 2015, a year in which over one million refugees and migrants traveled to the EU, 362,376 people arrived in 2016 by crossing the Mediterranean Sea. Of the 362,376 refugees and migrants that arrived by sea in 2016, 48% entered through Greece (Eastern Mediterranean Route), 50% through Italy (Central Mediterranean Route), and 2% through Spain (Western Mediterranean Route). Once migrants and asylum-seekers entered the EU through Greece, they tried to continue their journey towards Western Europe vis-à-vis the Western Balkan Route (through Macedonia, Serbia, Hungary, and Croatia). Syrians, Iraqis and Afghanis were the predominant nationalities of those that made use of the Western Balkan Route. Overall, refugees and migrants traveled out of the following countries: Syria (23%), Afghanistan (12%), Nigeria (10%), Iraq (8%), Eritrea (6%), Guinea (4%), Côte d’Ivoire (4%), The Gambia (4%), Pakistan (3%), and Senegal (3%). In 2016, approximately 1,195,265 asylum applications were filed and the top five nationalities of asylum applications were Syria, Afghanistan, Iraq, Pakistan, and Iran. The top five destination countries for asylum seekers were Germany, Italy, France, Greece, and the UK. Approximately 56% of first instance asylum applications received a positive decision. The United Nations High Commissioner for Refugees (UNHCR) Accommodation/Relocation Program currently provides those whose applications either have not yet been reviewed or those who have received a negative decision with temporary places to stay either in “apartments, hotel buildings, host families and relocation sites with services,” which serve as alternatives to camps.
In February and March of 2016, Macedonia closed its border along the northern part of Greece. The move by Macedonia was “part of a chain reaction” of border restrictions in both Slovenia and Serbia. This coordinated effort resulted in the closure of the Western Balkan Route, stranding thousands of migrants, mostly Syrian and Iraqi migrants, on the Greek side of the border. In the same month, the EU and Turkey executed a deal (The “EU-Turkey Statement”), in which “Ankara would take back all illegal migrants who cross to Greece, including Syrians, in return for the EU taking in thousands of Syrian refugees directly from Turkey and rewarding it with more money, early visa-free travel and progress in its EU membership negotiations.” The UNHCR argues that the EU-Turkey Statement’s commitment to pushing refugees back into Turkey and Syria where they face persecution is a violation of the European Convention of Human Rights. Additionally, as a result of the Balkan border closures and the implementation of the EU-Turkey Statement, migrant camps across Greece were turned into quasi-detention centers. Thousands of people fleeing war torn countries such as Syria and Iraq found themselves at the mercy of the Greek government and the EU-Turkey Statement’s directive. Organizations such as Amnesty International, Human Rights Watch, and Doctors Without Borders have publicly criticized the Greek government’s treatment of detained refugees and the conditions as “inhumane” and “fetid.”
March 27, 2017
By Molly Kirwan
The law of armed conflict became a more complicated realm during 2016. The ever-increasing prevalence of hybrid warfare, which refers to conflicts that blend conventional and irregular tactics, led some to argue that the Geneva Convention needs to be updated to address issues of warfare in the world of today. The ongoing refugee crisis has reinforced the international focus on protecting those affected by armed conflict with respect to international human rights laws and standards.
The effectiveness and relevance of the Geneva Conventions has been called into question. The Geneva Conventions were agreed upon in 1949, and two Additional Protocols were added in 1977. However, there have been no major updates since that time despite forty years having passed. Given the evolution of armed conflict from traditional, between two states, to hybrid, between a state and a non-state actor, it is widely argued that updates ought to be made.
In May, the World Humanitarian Summit took place in Istanbul, setting many goals and creating many action plans to protect those affected by conflict across the globe. The most relevant to the law of war is the goal to “uphold the norms that safeguard humanity,” largely reiterating parts of the Geneva Convention. The goal purports that respecting the law of war should include
- Upholding the “cardinal rules,” such as the fundamental rules of distinction and proportionality, which are mandated by the 1977 Additional Protocols.
- Ending the targeting of hospitals, schools, and places of worship, and allowing impartial actors to engage in dialogue with those in conflict.
- Refraining from bombing and shelling populated areas, specifying the end of weapons with intentionally indiscriminate effects.
- Meeting the essential needs of people.
- Respecting and protecting humanitarian medical missions.
In March, the International Criminal Tribunal for the Former Yugoslavia convicted Radovan Karadžić of genocide, crimes against humanity, and violations of the laws or customs of war regarding the role he played in the conflict in Bosnia and Herzegovina from 1992 to 1995. He was sentenced to forty years in prison.
The definition of a “war crime” is broadening as well, with Ahmad al-Faqi al-Mahdi being the first person sentenced to prison for cultural heritage crimes as a stand-alone crime. There is growing concern on the issue of prosecuting cultural heritage crimes due to the fact that similar crimes are occurring in countries where the International Criminal Court (ICC) does not have jurisdiction, such as Yemen, Iraq, and Syria. Thus, the ICC cannot act in those countries without a specific mandate from the UN Security Council, which is unlikely to happen given the current dynamics of the permanent five members. This is despite the fact that the ICC President called for participation of States in the Court to be “maintained and enlarged” in October.
After Al-Mahdi admitted to destroying shrines in Timbuktu in the summer of 2012, he was arrested in Niger in 2014, and the ICC sentenced him to nine years in prison this past September. According to the New York Times, the case has “put a new focus on cultural destruction as a war crime, or as a crime against humanity,” at a time when “international law must address deliberate attacks on a people’s heritage when they are an intrinsic part of warfare.”
March 26, 2017
By Brian Chae
French Parliament Elects to Extend National State of Emergency for the Fifth Time
France has been in an official state of emergency since the Paris shootings in late 2015 that left 130 people dead. Following the Bastille Day attack in August 2016 that left another eighty-seven dead, the French parliament voted by an overwhelming majority This gives the new president an opportunity to reassess security and extend the state of emergency if necessary. As Hollande is not seeking re-election and Le Pen is strongly favored to win office, another extension seems a distinct possibility. Declaring a state of emergency One of the most significant examples of this includes the executive’s ability to unilaterally issue “administrative” search warrants without judicial approval. This was seen in action when French authorities raided a number of properties in rapid succession in search of suspects following the Paris and Nice attacks. Another significant executive power afforded in this situation is the power to expel certain individuals from French territories or place them under temporary house arrest. This has great implications for the wider European refugee crisis.
Obama Administration Releases Report on the Legal Bases on Which Continued United States Military Operations Abroad Justified
Since the 2001 AUMF marked the legal beginning of the War on Terror, both Bush and Obama have relied on their “powers against those . . . [they] determine” necessary in order to prevent future terrorist attacks on the United States to wage war on various factions on multiple continents. This report provides a comprehensive summary of the domestic and international legal bases for the use of force in preservation of United States national security, consistent with respect for the sovereignty of other nations. It discusses these rationales with respect to use of military force abroad and to detention and applies them to particular theaters of conflict. The report does not, however, fully address the claims of some critics that the President is overly expansive in construing its constitutional and international authority.
Massive Influx of Refugees Sparks Concerns Over Western Inability to Effectively Control Crime and Terrorism
The refugee crisis continues to be an unresolved and contentious issue among Western governments. Amid reports that terrorist attacks in France and Belgium were linked to Islamic extremism, domestic support for tighter border control and refugee policing has dramatically increased. This has precipitated in the rise of right-wing political movements, such as Brexit in the United Kingdom, the election of Trump in the United States, and the potential election of Le Pen in France.
March 25, 2017
By Marcus Gustafsson
International Trade, Investment and Dispute Settlement
Global trade saw a tumultuous 2016. For the first time in fifteen years, global goods trade is expected to have increased more slowly than global GDP, at a mere 1.7%. Major regional trade agreements were twice rejected, in the Brexit vote and then through President Trump’s withdrawal from the Trans-Pacific Partnership (TPP) in early 2017. Perhaps as significant was the fact that both Democrat presidential contenders, Hillary Clinton and Bernie Sanders, similarly rejected the TPP, alongside the whole of the traditionally trade-friendly GOP elite. Trump has announced he will renegotiate NAFTA, and another mega-regional agreement, the US-EU Trans-Atlantic Trade and Investment Partnership, is looking moribund. The retreat of regionalism may strengthen the multilateral WTO regime, at least in the short run, and some British commentators are urging the UK to become a global free trade haven. However, Prime Minister May is no standard-bearer for increased globalization, and the US is poised to pursue bilateral trade deals and to circumvent WTO rules. The benefits of multilateralism are no longer viewed as self-evident in major developed countries.
In an interesting reversal of roles, Xi Jinping defended global free trade as the first ever Chinese president to attend the World Economic Forum in Davos. Taking advantage of Trump’s withdrawal from the TPP, China pushed ahead with negotiations of the Regional Comprehensive Economic Partnership slated for conclusion in 2017 (together with India, South Korea, Japan, Australia, New Zealand, and ASEAN), as well as its One Belt, One Road policy seeking to improve trade links throughout Central Asia. Despite rising anti-globalization sentiments in the US and parts of Europe, trade liberalization efforts are thus far from abandoned. Indeed, the EU managed to sign a long awaited free-trade deal with Canada, overcoming a veto threat wielded by the Wallonian regional government in Belgium. The EU also launched consultations over its proposal to establish an Investment Court System to replace controversial investor-state dispute settlement procedures. In this regard, the TTP’s innovative chapterson labor, the environment, competition and state enterprises may also be retained and revived in future deals.Turning to the WTO, the Trade Facilitation Agreement, the WTO’s first multilaterally negotiated agreement since the organization’s creation 22 years ago, came into force in early 2017. It is expected to slash members’ trade costs by 14.3 per cent when fully implemented. An amendment to the TRIPS agreement on the availability of generic drugs also entered into force after being provisionally applied since 2003. Yet even disregarding potential pressure from an unpredictable Trump administration, the WTO dispute settlement body (DSB) faces mounting pressure. Firstly, the US blocked the reappointment of Appellate Body member Seung Wha Chang, which some commentators believe may undermine the body’s judicial independence. Secondly, China has taken a complaint to the WTO over what it considered was a promise by the EU and US to no longer label it a “non-market economy” (NME) by 2016, which otherwise allow the US and EU to impose higher anti-dumping duties on Chinese products. Any ruling will be highly contentious. Finally, experts have indicated that newly proposed reforms of the US tax code may be inconsistent with The United States’ WTO obligations.
In international finance, multilateral cooperation has been fraying for some time. The European Commission imposed a for preferential treatment by Ireland, while the Obama administration halted an (again, in Ireland). Tax evasion was also high on the agenda in 2016 thanks to the , which highlighted the use of vast, opaque structures of off-shore shell companies to hide wealth by prominent individuals. Coincidentally, Britain hosted a global anti-corruption summit soon after the leak, generally considered a to foster increased transparency on tax and government procurement.
EU-US frictions again surfaced after the US finalized rules requiring foreign banks to capitalize US subsidiaries, against which the EU . Similarly, final agreement on how to calculate international capital requirements for banks under the Basel III rules was delayed over a proposal that would minimize banks’ ability to use internal models to evaluate risk, and thereby increase funding pressures on European banks. Moreover, the Financial Stability Board indicated in its that new capital rules had been implemented without stymying the supply of credit in most jurisdictions, but that this might have been due to lax monetary policies, and it highlighted increased concern over the effect of regulations on economic growth.
On the monetary front, the reversal of such lax monetary policies became ever more likely with the Federal Reserve’s since the Great Recession. The US election further boosted the dollar’s appreciation, prompting , and pressuring dollar-denominated sovereign debt. Meanwhile, China continued to as a rival to the US dollar’s global dominance, and its efforts were recognized in the official inclusion of the RMB in the IMF’s in October. Yet despite what looked like an emerging market recovery in the first half of 2016, the RMB saw a against the dollar and Chinese foreign reserves hit a symbolic US$ 3 tn low in January this year, prompting China to of its corporate dealmaking and undermine the yuan’s availability. China’s attempts to prop up the RMB also seem to have stayed the Trump administration’s hand in , despite campaign rhetoric.
Many have looked at 2016 as heralding significant change, and while the lasting effects are still too early to ascertain, they will doubtless be felt for decades. Yet as the above review shows, even if countries increasingly asserted their national interests, in an ever more globalized, integrated world, cooperation and multilateralization continues to be the only viable game in town. However, if this is true, and the tide of history slowly but inevitably flows in the direction of progress, then much energy is currently being wasted trying to wade in the opposite direction.
March 24, 2017