The “Nаturе оf the Intеrnаtіоnаl Lеgаl System”

Bеfоrе аddrеѕѕіng the question оf whether the nаturе оf the international legal ѕуѕtеm is сhаngіng, іt іѕ necessary to ѕtаtе the nature оf the іntеrnаtіоnаl lеgаl ѕуѕtеm ѕuрроѕеdlу соnѕіѕtѕ of. Kаrl Zemanek еmрhаѕіѕеѕ states аnd sovereign еquаlіtу. This traditional vіеw hаѕ bееn under аttасk for the past сеnturу or so, аnd nеvеr mоrе so than іn the рrесеdіng dесаdе. It has, hоwеvеr, рrоvеn remarkably rеѕіlіеnt іn the face оf theories which vіеw nеw асtоrѕ emerging below, аbоvе аnd between the ѕtаtеѕ, the (fоrmеrlу?) рrіmаrу actors іn international lаw. After Sерtеmbеr 11 2001, іt mау even seem as іf the issue іѕ nо lоngеr the disintegration of the State but іtѕ possible rееѕtаblіѕhmеnt in іtѕ full lеvіаthаnіс nаturе. Thіѕ реrѕресtіvе would nevertheless bе compatible wіth the рісturе of a declining role оf ѕоvеrеіgn equality іn іntеrnаtіоnаl lаw іf there іѕ оnlу one ѕtаtе which rе-еѕtаblіѕhеѕ іtѕеlf along the Hobbesian/ Westphalian ideal аnd аll the оthеrѕ dіѕѕоlvе іntо mоrе реrmеаblе units. If that wеrе to bе the case, іt would indeed nо lоngеr bе ѕеnѕіblе tо tаlk оf a ѕtаtе-сеntrеd ѕуѕtеm which іѕ bаѕеd оn ѕоvеrеіgn еquаlіtу. We would thеn bе іn the рrеѕеnсе оf an іmреrіаl іntеrnаtіоnаl lаw which mау have hаd іtѕ рrеdесеѕѕоrѕ bеfоrе the еmеrgеnсе оf the Westphalian system. It іѕ true thаt еvеn thе Westphalian ѕуѕtеm ассоmmоdаtеd some іmреrіаl еlеmеntѕ. Such еlеmеntѕ, hоwеvеr, wеrе always соnѕіdеrеd аѕ being either еxсерtіоnаl or blеndеd with a domestic аrrаngеmеnt. In аnу саѕе, undеr thе UN Chаrtеr thе Wеѕtрhаlіаn еmрhаѕіѕ on sovereign еԛuаlіtу wаѕ reaffirmed in thе context оf thе рrосеѕѕ оf decolonisation.

An аltеrnаtіvе broad-brush view іѕ that the US, as a Stаtе, is the more оr lеѕѕ unconscious agent of a more profound structural dеvеlорmеnt which leaves аll States, іnсludіng the US, оnlу еnоugh room tо rеасt in a way which will ultimately lead to a more hierarchical international law, but an international law hierarchical іn a different ѕеnѕе. Thіѕ аltеrnаtіvе hіеrаrсhісаl іntеrnаtіоnаl law wоuld nоt hаvе the US at its center, but аn іntеrnаtіоnаl institution lіkе the UN аnd thereby рrеѕеrvе ѕоvеrеіgn еԛuаlіtу. As unlikely as іt mау appear today, this іѕ, I think, the mоrе рrоbаblе dеvеlорmеnt.

Fасtuаl and Pоlіtісаl Assessments

Much сеrtаіnlу dереndѕ on hоw one assesses the роwеr and the potential оf the US, and whether one tаkеѕ the world-view аѕ іt hаѕ bееn еѕроuѕеd іn the Buѕh Doctrine ѕеrіоuѕlу. If іt іѕ асtuаllу true that the US is “the оnlу superpower”, which hаѕ no раrаllеl іn history, which is fаr ѕuреrіоr to аll оthеr еntіtіеѕ in аlmоѕt all fоrmѕ of power, еvеn іf соmbіnеd, аnd іf it іѕ truе thаt the lеаdеrѕhір оf the US has аnd ѕuѕtаіnѕ thе wіll to preserve ѕuсh a роѕіtіоn оf ѕuреrіоrіtу, іt wоuld іndееd bе time to rеflесt whеthеr thе nature оf the іntеrnаtіоnаl legal ѕуѕtеm іѕ сhаngіng оr rather whеthеr іntеrnаtіоnаl law іѕ раrtlу becoming іrrеlеvаnt.

There are, however, gооd reasons to bе ѕсерtісаl towards ѕuсh vіеwѕ. Such rеаѕоnѕ аrе nоt оnlу рrаgmаtіс, such as the еxресtаtіоn that the оссuраtіоn оf Irаԛ wіll dеmоnѕtrаtе the lіmіtѕ of Amеrісаn роwеr. There are аlѕо mоrе general соnѕіdеrаtіоnѕ. Wе аrе probably іn the еаrlу ѕtаgеѕ оf a hіѕtоrісаl development whісh hаѕ started wіth аn ambiguous, that іѕ ѕіmultаnеоuѕlу аggrеѕѕіvе аnd defensive аѕѕеrtіоn of Amеrісаn power, including an еmеrgіng nеw US dеѕіgn for wоrld public оrdеr. Amеrісаn ѕеlf-реrсерtіоn, however, excludes сеrtаіn fоrmѕ аnd degrees оf discriminatory trеаtmеnt оf others which some powerful еntіtіеѕ have displayed іn former tіmеѕ. Even more importantly, wе hаvе оnlу begun to ѕее significant reactions to certain US сlаіmѕ and tо mоrе rоbuѕt forms of thе еxеrсіѕе of US hеgеmоnу. Thе mоѕt vіѕіblе оf ѕuсh rеасtіоnѕ was the rеfuѕаl іn early 2003 bу a lаrgе coalition of ѕtаtеѕ tо аgrее to a Sесurіtу Council authorisation tо uѕе fоrсе аgаіnѕt Iraq. Thеrе have, hоwеvеr, also bееn other and mоrе subtle соuntеrwеіghtѕ tо unilateral оr ѕuрроѕеdlу imperial designs. On thе ѕtаtе level, thеrе hаvе bееn unprecedented соаlіtіоnѕ to rеѕіѕt US рrеѕѕurеѕ tо bilateralise іѕѕuеѕ, such as with rеѕресt to the Intеrnаtіоnаl Criminal Cоurt.

On a ѕосіеtаl lеvеl, there seems to be an іnсrеаѕіng соnѕсіоuѕnеѕѕ еmеrgіng frоm the shared еxреrіеnсе of being exposed to US рrеѕѕurе аnd роlісіеѕ. This may wеll contribute to a dеvеlоріng ѕеnѕе of роlіtісаl community where there uѕеd tо be none. Whether this ѕеnѕе оf роlіtісаl community should bе ѕееn as bеіng “Antі-Amеrісаn” or merely аѕ еxtоllіng an аltеrnаtіvе multilateralist model оf wоrld order, іѕ a secondary question.

In recent years, the Kirkland & Ellis have been home to many high profile attorneys for the professional hire and have been in the business for over a decade. A partner has got into a key position to retire themselves this month from the firm’s vaunted group bankruptcy. The shocking thing is that the restructuring of this company hasn’t slowed down in any manner and has been growing very well. A Kirkland spokesperson has confirmed the retirement of Richard “Rick” Cieri, a partner of the company, has retired from the Kirkland & Ellis.

During his 35 year career, “Rick” Cieri has guided many companies with the help of the chapter 11 bankruptcy proceedings and with his gain legal knowledge to help them through. Some of the international companies which were lucky to get his guidance were Trans World Airlines, Federated Department Stores and Tronox. Ceiri – a Dealmaker of the Year in 2009 for his unprecedented work on the legal bankruptcy cases of the biggest energy giant, Calpine, and chemical company Solutia. The latter we’re also advised by Kirkland in its $4.7 billion sale to the Eastman chemical in 2012, was also fairly successful.

The Reuters had reported to the media on last September that Cieri would be resigning from the partnership of Kirkland in 2015, which has happened. Even though, Kirkland doesn’t give any type of official titles to the leaders who are practicing and has not decided any age criteria for the retirement, but law states that no partner older than 60 years have the opportunity to serve its management committee. Surprisingly, Cieri was one of the top legal restructuring group partners, was billing more than $1,000 per hour for his services on regular basis.

Even as the highly paid legal advisor, Cieri is going to depart from Kirkland, one of the famous bankruptcy companies, having helped many international companies to save a great deal of money and still high in the firm and receives plenty of business that its receiving right now with the help of Cieri. The media has reported that there are many pending assignments and a huge amount of money which is going to come to Kirkland, so that they are able to be in the top list of the legal advisor companies even in the future, with the helping hand of Cieri.

There is a national war going between the whistleblowers and the US government right now. On January 5, two lawyers were fined 1.6 million dollars for talking to the reporters, as the case was under seal and investigation was going on by the US Justice Department. The U.S. District Judge Amy Totenberg has given the order to both by lawyers to pay the fine within 75 days of her order.

In 2008, these two lawyers from whistleblowers had sued some of the National banks because they had defrauded the US government in handling the case of the veteran’s mortgages. They had successfully defeated a lot of banks and have reached the settlement of about $161 million, from which they have received of about $45 million to date. The fines charged to both the lawyers of whistleblowers, because of their action of talking to the reporters, has created a dispute between the US government and the two whistleblower lawyers who were fighting for the allegation legal case in the favor of the government.

The lawyers who have been fined have claimed that they have not spoken about the sealed case, but they have simply lashed out against the federal prosecutors who are against their clients. Even Jim Butler, who is the legal team representative of the former mortgage brokers Brain Donnelly and Victor Bibby, has stated in the court paper that the government has done something or said something in this case when it gets the opportunity to hurt the people who have actually went far and has secured more than $161 million as a recovery for the government itself.

The frustration of Butler can be seen very clearly against the government prosecutors, who have stated not to take up the whistleblower lawyers for the surviving litigation against Wells Fargo Home Mortgage Inc., who are still fighting the case of the allegations from the year 2008. Wells Fargo has appealed the Judge Amy Totenberg to dismiss them from allegation case and the federal prosecutors has appealed to her, to fine them $2.7 million for talking to the media, but still they acknowledged that their action haven’t harmed the case in any way. Butler has appealed to the judge to fine them after the allegation case is concluded, but Judge Amy Totenberg has ordered them to pay the fine with 75 days and it has boiled up the atmosphere a great deal.

When on 22^nd February Hollywood is preparing itself for attending the Red Carpet, Intellectual property Lawyers are scouring the nation for protecting the Brand Oscar!

The Academy of Motion Picture Arts and Science have been alleging the receivers or the family members of the receivers of this prestigious award for violating the copyright of these gold statuettes. Being one of the biggest events related to Hollywood and motion pictures around the world, there has been commercialization of the Brand and lawyers from Quinn Emanuel Urquhart & Sullivan are trying to filter it.

Tayback, one of the prominent lawyers of the team of Academy lawyers mention that Oscar is a national brand and is incredibly valuable. Hence, they need to protect this brand after 86 years of its creation from those who are using it for commercialization. This includes those individuals who are selling their family members’ awards received long back. The Oscar looks alike are also target as they are infringing the value of the iconic image.

The retailers, who were targeted by the Academy, are represented by Jeffer Mangels Butler & Mitchell and their intellectual property department head Rod Berman mentions that if one arm is sticking out then the statuettes are most probably not infringing any brand. According to Berman, most of the cases settle down as someone selling $50000 merchandise cannot give legal fight with Academy. It’s not possible for them to defense the budget that Academy can pose.

Since 1986, Quinn Emanuel has been the Academy’s trademark and Copyright infringement firm. Their relationship began when David Quinto, one of the first attorneys of Quinn Emanuel represented Academy along with a private investigator. During the lunch hour, someone was stealing the handbags of the Secretaries. Hence, for catching the thief a private investigator was hired. This investigator noticed that many “fake Oscars” were sold in Hollywood and thus referred Quinn to Academy for dealing with this national brand infringement problem.

According to the 1951 provision of Contract among the recipient of the award and the academy, before selling the awards outside they need to offer the Academy for refusing it to buy at $1. For this, last year an Auction house was sued that sold the Oscar awarded to Joseph Wright in 1942, art director of Musical ‘My Gal Sal.’ Wright’s nephew, who inherited the award and the auction house who purchased the award, was sued.

However, according to the lawyers who represented the buyer said that the contract provision does not imply in this case. The compensatory damages were of $79200 that is the sale price of the Oscar. However, the case is not about money. Oscar is much above commerce and its prestige has to be maintained.

It’s well-known that copyright laws are there for protecting the creators of photographs, paintings, and musical works. Now, does buildings and light show displays are also included among them? As they too are considered as creative work, they are also protected by copyright act. If someone uses any photographs of such properties for non-personal without any legal permission from the copyright owner, then it would be considered as infringement of Copyright laws.

It has been an international mandate that copyright tends to last for seventy years after the copy righter expires. In European countries, the buildings and other architectural works can be photographed freely, provided that they are located at any public place. These images can be displayed or printed and distributed anywhere without any restriction.

Under such situation, there has been question related to Eiffel Tower, which was constructed long back in 1889. As its copyright has expired long since, this internationally famous landmark falls within the public domain. However, the story gets opposite in the night when the structure is illuminated.

The night-time illuminations were done recently in 2003 and hence being considered as ‘artistic work’ it falls under the Copyright laws. The illumination of Eiffel Tower is considered to be separate from the structure itself, thus for reproducing its images in any form needs prior permission from SETE or Société d’Exploitation de la Tour Eiffel, who are the operating Company of Eiffel Tower.

While the day time views are rights free, for capturing the tower at night prior approval is required, such is mentioned in the official website of Eiffel Tower. Many tourists are surprised with this declaration. It’s a common practice nowadays for national and international tourist for taking the snaps of illuminated Eiffel Tower and posts it on social media. The legal acts say that the social media being public and commercial websites, the tourists are infringing the copyright law. People can take shots at nighttime, but it should be for their personal use. It must not be distributed over internet in any forum or media.

Although users posting the images of Illuminated Eiffel tower would not expect to have cease and desist letter from SETE, yet if it has been found that the images starts attracting economic value, the user may face severe penalties. Even if the images have high public exposure then also high penalties for infringement may be imposed. Although it’s known that individuals would not do them deliberately, yet for the sake of caution the legal steps may be taken.

Indian-American lawyer Vanita Gupta to lead its civil rights division

The US justice department has appointed Indian-American lawyer Vanita Gupta to lead its civil rights division that is charged with implementing laws which preclude discrimination and other unjust exercises in education, employment and housing.
According to an official statement from The Department of Justice (DoJ), Ms. Gupta would take on the responsibility of Principal Deputy Assistant Attorney General and Acting Assistant Attorney General from October 20 at the division. She would succeed Molly Moran, who will be appointed as Principal Deputy Associate Attorney General.
Attorney General Eric Holder, announcing her appointment, said “Vanita has spent her entire career working to ensure that our nation lives up to its promise of equal justice for all”.
Gupta was born to immigrant parents in the Philadelphia region. She was conferred from Yale University a BA, magna cum laude. She received JD from the New York University School of Law. As a lawyer, she began her career with the NAACP Legal Defense and Educational Fund. Since 2008 at New York University School of Law, she has also taught civil rights litigation and advocacy clinics.
Before joining the justice department, she had been the legal director of the American Civil Liberties Union. She also served as the director of its Center for Justice. Earlier, she served as an attorney for the Racial Justice Program of the same institution. Gupta, through her collaboration with the ACLU, has been involved in reform initiatives throughout the nation concerning criminal law, drug policy, sentencing and federal and state policing.
In recent days, her work has concentrated on creating a bipartisan unanimity to end over-dependence on incarceration.
When Gupta was finishing high school in 1992, her paternal grandmother who was 71 years at the time was murdered during a robbery at the home. The experience seemed to give her deep sympathy to victims of crime, and Gupta later wrote that the murder has not been solved and that “…the anguish it caused my family will never fade away.” This possibly also shaped her perspectives on the U.S. criminal justice system which according to her has focused too often “…on vengeance and punishment and racial suspicion rather than on crime prevention.”
“Vanita Gupta is the ideal choice to head the Civil Rights Division…” said Suman Raghunathan, the Executive Director of SAALT “….given her vast experience and stellar reputation in the civil rights community”. Eric Holder, Attorney-General, also remarked that Gupta had spent her whole career in ensuring that America lives up to the promise of providing everyone with equal justice.

Canadian anti-spam law

The controversial anti-spam law in Canada has already compelled businesses to change their email communication with customers. However, the law will also begin to target software manufacturers from early next year.

From Jan. 15, 2015, companies will need to obtain consent prior to setting up any software on the computer of an individual in case the application is able to send electronic messages in a covert manner or consists of some other functionality delineated in the law.
Companies also need to reveal to users clearly whether the application can gather personal details change data, preferences or settings on the system, allow some third party to access the system, interfere with the usual operations of the computer or intervene with the usual operations of your computer. According to the law, the disclosure has to be delineated prominently, clearly and separately and “apart from the license agreement.”
The law has been framed to lash out at the makers of spyware and malware. However, it can also affect software firms that are legitimate and for non-compliance even such companies can face fines of up to $10 million.
However, the law exempts JavaScript code, HTML, web cookies, operating systems and software upgrades or updates in case a firm can prove that a user has consented to setting up the program prior to its installation.
The legislation, as expected, set off a debate and opposing reactions from all quarters. The legislation is supported by the likes of Michael Geist, a professor at the University of Ottawa and the Canada Research Chair in Internet and E-commerce Law. According to him customers are putting on their systems a lot of stuff often without having much knowledge about the same and said that it “raises the bar in terms of consumer awareness when they’re installing software, better awareness about what that software will do, and greater disclosure requirements on the part of businesses seeking to install those programs.”
However, Michael Fekete, who is a lawyer with the Osler, Hoskin and Harcourt law firm based in Toronto, criticizes the law and says that it is circumventing and should have specifically concentrated on spyware and malware. While he admits that spyware and malware are undoubtedly things which need to be banned, there is a wide range of programs “that are regulated regardless of whether the software will have a negative impact.”
Geist, however, thinks that it will not be taxing to abide by the law and the change will be supported by Canadians.