Comparative law talks look to Biden Administration, covid-19 aftermath, EU market, juvenile justice

The winter-spring lecture series, "Contemporary Challenges in Global and American Law," from the Faculty of Law and Administration at Jagiellonian University (JU) in Kraków, Poland, and the Columbus School of Law at the Catholic University of America (CUA) in Washington, D.C., is free and already under way.

The series promises an exciting lineup, continuing from six lectures in fall 2020, all of which may be viewed online.  This semester's offerings kicked off last week, January 13, with London-Milan lawyer Vincenzo Senatore talking about covid-19 as force majeure in contract law, and comparing common law and civil law approaches.

One week from today, January 27, Professor Geoffrey P. Watson, director of the Comparative and International Law Institute at CUA, will talk on "International Law and the New Biden Administration."  Free registration is now open.

Stryjniak

Here's the line-up for February and March.  Watch the website for more in April and May.  Free registration is required for contemporaneous participation.

• February 10 - Katarzyna Stryjniak, "EU and US Budget-Making: Process, Politics, and Policy in a COVID-Challenged World" 
• February 24 - Heidi Mandanis Schooner, "How Well Did the Post-2008 Financial Crisis Regime Prepare the World for the COVID-19 Pandemic?"
• March 2 - Cara H. Drinan, "The War on Kids: Progress and the Path Forward on Juvenile Justice"
• March 24 - Gaspar Kot, "Sustainable Investment – The New Heart of EU Financial Market Regulation"

The lecture series grew out of a summer 2020 pilot program in which I was privileged to participate, and it's been a welcome way, during the pandemic, to connect with colleagues in Europe and take pride in former students.  Now a legal and policy officer with the European Commission, Kasia Stryjniak is a graduate of JU and CUA master's programs.  Gaspar Kot is near completion of the Ph.D. at JU, holds an LL.M. from CUA, coordinates the LL.M. program at JU, and was my co-author on a recent book chapter.

Jarosiński to talk cloud law, from Europe to Zoom, in free transnational legal webinar series

Jarosiński

Wojciech Jarosiński, a friend and colleague, will speak in November on "The Cloud: A New Legal Frontier."  The talk is part of a free webinar series of the American Law Program (ALP) of the Columbus School of Law at The Catholic University of America (CUA) in Washington, D.C., and the law school, foreign program office, and American law student society at Jagiellonian University (UJ) in Kraków, Poland.

In just under a decade, armed with master's-in-law-degrees from UJ and CUA, attorney Jarosiński has risen to prominence as an accomplished attorney in transnational business.  Now a partner at the Maruta Wachta law firm in Warsaw, he heads the dispute resolution practice group, leading or supervising a portfolio of more than 200 technology cases valued at more than US$2bn.  At the same time, I know Wojtek to be a gifted and globally minded person.  In his spare time, he is a co-founder, expedition planner, and skipper for Vertical Shot Expeditions, a wilderness adventure company offering photography expeditions in remote locations from pole to pole.

Here is the description of the talk, which will be in English.

Until recently, the cloud was mainly storage for surplus holiday photos. Today, the cloud plays a vital role in commerce: allowing businesses to thrive in geographically distant markets, limiting operational costs, and enabling workplace flexibility for employees. These applications, though, bring sleepless nights for judges who try to apply existing law to a new reality.

This webinar will begin with a brief introduction to the cloud’s basics: where the cloud is located, what is stored there, and whether it is even possible to avoid the cloud in today’s business world. Then, the session will move to opportunities for lawyers to guide their clients through cloud regulations—highlighting the importance of legal education in cross-border legal concepts. Finally, the webinar will consider dispute resolution regarding cloud-based services. The webinar will consider Zoom, Apple Mail, Amazon Web Services, Oracle, and many other popular services, as well as the Court of Justice of the European Union Schrems II decision and the U.S. Cloud Act. 

The talk is scheduled for Tuesday, November 24, at 1 p.m. U.S. EST (6 p.m. GMT, 7 p.m. CET).  All of the talks in the series are free, but advance registration is required.  

Here is the full schedule.  [UPDATED, Oct. 22: All fall dates are now open for registration.]

• OCTOBER 21 – Marc Liebscher, "Wirecard, Europe’s Enron? – Auditor Liability to Investors in Corporate Fraud"
• OCTOBER 28 – Sarah H. Duggin, "Why Compliance Matters – The Increasing Significance of the Compliance and Ethics Function in Global Corporations"
• NOVEMBER 19 – Roger Colinvaux, "Nonprofits in Crisis: Changes to Giving Rules and Politicization"
• NOVEMBER 24 – Wojciech Jarosiński, "The Cloud – A New Legal Frontier"
• DECEMBER 2 – Justyna Regan, "Data Privacy in the US: Where We Stand Today and Predictions for the Future"
• DECEMBER 9 – Megan M. La Belle, "Artificial Intelligence and Intellectual Property"

I'm proud to claim Wojtek as an alum of one of my classes in 15 years' teaching in the CUA-UJ ALP, though I doubtless have naught to do with his success.  Regrettably, the ALP is not running live this year, because of the pandemic.  Lemonade from lemons, though, is the fascinating work being produced by the Law Against Pandemic project (CFP, CFP en español).  I was privileged meanwhile, in May, to offer an item on American tort law to the pilot iteration of the ALP webinar series.

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Our fearless leader @wjarosinski relaxing on a Pripyat rooftop with all his essential gear. #verticalshotexpeditions #chernobyl #pripyat #adventureawaits #exploretocreate #pelicase #peliproducts #gearpatrol #thenorthface #neverstopexploring #peakdesign #mypakage #adventureisoutthere #photographyadventures

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'Ley contra la pandemia': CFP se extiende a las contribuciones en español

¡Convocatoria de contribuciones!

Los académicos, estudiantes, profesionales, todas las disciplinas, todas las naciones, están invitados a contribuir con artículos, comentarios y otros trabajos al nuevo sitio web y blog, Law Against Pandemic. Se aliente especialmente el trabajo de los estudiantes.  (CFP en inglés via The Savory Tort.)

Law Against Pandemic es un espacio para el debate sobre los aspectos legales de las pandemias como una herramienta de desarrollo y popularización de los logros de las ciencias sociales. El objetivo principal del proyecto es a crear una plataforma de publicación de artículos de alta calidad sobre aspectos legales de pandemias, para contribuir al discurso y al análisis de posibles soluciones.

Se aceptan textos en inglés, francés, alemán, polaco, y, ahora, español.

Lea más en las directrices de Law Against Pandemic (inglés).

  

Siga Law Against Pandemic en Facebook y en Twitter.

 

 Envíe su manuscrito por email.

Estos comentarios recientes se publican en Law Against Pandemic.

Alternative dispute resolutions during global pandemic and beyond
by August Adamowicz

Is there a tool that could be used by the lawyers to mitigate the negative effects arising from the situation we are in? I believe that in some instances proper use of Alternative Dispute Resolution methods could help resolve disputes remotely, but also after the epidemic ends it could reduce the number of urgent court cases and at least in some part help to return the judicial system to normal functioning.  Read more.

Pandemic and international trade law. Is there a silver lining?
by Cyprian Liske

Current events show more clearly than ever how strong economic interconnections between countries are in the modern, globalised world. A severe crisis in just one country can break supply chains around the whole globe, not even to mention financial consequences which, as we know at least since 2008, can spread just like a deadly virus.... How do the countries choose to deal with it internationally? Do we restrict trade in the face of such dangers? Or are we trying to liberalise it in order to keep the flow of goods? What about the export of deficit goods which may be used by countries to fight pandemic domestically?  Read more.

Labour market after COVID-19
by Łukasz Łaguna

Currently, the whole world is fighting the COVID-19 epidemic. All countries are racing to find anti-crisis solutions to ensure the least possible losses for every labour market. At the same time, it should be borne in mind that no country in the world will be able to maintain such intensive financial assistance in the long run. High social benefits are only an ad hoc aid for the temporary maintenance of financial continuity of entrepreneurs.  Read more.

CFP: Law Against Pandemic

Calling contributors!

Scholars, students, practitioners, all disciplines, all nations, are invited to contribute articles, commentary, and other work to the new website and blog, Law Against Pandemic.  Student work is especially desired, so professors, please spread the word (at an appropriate social distance) in your schools.

Law Against Pandemic is a "[s]pace for debate on the legal aspects of pandemics as a tool of development and popularisation of the achievements of social sciences." The project states as its main goal, "Creation of a publishing platform for high quality articles on legal aspects of pandemics, in order to contribute to the discourse and the analysis of possible solutions."

"We will publish articles and commentaries on the interrelations between law and pandemics.  There is no character limit. We accept texts in English, French, German, and Polish."

Read more in Law Against Pandemic guidelines.

 

Follow Law Against Pandemic on Facebook and on Twitter.

 

 Email submissions.

Currently available from Law Against Pandemic:

Mikołaj Sołtysiak, SARS-CoV-2 a stosunki zobowiązaniowe [SARS-CoV-2 and contractual relations].  Mikołaj Sołtysiak is a third-year student in civil law at Jagiellonian University in Poland.  The article is in Polish; here is the abstract, my translation:

The epidemic state means a period of extraordinary circumstances affecting many contractual relationships. Civil law provides for certain constructs that will enhance the content of contracts in exceptional circumstances, but only to a limited extent. Many situations caused by SARS-CoV-2 do not qualify for the use of mechanisms such as rebus sic stantibus, or lack of liability due to force majeure, and yet, it seems axiologically inappropriate to be indifferent to such cases. Here the key role of the legislator is revealed.

While Sołtysiak contemplates a need for the exercise of legislative power, I contributed a piece to Law Against Pandemic on the need in the United States for the federal executive authority to step up to the challenges of the coronavirus crisis.

Springer 'Law and Development' book: Introduction is now free for download

Recently I announced the publication of Law and Development, a new collection of research articles from multi-national and multi-disciplinary perspectives, as well as my own contribution, with Gaspar Kot, on comparative access to private-sector information in South Africa and Poland.  Publisher Springer has now authorized free public download, via SSRN, of the book's Introduction, from the co-editors, Piotr Szwedo, Jagiellonian University, Poland; Dai Tamada, Kobe University, Japan, and me.

Please enjoy our Introduction to Law and Development: Balancing Principles and Values.

Multidisciplinary 'Law and Development' book tackles hard problems from principled perspectives

[UPDATE, March 31, 2020: The Introduction to Law and Development is now available for free download from Springer, via SSRN.]

I am thrilled to announce the publication of Law and Development: Balancing Principles and Values, from Springer, a publication in the Kobe University Monograph Series in Social Science Research (flyer). While I was privileged to serve as a contributor and co-editor, with Professor Dai Tamada (law site), of Kobe University in Japan, this book has been a project of passion for our lead editor, my inspiring colleague and friend, Professor Piotr Szwedo. On the law faculty of the Jagiellonian University (UJ) in Poland, Professor Szwedo serves as head of the OKSPO Center for Foreign Law Schools and co-director of UJ law programs with the Columbus School of Law at The Catholic University of America, and the Université d’Orléans.

Born of an international conference organized by Professor Szwedo at UJ, this ambitious multidisciplinary collection examines the problem of "development" across the world especially from perspectives informed by morality and ethics. Here is the jacket précis:

This book examines the concept of ‘development’ from alternative perspectives and analyzes how different approaches influence law. ‘Sustainable development’ focuses on balancing economic progress, environmental protection, individual rights, and collective interests. It requires a holistic approach to human beings in their individual and social dimensions, which can be seen as a reference to ‘integral human development’ – a concept found in ethics. ‘Development’ can be considered as a value or a goal. But it also has a normative dimension influencing lawmaking and legal application; it is a rule of interpretation, which harmonizes the application of conflicting norms, and which is often based on the ethical and anthropological assumptions of the decision maker. This research examines how different approaches to ‘development’ and their impact on law can coexist in pluralistic and multicultural societies, and how to evaluate their legitimacy, analyzing the problem from an overarching theoretical perspective. It also discusses case studies stemming from different branches of law.

Prof. Szwedo

Prof. Tamada

In organizing the book's 13 contributed chapters, we envisioned and executed on four threads of approach: (1) conceptualizing development, (2) financing development, (3) development and society, and (4) applied sustainable development.  Scholars, lawyers, and scientists who approach development from diverse professional, geographic, and experiential perspectives all will find compelling inroads in this volume, which ranges from the highest echelons of philosophical thinking about the human condition to the most earthbound problems of how many fish swim in the sea.  With DOI links, here are the contents and contributors:

1. “Law & Development” in the Light of Philosophy of (Legal) History, by Tomáš Gábriš, Faculty of Law, Comenius University in Bratislava, Slovak Republic.
2. Populorum Progressio: Development and Law?, by Christine Mengès-Le Pape, University Toulouse, France.
3. Luigi Sturzo’s Socio-economic Development Theory and the Case of Italy: No Prophet in His Homeland, by Flavio Felice, University of Molise, Campobasso, Italy; and Luca Sandonà,University of Trieste, Trieste, Italy.
4. International Financial Aid, Catholic Social Doctrine and Sustainable Integral Human Development, by George Garvey, The Catholic University of America, Washington, D.C., USA.
5. Common but Differentiated Responsibilities for Developed and Developing States: A South African Perspective, by Zuzana Selementová, LL.M. (Cape Town), Valouch, and Attorneys-at-Law, Prague, Czech Republic.
6. Must Investments Contribute to the Development of the Host State? The Salini Test Scrutinised, by Dai Tamada, Graduate School of Law, Kobe University, Japan.
7. Water: The Common Heritage of Mankind?, by Franck Duhautoy, University of Warsaw, Centre of French Civilisation, Poland.
8. Private-Sector Transparency as Development Imperative: An African Inspiration, by Richard Peltz-Steele, University of Massachusetts, North Dartmouth, USA; and Gaspar Kot, Jagiellonian University, Kraków, Poland.
9. Between Economic Development and Human Rights: Balancing E-Commerce and Adult Content Filtering, by Adam Szafrański, Faculty of Law and Administration, University of Warsaw, Poland; Piotr Szwedo, Faculty of Law and Administration, Jagiellonian University, Kraków, Poland; and Małgorzata Klein, Faculty of Geography and Regional Studies, University of Warsaw, Poland.
10. A Comparative Law Approach to the Notion of Sustainable Development: An Example from Urban Planning Law, by Ermanno Calzolaio, University of Macerata, Italy.
11. Challenges Concerning ‘Development’: A Case-Study on Subsistence and Small-Scale Fisheries in South Africa, by Jan Glazewski, Institute of Marine & Environmental Law, University of Cape Town, South Africa.
12. Economic and Social Development in the Republic of South Africa’s New Model of Mineral Rights: Balancing Private Ownership, Community Rights, and Sovereignty, by Wojciech Bańczyk, Jagiellonian University, Kraków, Poland.
13. Sustainable Development as a New Trade Usage in International Sale of Goods Contracts, by Daniel Zatorski, Faculty of Law and Administration, Jagiellonian University, Kraków, Poland.

An introduction from the editors ties the work together.  Previews (with abstracts) of each chapter can be viewed from the book's home page at Springer (or from the DOI links above), where also a flyer about the book can be downloaded.  Working on this project has been a tremendous education for me on law and development.  My congratulations and deep gratitude extend to Professor Szwedo, Professor Tamada, and every one of the contributing authors.

International arbitration, U.S. common law collide in skilled student note

I have been remiss not to mention earlier an incisive work on arbitration law by Chad Yates, '19. "Manifest Disregard in International Commercial Arbitration: Whether Manifest Disregard Holds, However Good, Bad, or Ugly" is available online from 13:2 UMass Law Review.  Here is the abstract.

Manifest disregard is a common law reason for not enforcing an arbitration award. This principle applies when the arbitrator knew and understood the law, but the arbitrator disregarded the applicable law. Presently, the United States Supreme Court has not made a definite decision on whether manifest disregard is still a valid reason for vacating the award (known as “vacatur”), and the Court is highly deferential to arbitrator decisions. Consequently, the lower courts are split on the issue. For international commercial arbitration awards, manifest disregard can only apply to a foreign award that is decided under United States law or in the United States. This Note will argue that manifest disregard should still apply to arbitration awards. However, arbitration contract clauses would be improved with the addition of language for appeals based upon manifest disregard to an arbitration appeals tribunal. The customary goal of arbitration is to provide a confidential, cost effective and expedited resolution of contract disputes. Therefore, an arbitration contract clause requiring that an appeals tribunal decide all manifest disregard questions would further these traditional arbitration goals.

Mr. Yates excelled in my 1L Torts class two years ago and also in Comparative Law (co-taught by the better regarded Dean Peltz-Steele).  I admit that my delay in reading this article is owed to my own shortcoming, as I suffer from commercial legis MEGO disorder.  I nevertheless recognize this article as well worth the, uh, investment, especially if commercial arbitration is your jam. Moreover, I am hopeful that Chad will get around to publishing some of the excellent research he's done on India in comparative law.  You can get a flavor of that work from his January entry on the UMass Law Review blog, "Comparative Law for India: The U.S. Digital Media Sales Company’s Destination for Business Process Outsourcing."  See also more on the blog.

A shout out of gratitude to Perry S. Granof, of Granof International Group, contributor of the chapter, "Introduction to Alternative Dispute Resolution in International Business Transactions," to the book, Resolving Insurance Claim Disputes Before Trial (ABA TIPS 2018).  The consummate colleague and an exceptional lawyer, Perry generously lectured my Comparative Law class via Zoom, on the subject of international arbitration, and fueled Chad's interest in the area.

New scholarly treatise examines global water deficit

My colleague and friend Dr. Piotr Szwedo, Jagiellonian University, has published the new treatise, Cross-Border Water Trade: Legal and Interdisciplinary Perspectives (2018), appearing as volume 32 of Brill-Nijhoff's Queen Mary Studies in International Law series.  With water law being a key emerging issue around the globe in our contemporary times, this volume marks an important contribution to the literature.  Congratulations, Piotr!  Download the PDF flyer for your library.  Here is the publisher's description:

Cross-border Water Trade: Legal and Interdisciplinary Perspectives is a critical assessment of one of the growing problems faced by the international community — the global water deficit. Cross-border water trade is a solution that generates ethical and economic but also legal challenges. Economic, humanitarian and environmental approaches each highlight different and sometimes conflicting aspects of the international commercialization of water. Finding an equilibrium for all the dimensions required an interdisciplinary path incorporating certain perspectives of natural law. The significance of such theoretical underpinnings is not merely academic but also quite practical, with concrete consequences for the legal status of water and its fitness for international trade. 

Piotr Szwedo, Ph.D. habil. (b. 1979) is a lecturer in international law and Head of OKSPO Centre for Foreign Law Schools at the Jagiellonian University in Krakow. He published monographs and articles on international economic law and global governance. 

Table of Contents

Preliminary Questions
    Pages: 1–38
 

In Search of a Regulatory Model
    Pages: 39–89
    

Water as an Article of Trade in WTO Law
    Pages: 90–130
 

Water Trade in the International Practice of States
    Pages: 131–207
 

Principles and Institutions of International Law as Conditions of and Restrictions on Water Trade
    Pages: 208–315

Ending Notes 

The Adventures of Mass. App. and the 700 Gold Coins

                                                       pnging.com CC BY-NC 4.0

The Massachusetts Appeals Court dove into foreign law and comity today, leaving "700 gold coins" in the possession of an Iranian divorcée.  The case is No. AC 16-P-1131 (Mass. App. Ct. Sept. 25, 2018).

Family law is not my area, but this decision from Mass. App. presented a modest if compelling problem in comparative law.  The divorce of husband and wife precipitated litigation in Iran over the dissolution of the marriage contract and also in Massachusetts over the division of property.  Central in the dispute were "700 gold coins," representing a mahr--a gift from groom to bride in Islamic marriage tradition.

I put "700 gold coins" in quotation marks because I don't think there need actually be 700 gold coins.  The mahr represents a quantifiable asset that is expected to grow in value with the duration of the marriage, thus, at least in theory, providing a divorcée with a time-commensurate award in case of separation.  According to the husband's testimony in Massachusetts court, in event of divorce, the wife may retain the entirety of the mahr, but may receive nothing more.

Despite that testimony, the husband contested award of the mahr in Iranian courts.  He lost at two levels, in trial court and intermediate appellate court in Tehran.  He told the court in Massachusetts that he was appealing to the Supreme Court of Iran.

Meanwhile the trial judge in Massachusetts divided the couple's property assets within U.S. jurisdiction more or less evenly, faithfully to Commonwealth law.  The husband showed that an inherited property in Tehran was wholly under the control of, and generating income for, the husband's mother, so the property was left with the husband as not entwined with the marriage.  But the court awarded the wife an equal share of the appreciation of the property over the course of the marriage.  Other assets were divided evenly.  The court regarded the mahr as an asset of the marriage, so divided it equally as well.  On that latter point, the appellate court reversed.

The principle of comity in international law demands that Massachusetts respect the judgment of a foreign court if it does not run contrary to domestic public policy.  The appellate court found no public policy imperative that would warrant disregard for the Iranian court ruling on the disposition of the mahr.  In the view of the Iranian lower courts, the mahr was the sole property of the wife.  Even if the Iran Supreme Court reverses on that question, no American public policy principle would be offended.  So the Massachusetts trial court abused its discretion in substituting its judgment for that of the Iranian courts on the mahr.  All other rulings of the trial court, including the ruling on the appreciation of the Tehran property, were affirmed.

The courts seemed able to resolve the question presented without expert testimony on Iranian law.  The appeals court relied on the treatment of mahr in a prior New Jersey decision.  Were it necessary, rule 44.1 of both federal and commonwealth rules of civil procedure allows the unusual step of expert evidence on questions of law.  That's fun, because legal scholars get to be experts in court, like experts from other disciplines.  Usually we're relegated to the sidelines.

The opinion was written by Associate Justice Sydney Hanlon, a graduate of Brown and Harvard Law.  Her skills include training for court personnel on dealing with domestic violence, training she has given in central and eastern Russia, as well as the United States, as part of rule-of-law work. 

The court's decision on comity comes at a curious time, with the United States tuning up sanctions on Iran and the EU negotiating with Iran to the express end of undermining U.S. sanctions.  Of course domestic claims playing out against the backdrop of U.S.-Iranian foreign policy is no new thing in American tort law.  See The Adventures of Tort-tort and the Frozen Assets.

SCOTUS 'Microsoft' privacy case likely moot, R+C blog reports

It looks like we won't get an answer from the U.S. Supreme Court in the Microsoft privacy case.  For the Data + Privacy Security Insider at Robinson + Cole, Kathleen Porter and Connor Duffy report that the Government and Microsoft agree that the case was mooted by the CLOUD Act, signed into law in March as part of omnibus spending legislation. 

The CLOUD Act gives the Government the authority to compel Microsoft to produce the sought-after data, whether stored at home or abroad, and the Government already has attained a warrant under the new law.  Microsoft's reported statement indicates that the company's position was exonerated insofar as it maintained that the legislature was the appropriate branch of government in which to resolve the matter.

I wrote about Microsoft and the pending Carpenter case for the winter 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the ABA Section of International Law (published just last month, March 2018).

ABA SIL YIR on Legal Education

The International Legal Education and Specialist Certification Committee of the American Bar Association Section of International Law has published an update of ABA Standards and other data regarding international legal education in U.S. law schools.  Excerpted below, the full article is available (login required) at https://www.americanbar.org/groups/international_law/publications/the_year_in_review/51-yir-articles-by-committee.html.

--

International Legal Education and Specialist Certification
Marissa Moran, Diane Penneys Edelman, and Richard Peltz-Steele

Introduction:
The American Bar Association (ABA) promulgates rules and regulations that apply to all United States law schools with ABA-accreditation and approval. Those rules apply specifically to schools offering programs leading to a J.D. degree. In August 2016, the ABA Council approved certain changes to the ABA Standards and Rules of Procedure for Approval of Law Schools, which became effective on August 9, 2016.1 The changes affected not only J.D. programs, but also study abroad programs offered by ABA member schools.

Outline:
I. Amendments to American Bar Association Criteria Relating to Foreign Programs
     A. Summer and Intersession Programs
     B. Student Study at a Foreign Institution
II. First-Year Courses That Focus on International or Comparative Law