Thursday, August 07, 2008
Carrie Cecil, Pitt Law '10, files from Kiev:
In countries with stable legal systems, it would be nearly unthinkable to choose foreign law for a contract between two parties from the same country, but in Ukraine, this is common practice. Due to corruption in the court system and the instability of Ukrainian laws, attorneys are forced to seek other methods to make transactions secure for their clients. The resulting contracts always have provisions for dispute resolution to occur in the United Kingdom, Switzerland, or any other European country, as long as it is outside of Ukraine. Additionally, if all parties involved have assets located outside of Ukraine, contract will specify that another country's law will apply to the contract instead of Ukrainian law.
Ukrainian attorneys have to be creative in order to assure their clients that agreements will be enforceable. Using foreign law and including provisions for arbitration to occur in other jurisdictions are two examples of how the Ukrainian legal system is avoided. Unfortunately, these maneuvers are not always possible depending on the characteristics of individual transactions. The Ukrainian Parliament has adopted provisions requiring certain types of transactions or transactions between certain parties to be governed by Ukrainian law. In these transactions, the use of Ukrainian law is then unavoidable, but even in these situations, contracts will include a provision for arbitration in a jurisdiction outside of Ukraine.
A third issue for Ukrainian attorneys when drafting contracts is whether an arbitration decision will be enforceable. If a decision is rendered against a party that only has assets in Ukraine, there may be problems enforcing such a decision in Ukraine. The Ukrainian courts have refused to enforce some arbitration decisions made abroad, effectively making some contracts unenforceable. Additionally, some arbitration decisions end up in the Ukrainian court system for long periods of time awaiting a determination on whether they will be enforced in Ukraine. The best hope for a valid and enforceable contract exists when all parties involved have assets located outside of Ukraine.
The question becomes how to enforce a contract when the breaching party's assets are all located in Ukraine. This question is not yet resolved. For example, during a recent seminar, Ukrainian attorneys were explaining the use of confidentiality clauses in contracts, and they acknowledged that although confidentiality clauses are in contracts made here, they are nearly impossible to enforce. As a result, contracts produced in Ukraine include a plethora of provisions making all parties aware of the potential risks related to limitations on enforceability in Ukraine and limit attorney liability to clients on this issue.
Thursday, August 07, 2008
Elisa Mari, Pitt Law '10, files from Athens:
The term lesbian comes from the Greek name of the Aegean Island of Lesvos. The island, known for its beautiful beaches and unspoiled landscapes, is also famous for being the island of the Ancient Greek female poet Sappho. Many scholars believe that Sappho's work was about the sexual love between women, and based on this history, most modern-day homosexual women use the name of Lesvos to describe their orientation.
This is all well and good, except for the fact that there are many other âLesbians', i.e. current inhabitants of the Island of Lesvos, who object to the fact that their name is also one used by homosexual women.
In June, three islanders brought a case against the Homosexual and Lesbian Community of Greece (OLKE), saying that the use of the word was insulting to their homeland and petitioning the court to ban the use of the term "lesbian" as applied to homosexual women. Islanders appeared on television decrying their fate. One man in particular was very upset saying that it was a disgrace that his sister could no longer call herself a Lesbian due to the current double meaning of the word. In addition to the patriotic claim, many islanders are also upset that the resort of Eresos (the birthplace of Sappho) is an increasingly popular tourist destination for homosexual women. In general, many fear that their island will become known as a resort for homosexuals and are unhappy about that.
On July 22nd, an Athens court rejected these islanders' appeal. In so ruling, the court held that the term "lesbian" did not define the identity of the island's residents, and therefore it could be used by homosexual organizations both in Greece and abroad. One can only wonder what Sappho would think of all this!
Thursday, August 07, 2008
Sara Burhan Abdullah, Pitt Law LLM '08, files from Sulaimaniya:
A recent incident showed me that while the Iraqi Constitution has a great deal of material from which a society based on equality of the sexes can be built, there are significant legal and cultural obstacles to obtaining that goal. I left Iraq to go to the US three years ago, so when I arrived in Sulaimaniya on July 13, many of my friends and relatives wanted to come and visit me. One day, some of my friends from law school came to welcome me, and we started talking about the legal and political situation in Iraq. I asked them how difficult it would be to get a passport without going to Baghdad, because my husband and I are helping to organize a project in the United States that we hoped Iraqis could attend.
One of my female friends complained that her father has to grant her permission in order for her to get a passport, while this is not the case for males. Although her father was happy to do it, she understandably found this notion of parental consent offensive and insulting, given that she is not a child but an attorney with a flourishing legal practice who represents dozens of men and travels around the Kurdish region of Iraq to assist them in their cases.
More importantly, this requirement is a clear violation of the Iraqi Constitution. Article 14 makes clear that all Iraqis are equal under the law without respect to gender. The process of obtaining a passport under relevant Ministry regulations is precisely the same for both genders, except for this additional burden of parental consent imposed on females. This situation seems to be a classic case of legal inequality between men and women.
Shockingly, however, my friends and other colleagues, all lawyers, insisted that the Iraqi Constitution requires paternal consent for women. They based their assertion on statements made by a Ministry employee to the female lawyer I mentioned. They were so certain as to cause me to question my own understanding of the Constitution, but I referred to the text of the Constitution and showed my colleagues the gender equality requirement.
Once they were satisfied, I started encouraging my friends to challenge the law. I raised the possibility of a suit in the federal supreme court of Iraq, but I was surprised when my friends said that in their view, challenging the constitutionality of a law or a regulation is not truly practicable in Iraq. Though it has been done, examples are few and it is seen as a waste of time to even try, since the chances of success are so remote. In the end, I could not convince any of them to consider such an opportunity.
On the next day, I decided to meet with some women's organizations and governmental officials to find out whether there are any efforts to challenge the regulation. I visited four different organizations to discuss the matter. Although I could not meet with all of the people I wished, I did get to meet some lawyers, who turned out to be my former classmates from law school. They provided me with documents written by the Kurdish regional government asking Baghdad to revise the regulations because they are in violation of the Constitution. To date, no reply has been received, more than one year after the request was sent. The Kurdish government seems reluctant to pursue the issue, saying it has other priorities. In addition, more than 42 women's organizations have tried to lobby Kurdish and central government officials in Baghdad to change the regulations. By and large, they have been entirely ignored.
This seemed then the perfect time to raise a test case in the courts. The government was in violation of the Constitution, after all, and therefore if persuasion would not work, then it was time for judicial compulsion. This met stiff resistance. I received a series of rather weak excuses from the women's organizations that I visited. Among these were that nobody had time or money to make such a case (even though I promised to work on outside funding), that no test case could be found (impossible to believe) and that the prosecutor's office would have to be involved (not true as a matter of Iraqi law). To date, after extensive efforts, I have been unable to convince anyone to even try to make a case to challenge this patently unconstitutional regulation, though I continue to make efforts in this regard.
It seems that the influence of the former government is still noticeable. No one would have ever thought to challenge laws or to question a Ministry employee about the application of those laws, because someone who did so would never have been seen again. Thus, my friends simply trusted the government official, far less trained in Iraqi law than they as Iraqi lawyers, and assumed he knew something about the Constitution that they did not. They never even thought to check the text. When told that this was a violation, even after complaining about it, they did not think there was any point in pushing the matter.
This sad incident reflects the gap between Iraq's laws and its practice. Much attention has been paid to the the Constitution, and to the fact that regulations can technically be challenged on the basis of it, but this example tends to show that in practice, the culture of the rule of law which is necessary to sustain such challenges is largely absent. Lobbying the government and asking it for assistance are seen as acceptable, but fighting it in court due to violations of its own Constitution is not. I can only hope that this will change and a new generation of Iraqis who have courage to challenge the government will rise from our law schools.
Thursday, August 07, 2008
Bill Fisher, Pitt Law '10, files from Croatia:
In a place of such amazing beauty, culture, and history, it is heartbreaking to see the remnants of the war and witness just how fresh the wounds still are. Croatia is in a state of change and conflict, both politically and culturally. I came here to learn about Croatia's accession to the European Union, but I've learned much more already, and mostly outside of the classroom.
I don't speak Croatian, so I can't understand the news or read the papers. While Croatians are generally very friendly, politics is a particularly touchy subject here, so it's not often brought up in any form. However, all of my professors here are Croatian, we've had Croatian speakers come to the class, and there are a few Croatian students in the class, so there is an opportunity to get somewhat of a feel for the state of things. From the standpoint of the academics, it seems only a formality that Croatia is not yet a member of the EU. To them, the process has gone a bit slower than expected but is still marching along nicely towards accession. The academics, like government officials, see the benefits of membership free trade; a single market for the free movement of people, goods, and capital; common representation at the WTO, G8, and United Nations; and a common currency. The people, however, have a slightly different opinion.
Membership in the EU means membership in an open European community and adopting a policy of more open borders. However, the memories of the war are still vivid in the minds of many here, and the idea that the nations of the former Yugoslavia may eventually also join the EU - thereby allowing for free movement of their citizens across Croatian borders - is a hard pill to swallow for some. An example I can give comes from a day trip we made recently. Only a few hours from Dubrovnik is a town in Bosnia called Mostar. While Dubrovnik mostly represents a Roman influence, Mostar is where the Turkish influence comes into play. We Americans, like many other tourists, see this as an interesting experience and so we planned a trip to visit the Old Bridge and Medugorje. One student that came along, however, was born in Bosnia and lived there until he was about 13 or 14. At his age, that puts his emigration around 1997 or 1998â¦meaning he was there for the fighting and the bombing and all the horrors that came with the war. All throughout the region, there still stand buildings, here and there, with blast and bullet holes as a reminder of what happened. As we approached Mostar, they became much more prevalent. And my friend became a bit quieter. There was graffiti in many places, but one symbol in particular stood out my friend explains to us that it means "insurgent." Generally all is fine though, as we find a café near the Old Bridge to get a beer and watch the divers. Then we decide to explore the Muslim side of town. We oblivious Americans are captivated by the Turkish-esque experience, the cheap shopping, and the call to prayer playing from the speakers of the minaret. My friend however, is tacit and nervous. He has lived in America for about 10 years, and the fighting, for the most part, has been over for many years as well. But he is afraid of what may happen if someone hears his name or catches what bit of an accent he still has when speaking English. It's just a small example of the fear, distrust and animosity that still lingers in the area and poses a real threat to the successful integration of the Croatia people into the EU. Though Slovenia is already a member, Croatia seems to be the gateway, the bridge between the EU and the former Yugoslavia. It has the strongest economy among the Yugoslav nations and its legal system is most in line with the requirements of the EU. But should they become a member state, the door will be open for the remaining nations to join as well, and the tensions between the peoples of the area may very well heighten to dangerous levels again.
There is optimism, though. A speaker came to our class who had not only been a prominent member of the Croatian government, but a very successful businessman as well. In talking about his position in the government, he mentioned that a particular problem in Croatia involved trade law and his reason for getting out of government was that nothing was being done to "clean up the mess." He said that since Croatia liberated itself from Yugoslavia, the government has not really exercised any form of self-restraint. For many years, there have been problems with things like kickbacks, "squeeze-outs," and insider trading. This was part of the reason why initial negotiations with the EU were stalled and why the process is still ongoing. I asked him if he thought about getting back into politics to try to clean up the mess that he had once attempted to take on and what he thought the possible accession into the EU might do to aid that process. He said frankly that he would not be going back into politics, because in all his time there he felt like he was unable to accomplish a single thing. He also said, however, that the EU was like a carrot to Croatia, and that Croatia needed a carrot much more than the stick. The possibility of membership should light a fire under the government to fix many of the problems in Croatian law, many of which were inherited from Yugoslavia or created in sort of a rush to establish the independent nation.
It seems there is a perpetual conflict in this stunningly beautiful county in one form or another. While the bombings have ceased, there is still the internal conflict between the desires of some particularly the government and the academics to join the EU, and the reluctance of the people to open themselves up not only potentially to the peoples of Serbia and Bosnia in time, but also to the possibility of what some see as another Yugoslaviaâ¦only on a much grander scale. As a tourist who spends much of his time on the beach among Germans, Italians, and Australians, it's hard to see beyond the tourist bureau's idea of Croatia. But as a law student, it's easier (and somewhat more painful) to see the other side the side of fear and doubt and even a degree of jingoism among some. But that seems to be the nature of this place, a constant balancing act. One can only hope that as time goes on and the wounds start to heal, those wounds will not be aggravated by policies of a supranational government. A place of such natural splendor, filled with such wonderful people, deserves peace. Peace as opposed to war. Peace as opposed to internal conflicts and problems. Peace of mind for its citizens.
As a final note, it appears that the opposition to the European Union does not only lie in potential member states, but in some long-time member states as well. I was at dinner a few nights ago and happened to overhear bits and pieces of a conversation at a table near mine. In that I'm here to learn about the EU, it caught my attention to hear the words "European Union" being spoken in English. It turns out it was an older British couple on vacation speaking with a Croatian couple sitting at the next table. In the lulls in my own conversation, and while trying NOT to eavesdrop, I only heard a few words and phrases, but I caught a very specific "do not join" and a recurring utterance of the phrase "bleed you dry." So it seems that for all of the supporters the EU has, there appears to be dissatisfaction in even some of the more well-off countries. The potential developments of passing comments like those certainly make my current studies a bit more interesting.
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