Foreign Acts of Torture and the Admissibility of Evidence: The Judgment of the House of Lords in A and Others v. Secretary of State for the Home Department (No. 2)

The author discusses, from the point of view of internationalhuman rights law, the judgment of the British House of Lordsin A and Others v. Secretary of State for the Home Department(No. 2), which held that statements obtained by torture couldnever be admissible in evidence. The judgment is concluded tobe fully consonant with international law and to provide anexcellent example for other courts faced with this highly topicalquestion.     

Prohibition of Torture and Other Cruel,Inhuman or Degrading Treatment or Punishment: Some Remarks on the Operative Solutions at the European Level and their Effects on the Member States. The Case of Italy

This paper analyzes European measures against torture and inhuman or degrading treatment or punishment in order to verify their effectiveness, especially in terms of the values that are actually being protected. First, it examines the distinction between the external and internal action of the European Union, highlighting ways in which the EU appears to be more attentive to combat practices of torture in third countries than to domestic incidents and the proposals to legalize torture made at a political level in some Member States. Then, it examines the European Court of Human Rights’ ruling in the Cestaro versus Italy case, focusing specifically on the fact that Italy was in breach of its obligations under Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, because the framework does not recognize torture as a crime and does not provide instruments of deterrence to effectively prevent the execution and the recurrence of such acts. Currently, the Italian Parliament is discussing a draft amendment to the Criminal Code and aims at introducing the concept of torture as a crime; however, in light of the comments made by the European Court of Human Rights, this project questions whether the proposed solution will be able to prevent a repeat of events similar to those that occurred in 2001 after the G8 Summit in Genoa.     

Dutch Courts' Universal Jurisdiction over Violations of Common Article 3 qua War Crimes

On 14 October 2005, The Hague District Court sentenced two Afghanasylum seekers for their role and participation in the tortureof civilians during the Afghan War of 1978–1992. The Courtheld in both cases that it had ‘universal jurisdiction’over violations of Common Article 3 of the Geneva Conventionsand that the accused were guilty of ‘torment’ (‘foltering’)and torture as a war crime (‘marteling’). The jurisdictionalbasis relied upon by the Court and the Court's legal reasoningin both cases is open to criticism.     

The EOS Engineering Corporation Case and the Nemo Debet Bis Vexari Pro Una et Eadem Causa Principle in China

Nemo Debet Bis Vexari Pro Una et Eadem Causa is a general principleof civil procedure applied domestically in China. Foreign judgmentsare not regarded as res judicata unless an applicable internationaltreaty requires otherwise. The ruling in the EOS case by theSupreme People's Court in 2003 clarified to some extent theelements that should be considered when applying this principle.     

The Islamic Veil and Freedom of Religion, the Rights to Education and Work: a Survey of Recent International and National Cases

The wearing of the female Islamic dress (generally referredto as the hijab), or any feature of this dress such as the headscarf(khimar), face veil (niqab) and the head-to-toe all envelopinggarment (jilbab) is a complex and multi-faceted issue that isoften raised in public debate in most European States in recentyears particularly in the education and employment areas. Thisarticle analyses the selected State practice and judicial decisionson the banning and similar restrictions to the wearing of theIslamic dress in State schools. Two issues are analysed: (i)whether the prohibition of female Muslim pupils or studentsfrom wearing the Islamic dress, or any feature of the Islamicdress, while at State schools amounts to an unjustifiable violationof the right to education and/or an unjustifiable violationof freedom to manifest one's religion or beliefs and (ii) ifa State (or a non-State actor) prohibits a female Muslim teacherfrom wearing the Islamic dress while at a State school, doesthis amount to a violation of the teacher's right to work and/orthe teacher's right to manifest freedom of religion or belief?     

Bring Down The Walls!--On the Ever-increasing Dynamic between the National and International Domains

Picking up where the transnational law movement left off, thisarticle seeks to further bring down the conceptual walls whichdoctrine has established at the nexus between the national andinternational domains.This article examines received wisdomon the status as a subject of public international law and arguesfor such status and attendant immunity for non-governmentalorganizations when performing de jure imperii tasks on the internationalarena. Furthermore, it demonstrates how public internationallaw disputes between States may be resolved in the domesticCourts of the defendant State. Finally, the article shows howthe Statute of the International Criminal Court straddles thedomestic and international domains by creating norms ultimatelyenforceable towards individuals regardless of whether the normswere incorporated or transformed domestically. It expressesthe hope that the Statute will be followed by many brethren!     

Due Process and 'Good' Regulation Embedded in the GATS - Disciplining Regulatory Behaviour in Services Through Article VI of the GATS

On the occasion of the US – Gambling ruling, the GeneralAgreement on Trade in Services (GATS) came to the forefront.Several critiques against this ruling highlighted the urgentneed to clarify important concepts laid down in the GATS. Domesticregulation is arguably the overarching concept when it comesto trade in services, inter alia, because of the regulatoryintensity that characterizes many service sectors. Article VIof the GATS aspires to discipline non-discriminatory domesticregulatory measures. In this respect, World Trade Organization(WTO) Members are required to adhere to certain due processobligations and to develop additional rules of ‘good’regulation through the completion of the work program set outin Article VI:4 of the GATS. This paper provides a comprehensiveanalysis of Article VI. In doing this, it explores the objectivefunction and the mechanics of this provision bearing in mindthe delicate balance between trade liberalization and regulatorysovereignty that becomes apparent in Article VI more than inany other GATS provision.     

Overcoming the challenges posted by technology to traditional copyright law: from Betamax to Grokster

Legal context: Dual use technology, or technology which can be used for bothinfringing and non-infringing uses, raises interesting issuesin the area of copyright law. This note analyses inter aliathe two US Supreme Court decisions on dual use technology, separatedby a gap of over 20 years—Sony v Universal Studios (1984)and MGM v Grokster (2005). Key points: Sony lays down the famous ‘Betamax’ defence—ifthe technology is ‘capable of substantial non-infringinguses’, then it cannot be challenged as infringing. Thistest had stood the test of time, and it is only recently inGrokster that there arose an occasion to reconsider its application.The Court in Grokster, borrowing from the jurisprudence developedin Patent law, recognized a novel test of liability—basedon the active ‘inducement’ to infringe. The flawin Grokster is that despite its attempt to develop new standardsfor a digital age, the ruling leaves areas of uncertainty. Practical significance: Dual use technology has become ubiquitous in this age—fromthe iPod to YouTube to P2P software, all are capable of beingused in lawful as well as unlawful ways. Legal pronouncementshave the potential to impact not just the development of law,but also innovation in technology. Some believe that the ‘brightline’ of Sony has been muddled thereby threatening technologicalinnovation. Others, me included, believe that Sony is inapplicablein the face of new technology, and hail the decision in Groksteras a positive step forward in what it actually decides. However,in what it does not decide, Grokster still represents a lostopportunity by the Court to clear up the muddled waters.     

Deportation of Suspected Terrorists with ‘Real Risk’ of Torture: The House of Lords Decision in Abu Qatada1

This note discusses the House of Lords' decision in RB (Algeria) (FC) and another v Secretary of State for the Home Department; OO (Jordan) v Secretary of State for the Home Department that the real risk of third‐party foreign torture evidence does not meet the required standard of unfairness so as to prevent the deportation of suspected terrorists under Article 6 ECHR. It considers three key issues that were raised by this case: Parliament has deliberately restricted the right of appeal from SIAC to the Court of Appeal on questions of fact; the procedure of using closed material by SIAC in the assessment of safety on return is unequivocally permitted by statute; and the conclusions by SIAC that diplomatic assurances contained in Memoranda of Understanding do not give rise to points of law and, therefore, are beyond review by the appellate courts.     

OHIM Board of Appeal applies genuine use criteria to small-scale usage

This decision illustrates the consequences of the European Courtof Justice (ECJ) ruling in Ansul v Ajax [2003] ETMR 85 that,in establishing whether there has been genuine use of the markon the market, the conditions prevalent in the market for whichthe goods are registered must be taken into account.     

Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well‐established case law of the Court on counter‐terrorism and non‐refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non‐refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.     

A primer on US antitrust claims against patentees under Walker Process

Legal context: In the wake of two recent cases from the Federal Circuit onthe subject, this article provides an introduction to the WalkerProcess doctrine under US law. Under the doctrine, a patenteewho knowingly enforces a patent procured by intentional fraudon the patent office may lose its immunity to antitrust claims,should it act to enforce its patent. Key points: Walker Process fraud refers to a knowing and deliberate fraudperpetrated on the patent office as opposed to mere acts ofinequitable conduct. Proving that a patent applicant engagedin Walker Process fraud does not by itself prove liability foran antitrust violation. The accused infringer must still provethe individual elements of an antitrust claim. Antitrust claimsbased on Walker Process fraud require significant time and resourcesto litigate. Practical significance: With the allure of mandatory treble damages and attorney's fees,antitrust claims based on Walker Process fraud can serve asa potent counterclaim for an accused infringer's arsenal. Butthe legal requirements and resources needed to successfullylitigate these claims to a conclusion may temper their effectivenessfor the typical patent-infringement suit.     

The Bosphorus Ruling of the European Court of Human Rights: Fundamental Rights and Blurred Boundaries in Europe

The recent case of Bosphorus Airlines v Ireland provided theEuropean Court of Human Rights (ECtHR) with an opportunity torefine further its relationship with the EU. In particular,the ECtHR was called upon to clarify when States could be heldresponsible for actions taken under the banner of the EU. Thisarticle examines the status quo prior to the Bosphorus judgment,and then scrutinises the judgment itself, focusing particularlyon the use and scope of the doctrine of ‘equivalent protection’to determine State responsibility. The doctrine as outlinedin Bosphorus is applied to some likely scenarios involving EUaction and its relative merits and disadvantages are discussed.The article also briefly addresses the further global implicationsof the judgment, namely for the legal accountability of theUN Security Council and the ongoing issue of responsibilityof international organisations under international law.     

Denying Foreign State Immunity on the Grounds of the Unavailability of Alternative Means

Granting immunity from suit to a foreign state or an international organisation, deprives the plaintiff of access to court and appears incompatible with the rule of law. Since the European Court of Human Rights judgment in Waite v Germany (1999), the availability of alternative means for dispute settlement has been emphasised in the context of international organisation immunity. However in the case of foreign state immunity, this approach was not taken by the European Court of Human Rights in Al-Adsani v United Kingdom (2001) nor by the House of Lords in Jones v Ministry of the Interior of Saudi Arabia (2006). Likewise, foreign state immunity would be granted under the UN State Immunity Convention of 2004, regardless of whether there are alternative means. This Convention, rather than enhancing the rule of law, could lead to its attenuation. That several of these cases involve immunity in cases of torture sharpens their sensitivity.     

The US Supreme Court Affirms the Filartiga Paradigm

In 2004, for the first time in history, the United States SupremeCourt addressed the meaning and scope of the Alien Tort Statute(ATS) of 1789. Originally intended to provide redress for actsof piracy or offences against ambassadors, the Statute has beenused since the 1980 watershed case of Filartiga v. Peña-Iralato award damages in civil trials in the United States to foreignvictims of, inter alia, torture, summary execution and forceddisappearance. Opponents have claimed, among other things, thatuse of the ATS shows disregard for principles of internationalcomity; is inconsistent with principles governing the use ofuniversal jurisdiction; and results in an imperialist Americanprivatization of human rights. The author argues that the SupremeCourt's decision in Sosa v. Alvarez-Machain limits the ATS toa tool of complementary justice consistent with prevailing principlesof global accountability.     

Injunctive relief in US patent practice

Legal context. Injunctive relief is available in civil actionsin the United States. Patent litigation is no exception andthe US patent statute explicitly permits it. Because it is aneffective remedy, injunctive relief is commonly sought togetherwith the monetary (legal) remedies which are available to patentowners when enforcing patent rights. Key points. On 15 May 2006 the US Supreme Court in eBay, Incet al v MercExchange, LLC altered the prevailing practice sayingthat ‘the decision whether to grant or deny injunctiverelief rests within the equitable discretion of the districtcourts, and that such discretion must be exercised consistentwith traditional principles of equity, in patent disputes noless than in other cases governed by such standards’. Practical significance. This article will focus on the availabilityof permanent injunctions in patent infringement actions in lightof the Supreme Court's recent ruling in eBay, Inc et al v MercExchange,LLC.     

The rise and fall of cross-border jurisdiction and remedies in IP disputes

Legal context. Companies which have seen their IP rights infringedacross Europe have, in recent years, been keen to obtain cross-borderrelief from infringement through bringing a single action inthe court of just one EU Member State. This approach has time,cost and tactical advantages for claimants, but raises complexjurisdictional questions. Key points. This article provides an in-depth explanation ofthe framework for litigating IP rights in the European Union.It describes the various interpretations to which the BrusselsRegulation on Jurisdiction has been subjected and how they affectthe availability of cross-border relief. This explanation providesa foundation for analysing the recent ECJ decisions in Gat vLuk and Roche v Primus. Practical significance. Cross-border jurisdiction and reliefis, in practice, no longer available in respect of registeredrights.     

Coexistence in Community trade mark disputes: conditions and implications

Legal context. A defence based on coexistence has no legal basisin the Trade Mark Directive or in the Community Trade Mark Regulation.Still, a practical approach to Community trade mark conflictsrequires attention to the situation in the marketplace whereconflicting marks may be shown to coexist without any currentconfusion or dilution being reported. Key points. Trade mark coexistence may sometimes be persuasive,the strict requirements being laid down by the Community courts.Through a detailed review of the case-law of the Community courtsand OHIM's Boards of Appeal, this article explains the conditionsfor and the consequences of proving the coexistence of the conflictingmarks in cases based on likelihood of confusion or dilution. Practical significance. Consideration must also be given tothe effects of third parties' neighbouring marks which may diminishan earlier mark's distinctive character. Accordingly, this articlefurther addresses the issue of whether the scope of protectionof a mark may be damaged by the use of later marks in the lightof the ECJ Judgment in the preliminary ruling Case C-145/05Levi Strauss v Casucci Spa.     

Fighting Corruption: The Peruvian Experience

In Peru the power system put in place by the former PresidentAlberto Fujimori created a network of illegality in which manycrimes were committed (e.g. various forms of human rights violations,including torture, murders, arms and drug trafficking and corruption).These offences were brought to light simultaneously by distinctbut intertwined investigations. In order to prosecute and punishthese crimes a special Anti-corruption System was established,which consisted of both special investigative authorities aswell as specialized anti-corruption courts. In addition, a specialsystem of Benefits for Effective Collaboration with the Prosecutionhas been put in place covering organized crime, as well as customand terrorist offences. In this respect, negotiated justiceconstitutes a very important instrument in the hands of thestate to fight organized crime. However, the prioritizationof the principles of expeditiousness and effectiveness, togetherwith very broad powers conferred on the prosecutors, impliesthe risk of undermining other equally important principles,such as the legality of evidence (legalidad de la prueba), respectfor the rights of the defence and the principle of equalitybefore the law. Finally, the author emphasizes the role thatcould be played by public international law to facilitate internationalcooperation for securing evidence and the arrest of accusedpersons, as well as to enable Peruvian authorities to identifyand seize the proceeds of crimes.