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The International Law Section Gazette
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Call for Expressions of Interest to Serve on the International Litigation and Arbitration Certification Committee - Deadline December 8, 2017
On November 9, 2017, the Supreme Court of Florida created a new Board Certification in International Litigation and Arbitration through an amendment to the Rules Regulating the Florida Bar. This success followed years of work by the Section through a subcommittee led by Certification Subcommittee Chair Gary Davidson and former Section Chairs C. Ryan Reetz and Edward Mullins.
According to the newly promulgated rules contained in subchapter 6-31, the purpose of the standards adopted by the Court is to "identify those lawyers who have the special knowledge, skills, and proficiency, as well as the character, ethics, and reputation for professionalism, to be properly identified to the public as board certified in international litigation and arbitration."
As detailed in the same rules, applicants for the new Board Certification must demonstrate a minimum period of practice, substantial involvement in the practice of international litigation and/or arbitration, a minimum number of matters, extensive continuing legal education, must be peer reviewed, and must successfully pass a certification exam.
The certification process will be administered by the Florida Bar with substantial assistance from the to-be-formed International Litigation and Arbitration Certification Committee. This Certification Committee will serve a similar function as to other certification committees for the various board certifications.
Pursuant to Rule 6-31.2(c):
(c) International Litigation and Arbitration Certification Committee.
The international litigation and arbitration certification committee will consist of 9 members. The international litigation and arbitration committee members will initially be appointed according to the criteria set forth in rule 6-3.2(a).
Rule 6-3.2(a) provides the following regarding initial Certification Committees:
(a) Initial Certification Committees
. For each certification area approved by the Supreme Court of Florida, a 9-member committee, bearing the name of the area, shall be appointed by the president of The Florida Bar, with the advice and consent of the board of governors. Initial committee appointees shall be eminent attorneys in each field, shall be members in good standing of The Florida Bar, shall have been admitted to The Florida Bar no less than 10 years, and must meet such other requirements as may in the future be promulgated by the board of legal specialization and education. Initial committee appointees shall be certified in the applicable area of practice by reason of appointment to that area's certification committee. The committee members shall hold office for 3 years and until their successors are appointed. The committee members shall be appointed to staggered terms of office, and the initial appointees shall serve as follows: 3 members shall serve until June 30 next following their appointment, 3 members shall serve until the second June 30 following their appointment, and 3 members shall serve until the third June 30 following their appointment.
The Florida Bar will advertise for applications in the latter half of December, and a formal application will be required, but the Florida Bar president will receive expressions of interest and advice and input from the International Law Section. In light of the foregoing, the Florida Bar International Law Section is soliciting expressions of interest from qualified members of the Section interested in serving on the initial International Litigation and Arbitration Certification Committee. Expressions of interest received from qualified members on or before 5:00 p.m. on Friday, December 8, 2017, will be forwarded to the president of the Florida Bar for consideration by him and the Florida Bar Board of Governors. If you are interested in the foregoing, and meet the qualification requirements, please send your expression of interest and CV to International Law Section Chair Arnoldo B. Lacayo (alacayo@sequorlaw.com). Late submissions will not be considered.
Please note that pursuant to new Rule 6-31.3(g) highly qualified applicants who have practiced in the area for 20 years will be able to apply for certification without taking an exam as long as they meet specified criteria.
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ILS Holiday Cocktail
Celebrate the Holidays with us: on
December 14, 6-9 PM
at the offices of Sequor Law, join the
Florida Bar ILS for its holiday cocktail as we celebrate the holiday season and support the Women in International Law Committee as they collect donations for
Dress for Success Miami!
Dress for Success provides a network of suppo rt, professional attire, and development tools to help women who are entering or re-entering the workforce. Kindly bring new or gently used, interview appropriate women's suits; professional separates such as blouses, slacks, skirts, dresses, blazers; work appropriate shoes; jewelry and scarves; new makeup; and/or handbags (briefcases, portfolios, or work appropriate handbags) with you to the Holiday Cocktail. There will be collection boxes set-up for you to deposit your donations. Please ensure that the items are clean/ironed as many of the organization's clients go directly
o their interviews. Your donation will help Dress for Success Miami stock up its clothing boutique for 2018! If you have any questions regarding items to be donated, please contact
Jacqueline Villalba at
jvillalba@harpermeyer.com.
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International Law Quarterly (ILQ)
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The
Fall 2017 ILQ -
Focus on International Dispute Resolution
is now available to view and download
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Board Certificiation in International Law for Litigators
For the past year and a half, the Foreign Legal Consultant Committee of The Florida Bar, which is chaired by Yine Rodríguez Pérez, has been working on amending Chapter 16 of The Florida Bar Rules. Chapter 16 regulates The Florida Bar's certification of foreign lawyers as Foreign Legal Consultants.
The work involved drafting new rules and revising existing ones and then submitting the proposed new rules and amendments to the Board of The Florida Bar (the "Board"). It also involved meetings and discussions about the proposed amendments with the Division Director of the Ethics and Consumer Protection of The Florida Bar and the Director of Investigations of the National Conference of Bar Examiners, among others.
In July 2016, the proposed amendments to Chapter 16 were reported on for first reading and were later heard on second reading and approved by the Board in late 2016. In October 2016, the proposed amendments were filed with the Supreme Court of Florida. We're pleased to announce that just last week, the Supreme Court of Florida issued its ruling approving the new and amended Foreign Legal Consultant rules. The new rules will be effective in February, 2018.
This is a major accomplishment that was actively pursued by the International Law Section of The Florida Bar and applauded by Florida's international practitioners and Foreign Legal Consultants.
Congratulations to Yine and to the Foreign Legal Consultants Committee members Jacqueline Villalba and Jose Maria Carneiro da Cunha.
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Successful ILS Outreach Lunch in Orlando
The ILS held a
sold out outreach luncheon at the Citrus Club in Orlando on November 16, 2017. The luncheon was organized as part of the Chair's initiative to increase the Section's outreach to Central and Northern Florida during this Bar year. Special thanks to
Penelope Perez-Kelly,
Jackie Villalba, and former Chair
Brock McClane for helping to organize this phenomenal event.
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SAVE THE DATE - New Retreat Dates Confirmed and Big News About Our 2018 Annual Section Meeting
The Florida Bar ILS has confirmed new dates for the Section's Retreat at the Hyatt Regency Coconut Point Resort & Spa in Bonita Springs. Our Section Retreat will take place on May 18-20, 2018. Because of the proximity of the new Retreat dates to our annual Section meeting at the Florida Bar's Annual Convention, the Florida Bar ILS annual Section meeting will take place at the Retreat on May 18-20, 2018, in Bonita Springs. More details and registration information to follow.
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Summary of November 1, 2017 Joint Meeting between FL Bar International Law Section Liaison Committee/AILA South Florida and DHS Miami/ICE Office of the Chief Counsel - Provided by Larry S. Rifkin
On November 1, 2017, the Florida Bar International Law Section Liaison Committee to the Department of Homeland Security (DHS), along with AILA South Florida, held a joint meeting with DHS Miami/Immigration and Customs Enforcement (ICE) Office of the Chief Counsel's (hereinafter ICE OCC Miami) top officials including Chief Counsel, Nelson Perez, and Deputy Chief Counsels, Adis Cano, Loren Coy, Steven J. DeRenso, Alec Izzo, Carlos Lopez, and Heidi Shulman-Pereira.
During the meeting, the ICE Miami officials confirmed that the office's internal policies and procedures have changed during the administration of President Trump and that internal memoranda describing the new policies exist but that the memoranda would not be shared with private attorneys or the general public. That said, the ICE Office of the Chief Counsel in Miami did provide important information and expressed its hope that both ICE OCC Miami and the private bar can continue to meet on a regular basis to discuss important issues.
Regarding Requests for Procedural Discretion, ICE OCC Miami confirmed that all prior memoranda issued on Prosecutorial Discretion have been rescinded. Chief Counsel Perez reminded those present that Prosecutorial Discretion has always existed and will continue to exist, but it is a tool to be used only in extraordinary circumstances.
Regarding requests
for Joint Motions to Reopen (JMTR), ICE OCC Miami confirmed that their current policy is to only join in on cases of extraordinary circumstances or on cases where the Petitioner is a member of the military. As of Monday, November 6, 2017, requests for ICE OCC Miami to join in JMTR must be filed electronically or at the window on the second floor of OCC's offices. If a Request for ICE OCC Miami to join in a JMTR is filed via mail, the request will not be reviewed by ICE OCC Miami. Furthermore, ICE OCC Miami will no longer be issuing rejection letters. If filed by E-Service, an acknowledgement email will be sent to the filing party. If filed at the window, a receipt stamp will be provided. Rejections or denials will no longer be provided on the same day of the filing.
Unlike other OCC offices, ICE OCC Miami is not yet reviewing cases in which it had previously agreed to administrative closure to decide whether to recalendar the matter before the Immigration Court to continue pursuing removal proceedings. This might change in the near future. ICE OCC Miami also advised that all issues discussed with a duty attorney will be addressed by the same duty attorney, even if it takes more than one day to be resolved.
ICE OCC Miami reminded all parties present to always bring to their attention alleged cases of misconduct by an OCC Miami Attorney. Chief Counsel Perez provided a list of the telephone numbers for all the attorneys working for the ICE OCC Miami office and promised he would look into the possibility of providing a list of the ICE Attorneys' email addresses as well in order to facilitate stipulations and agreements between the two sides.
After the meeting with the ICE OCC Miami officials, all parties attended the ICE eService Town Hall meeting on eService, where we learned that starting on Monday, November 6, 2017, ICE eService will become available for the ICE OCC Miami Office. The ICE eService is the electronic service of documents between the OCC and aliens in administrative immigration proceedings before the Executive Office for Immigration Review (EOIR), or their legal representatives, through a dedicated internet-based portal. The ICE eService is a voluntary option as it is only for the electronic service of documents to ICE OCC and does not allow for the electronic filing of documents with EOIR. The ICE eService is not meant to work as an online storage solution. Documents will be deleted after 90 days.
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INTERNATIONAL LAW REVIEWERS NEEDED
The International Law Section needs your help to read and review chapters in its new publication, "International Law Handbook and Desk Reference." Specific topic areas include: (1) Customs; (2) Export Controls; (3) Immigration; (4) Travel Law; (5) International Estate Planning; (6) International Criminal Law; (7) International Environmental Law; (8) Internet & eCommerce; and (9) International Legal Ethics. Time commitment is expected to range from 1 to 3 hours, depending on the length of the chapter. Chapters will be ready for review beginning December 1. If you'd like to volunteer to review a chapter or want more information, contact editor, Pamella Seay, p-seay@usa.net. Please include your specific practice area of interest. CLE Credit may be available.
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Update on the UNCITRAL Convention on Enforcement of International Settlement Agreements
By Ricardo Cata*
On June 2, 2014, the United States proposed an UNCITRAL Convention on International Mediation and Conciliation (Future Work for Working Group II, U.N. Doc. A/CN.9/822), on the enforcement of
international settlement agreements resulting from conciliation. "Conciliation"
is defined by the Working Group II
("WG II")
as the process whereby parties attempt to reach an amicable settlement of their dispute with the assistance of a third person lacking authority to impose a solution
...
to the dispute. The WG II (Dispute Settlement) is composed of all sixty States member of the Commission, mainly, countries from North, Central and South America, Western and Eastern Europe, Asia, and the Middle East. Also, States not members of the Commission and international government organizations may attend the sessions of the W G II as observers and participate in the deliberations; invited non- government organizations (NGOs) may also attend and participate in the W G II deliberations.
The W G II has held bi-annual meetings on the subject since 2015 in New York and Vienna. The most recent session, the Sixty-Seventh Session, was held in Vienna on October 2-6, 2017. See:
www.uncitral.org/uncitral/en/commission/working_groups/6Security_Interests.html
. At the Vienna session, the WG II developed a
draft
instrument on the enforcement of international commercial settlement agreements. The WG II agreed to prepare both, a legislative text amending the 2002 UNCITRAL Model Law on International Commercial Conciliation (which presently has no enforcement mechanism), and also a Convention on the enforcement of international settlement agreements
("
ISAs
"
). A total of twenty-eight national and sub-national jurisdictions have adopted the 2002 UNCITRAL Model Law on International Commercial Conciliation
("the Model Law")
, including twelve States in the United States (but not Florida). See:
www.uncitral.org/uncitral/en/uncitral.../arbitration/2002Model_conciliation_status.html
The WG II
's approach
would allow the various member States to ratify/adopt either the Convention and/or the Amended Model Law (which will then have an enforcement mechanism for ISAs similar to those found in the Convention). For the twelve U.S. States that have already adopted the 2002 Model Law (and even for the U.S. States that have not adopted the 2002 Model Law), it would be easier to adopt the Amended Model Law, with its enforcement mechanism, instead of waiting for the U.S. to ratify a future Convention on enforcement of ISAs. This writing will cover only the enforcement mechanism and provisions as found in the draft Convention, presented by the W G II at its Sixty-Seventh Session.
T
he Preamble to the draft Convention states that Parties recognize "... the value for international trade
of methods for settling commercial disputes in which the parties
...
request a third person
...
to assist
them in their attempt to settle the dispute amicably ...", and noted that "... conciliation and mediation ...
are inc
reasingly used in international ...
commercial practice as an
alternative to litigation ..."
. It further states
that " ... such dispute settlement methods results in significant benefits, such as reducing the instances (of) ...
termination of a commercial relationship, facilitating the administration of international transactions
by commercial parties and producing savings in the administration of justice by States...
.
"
.
The Preamble also states
that "... a framework for international settlement agreements ....
From such dispute settlement methods ... would contribute to the development of harmonious international
economic relations."
These declarations by the WG II represent an important recognition of the continued growth, value and benefit of international commercial conciliation and mediation. Though the draft Convention is not final, the United States delegation stated that, in its opinion,
"...
very little substantive work remains to be done on the
... text ..."
, and
that "... most of the remaining points ... relate to drafting issues." The United States, however, did proposed substant
ive changes as to Articles 3 (2); 4(1) (b); and 4 (1) (c), discussed below.
The Scope of the draft Convention at Article 1 is stated
to apply "... to international (settlement) agreements resulting from conciliation ... to resolve a commercial dispute ...
.
" Art
icle 1 excludes settlement agreements concluded for personal, family, or household purposes, or relating to family, inheritance or employment law; or to settlement agreements that have been approved by a court, or have been concluded before a court in the course of proceedings, either of which are enforceable as a judgement, or that have been recorded and are enforceable as an arbitral award. The draft Convention
's
Definitions under Article 2 defines what constitute an
"international settlement agreement," and also
defines
the "place of business" of a party in order to determine if a settlement agreement is "international."
Article 2 further defines of what constitutes
a settlement agreement "in writing"
, taking into consideration the legal and business practices of our modern digital/electronic age.
The Application or enforcement mechanism for ISAs, is contained in Article 3 (1) to 3 (6) of the draft
Convention. Article 3 (1) states that "... each Contracting State shall enforce a settlement agreement in accordance with its rules of procedure, and under the conditions laid down in this Convention." Article 3
(2), provides that if a dispute arises concerning a matter that a party claims was already resolved by a
settlement agreement, that the State "... shall allow the party
to invoke the settlement agreement in accordance with its rules of procedure and under the conditions laid down in this convention.
"
Article 3 (3) (a) to 3 (3) (c) of the draft text provides that a party relying on a settlement agreement under the Convention shall
"... supply the competent authority of the State where relief is sought with: (a) the
settlement agreement signed by the parties; and (b) evidence or indication that the settlement
agreement resulted from conciliation (mediation), such as by including the conciliator's signature on the
settlement agreement, by providing a separate statement by the conciliator attesting to the involvement of the conciliator in the conciliation process, or by providing an attestation by an institution that administered the conciliation process; and (c) such other necessary document as the competent authority may require. Article 3 (4) (a) to 4 (b) sets out the manner under which the requirement that a settlement agreement shall be signed by the parties, or, where applicable, by the conciliator shall be met. Article 3 (5) provides that if the settlement agreement is not in the official language(s) of the Contracting State where application is made, the competent authority may request the party to supply a translation. Article 3 (6) provides that when considering the application, the competent authority shall
"...
act expeditiously.
"
Article 4(1) to 4 (2), and subparts, provide ten specific grounds for the competent authority where the application is made for Refusing to Grant Relief, mainly: 4(1) (a), incapacity of one of the parties; 4 (1) (b) the agreement is not binding or is not a final resolution of the dispute, or the agreement has been subsequently modifies or it has already been performed, or the conditions set forth in the agreement have not been met; or 4 (1) (c), the agreement is null and void, inoperative or incapable of being performed under the law to which the parties have subjected it, or under the law deemed applicable by the competent authority; or 4 (1) (d),
due to a "serious" breach by the conciliator (mediator) of "...standards applicable to the conciliator or conciliation, without
which breach that party would not have entered into the agreement; or 4 (1) (e), for failure of the conciliator to disclose circumstances that
"... raise justifiable doubts as to the conciliator's impartiality or independence, and such a failure had " ...
a ma
terial impact or undue influence on a party" without
which that party would not have entered into the agreement; or, 4 (1) (g), the agreement has been concluded before a court in the course of proceedings, prior to any application under Article 3, and is enforceable as a judgement under the law of that court; or, 4 (h), the agreement has been recorded as an arbitral award prior to the application, and that award is enforceable under the law of the State where enforcement is sought; or, 4 (2) (a), granting relief would be contrary to the public policy of that state, or, 4 (2) (b), the subject matter of the dispute is not capable of settlement by conciliation under the law of the State where application is made. As noted above, the United States has proposed an amendment adding the following text as a new Article
4 (3): "... nothing in Articles 3 (3)
(c) or 4 (1) (c), or any other provision of this instrument permits a court to deny relief on the basis of domestic law requirements regarding the formalities, or conduct, of the conciliation process, such as requirements regarding notarization of a settlement agreement or use of a
particular type of conciliation process or conciliator."
See:
www.uncitral.org/uncitral/en/commission/working_groups/2Arbitration.html
Article 5 of the draft Convention, Parallel Application of Claims, provides that the competent authority where the application is made, may, if it considers it proper, adjourn the decision on the enforcement of the settlement agreement, or may also request a party to give suitable security, in the event that an application or claim relating to a settlement agreement has been already made to a court, an arbitral tribunal, or any other competent authority which may affect enforcement of that settlement agreement. Article 6 of the draft
, "Other Laws or Treaties", provides that the Convention shal
l not deprived any party to a settlement agreement of any right it may have to avail itself to the extent allowed by the law or treaties of the Contracting State where such agreement is sought to be relied upon.
There are several other Articles (Articles 7 to 14) in the draft Convention, but Articles 1 to 6, covered above, are the most relevant to practitioners of international trade law. By the summer of 2018, the WG II may have a finalized Convention and a finalized Amended Model Law to be submitted for approval to the U.N
.'s
General Assembly. While it would take time for Contracting States to approve/ratify the Convention and/or the Amended Model Law, the approval by the U.N. of such UNCITRAL instruments on the enforcement of ISAs should give a significant boost to the growth of international commercial mediation.
*Ricardo Cata is a mediator with Upchurch Watson White & Max, and Chair of the ILS Mediation Committee.
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Ava Borrasso Attains FCIArb in International Arbitration
Ava Borrasso is now a Fellow of the Chartered Institute of Arbitrators in international arbitration. Fellowship is the highest grade of membership recognized by the institution. Ms. Borrasso's practice focuses on international business litigation and arbitration where she serves as Counsel & Arbitrator. Additional information is available at
ajborrassolaw.com
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December 14, 2017
We look forward to seeing you at the ILS Holiday Party on
December 14th at Sequor Law
(1001 Brickell Bay Drive, 9th Floor, Miami, Florida 33131)!
January 10-12, 2018
The
Tax Section of the Florida Bar organizes the
International Tax Conference, a multiday event that provides lectures and networking opportunities for certified public accounts and licensed attorneys with a specialization in tax. Within the global economy, taxes are constantly changing, which require CPAs and attorneys to know the latest trends in tax reform and technology.
The International Tax Conference will be held at the JW Marriott Miami off Brickell Avenue. There is a group room block with a rate of $329/night. For the agenda of the event and to register, please visit the event website.
January 29, 2018
At the University of the Bahamas, Nassau the
6th Annual Arbitration & Investment Summit 2018 will take place on January 29, 2018, 8AM to 4.30 PM. The event will feature talks on the topic "Arbitration and Alternative Dispute Resolution: Cooperation or Competition?" For more details on the program and registration details, please refer to the event's
brochure.
February 15, 2018.
The ILS Executive Council Mid-Year Meeting will take place in Miami on February 15, 2018. Save the date! More details will be posted in the next weeks.
February 16, 2018
The iLaw2018 - The ILS Forum on International Law will take place at the Conrad Hotel, 1395 Brickell Avenue, Miami, Florida 33131. Join the ILS for its annual flagship event in which leading practitioners, experts and neutrals present cutting-edge topics related to international arbitration, litigation, and business transactions. Once again, the ILS has partnered with the International Centre for Dispute Resolution (ICDR) for its arbitration track. Stay tuned for an agenda and registration details. For sponsorship or other inquiries, please contact any of the iLaw2018 Co-Chairs: Ana Barton (
abarton@reedsmith.com
), Jacqueline Villalba (
jvillalba@harpermeyer.com
), or Kristin Drecktrah Paz (
kpaz@shutts.com
).
February 17, 2018
Florida Bar International Law Section 2018 - Richard Dewitt Memorial Vis Pre Moot
June 5-6, 2018
The German Bar Association (DAV) will be hosting its first International Bar Leaders Symposium on June 5th and 6th in the historic city of Heidelberg, Germany.
Don't miss this chance to benefit from inspiring presentations and to engage in a fruitful dialogue with legal professionals and experts from all over the world. Registration details are forthcoming.
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International Law Quarterly (ILQ)
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The
Fall 2017 ILQ -
Focus on International Dispute Resolution
is now available to view and download
.
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