A few days ago it was reported that a United States drone attack in Pakistan killed key Al Qaeda strategist Ilyas Kashmiri, without the Pakistani government’s cooperation.  This closely follows the U.S. Navy SEALs’ dramatic, equally unilateral operation that dispatched Osama Bin Laden in his Abbottabad, Pakistan compound last month.  The Bin Laden killing was an important victory in the war on terror, and was lauded worldwide.  The same might be said for Kashmiri, but are these operations consistent with  international law?

 Article 51 of the United Nations Charter reads:

 “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…”

Do the right to self-defense and the interests of national security include the right to conduct military strikes within the borders of another nation to combat terrorist organizations?  In the post-9/11 world, these questions of self-defense, security and state sovereignty remain largely unsettled, but they will likely become increasingly significant.

Recent scholarship on these and related issues can be found on Westlaw and WestlawNext. In Journals and Law Reviews, try the following Terms and Connectors search: 

drone /s sovereign! self-defen! security assassinat!

Also see: 

UN Charter and Statute of the International Court of Justice:  In the Westlaw database U.S. Treaties and Other International Agreements (USTREATIES),  run the following search:  TI(“statute of the international court of justice”)

International Court of Justice decisions addressing Article 51–run the following search in the Westlaw database International Law – International Court of Justice (INT-ICJ):  “Article 51”

After Mubarak resigned last month, President Obama, said, “there are very few moments in our lives where we have the privilege to witness history taking place” (2011 WLNR 2908412).   History in the making necessarily gives rise to uncertainties and from the perspective of the legal community, these uncertainties have a direct bearing for our clients conducting business within these countries.

Risk Briefings: Check out the Risk Briefing database on Westlaw (RISKBRFG ). It provides comprehensive and timely risk analysis, forecasts, alerts, and background studies and data covering a wide range of risk factors. For example, try: DA(2011) & PR,TI(EGYPT!) or DA(2011) & LIBYA! TUNISIA!. Such information can prove useful in advising clients who have dealings with the affected regions.

A new Mexican Legal Dictionary app was recently released for the iPad, iPhone, and iPod touch.  As mentioned here, the app currently includes 2,300 legal terms, with audio pronunciation guidance in both Spanish and English.

The dictionary is useful for anyone looking for an understanding of Mexican legal terminology and concepts.  For example, you may have heard about a recent explosion at a resort in Playa del Carmen, Mexico.  An attorney in the United States thinking about legal claims that might result would likely assume that negligence claims are a good possibility.  A search of the Mexican Legal Dictionary for “negligence” returns just two results, as shown below:

Clicking on “Comparative Negligence” gives us an explanation as to why more results weren’t returned: the Mexican legal system “has not been developed in the area of Tort Law.”  But there may be some relevant Civil Code provisions in the area of “Extracontractual Liability.”

Searching the dictionary for “tort” returns a result giving a bit more explanation:

You can also search the Dictionary using either English or Spanish, so if you come across a Spanish term, plug it into the search box to find its English translation and definition.

Update: Mexican Legal Dictionary available on iTunes //

A lot of times we receive calls from customers who are having difficulty pulling up foreign (particularly Asian) patents, even when they have a correct patent number. This is often a result of the fact that Asian countries sometimes use a format that is not shared by western countries.

For example, in western countries Taiwanese patents have a format of TW123456. However, it is not uncommon for customers to have a Taiwan patent reference that begins with NI, rather than TW. Fortunately the letters are the only discrepancy in the formatting, so the Taiwanese patent NI123456 can be found using TW123456.

A much more interesting difference is in the case of Chinese patents. In western countries, Chinese patents have a format of CN1234567. Sometimes, however, customers have a significantly different Chinese patent number that will look something like: ZL97218681.6. Here’s a breakdown of what the numbering signifies:

ZL: “ZL” stands for “Zhuānlì” or “patent” in Chinese and is only used for issued patents. 97: This is the year the patent was applied for (1997). 2: The third digit signifies the claimed patent type… –1 = invention –2 = novel utility –3 = novel design –8 = PCT (Patent Cooperation Treaty) application –9 = PCT design 18681: The number unique to the patent .6: The version/modification/republication/any other changes

As stated above, all western databases use the CN1234567 formatting for published patents. However, the “97218681″ portion of  the ZL format should match up with the patent application number used by western countries. So, if you have a Chinese patent with the ZL formatting, you may be able to still find it by patent application number.

If you’d like to learn more you check out the English verison of the Chinese’s Patent Office’s Advance Search page.

In 1938, the Nazi’s arrested  Fritz Grunbaum, a Jewish cabaret performer as he attempted to flee Europe.  He was deported to Dachau and died there in 1941.  During his incarceration, Grunbaum was forced to execute a power of attorney which effectively divested him of his property including a work of art by the Viennese artist, Egon Schiele.  The work found its way to Swiss art gallery and then to New York where David Bakalar, a Massachusetts resident, purchased it for $4300. Earlier this month, the Second Court of Appeals vacated a Southern District of New York judgment and held that New York law, not Swiss law applied to Mr. Bakalar’s declaratory judgment action.  See 2010 WL 3435375.  In New York, unlike Switzerland, a thief cannot pass good title.  Stolen artwork, the Second Circuit concluded, belongs to the original owner.

Raymond J. Dowd is a partner and member of Dunnington, Bartholow and Miller’s intellectual property and art law practice groups. He has broad commercial litigation experience and is author of the Copyright Litigation Handbook (on Westlaw at COPYLITIG).  He also writes the Copyright Litigation Blog (http://copyrightlitigation.blogspot.com/).  He represented the Grunbaum heirs. We interviewed Mr. Dowd last week.

Reference Attorneys (RA):  Welcome and congratulations, Mr. Dowd. The focus of our blog is really nuts and bolts, legal research.  But, it’s hard to ignore the incredible story behind this litigation; from the tragedy at Dachau to what the court described as the “shadowy institution of the art gallery.”  I was especially struck, by the comments of the U.S. Consul General cited in the concurrence stating that there was “a curious respect for legalistic formalities.  The signature of the person despoiled is always obtained, even if the person in question has to be sent to Dachau in order to break down his resistance.” And, this, by historian Raul Hilberg, also cited by the concurrence:  “Lawyers were everywhere…again and again, there was a need for legal justifications.”

Time has passed (and, we’re in the US) but, the Swiss law seems to perpetuate the ill effect of those ‘legalistic formalities.’  What does this say about our profession?

Raymond Dowd (RD): The rise of Nazi Germany and the central role played by the legal profession shows how important it is to have an independent bar that actively promotes individual liberties and property rights in the face of state action, political pressures or unpopular causes.  Too many of us are silent when rights guaranteed by the Constitution are infringed, particularly when those rights belong to an unpopular minority.

RA: As an experienced litigator, how do you view your role in righting this wrong?

RD: Specific to the Nazi spoliation of Jews 1933 through 1942, I have been able, with the help of the world’s leading historian in the area, to reconstruct the legal environment in position at the time.  We had to take Nazi-era legal documents, decrees and other evidence scattered in various publications and tie them together to demonstrate that Jews weren’t simply voluntarily abandoning their property en masse, that there were legal coercions such  taxes and as 90% confiscatory foreign exchange rates that pauperized anyone wishing to flee the country.

RA: Also, I mention the $4300 price tag because there’s obviously more at stake here than the value of a work of art.  How would you characterize the ‘value’ of this case?

RD: I have spend five years of my life on this case, often with the evidence of hundreds of thousands of murders on my desk or a nearby bookshelf.   The massive spoliation of Jews has been overshadowed in history by the horror of the murders.  For a full picture of history, we must realize that 8-9% of Germany’s budget of 1938-39 was stolen from Jews.  When we put the profit motive into the Holocaust, it gives us a new understanding of why the murders took place and how the Nazis exterminated a pauperized population.

RA: I was surprised by the amount of materials related to stolen and looted art.  This case sites to several publications.  Is there a resource you relied on or might recommend?

RD: It is estimated that over 600,000 artworks stolen by the Nazis alone are still missing.  Many books have been written, it really depends on the country and era.  For provenance researchers, there is the American Association of Museums Guide to Provenance Research.  There are reports on stolen art that date back to the 1940’s and websites of many of the major museums report on dubious provenances in their collections.

RA: What can you tell us about the ‘art law?’  Is this a growing practice area?

RD: I think that art and cultural property will grow in significance as a practice area.  Now the number of practitioners is relatively small.  But U.S. museums have enjoyed explosive growth, and the US public has taken to art collecting and contemporary art like never before.   As in any other multi-billion dollar industries, lawyers are needed.

RA: Is it limited to stolen and looted art?

RD: No, there is a significant legal trade in art and artworks and a myriad of problems that implicate everything from construction law to labor law.

RA: Do you have a sense for how big the problem of looted and stolen art is?

RD: I hear statistics that the illicit art trade is just behind the illegal arms and drug trades.

RA: Customers reading this case will be calling Reference Attorneys for the Austrian Nullification Act, Article 934 of the Swiss Civil Code, the Bergier Commission Report.  Are these materials provided exclusively by your experts, or is there a resource you enjoy for these kinds of historical and international material?

RD: The Final Bergier Commission report is available online in English at http://www.uek.ch/en/index.htm.  I am not aware of any commercially available English-language translations of the Austrian or Swiss Civil Codes, we had to pay to translate these and relied on foreign law experts.   If you look at Cultural Property blogs, you can locate good resources.

RA: I learned a new term of art; a work’s “provenance” significantly affects work’s value.  This sounds like a job for a history detective.  Any recommendations for researching a work’s “provenance?”

RD: Attorneys and judges are not trained in historiography.  An attorney must work closely with provenance researchers or “art detectives,” as well as genealogists specialized in probate research and historians trained in art.  History is not logic.  I think that after learning a lot about the particular art, artist and historical context, an attorney can work well with these professionals to develop theories of a case or draw solid conclusions from historical documentation.

RA: Finally, where I can our readers find you in the near future?  Are you presenting or participating in any upcoming events?

RD: I will be speaking at the upcoming Federal Bar Association Convention in New Orleans, for more information, www.fedbar.org For more news on speaking enagements and Nazi-looted art, please subscribe to Copyright Litigation Blog (http://copyrightlitigation.blogspot.com/).

There have been several articles this week about the delay in the Senate over the New Start Treaty, a nuclear arms agreement President Obama has negotiated with Russia.  The New York Times reported on Tuesday that the Senate had shelved the treaty until the fall session, potentially not until after the midterm elections.  This report was followed by a Times Editorial urging Senatorial critics to ratify.

While the treaty has gotten relatively little news coverage over the past few months, it has been an occasional hot topic.  In early July Mitt Romney aired several criticisms of the treaty; this was followed with a harsh rebuttal by Senator Luger, one of the main Republican voices in support of the treaty.

You can decide the merits of the treaty yourself by looking it up on Westlaw.  Treaties can be pulled via Find by Citation using various citation formats—the Senate Treaty Document number, the United States Treaties (U.S.T.) number, and the Treaties and Other International Agreements (T.I.A.S.) number, among others.  These formats can be something of a mystery, however, to lawyers unaccustomed to treaties and international law.

An easier solution might be to go to the USTREATIES database.  This database includes all treaties since 1778 to which the United States is a party, including treaties with American Indian tribes.  The database has a template that allows you to search by treaty name, or to pull all treaties between the U.S. and a specific country.

In the case of the New Start treaty, a search in Treaty Title for “New Start” retrieves no results, since New Start is not the technical title of the treaty.  However, a free-text search for “new start” will retrieve two results, the first of which is “A Treaty With Russia On Measures For Further Reduction And Limitation Of Strategic Offensive Arms”…also known as the “New START Treaty.”  The treaty can also be viewed at S. Treaty Doc. No. 111-5.

There are several other treaty databases in addition to USTREATIES, including databases with many European and International treaties.  If you can’t find what you’re looking for in USTREATIES, try CMB-TREATIES (which is the largest treaty database) or give the Reference Attorneys a call.

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The need for  international law is on the rise.  We get frequent requests on whether Westlaw contains specific statutory or case law of foreign countries, as well as various  international agreements.

To determine what types of international materials Westlaw has online click the DIRECTORY link at the top of the Westlaw screen.  Click INTERNATIONAL/ WOLDWIDE MATERIALS. Click the MULTINATIONAL MATERIALS link to get a listing of multiple database folders broken down by types of materials or click the DATABASES LISTED ALPHABETICALLY BY COUNTRY OR REGION link to look up what databases we have for a specific country.

The International Legal Materials database (ILM)  and American Society of International Law database (ASIL)  and International Law – Law Reviews, Texts & Bar Journals database (INT-TP) are helpful databases as well.  Westlaw also has an  International Law tab you can add to your screen under the Add A Tab link.

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There have been a recent spate of news stories about the working conditions in the Foxconn factory that,  as part of its workload , has been producing Apple products such as the Iphone and Ipad.

Foxconn has been in the news recently regarding the working conditions at the factory, and a series of suicides of their workers that are said by some to be partly a result of those conditions.  At interest to more than one Summer Associate was the labor laws currently in effect in China.  If you are a subscriber to Westlaw China you can access our English translation of the Labor Contract Law of 2008 by clicking “Laws and Regulations” and searching “Labor Contract Law of the People’s Republic of China” in the title field.

Among other things, this law prevents an employer from forcing employees to work overtime and requires the employer to pay overtime wages in accordance with the state regulations (Article 31); prevents the employer from holding the identity card of employees (Article 9); and limits non-compete provisions to senior managerial personnel, senior technical personnel and other personnel who are “obliged to maintain confidentiality of the employer” (Article 24).

Of course the enforcement of the Labor Contract Law is an open question as has been widely reported.  There are many stories of it being frequently ignored.  More recently, there have been some stories regarding a more populist trend regarding Chinese workers.  The recent apparent increased bargaining power of the Chinese laborer will have a bigger impact in the end then legislation alone.

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The issues raised in the detainee cases in this country go to the heart of our system of jurisprudence: do detainees have the right of Habeas Corpus?  Should the cases be heard in the U.S. District Courts rather than by military tribunals?  Can coerced evidence be used at trial?  Can detainees be convicted based on evidence kept secret from them?

Since some of these detainees have now been repatriated to England, that country is now wrestling with many of the same questions.  A couple of weeks ago I ran across an article in The Guardian which described a recent opinion by the Court of Appeal.  In sum, the Court of Appeal held that the government did not have the right to use secret evidence to defend itself against civil claims by the detainees of wrongful imprisonment and torture.  The article quoted some powerful language of the opinion like “A further fundamental common law principle is that trials should be conducted in public…” “…the principle that a litigant should be able to see and hear all the evidence which is seen and heard by a court determining his case is so fundamental, so embedded in the common law…”

Good stuff—but where’s the opinion?  Is it on Westlaw?  I did a search in United Kingdom Reports All (UK-RPTS-ALL), which is essentially the U.K. equivalent of ALLCASES, using some of the quoted language, to no avail.  What to do?  I noticed that the database on the whole was a few days shy of being current, so I thought I’d set up a WestClip and give it a week or so.  What’s a WestClip?  It’s a Westlaw service which allows you to select a database that you’d like Westlaw to check periodically for your desired document(s), based on words or search terms that you direct it to look for.

You just click on “Alert Center” near the top/right of the screen:

And then on the “WestClip” line, go to the right and click “Create”:

From there it’s essentially a “Wizard” setup where you designate the database and search, and select your delivery options.  In my case I just had the Clip look for “further fundamental common law principle” & “so fundamental so embedded in the common law” and my case was delivered to me three days later.

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In the United States we learned all too well about the complexities, pitfalls, and possibilities of our own election process in 2000.   It seems this most recent election in the UK could mirror some of those problems.  Allegations that people were turned away at the polling stations and growing concern over disparities between the number of votes a party receives compared to the actual number of seats won in an election are taking center stage in this controversy.

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In an interesting twist, election reform was a central issue to the Liberal Democrats  during their election campaign. Should negotiations for a majority of seats  fail between the Conservatives and the Liberal Democrats, the current Prime Minister, Gordon Brown, will have an opportunity to attempt to negotiate a deal with the Liberal Democrats to create a majority.  However, what I find most intriguing is what happens after that process has concluded.  This was an interesting article explaining the possible outcomes.

The only rule, according to the House of Commons, is that the monarch should offer the keys to 10 Downing Street — the seat of prime ministerial power — to the leader of the party that has “the confidence of the House of Commons.”                                                                                             *     *     * In the convoluted calculations emerging from a hung Parliament, that could mean that Mr. Brown — currently tipped to lose — might seek a second chance to cling to power by asking for a second ballot to overcome a stalemate. And the Queen — to the probable delight of her campaigned-out subjects — could simply say: “No.”

Since 1950, senior civil servants have concluded that the Queen is not constitutionally bound to accept an incumbent Prime Minister’s request for a dissolution of Parliament very soon after an election providing she can see an alternative way forward.

Having received several Westlaw UK calls this week, I decided to run a few searches to see what electoral provisions have been discussed in the UK journals.  In the UK-JLR database, I ran the following search: “MONARCH! & CONFIDENCE /S (PARLIAMENT) & DISSOL!”

Fairly regularly we receive calls from customers looking for English law or international materials and have no idea where to locate them.  I usually advise these callers to try out our tabs.  We have a huge international contingent which is growing by the day.  By clicking the “Add a Tab” link in the upper right-hand corner of your screen and selecting Add Westlaw Tabs, you can scroll to the bottom to find some of our international offerings.

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These election concerns and processes are neither new or unique. Robert Blackburn, a Professor of Constitutional Law at King’s College London, has written several articles on this subject located here, here and here in our Westlaw UK materials.   Several of his articles came up in the search I ran.

Above all, the country and Parliament need clarity on the constitutional rules on dissolution under a hung Parliament. In today’s less class-dominated society, the public and media are generally less deferential and less inclined to leave important matters of state to the ruling and political class, and therefore wish to know and understand the rules and processes by which they are governed. Under a hung Parliament (as in 1923, 1929, and February 1974) or in situations where there is a precarious or tiny majority (as in 1950, 1964, or October 1974) likely to disappear altogether after a succession of by-election defeats, rival and disputed claims on whether an early dissolution can take place and/or who has the authority to advise the monarch on dissolution affairs may easily arise, as indeed they have in the past.  So too, the monarchy’s position today as head of state could easily be destabilised through lack of clarity on what its role and duties are in exercising the royal prerogative, particularly if it is presented with conflicting advice from party leaders anxious to recruit the monarch to their way of thinking on whether a general election should be called or not.

I have set up a Westclip to follow any news developments of election reform efforts from the UK election from the Westlaw UK databases.  The Westclip I have running in the UKNEWS, UKNP databases is:  election /2 reform! & parliament

I’m interested to see how this drama unfolds in the coming days of negotiation and uncertainty in the UK.  The UK can be thankful they are not recounting hanging chads or this story may never end.   Regardless of the outcome, this election could turn out to be better for the loser than the winner. With the current financial crisis, election reform debate, the UK debt, international security issues, etc. there are a lot of pressing issues on the back porch for the occupant of 10 Downing Street.