This issue of The Globe again reflects the variety of interest represented in the membership of the International and Immigration Law Section Council.
In her “Message from the Chair,” Shannon Jackson mentions reaching out to other sections of the ISBA by providing speakers for CLE programs such as that organized by the Agriculture Law Section and co-sponsoring CLE activities with the Human Rights Section.
In the “Message from the Chair,” Shannon also mentioned the meeting with delegation of attorneys from Vietnam. The information about that meeting is expanded in the “Attorneys from Vietnam” article.
Section Council Secretary, Pradip Sahu and Alpana Sahu provided the “World Intellectual Property Organization” article and Michael Coleman and Celine Van Zeebroeck submitted an “Addendum to their Oil and Gas Investment in Algeria” article which appeared in the November issue of The Globe.
Section Council member Patrick Kinnally provided “Admonitions in the Criminal Trial Court” and Cindy Buys added additional information on the “Book Drive for Immigration Detainees.” Richard Paullin is Chief Operating Officer of the Illinois Global Partnership. The article “State of the World-Center of Opportunity” is based on his remarks before the Economic Development Council in Chicago. The members of the International and Immigration Law Section Council had their February Section Council meeting at the offices of Illinois Global Partnership in Chicago.
One aspect of IGP’s activities is to showcase Illinois’ strengths in order to foster the development of global partnerships and research, education and business. The World Congress for Industrial Bio Technology and Bio Processing is meeting in March in Orlando, Florida. Illinois Global Partnership has invited participants in the World Congress to first come to Chicago and participate in an Illinois showcase. The Illinois showcase program will consist of segments in Chicago, Peoria and Urbana-Champaign. More information on the World Congress may be obtained by visiting <www.bio.org/worldcongress> and more information on Illinois Global Partnership, Inc. is at <www.
illinoisglobal.org.>
Paul J. Carrier is an Associate Professor at The Thomas M. Cooley Law School and submitted the article on FSIA. The Upcoming International Trade Events is from information provided by the U.S. Department of Commerce, U.S. Export Assistance Center-Chicago.
Correction from The Globe’s January 2007, Vol. 44, No. 5 edition article entitled “Now is the time for employer’s to prepare to beat the fiscal year 2008 H-1B cap,” the third sentence should be corrected to read May 26, 2006 as the date the 2007 H-1B cap was exhausted.
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312) 726-8787
Facsimile: (773) 279-8872
E-MAIL: lfmatuszewich@mkm-law.com
The world is growing ever smaller, and we as a Section should always be thinking of ways to foster relationships with attorneys from other countries. On January 23, 2007, some members of our Section were privileged to meet a delegation of attorneys from the Vietnamese Bar Association while they were on a whirlwind tour of the United States. More on that meeting is included in this issue.
We should also be mindful of ways to show our colleagues, who may not practice in International and Immigration Law very often, that International and Immigration issues are relevant to nearly every legal field, as well as to the vast majority of all clients. Recently, Stanley J. Horn and I prepared a speech for the Continuing Legal Education program put on by the Agricultural Law Section, “Hot Topics in Agricultural Law.” We were pleased to help our colleagues in the Agricultural law Section put on such a well-attended program. Mr. Horn’s speech will appear as an article in a later issue.
Further, I would like to thank the Human Rights Section for allowing our Section to co-sponsor their recent CLE program, “The Secret World of Human Trafficking.” Although I was not able to personally attend, I heard it was a success.
I encourage each and every one of you to reach out to other lawyers, not only from other countries but also from other Sections of the Bar Association right here in Illinois, and show them how International and Immigration Law affects us all.
As a reminder, the Section Council’s book drive is ongoing. Books can be dropped at the ISBA’s headquarters at 20 S. Clark St., 9th Floor. Let’s do our best to provide immigration detainees with reading material, because they are not provided with much else while in custody. Cindy Buys’ article appears elsewhere in this issue.
Shannon M. Jackson
Azulay Horn & Seiden LLC
Chicago, Illinois 60601
312-832-9200 x150
Fax: 312-363-6150
sjackson@ahslaw.com
A delegation from Vietnam met with the International and Immigration Law Section Council and ISBA Officers as part of a three city tour of the United States. They were greeted at the ISBA Offices by President-Elect Joseph Bisceglia and ISBA third Vice President John O’Brien.
Members of the International and Immigration Law Section Council present included Chair Shannon Jackson, Co-Chair Lewis Matuszewich, Steve Pollock and Mark Wojcik.
The January 24, 2007 program, over lunch at the ISBA Office, provided an opportunity for the representatives from Vietnam to learn more about the practice of law and the government and legal structures within the United States. ISBA third Vice President John O’Brien described the role of the ISBA, especially in support of the sole practitioner and small law firm.
The delegation was lead by Mr. Binh Qui Nguyen, born in 1946; he has a Doctor of Law Degree and an LLM and ITP from Harvard Law School. He has served as Director General of the International Law and Treaties Department of the Vietnam Ministry of Foreign Affairs; Chief Negotiator on Postwar Issues with the United States and on Land and Sea Boundary Eliminations with Thailand, Malaysia, Indonesia, China and other neighboring countries; was Ambassador and Permanent Representative of Vietnam to the United Nations, the World Trade Organization and other international organizations in Geneva and to the Conference on Disarmament.
The delegation also included Mr. Phuc Tiep Dan, born in 1943 who speaks both Vietnamese and English. His position is to provide legal aid to the people throughout the Hoa Binh province. Mr. Khuyen Dinh Duong, born in 1958 is a member of both the Vietnam Law Association and the Hanoi Bar Association and has a Master of Law Degree.
Ms. Ha Thi Ngoc Khuc, born in 1977 speaks both Vietnamese and English, has a Master of Arts Degree in foreign languages from the Vietnam National University Hanoi and a Law Degree from the Vietnam National University. She concentrates on educating the business professionals in Vietnam about the U.S. legal system. Mr. Ung Dinh Le, born in 1970 has a Becholor of Management in Business Administration, a Bachelor of Law and Advanced Degree from the Jurist Institute. His work with The Vietnam Law Association’s information and training program is to develop the next generation of legal professional.
Mr. Duc Nguyen is President of Dong Nai Province Law Department, born in 1948 he oversees the drafting, implementation and distribution of legal documents in the Dong Nai province. Mr. Duong Huu Nguyen is President of the Thai Binh Province Law Association. Born in 1950 he has a B.A. in law and is active in the Vietnam Law Association.
Ms. Son Thi Nguyen, born in 1950 has a B.A. in Law and a Ph.D. in Business Management. She is Director of the School of Business Management, Vietnam Chamber of Commerce and Industry. Mr. Tuan Anh Nguyen, born in 1976 is Chief of Staff, Center of Vietnam and U.S. Legal Information and Consultancy has both a Bachelor of Arts in Law and a Bachelor of Arts in English. Mr. Hanh Nguyen Tran, born 1957 is Director of the Nam A Law Office and has an M.A. in Law and is active in the Vietnam Law Association and Hanoi Bar Association.
The three-day visit to Chicago was arranged by the International Visitor’s Center of Chicago and the delegation was accompanied by IVCC Program Officer John Baum. The delegation was also accompanied by two translators provided by the U.S. State Department.
Prior to the meeting at the ISBA Office, the delegation visited the Circuit Court of Cook County and the American Bar Association. The day of our meeting they met with U.S. District Court Judge Holderman. From the meeting at the ISBA Office they went to The John Marshall Law School and subsequently to the Chicago Bar Association.
In January 2004 the Illinois General Assembly passed a law (725 ILCS 5/113-8) which says:
* * *
Before the acceptance of a plea of guilty, guilty but mentally ill, or nolo contendere to a misdemeanor or a felony offense, the court shall give the following advisement to the defendant in open court:
“If you are not a citizen of the United States, you are hereby advised that conviction of the offense for which you have been charged may have the consequence of deportation, exclusion from admission to the United States or denial of naturalization under the laws of the United States.”
* * *
For some time, members of the trial bar had pushed for this legislation (Moran and Kinnally, “Aliens, Guilty Pleas and the Risk of Deportation: Time for Legislation Action,” Illinois Bar Journal (2001) Vol. 89, pp.194-198). Now, warnings have appeared in courtroom halls in our circuit courts where this admonition appears. Regardless, I have observed in some courtrooms that trial judges are not giving this advisement. Perhaps they are relying on written agreements that appear in court orders signed by the accused. Maybe they believe the posting of the notice of this advisement is sufficient. But this is not what the law says. Quite plainly, it directs:
***
that the court shall give the following advisement to the defendant in open court.
***
That means it must be given, and it insists, much like the waiver of a jury trial, it be announced in open court when the accused is present (People v. Thornton, 363 Ill.App.3d 481 (2nd Dist. 2006). So what happens if it is not given in accordance with this statutory requirement? Although we do not have any cases from our state reviewing courts on the topic, a recent opinion from an administrative tribunal provides one answer. (In re: Patryck Michal Adamiak (BIA, 2006) 23 I&N Dec. 878).
Patryck Adamiak was a lawful permanent resident alien. He was convicted of what constituted an aggravated felony, a removable immigration offense under federal immigration law, after pleading guilty to drug trafficking. His guilty plea formed the basis for his state court conviction which occurred in Ohio in 1997. Under the Ohio Revised Statutes, much like the provision in Illinois (Oh. Rev. Code 2934.031), the trial court was required to “advise” a person, before pleading guilty, concerning the potential immigration/naturalization consequences of such a plea. The trial judge never did that. Hence, Adamiak’s guilty plea was vacated five years after it was made the basis for his state court conviction. The Board of Immigration Appeals held, because the guilty plea was vacated, the subsequent conviction was no longer considered valid for immigration and naturalization purposes, and Mr. Adamiak could not be deported due to that conviction.
In all likelihood, a similar result might occur in Illinois. The issue of the trial court admonishing a noncitizen of the potential immigration ramifications surrounding a guilty plea is substantial. This is because it addresses whether the plea is knowing and voluntary. Moreover, the statute says the court “shall” give the advisement as to a “misdemeanor or felony offense.” Since this statutory requirement is mandatory, a cogent argument can be made that such warning should be given by the trial court in open court. It does not suffice merely to have placards attached to courtroom walls which gave such an admonition.
Like the waiver of a jury demand (See, People v. Thornton, (2nd Dist. 2006) 363 Ill.App.3d 481), the right to make a knowing and voluntary guilty plea is basic. One cannot make an agreement to plead guilty unless the person agreeing to such an obligation knew the effect of such an undertaking. Just as a defendant may waive the right to a jury trial, he or she can only do so when such a waiver is knowingly and understandingly made. (People v. Bracey (2004) 213 Ill. 2d 265). And, if a trial court does not admonish a noncitizen as to the potential immigration import of a guilty plea, the conviction upon which the plea rests is equally suspect. (See, People v. Scott (1999) 186 Ill. 2d 283, written waiver of jury trial by accused, without an admonishment in open court held insufficient).
Walter Thornton was accused of leaving the scene of an accident without exchanging personal information (625 ILCS 5/11-402(a)). A public defender was appointed to represent him in August 2001. Defendant answered ready for trial in December 2001, but the case was continued to March 2002. On that day, the court informed Mr. Thornton his case was being passed for a bench trial in the afternoon. The Defendant said, “Okay.” That afternoon, Thornton’s attorney, Ms. Yetter, indicated she was not ready to proceed because a witness had become unavailable. The court denied the motion to continue, but ultimately continued the case and said, ***”Thornton, that being a bench trial, I’ll set it for the bench trial in the week of July 1st.”**** However, the case was continued to a new setting on June 14, 2002, for “bench trial.” The record contained a written jury waiver signed by Mr. Thornton and acknowledge by his attorney, Ms. Yetter. In May, the State moved for a continuance. A different attorney appeared for Thornton. She said, ***”Judge, I believe, Judge, it’s a bench trial, also.”**** The court said, “Yes.” The matter was set for trial on October 11, 2002, and Thornton failed to appear. Two weeks later, the Defendant appeared in court with his attorney and explained he did not receive notice because he had moved. Since a bench warrant for his arrest had been issued, the court vacated the warrant and set the matter for a bench trial in February 2003. It was then continued again for bench trial on March 14, 2003. At trial, he was convicted and sentenced to a year of conditional discharge.
Eventually, Defendant, by counsel, filed a post trial motion claiming he was not proven guilty beyond a reasonable doubt. No mention was ever made in that filing of the Defendant’s waiver of a jury trial. The motion was denied.
The single issue on appeal was whether Defendant validly waived his right to a jury trial. The Appellate Court said he did not. Justice Bowman noted the Illinois Code of Criminal Procedure, and stated:
***
Every person accused of an offence shall have the right to a trial by jury unless (1) understandingly waived by Defendant in open court (725 ILCS 5/103-6); and that such waiver should be in writing (725 ILCS 5/115-1). Yet the fact that it is in writing does not mean that a valid waiver of the jury trial has been made. To be valid, such a waiver can only occur where it is made understandingly, and in open court. (People v. Scott (1999) 186 Ill.2d 283. And this means that at some point in the pretrial proceedings, the waiver of a jury trial must be discussed by the trial judge in open court with the Defendant present.
***
Justice Bowman observed that Thornton’s written waiver was never discussed in open court; and, even his attorney’s agreement to a “bench trial” did not satisfy the statute’s requirement. In short, the trial judge failed to comply with the statute and accordingly no waiver of a jury trial resulted.
A recent opinion from our Supreme Court confirms this interpretation (People v. Campbell (Nov. 30, 2006, No. 101263), although in the context of what constitutes an effective waiver of counsel. It decides that Supreme Court Rules governing an accused’s right to counsel are not just suggestions to trial judges, prosecutors and defense counsel. They are meant as safeguards to the accused.
Sherman Campbell was charged with driving with a suspended license. That offense is a Class A misdemeanor, which is punishable by imprisonment. (625 ILCS 5/6-303(a)) Mr. Campbell appeared in court without a lawyer and requested a bench trial. The following colloquy occurred at that time:
***
Court: And, you are proceeding to trial without an attorney, is that correct?
Campbell: Yes.
Court: All right. And do you want an attorney?
Campbell: No.
Court. All right. Then have a seat right there at the counsel table and we will begin.
***
After the trial, Campbell was found guilty and was sentenced to 12 months of conditional discharge, fined $100 and ordered to complete 240 hours of community service. Campbell appealed, claiming the Trial court failed to apprize him consistent with Supreme Court Rule 401(a). (134 Ill.2d R. 401(a)) The Appellate Court concurred, as did a unanimous Supreme Court in an opinion authored by Justice Thomas.
Although Mr. Campbell had completed his sentence by the time the matter was considered by the Supreme Court, it concluded Campbell’s challenge was not to the sentence imposed, but the underlying conviction. Fulfillment of a sentence does not denote that a convicted Defendant cannot challenge his conviction even if he has fully complied with the penalty that relates to such conviction. Accordingly, the issue was not moot. (See, In Re Christopher K. (2005) 217 Ill.2d 348).
The court first remarked, as a mater of statutory construction, that Supreme Court Rule 401(a) declares:
***
(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first, by addressing the Defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the Defendant may be subjected because of prior convictions or consecutive sentences; and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.
***
The court stated this Supreme Court Rule is evident. And, although a trial court must substantially comply with the rule (People v. Haynes (1996) 174 Ill.2d 204) the Supreme Court found the trial court did none of the things the rule mandates. Even though Campbell could have gone to prison (and the prosecution did seek such a sentence), the trial judge let him go to trial without telling him the nature of the charges, the range of penalties a conviction might bring, and, most importantly, the right to counsel.
The Supreme Court said Rule 401(a) was a paradigm of clarity. It says that a trial court:
***
shall not permit a waiver of counsel by a person accused of an offense punishable by imprisonment without first *** informing him of an determining that he understands *** that he has a right to counsel, and, if he is indigent, to have counsel appointed for him by the court.
***
The purpose of the rule is to assure the Defendant not only knows what he is about to do, but also understands both, the nature of, and the consequences which may result, with respect to the undertaking in which he is about to engage. Otherwise, the waiver of counsel cannot be knowingly and intelligently made.
The State argued that error by the trial court was harmless. It posited that Campbell was not entitled to counsel (Scott v. Illinois (179) 440 U.S. 367) It contended that because no term of imprisonment was actually imposed the Defendant’s Sixth Amendment right to counsel was not infringed under the United States Constitution.
Justice Thomas’ response to this argument was accurate and frank. He noted that, by statute (725 ILCS 6/113-3(b)), a Defendant in Illinois has a broader right to counsel than is provided by Federal law. In Illinois, a Defendant has a right to counsel, “in all cases, except where the penalty is a fine only, if the court determines the Defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel.” He concluded the source of Mr. Campbell’s right to counsel (and other admonishments that Rule 401(a) mandates) is not based on the constitution but a precept promulgated by the Illinois Supreme Court. The court stated, as it had announced in the civil context as well (Bright v. Dicke (1995) 166 Ill.2d 204) that its maxims are the rule of law and must be followed as written. It is no mere coincidence these instructions are to be made openly in the trial court. Obviously, this occurs so a defendant can realize the significance of all the guarantees these admonishments entail.
Whether one agrees with the requirement of advising noncitizens about the immigration consequences relating to a plea of guilty is not the issue, but the law. 725 ILCS 5/113-8 is not a Supreme Court Rule, but a law enacted by the Illinois legislature. Where the purpose of such legislation is to ensure that a Defendant “knowingly and voluntarily” makes an agreement (i.e., guilty plea), there is no reason to believe a reviewing court would invalidate such pronouncement. Its purpose, like the admonitions required for the waiver of a jury demand, or those rights contained in Supreme Court Rule 401(a), is to make certain that a Defendant is making a knowing and intelligent decision before forfeiting a right to the adjudication by his peers, to act without the acumen of a trained advocate, or enter into a contract with the government that surrenders both of these protections as well as the liberty to live in our great State and Nation.
__________
Patrick M. Kinnally, is with Kinnally Flaherty Krentz & Loran, 2114 Deerpath Road, Aurora, IL 60506-7945 and can be reached at pkinnally@kfkllaw.com. This article also appeared in a recent issue of Traffic Laws & Courts of the ISBA.
In August 2005, the Illinois legislature created the Illinois Global Partnership (IGP) to promote and enhance international trade and economic development in the State. It saw opportunities in the marketplace, best addressed by a private/public partnership, to foster collaboration and cooperation to help Illinois preserve and expand its job base in the global economy.
There are three key areas of opportunity that IGP serves, which are important for economic development in the State: manufacturing, agriculture, and biotechnology. There are many potential areas for growth in the key sectors of agriculture/commodity products; new technology agricultural applications such as food technology, energy and industrial products; and added value export programs with special emphasis on export finance and business tourism.
As a private/public partnership, IGP is uniquely positioned to make meaningful contributions in the sectors entrusted to us. We have recruited a strong, qualified, experienced team to bring real-world experience to address these areas.
Opportunities in Manufacturing
Manufacturing ranks as the number two contributor to Illinois’ Gross State Product. For every dollar of manufactured goods produced, an additional $1.37 of economic activity is generated; for every additional manufacturing job, four more are created elsewhere in the economy.
A recent report published by The Manufacturing Institute, RSM McGladrey and the National Association of Manufacturers (NAM) found that a characteristic of a successful SME is engagement in the global economy—so more of our manufacturers need to export.
In Northeast Illinois alone, there are over 10,000 manufacturing businesses that employ over 500,000 people, but only 12 percent of the firms have international sales. That leaves a lot of room for growth because, as the Small Business Administration has found, “firms that export experience 20 percent higher growth, pay employees 15 percent higher wages and benefits and are 9 percent less likely to go out of business.” As more companies acquire the knowledge to succeed in the global marketplace, new jobs and revenue will be generated for the Illinois economy.
An integral part of IGP’s mission is to raise export finance awareness. Our own experience with Illinois manufacturers confirms a World Trade magazine survey that found “…failure to get trade financing still kills deals…”
Thus, IGP is introducing more Illinois companies to export and trade finance tools provided by both the private and public sector. We are also increasing the number of Illinois lenders active in the area of trade finance to ensure Illinois companies have access to this vital financing.
To this end, IGP has formed strategic partnerships in the public and private sector to help Illinois companies close more deals: We have connected Illinois exporters with private and public trade finance resources resulting in millions of dollars in projected export sales. We have signed partnership agreements with federal trade promotion agencies. We have formed a strategic partnership with a commercial lender and a private export credit insurance broker to provide export finance to Illinois manufacturers. We have created a database with hundreds of Illinois manufacturers. We have created and copyrighted an international needs survey to better understand the market. These are just a few examples of how we can bring public and private resources to Illinois manufacturers and to the lending community to increase the success rate of Illinois exporters.
Opportunities in Agriculture
As a good friend of mine says, if agriculture in the U.S. were a country, Illinois would be the capitol because the exchanges are here, the people are here, the raw materials are here, the knowledge base institutions are here and the infrastructure is here.
One in four Illinois jobs is still directly or indirectly tied to agriculture, food processing or food production. Illinois is usually the number one or two exporter of both corn and soybeans. Illinois’ potential is enormous if it leverages its agricultural and food processing advantages as the engine for economic growth and vitality.
There are many ways we can create economic impact. Joint ventures in agricultural technology will result in higher paying jobs and savings in avoiding redundant research. Indexing and coordination of Illinois agricultural resources in the swine production value chain would allow Illinois to be the “go-to” State for putting swine deals together and creating “wins” for Illinois based on the State’s natural infrastructure advantages. Strategically integrating Illinois agricultural production and infrastructure resources into the global renewable energy field will make Illinois more attractive for investment and development...which leads us to our agricultural biotechnology efforts.
Opportunities in Biotechnology
Illinois has all the necessary resources to be a sustained global leader in biotechnology. Our State is blessed with abundant agricultural resources. It is home to world class research and innovation (the National Center for Agriculture Utilization Research, University of Illinois, the National Corn-to-Ethanol Research Center, and ADM, just to name a few). Plus, it helps that the average wage in the agbio sector is about $63,000, or $23,000 more than the average private sector annual wage. Each job created in this sector generates nine other jobs.
There is a global need for newer, better and safer agbio products such as food and fuel. IGP strives to educate and introduce the international community to Illinois’ many biotechnology assets. Long term, these connections will create sustained economic benefit for Illinois.
In order to leverage all of Illinois’ resources, we need to expose international investors to what our state has to offer. So far, IGP has created ongoing collaborations with trade organizations, local and international economic development agencies, universities, and research parks. We have showcased Illinois’ many strengths at leading trade shows. And we have assisted with Illinois’ effort in a bioproducts partnership with Ontario, Canada, for the promotion of food, fiber, fuels and fine chemicals.
Future activities we think would be valuable are to build additional local and international alliances through targeted visit programs and events; attract and participate in biotech shows, which bring enormous rewards (such as the total direct economic impact of BIO 2006, which was estimated at $35-40 million with $80 million more projected; luckily for us, BIO will be back in Chicago in 2010!); and aid technology commercialization (for example, through our collaboration with the Economic Development Council’s Technology Commercialization Task Force).
Opportunities Going Forward
IGP recognizes that successful economic development agencies provide a platform for communities of interest to gather and to harness resources for the greater good of their communities. IGP’s mission is to provide the value-added international platform for Illinois.
Illinois has a bright future. With all of Illinois’ incredible resources—people, world-class universities, infrastructure, innovation and abundant raw materials—we have the opportunity, as a state, to play a central role in the world economy.
We believe a private/public partnership can be a force to advance trade and investment for the State. We look forward to assisting Illinois in becoming the model state for international economic development.
Illinois is truly a State of the World and a Center of Opportunity.
__________
The above remarks were given by Richard Paullin, COO, Illinois Global Partnership to a meeting of the Economic Development Council, in Chicago, Illinois. Paullin may be reached at rpaullin@illinoisglobal.org.
From November 13th to the 17th, 2006, the World Intellectual Property Organization’s Standing Committee on Trademarks, Industrial Designs and Geographical Indications (the “Standing Committee) met in Geneva, Switzerland to discuss numerous issues relating to trademark law and practice. One of the issues discussed was the worldwide generic naming system for drugs administered by the World Health Organization, known as the International Nonproprietary Names for Pharmaceutical Substances (“INN”) system.
Since 1950, the World Health Organization has been working with manufacturers of pharmaceuticals, INN experts and national nomenclature committees to select generic names that are acceptable throughout the world for the active substances in pharmaceuticals. The purpose is to help patients, physicians, pharmacists and the relevant public to avoid confusion. This is important because any confusion regarding the name of a drug could jeopardize a patient’s safety. Great care must be taken to ensure that the trademarks related to pharmaceuticals as well as their generic names are properly selected.
Currently, there are roughly 8,000 INN’s regarding pharmaceutical substances or active pharmaceutical ingredients, and this number is continuously growing. Each of these names is unique and is recognized throughout the world as the generic name for the active substance in the corresponding drug. The number of trademarks related to pharmaceuticals in every country is continuously growing as well. As the numbers of trademark registrations and INN’s grow, the risk of a conflict between them rises as well.
The main sources of such conflicts are drug manufacturers. When manufacturers propose trademarks for drugs, they normally choose a “stem” to comprise a portion of the mark. Stems are word elements that are listed in the INN system which are used to demonstrate the common connection between pharmacologically related substances. By using stems, medical professionals can recognize that a substance belongs to a certain group of drugs with similar pharmacological properties. The problem arises because drug manufacturers market to medical professionals and want to take advantage of the common naming system. To that end, the manufacturers many times choose stems to suggest that their brands of drugs have the properties associated with the stems.
To reduce any confusion and potential hazards to patients that could result from drug manufacturers choosing trademarks that comprise stems, the Standing Committee agreed to lead several initiatives during its November meeting. One such initiative is to work with the World Health Organization to provide a cumulative list of INN’s to the official trademark administrators of every country. The lists would be provided to interested countries on compact discs on a regular basis, and they could be used by the countries’ trademark examiners whenever a trademark application is filed for a pharmaceutical compound.
If a proposed trademark were to contain a stem that would be likely to cause confusion with the generic pharmaceutical, the examiner could reject the application. Although the likelihood of confusion analysis conducted by most trademark offices would not be new, the database of INN’s would be a helpful resource to ensure that a comprehensive review by the examiner would be conducted. Moreover, fewer trademark registrations would issue that contain stems, and less confusion by medical professionals would result.
__________
Alpana P. Sahu is a medical researcher in the oncology department at the University of Chicago, where she is also studying management. She can be reached at alpana@sahu.com. Pradip K. Sahu is an intellectual property attorney with USG Corporation in Chicago and is the Secretary of the International and Immigration Law Section Council of the ISBA. He can be reached at pradip@sahu.com.
Garb v. The Republic of Poland, 440 F.3d 579 (2d Cir. 2006)
The Second Circuit ruled that the U.S. courts did not have subject matter jurisdiction over claims of Jewish persons and entities for the return of real property taken by Polish authorities shortly after the Second World War. First, the court ruled that the Foreign Sovereign Immunities Act of 1976 (FSIA), which has already been established as the only source of subject matter jurisdiction over a foreign sovereign in U.S. courts, is to be applied retroactively to actions that arose prior to its enactment. Further, Second Circuit also concluded that the expropriations at issue did not qualify under any of the several exceptions to sovereign immunity contained in the FSIA.
In the interim between remand from the U.S. Supreme Court for its previous affirmation of the district court’s denial of a remedy and the ruling, the issue whether the FSIA could be applied retroactively was decided in the affirmative in Republic of Austria v. Altmann, 541 U.S. 677, 124 S.Ct. 2240, 159 L.Ed.2d 1 (2004). In Altmann, the Supreme Court expressed its disapproval of an historic approach to issues of sovereign immunity based on pre-FSIA State Department policy. Rather, the Supreme Court sanctioned the use of the FSIA as the most recent reflection of “current political realities and relationships” of the legislative and executive branches, thereby separating a challenged act of a foreign sovereign from the prevailing policy and practice on foreign sovereign immunity at the time of said act. Accordingly, the Second Circuit assessed whether the expropriations and their subsequent commercial uses qualified under any of the exceptions to the FSIA.
Confirming the “restrictive” nature of U.S. policy on the judicial exercise of jurisdiction over foreign sovereigns as espoused in the “Tate Letter” of 1952 by the Acting Legal Advisor to the Department of State and as codified by the FSIA, the Second Circuit rejected the plaintiffs’ argument that the subsequent commercial use of the property somehow transformed the original taking, which was clearly a government expropriation of an internal nature, into a commercial activity with direct effects in the United States that would qualify for the type of exception to sovereign immunity found in §1605(a)(2) of the FSIA. The Second Circuit was able to avoid the issue whether the expropriations violated international law, which is a requirement of the “takings” exception to sovereign immunity found in §1605(a)(3). Rather, once it was concluded that the properties were located in Poland and were not present in the United States, the court rejected plaintiffs’ claim on the basis that there was no subject matter jurisdiction because the Ministry of the Treasury was indisputably governmental and was therefore not an “agency or instrumentality” required for the exception found in the second clause of §1605(a)(3).
The dissenting judge focused on the “agency or instrumentality” element and concluded that the “core functions” test for a “political subdivision” (as opposed to an “agency or instrumentality”) was improper. Instead, the “legal characteristics” test, which focuses on factors such as independent action and ability to be sued, should have been used.
__________
Paul J. Carrier, Associate Professor of Law, Thomas M. Cooley Law School. Prof. Carrier teaches courses in property law, European Union law, and both public and private international law. Prof. Carrier spent nearly a decade teaching law and working as an international corporate associate for major U.S. and British law firms in the Slovak Republic and the Czech Republic.
• Algeria’s ordinary corporate income tax (impôt sur les bénéfices de sociétés, IBS) rate has been lowered from 30 percent to 25 percent. The reduced IBS rate is 12.5 percent provided that profits are reinvested .
• Algerian VAT on purchase of equipment is 17 percent. However, Algerian VAT will not be due on services rendered and equipment or materials supplied by third-party subcontractors affected to pipeline transportation activities. This exemption also applies, as of July 20, 2006, to services and equipment purchased by third party suppliers for the construction of hydrocarbons refining and treatment facilities and liquefaction activities.
• As mentioned in the foregoing Article, the 2005 Hydrocarbons Law, as amended in 2006, (the “Hydrocarbons Law”) imposes a non-deductible tax on surplus profits (taxe sur les profits exceptionnels, “TPE”) earned by foreign investors in the framework of association contracts concluded with Sonatrach under the old 1986 hydrocarbons law The tax, which is effective as of August 1, 2006 and whose rate ranges between 5 percent and 50 percent, is applicable on the share of production owned by foreign companies whenever the monthly average of the Brent crude oil is above USD30 a barrel.
• A recent implementation decree (the “Decree”) clarifies that the TPE will apply to both oil and gas production. The Decree also provides details on the rate of the TPE applicable to various levels of production output and its calculation. The tax could be as high as 50 percent of the foreign investor’s share of production that is in excess of 100,000 barrels a day or the equivalent thereof.
• However, the validity of the TPE as implemented by the Decree is questionable in light of the bilateral Investment Treaties concluded between Algeria and a number of foreign jurisdictions. Said Treaties commonly provide that “each of the contracting parties will not obstruct, through unjustified or discriminatory means, the management, maintenance, use, enjoyment, extension, sale or, to the extent applicable, disposal, of investments made by investors from the territory of the other party.” Since the TPE applies only to foreign partners and not to domestic parties, the Decree violates the non discrimination provision of the Treaty. Under Algerian law, international agreements supersede domestic law provisions with the exception of any conflicting provisions of the Algerian Constitution. However, no provision of the Constitution appears to justify said discrimination.
• Similar arguments could be made with respect to the Association Agreement concluded between the European Union and Algeria which requires that Algeria grant to subsidiaries and branches of European Union companies, established in Algeria, in respect of their operations, treatment no less favorable than that accorded to Algerian companies.
• Foreign investors whose country of residence has concluded a bilateral Investment Treaty with Algeria and/or are resident in a Member State of the European Union may, therefore, be able to challenge the legality of the Decree and the related provisions of the Hydrocarbons Law and, arguably, avoid the payment of the TPE.
__________
Michael Coleman is a Partner at Baker & McKenzie, Chicago. He received a JD from the Free University of Brussels (Belgium) and a JD from Tulane University. He is admitted to the Illinois Bar. He does a significant amount of cross-border counseling in regard to the Maghreb and, in particular, Algeria, and may be reached at michael.l.coleman@bakernet.com.
Celine van Zeebroeck is an Associate at Baker & McKenzie, Chicago. She received her JD from the Catholic University of Leuven (Belgium) and her LLM from The University of Chicago. She is admitted to the Brussels Bar. Her areas of practice include cross-border counseling on matters related to the Maghreb countries, and may be reached at celine.vanzeebroeck@bakernet.com.
For the past two years, students and faculty from Southern Illinois University (SIU) have been visiting immigration detainees held at the Tri-County Justice and Detention Center (Tri-County) in Ullin, IL to conduct “Know Your Rights” presentations and to assess whether the legal needs of the immigration detainees are being met. During our visits, we noticed that the library for detainees is woefully inadequate and out of date. The most recent immigration case reporter was from the 1960s! The guards suggested that the detainees could use both legal materials as well as novels. Accordingly, students at SIU organized a series of book drives to collect book donations for the facility’s library. We take the books to Tri-County during our visits there about twice a semester.
The ISBA Section on International and Immigration Law has decided to assist our efforts by sponsoring a book drive for immigration detainees. Books collected from this drive will likely be distributed not only to detainees at Tri-County, but also at other immigration detention facilities throughout our region.
If you would like to donate books, please drop them off in the designated box set up at the ISBA office at 20 South Clark Street, Suite 900 in Chicago. Novels in English and Spanish are especially welcome, but books in French, Chinese, Polish, and Arabic would also be useful. Thank you for your participation.
__________
Cindy G. Buys, Assistant Professor of Law at the Southern Illinois University School of Law and Member of the International and Immigration Law Section Council of the ISBA and may be reached at cbuys@siu.edu.
Dear International Trade Professional,
Below is a list of upcoming international trade events, which our office is organizing or co-sponsoring/supporting. We hope that you will be able to join us for at least one of them! You can also access this list as well as info on other upcoming international trade events and missions at http://www.buyusa.gov/uppermidwest/events.html.
Best Regards,
Debra Rogers
International Trade Specialist
U.S. Export Assistance Center – Chicago
U.S. Department of Commerce
T: 312-353-6988
March 26-27, 2007: Asia Pacific Business Outlook (APBO) Conference – Los Angeles, CA
Do not miss the premier networking event to expand your Asia / Pacific Business Knowledge, Contacts and Profits! Asia / Pacific Business Outlook, hosted by the University of Southern California in Los Angeles, with the full support of the U.S. Commercial Service, is the longest running, most successful regional conference of its kind focusing specifically on Asian markets. This conference has made a difference for U.S. exporters, and has become the premier U.S. commercial trade event focusing on the Asia / Pacific region. APBO 2007 brings the experts closer to you with 14 Senior Commercial Officers from American embassies, consulates and institutes in the following economies: Australia, China, Hong Kong, India, Indonesia, Japan, Korea, Malaysia, Mexico, New Zealand, Philippines, Singapore, Taiwan, Thailand, and Vietnam. They will speak in small-group workshops and be available for private one-on-one consultations with APBO participants. Fee: $775; $925 (after February 26). USDOC Registration Code: DOC2007. Venue: University of Southern California - Los Angeles. Information and registration at: http://www.apbo2007.com. For questions or general inquiries, contact Maryavis Bokal or Terri Batch by telephone at (949) 660-1688 ext. 117 or (310) 882-1750 or at Maryavis.Bokal@mail.doc.gov or Terri.Batch@mail.doc.gov.
March 28, 2007: Exporting & Importing: Procedures, Documentation & Laws - Chicago
This conference is sponsored by Global Conference Group, a division of Goodsoft, Inc. It will take place from 8:30 AM - 4:30 PM at the Mid-America Club, 200 E. Randolph Drive, Chicago, IL. Topics include export documentation and procedures, letters of credit, using the harmonized tariff schedule, air and ocean transportation, logistics management for the international supply chain, and import documents and procedures. Guest presenters will be leading experts in their fields including corporate and government professionals with years of experience, including Robin Mugford, Director of the U.S. Department of Commerce Commercial Service office in Libertyville, IL. The fee is $495 for early registration (prior to January 15, 2007) and $595 after that date. Detailed program information and registration is available on-line at www.globalconferencegroup.com or call 773-334-4477.
May 9, 2007: International Trade Basics - Chicago
Basic components of international trade are discussed by speakers active in the export and import industry. They cover legal issues, financial and banking, freight forwarding, customs, and sound techniques for exporting and importing products as well as U.S. government financial programs. 9:00 a.m.- 4:00 p.m. Fee: $60. Organized by SCORE/SBA. Register at https://www.123signup.com/servlet/SignUp?cat:58=246&PG=1522055182300&P=152205500
__________
The U.S. Department of Commerce recommends that practitioners also visit their partners’ event calendars for additional international trade and policy-related events including:
International Trade Association of Greater Chicago - http://itagc.org/calendar.asp
Chicago Council on Global Affairs - http://www.ccfr.org
Illinois Global Partnership - http://www.illinoisglobal.org/calendar.asp
Alliance for Illinois Manufacturing - http://norbic.org/events/cal.php
World Trade Center Chicago - http://www.wtcc.org