By the time you receive this issue of The Globe, the Section Council has held “Pulling No Punches: Effective Representation of Immigrant Survivors of Domestic Violence.” A special thanks to David Austin of the Section and the National Immigrant Justice Center for helping to organize and conduct the program.
Also thank you to the speakers: David W. Austin, Mary Meg McCarthy, Mony Ruiz-Velasco, Neha Gill, and Mary McDermott.
Scott W. Gertz, a member of the International and Immigration Law Section Council, has organized a law day program on the crisis in Darfur. Specific information on registration will be in a future issue of The Globe.
As mentioned previously, Pradip Sahu of the Section has organized a CLE program for June entitled, “Intellectual Property and International Law Issues in Representing a Globally Expanding Company.” In advance, our thank you to Pradip for organizing it and the speakers: Michael Geoffrey of Reed Smith LLC; Mary Skropca of Brinks Hofer; Marc Trachtenberg with Ladas and Parry; Adam Weiss with Schiff Hardin LLP; Violeta Balan of Mayer Brown LLP; Glen Belvis of Brinks Hofer; and Gary Ropski of Brinks Hofer.
In this issue of The Globe, I wish to thank John F. Fatino who provided “The Ice Person Cometh,” which first appeared in the January issue of the ISBA’s The Corporate Lawyer. Thank you to John and to the Co-Editors of The Corporate Lawyer, Frank Grenard and Bernard G. Peter.
Christopher Minelli provided an article in the last issue entitled, “Textualism as a Touchstone for Privately-Focused Treaty Interpretation” and this issue includes his, “Reinforcing the International Conflicts Regime: A Critical Analysis of the Turkish Attack on the Kurdish Worker’s Party.”
Pengcheng Gao is an attorney licensed in China, working on his LL.M. at Chicago-Kent. He has returned to Beijing, China. His article is, “Finding a Way Out: A Brief Examination of the Trademark Fair Use Principal in China.”
Ying Wang is a partner in the Beijing Dowway Law Firm and also is working on an LL.M. in international and comparative law at Chicago-Kent. She has provided, “China’s Great Leap Forward in Private Property Protection.”
Lewis F. Matuszewich
Matuszewich, Kelly & McKeever, LLP
Telephone: (312) 726-8787
Facsimile: (773) 279-8872
E-mail: lfmatuszewich@mkm-law.com
The images have been horrific. The United States government has labeled the atrocities committed by the Sudanese government genocide.1 As the tragic events in the Darfur region of the Sudan unfold, however, many of us find ourselves bewildered by the complexity and intractability of the conflict.2 Yet, as lawyers and as citizens who take the rule of law seriously, we must make the effort to understand and, if so compelled, to speak out.
Questions abound: in light of the gravity of the situation on the ground, what has been the U.S response to attempt to bring the bloodshed to a halt? What steps have the African Union, the United Nations and the rest of the international community engaged in to bring pressure to bear on the al-Bashir regime?3 Is the use of force (even unilateral force) morally justified if the regime continues to commit atrocities on this scale? Who is enabling the regime in Khartoum to continue down this horrific path?4 Who are the Janjaweed? And when do crimes committed by a sovereign government rise to the level of genocide under international law?
These questions, as well as many others, will be addressed by a distinguished panel of judges and law professors for a Law Day event.5 This program is sponsored by the International and Immigration Section Council and the Human Rights Section Council of the Illinois State Bar Association, the Decalogue Society of Lawyers, and the John Marshall Law School. The program will take place at John Marshall on May 1st at 3:30 P.M. After introductory words by Program Coordinator Scott Gertz, Ralph Ruebner, Associate Dean for Academic Affairs for the John Marshall Law School, will serve as M.C. and introduce the presenters. The speakers are: Judge Michael Hyman of the Circuit Court of Cook County; Professor Cindy Buys, of the Southern Illinois University School of Law; Professor Samuel Jones, of the John Marshall Law School; and Professor Sean O’Brien, of the Notre Dame Law School. After the formal presentations have ended, a question and answer session will be held, followed by a reception.
The subject matter is grim. The perpetrators and victims involved are a world away. We are all busy going about our lives. Nevertheless, we must not yield to the temptation to turn away. Lawyers and the organized Bar, especially lawyers and the organized Bar, must, at a minimum, raise awareness and educate. The stakes are too high to do anything less.
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Scott W. Gertz, attorney at law, member of the International and Immigration Section Council of the Illinois State Bar Association, Second Vice President of the Decalogue Society of Lawyers.
1. The U.S. Congress, President Bush and two U.S. Secretaries of State have used the genocide designation, the first time in U.S. history that a conflict has been so labeled while it was ongoing. The Genocide in Darfur, Briefing Paper, Save Darfur, June 2007.
2. Since 2003, more than 200,000 people have died and an estimated 2.5 million have been displaced. Chicago Sun-Times, February 14, 2008.
3. Omar al-Bashir is the President of the Sudan.
4. Clearly, one significant player in the conflict is China, who buys about two thirds of Sudan’s oil exports and sells weapons to the country. Chicago Sun-Times, February 14th 2008
5. There is not a Continuing Legal Education component to this event.
Increasingly, corporate counsel and other employment practitioners have become concerned about the enforcement activities of both the federal and state governments concerning the hiring of undocumented workers. At the same time, the Illinois General Assembly has adopted Public Act 95-138 which prohibits employers from using Department of Homeland Security databases (the “E-Verify program”) unless the databases are 99 percent accurate. The Department of Homeland Security (“DHS”) has sued the State of Illinois over the issue in the US District Court for the Central District, asserting federal preemption. This article will attempt to summarize the obligations that arise for employers under the so-called I-9 form and discuss the new rules adopted by DHS concerning “no-match letters.” Recent changes in the area make the discussion timely and necessary.
The I-9 form, in the parlance of DHS, is actually know as the “Employment Eligibility Verification form.” The 2007 version of the form was just released in November. The form requires employers to gather information about an individual’s eligibility to work in the United States. The document must be completed within three business days from the beginning of employment. The employer’s representative must review and allow the employee to provide the required documents.
A close examination of the form reflects that the employee is given an alternative arrangement of documents. The alternatives are either production of the documents denominated as “List A” documents or the documents enumerated on List B and List C. The documents are identified on the form. Note that the employee must present original documents. However, the employer must not keep the originals; instead the employer must photocopy the documents and keep the documents with the form.
At the same time, employers must realize this is not their opportunity to search for “clues” as to whether a person is legally entitled to work in the United States. Indeed, civil penalties can be applied to employers which engage in “document discrimination,” that is, the employer goes beyond the requirements of the form. For instance, an employer cannot require birth certificates from individuals with Hispanic surnames.
Furthermore, the employer should note that the employee’s signature is placed immediately below the warning that it is a federal crime to make a false statement or provide false documents. Likewise, the employer must make a similar certification subject to the penalty of perjury. Criminal charges are possible against human resources staff members. Recent published reports reflect that the federal government has used tape recorded conversations with human resources professionals as the basis for raids by Immigration and Customs Enforcement (“ICE”) officials. Also, ICE reports that it is stepping up enforcement against employers.
The employer is obligated to keep the form for three years after the date of hire or one year after the employment ends, whichever is later. The employer keeps the original document, it is not forwarded to DHS or any other federal agency.
At the same time, DHS has published its final version of the new “safe harbor regulations” concerning no-match letters from the Social Security Administration. See Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 72 Fed. Reg. 45611 (2007) (to be codified at 8 C.F.R. Part 274a). Heretofore, some employers were concerned about how far to pursue the issue of a “no-match” because of concerns about being sued for “document discrimination.” DHS appears to be attempting to further define under what circumstances an employer has constructive knowledge of aliens not authorized to work in the United States.
Contemplate the following scenario. The Social Security Administration generates an “Employer Correction Request” a/k/a “no-match letter” when the name and the social security number on a W-2 do not match. The Social Security Administration recognizes that sometimes the error is a result of a typographical error. On the other hand, it can be a sign the employee is using a false Social Security Number or a number assigned to someone else. A similar form is generated by ICE which is called “Notice of Suspect Documents” following an onsite audit.
The new regulation attempts to define the steps employers can take following receipt of such a letter—and avoid the allegation that the employer had constructive knowledge that the employer was employing a person who was not authorized to work in the United States. Suffice it to say that under the current state of the case law, failure to investigate suspicious circumstances can also be used to impute such knowledge to the employer.
Essentially, the new regulations provide for a protocol for correction of the no-match letter. Otherwise, under the regulations as drafted, the employer could be deemed to have constructive knowledge of a person who is not authorized to work in the United States when the employer takes no steps to correct the no-match letter.
Specifically, the regulations provide the following sequence following receipt of a no-match letter. First, the employer should promptly check for typographical errors and resubmit the I-9 within 30 days. Secondly, the employer can request the employee confirm the information is correct. If so, the employee is invited to take up the matter with the relevant agency as defined in the no-match letter. Thirty days is considered prompt under the new rule. In the event no resolution is reached at this point, the employer may take further steps at the 90-day mark, e.g. terminate employment or run the risk of having “constructive knowledge” of a violation of federal law.
It bears noting that the new regulations provide that the employer may not recertify using a document which the employee provides which has the number that is the subject of the no-match letter. At this point, the regulations also state that you cannot use a document without a photograph.
Like its predecessor rule, the new regulations remind employers not to request other or further documents beyond those which are stated on the I-9 form. This too could subject the employer to a suit for document discrimination.
Finally, stand by for news! The new rule is subject to another federal law suit. On October 10, 2007, a federal district court granted a preliminary injunction against the enforcement of the new rules. American Federation of Labor v. Chertoff, 2007 U.S. Dist. LEXIS 75233 (N.D. Cal. 2007). DHS has appealed the ruling to the United States Court of Appeals for the Ninth Circuit. Accordingly, counsel and other human resource professionals will want to closely monitor the suit and any corresponding changes made by DHS so that the employer will be able to fulfill its obligations under federal law.
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John F. Fatino, a 1991 graduate of Drake Law School, is a member of the law firm of Whitfiedl & Eddy, P.L.C. in Des Moines, IA. Mr. Fatino formerly served as chair of Whitfield & Eddy’s Employment Practice Group. In addition to advising clients and litigating employment matters, Mr. Fatino has extensively lectured and written on employment matters.
This article was originally published in the January 2008 issue of the ISBA’s Corporate Law newsletter, Vol. 45 No. 7.
Bibliography:
Safe-Harbor Procedures for Employers Who Receive a No-Match Letter, 72 Fed. Reg. 45611 (2007) (to be codified at 8 C.F.R. Part 274a).
Scarbrough & Stephens, “Legislative Update: The Immigration Reform and Control Act of 1986 and Recent State Legislation Regulation the Hiring of Illegal Immigrants,” The Construction Lawyer, 32 (Wint. 2007).
Prescott, “Immigration Reform Fuels Employment Discrimination,” 55 Drake Law Review, 1 (2006).
On December 1, 2007, after months of tension, military forces of the Republic of Turkey launched a military offensive that allegedly inflicted heavy losses on a group of Kurdistan Worker’s Party (the “PKK”) guerilla soldiers within Northern Iraq.1 This incursion was later confirmed by others in the news media, although it was initially denied by both the United States and the PKK.2 This latest example of violence in the Middle East at first blush appears to be nothing new, especially in such a volatile region. However, the 15-year struggle between Turkey and the PKK had rarely come to military action and the decision of the Turkish government to conduct a ground incursion against PKK troops illustrates an alarming situation that could lead to massive destabilization of the region.
Some scholars have noted that international law is a key element in what is called the “regime theory” of international relations, which holds stability is achieved through adherence to a system of rules that guide actors by providing evidence of how other international actors will behave.3 Regime theorists have also posited that the use of force between states is also dictated by regulating principles.4 Alarmingly, in the time since the United States’ invasion of Iraq in 2003 the rules of the regime seem to be de-evolving from a stable post-Cold War system of cooperation to something more akin to a unilateral contest of strength.5
This article will argue that the illegal Turkish use of force is a reflection of the destabilization of the international conflict regime, a system of rules that guide rational actors by providing evidence of how other international actors will behave, which was caused by the United States during its war on terrorism. First, the basic principles of the international conflict regime will be analyzed. Second, the recent Turkish attack on the PKK will be examined, showing that Turkey had no justification for its action. Finally, the article will conclude with some propositions on how Turkey could handle the situation within the confines of international law.
I. The International Conflict Regime
Political scientists have explained international relations under a system of principles known as the regime theory.6 Regime theory teaches that within international relations there are a series of rules that guide actors faced with a problem to a logical conclusion. The regimes provide the actors with an understanding of how other rational actors should behave in certain situations. The regime thus provides relative security to all as long as other rational actors behave according to the strictures of the regime. Of course, not all actors will follow the rules of the regime all the time. However, if enough do so to make the ultimate goal of the regime—predictability—useful, then the regime succeeds.
International law professor Francis Boyle has described a conflict regime in international relations that is concerned with the use of force between state actors.7 This regime is constructed from customary principles of international law and the self-interest of many states to avoid disputes. Boyle’s regime consists of two overarching concerns. The first is a preference for state actors to avoid force and the second is a preference for state actors to settle disputes among each other amicably.8
This regime has survived the switch from the deeply bilateral format of the Cold War to a multilateral world. Some scholars have suggested that this new multilateral direction is ripe for abuse because it hinders the enforcement of the regime and allows opportunistic states to engage in self-interested unilateral actions.9 This theory is materializing following the terrorist attacks of September 11, 2001 and the United States-led response in Afghanistan, Iraq, and other parts of the world.
Alarmingly, the Turkish incursion into northern Iraq may be an indication that the international conflict regime is threatened. Both the Turkish government and the PKK enjoyed the interest of other state actors such as the United States, Britain, and the United Nations to resolve the conflict peaceably and quickly without resort to armed confrontation.10 In November of this year Great Britain even went to the length of sending its Minister of Defense, Des Browne, into northern Iraq to praise PKK efforts to alleviate the tension felt in the region.11 Notwithstanding the international support, Turkey chose to bypass all offered means of non-violent action and instead turned to a military option against the PKK.
The next section will analyze the illegality of Turkey’s action against international law as it relates to armed intervention, war, and self-defense.
II. The legality of Turkey’s actions under international law
The Turkish attack in northern Iraq was illegal on many different levels of international law. All use of force by one state actor against another has been prohibited as an instrument of national policy since the Kellogg-Briand Peace Pact in 1929.12 The United Nations Charter expressly prohibits the use of force in Article 2(4), and the International Court of Justice has held the principle is now a part of customary international law, filling a loophole that some international actors have tried to use in the past, including the United States.13
The use of force necessarily requires some amount of aggression by a state. The accepted international definition of aggression is available in the United Nations General Assembly Resolution on the Definition of Aggression.14 Article 1 states “aggression is the use of armed force by a State against the sovereignty, territorial integrity, or political independence of another State, or in any manner inconsistent with the Charter of the United Nations…(emphasis added).” Article 3 lists a variety of non-exclusive examples pertaining to armed force including invasion or attack, aerial bombardment, and naval blockade. Article 2 notes that “the use of armed force by a State in contravention of the (United Nations) Charter shall constitute prima facie evidence of an act of aggression….”
The United Nations Charter only allows for the use of force in two instances—where the Security Council approves it,15 or in self-defense.16 Thus, in order for Turkey’s armed attack on the PKK to be justifiable within international law, Turkey must have been given permission to do so by the security council (which it was not), or it must have been acting in self-defense. First, we’ll look at the legality of the intervention itself. Second, we’ll look at Article 51 self-defense and determine whether Turkey had any lawful justification under the United Nations Charter to attack the PKK. If it did not, then Turkey has violated the international conflicts regime and the action may serve as a detrimental precedent for future international problems.
A. The Military Intervention
The modern conflict between Turkey and the PKK grew from a regional uprising of the Kurdish minority in 1984.17 The PKK set up guerilla bases in Northern Iraq following the Persian Gulf War.18 The New York Times reported in 1998 that it was not uncommon for PKK guerillas to conduct raids in southern Turkey and for Turkish forces to enter northern Iraq against “international condemnation” to seek out PKK guerilla units.19
In recent months, these tensions have escalated due to increased PKK activity in the border region. Turkey advanced military forces to its southern border over the past summer,20 and in October thirteen Turkish soldiers were killed in a skirmish with PKK guerillas there.21 Turkey responded by escalating the conflict when it conducted an air assault on PKK positions in Northern Iraq on October 25 after the Turkish Parliament passed resolutions the week prior authorizing military intervention into northern Iraq under the guise of security measures.22 Although it was reported that these planes did not penetrate Iraqi airspace, their munitions certainly did. In November, more air assaults were conducted against abandoned PKK camps in the mountains along the border.23
Turkey’s actions would constitute aggression under international law, and its incursion with ground and air forces against the PKK would be analyzed under the laws of international intervention. Intervention is rarely, if ever, appropriate in international relations. The two major policy concerns behind this rule are (1) a stigma against the use of force in international relations in general, and (2) an inability to strictly separate morally “good” reasons for intervention against the morally “bad” ones, the possibility of abuse because of this inability.24 For example, if certain types of intervention were permitted (such as so-called humanitarian intervention) then states would be able to unilaterally invade whomever they wanted if they could fabricate a convincing story.
Because of this, a variety of treaties and principles of customary international law exist that sharply limits the lawful justifications for intervention. The Declaration of the Inadmissibility of Intervention in the Domestic Affairs of the States and the Protection of Their Independence and Sovereignty provides that “no State has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State.”25 Additionally, non-intervention has been expressed as a principle of United Nations policy for its member states to adhere to.26 States that are not subject to United Nations resolutions are bound by a principle of non-intervention in customary international law expressed by the International Court of Justice in the Military and Paramilitary Activities in and Against Nicaragua case, in which the court stated examples of non-intervention as a matter of international custom were “numerous and not hard to find.”27
Intervention is thus only appropriate in very limited exceptions. These include the imposition of economic sanctions on the offending state, sending humanitarian aid to the offending state that does not involve armed force, and (in even more limited circumstances) armed intervention when the offending state gives its consent to intervene. Consent can be a tricky exception because legitimate consent may be hard to come by. The consent must be properly granted, usually from the lawful governing body of the state. In states that are under internal strife or political turmoil, sometimes it is unclear whether the consent is being granted by a legitimate political organ.28
Currently, Iraq seems to be in this type of situation. As a state, the government of Iraq is within the control of the United States as a puppet regime. This is a legitimate function of the United States as a belligerent occupant of Iraq, and it is within the United States’ authority to grant intervention consent to Turkey. News reports leading up to the December 1 attack mention talks that occurred between the Turkish government in Ankara and President Bush, but the subject matters discussed seemed to revolve around intelligence sharing.29 President Bush dismissed a military attack by Turkey as nothing more than a “hypothetical question.”30
Although a reasonable mind could conclude this intelligence was given for the sole purpose of military action, it takes quite a leap to consider it a clear expression of consent to intervene in Iraq. President Bush as the Chief Executive does have the authority to exercise foreign policy powers on behalf of the United States government, including the making of executive agreements.31 However, the statements as printed in The New York Times seem to suggest any agreements he may have made with Turkey fall far short of an expression of consent to cross the Iraqi border with military forces. Further, although scholars disagree on how much power a United States president may have in formulating foreign affairs issues32 the ultimate grant of consent would come from action by the United States Congress.33 As of the December 1 attack, no such statement has been made by Congress as a whole or any of its key members. In fact, the Agence-France Presse (“AFP”) has indicated that the United States’ actions towards Turkey in the weeks preceding the attack put heavy pressure on it to resist attacking the PKK.34
Thus, it is clear that the intervention into Iraq by Turkish forces was illegal and unjustifiable under both United Nations standards and customary principles of international law. The next sub-section will explore a related point that involves Turkey’s one possible justification under the United Nations Charter for its actions—that the attack was an act of self-defense as permitted under Article 51.
B. A Justification of Self-Defense?
Self-Defense is a very narrow exception to the Charter’s prohibition on the use of force. Article 51 allows a state to exercise its “inherent right of individual or collective self-defense” if the state is attacked, but only permits the use of force until the Security Council acts upon the problem. This displays the strong United Nations policy against all use of force as it is laid down elsewhere in the Charter.35
A further problem is determining when self-defense is appropriate. When a state is under immediate attack the right to self-defense is clear. Here, the Turkish-PKK conflict had been occurring for some time, but the December 1 attack was different because this time a Turkish ground presence and a Turkish air presence were both confirmed within the borders of Iraq itself. The question becomes whether this is a justifiable act of self-defense, or a non-justifiable escalation of hostilities. I argue that it is the latter.
Turkey and the PKK have had their troubles for a long time, and its is almost laughable to consider a Turkish attack with such a disproportionately powerful force 12 miles inside the sovereign territory of Iraq as anything but aggression as defined in the United Nations General Assembly Resolution on the Definition of Aggression.36 One of the key elements of self-defense is defense, and there is little rationality in believing an armed attack was defensive in nature when rhetoric coming from various Turkish government officials to the news media37 and the Turkish parliament granted an express grant of permission to proceed with military force.38
Further, the United States and NATO have offered Turkey an alternate to direct military intervention into northern Iraq; in fact, the Turkey expressly rejected a suggested Iraqi solution to Turkey’s troubles with the PKK by stationing U.S. military forces in the northern parts of the country.39 This, coupled with no news reports suggesting Turkey attempted to elicit help from the United Nations in the weeks prior to the December 1 attack, suggest the incursion was a planned illegal use of force under international law.
The next section will conclude by mentioning the hazards to the international conflict regime described in Part I above and offer suggestions for how Turkey may better handle the situation in the future.
III. Conclusion: Suggestions for security in Northern Iraq
Unfortunately, the actions Turkey committed against the PKK have come after a number of years of Anglo-American military offence that is unquestionably impermissible under customary international law. Scholars writing in the field have previously suggested that the actions perpetrated by the United States, Great Britain, and their allies during the War on Terror have undermined the institutions of the United Nations.40 It is possible that the December 1 attack by Turkey might provide a precedent for other states to further disregard these and other features of the international conflict regime to such an extent that the regime’s role of providing predictability and security loses its effectiveness.
The legitimacy and predictability of any such regime necessarily depends on substantial, if not necessarily absolute, compliance of the rules of the regime. The military aggression shown by the United States and its allies has provided an unhealthy standard that other states under the regime may follow. This unilateralism would destabilize the Middle East region and hamper international law’s efforts to reign in the use of force.
Are there any other options available to Turkey that would be permissible under international law and allow them to control the violence that has plagued their southern borders? There are two non-military responses that are friendly to United Nations principles, customary international law, and also the international conflict regime.
First, Turkey should rely more heavily on the United Nations to serve as a diplomatic conduit to find a peaceful resolution. This includes not only armed peacekeepers deployed to the region but also a variety of ways that could open negotiations between Turkey and the PKK. The two entities’ problems run deep, but at the very least working with the United Nations would give Turkey a moral legitimacy under international law that it didn’t have before. Working within the regime will ultimately benefit it even if short term gains in security are not readily apparent.
Second, in the absence of a useful United Nations solution, Turkey should establish lawful trade restrictions to Iraq as a whole or to the northern part occupied by Kurdistan because the area is heavily dependent on Turkish commerce.41 Assuming such action does not harm the civilian population, it would send a message to the PKK and possibly hinder their attempts at organization and cross-border attacks.
The continuing conflict between Turkey and the PKK has proven to be long-lived and deeply ideological. However, one thing is certain—if Turkey would take the United Nations and international law seriously, the end to the conflict will be far easier than if it keeps choosing to act outside of the international conflict regime.
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© 2008 Christopher R. Minelli, teaching assistant at the University of Illinois College of Law in Champaign, Illinois. J.D. Candidate, University of Illinois College of Law, expected 2008; A.B., Miami University, 2005.
1. Selcuk Gokoluk, Turkey Says Inflicts Heavy Causalities on PKK in Iraq, REUTERS ALERTNET (December 1, 2007), available at <http://www.alternet.org/thenews/newsdesk/L01338160.htm>.
2. Sabrina Tavernise & Stephen Farrell, Turkey Says It Attacked Kurdish Fighters in Iraq, The New York Times (December 2, 2007), available at <http://www.nytimes.com/2007/12/02/world/middleeast/02iraq.html>.
3. Francis A. Boyle, International Law and the Use of Force: Beyond Regime Theory, in IDEAS & IDEALS: ESSAYS ON POLITICS IN HONOR OF STANLEY HOFFMANN 376, 376 (Linda B. Miller & Michael Joseph Smith, eds., DATE).
4. Id. at 379.
5. See, e.g., STEPHEN C. MCCAFFREY, UNDERSTANDING INTERNATIONAL LAW 237 (2006).
6. Boyle, supra note 3, at 376.
7. Id. at 379.
8. Id.
9. MCCAFFREY, supra note 5, at 237.
10. E.g., Steven Lee Myers, Bush Pledges to Help Turkey on Intelligence, The New York Times (November 6, 2007), available at <http://www.nytimes.com/2007/11/06/world/europe/06prexy.html>.
11. Richard A. Oppel, Jr., Britain Praises Iraqi Kurds’ Efforts to End Crisis, The New York Times (November 2, 2007), available at <http://www.nytimes.com/2007/11/02/world/middleeast/02kurds.html>.
12. General Treaty Providing for the Renunciation of War as an Instrument of National Policy, Jul. 24, 1929, U.S.T.S. 796, 94 L.N.T.S. 57.
13. See Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).
14. G.A. Res. 3314, U.N. Doc A/9631 (Dec. 14, 1974).
15. U.N. Charter art. 42.
16. U.N. Charter art. 51.
17. Chris Hedges, An Odd Alliance Subdues Turkey’s Kurdish Rebels, The New York Times (November 24, 1992), available at <http://query.nytimes.com/gst/fullpage.html>.
18. Id.
19. Stephen Kinzer, Standoff with Iraq: The Turks; Army Walls Off the Kurds, The New York Times (February 12, 1998), available at <http://query.nytimes.com/gst/fullpage.html?res=9C01EEDE123CF931A25751C0A96E958260>.
20. Sabrina Tavernise, Turkey Rattles Its Sabers at Militant Kurds in Iraq, The New York Times (June 8, 2007), available at <http://www.nytimes.com/2007/06/08/world/europe/08turkey.html>.
21. Reuters, Kurdish Rebels Kill 13 Soldiers on Turkish Border with Iraq, The New York Times (October 8, 2007), available at <http://www.nytimes.com/2007/10/08/world/europe/08turkey.html>.
22. E.g., Sebnem Arsu & Sabrina Tavernise, Turkey Resolves to Give Go-Ahead for Raids in Iraq, The New York Times (October 18, 2007), available at <http://www.nytimes.com/2007/10/18/world/europe/18turkey.html>.
23. Damien Cave, Turkish Aircraft Attack Abandoned Iraqi Villages, The New York Times (November 14, 2007), available at <http://www.nytimes.com/2007/11/14/world/middleeast/14iraq.html>.
24. See Corfu Channel Case (U.K. v. Alb.), 1949 I.C.J. 4 (15 December).
25. Declaration on the Admissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res. 2131 A/6014 (December 21, 1965).
26. Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Character of the United Nations, G.A. Res. 2625, A/8028 (October 24, 1970).
27. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 202 (June 27).
28. BURNS H WESTON, ET AL., INTERNATIONAL LAW AND WORLD ORDER, 290 (4th ed., 2006) (discussing issues surrounding obtaining consent).
29. Steven Lee Myers, Bush Pledges to Help Turkey on Intelligence, The New York Times (November 6, 2007), available at <http://www.nytimes.com/2007/11/06/world/europe/06prexy.html>.
30. Id.
31. See JOHN E. NOWAK & RONALD D. ROTUNDA, CONSTITUTIONAL LAW §6.9 (7th ed., 2004).
32. See id.
33. See id. at §6.12 (discussing the president’s foreign relations powers as proportionate to the amount of consent Congress gives to the specific issue).
34. Selcuk Gokoluk, Turkey Says Inflicts Heavy Causalities on PKK in Iraq, REUTERS ALERTNET (December 1, 2007), available at <http://www.alternet.org/thenews/newsdesk/L01338160.htm>.
35. U.N. Charter art. 33. U.N. Charter art. 2(4).
36. See G.A. Res. 3314, U.N. Doc A/9631 (Dec. 14, 1974).
37. See, e.g., Sabrina Tavernise, Turkey Rattles Its Sabers at Militant Kurds in Iraq, The New York Times (June 8, 2007), available at <http://www.nytimes.com/2007/06/08/world/europe/08turkey.html>.
38. Sebnem Arsu & Sabrina Tavernise, Turkey Resolves to Give Go-Ahead for Raids in Iraq, The New York Times (October 18, 2007), available at <http://www.nytimes.com/2007/10/18/world/europe/18turkey.html>.
39. Sebnem Arsu & Andrew E. Kramer, Iraq Plan to Add U.S. Troops at Kurdish Border is Rejected by Turkey, The New York Times (October 27, 2007), available at <http://www.nytimes.com/2007/10/27/world/europe/27turkey.html>.
40. MCCAFFREY, supra note 5, at 237.
41. See Richard A. Oppel, Jr., Turkish-Bred Prosperity Makes War Less Likely in Iraqi Kurdistan, The New York Times (November 7, 2007), available at <http://www.nytimes.com/2007/11/07/world/middleeast/07kurds.html>.
The fair use principle started in copyright law, but has long been incorporated into trademark law as well. The policy driving the privilege stems from the fear that registered trademark owners might appropriate the resource at the heart of their business, thus promoting unfair competition. Fair use confines the scope of the protection granted by law, thereby protecting the public use of the actual resource.
In the U.S. the privilege developed from the common law, and is now codified. Even so, it is still considered immature as new cases challenging it continue to arise.1 It is beyond doubt that Chinese trademark law is so underdeveloped that the courts in China rack their brains for better ways to deal with the evolving problems.
I. Status Quo: Fair Use under Current Chinese Trademark Law
The Trademark Law of the People’s Republic of China was adopted by the Standing Committee of the National People’s Congress in 1982. It has been revised twice: in 1993, and in 2001.
Article 52(1) of the Trademark Law defines one of the situations where the exclusive right of the registered trademark is infringed as: “to use a trademark that is identical with or similar to a registered trademark in respect of the identical or similar goods without the authorization from the trademark registrant” is an infringement of the exclusive right to use a registered trademark.” There is wide consensus in China that a business may use a mark, even a mark that is the exact same as a registered trademark, where it does not use that mark as a trademark. Under this view, the user may prevail against a claim of trademark infringement, arguing fair use. Thus, while fair use is not mentioned in the statutory language, the privilege is deemed to exist under Article 52(1).
A series of regulations implementing Article 52(1) demonstrate this interpretation of the statute. The first was the Several Opinions Concerning Implementation of Trademark Law, promulgated by the State Administration for Industry and Commerce (SAFIC) in 1999. The SAFIC provisions enumerated the two circumstances where using characters or devices identical or similar to a registered trademark would not be regarded as trademark infringement. The first was where a business used its own name or address in good faith. The second was where the business used the mark to explain the characteristic or nature of the goods or services in good faith, especially to provide the quality, use, geographic origin, category, value or date of goods or services. These 1999 Opinions were subsequently replaced, as the law has evolved, as I shall explain.
Article 49 of the Implementing Regulations of the Trademark Law of the People’s Republic of China clarifies the fair use principle in Chinese law. The State Council promulgated these regulations in 2002. Article 49 provides that “where a registered trademark contains the generic name, shape or model of the goods in respect of which it is used, or directly indicates the quality, main raw material, function, use, weight, quantity and other features of the goods, or contains a place name, the holder of the exclusive right to use the registered trademark has no right to prohibit others from duly using it.”
Additional regulations govern fair use in one way or another. One example is Opinions Concerning Several Issues about Protecting the Service Mark, which SAFIC issued in 1999. If a business uses the mark that is customarily used by the whole service industry in the ordinary way, or ordinarily uses the name of its business, address, the name of its service supply location, characteristic, or the name that describes its service, such use shall not be deemed an infringement.
The Chinese Supreme Court has also issued “answers and replies” to lower Chinese courts providing examples of fair use. These Supreme Court pronouncements form a kind of patchwork that may, to some extent, satisfy the need in practice. Nonetheless, they cannot ultimately address the crux of the matter. We need to amend the statute to reflect current law and practice.
II. A Dilemma: Adjudicating Outside the Law?
Chinese court rely on Articles 52 and 49 together more than any others when determining fair use or infringement. Article 49 is actually similar to the Lanham Act (15 U.S.C. §1115(b)(4)), which provides a defense to a charge of infringement where “the use of the name, term, or device charged to be an infringement is a use, otherwise than as a mark, of the party’s individual name in his own business, or of the individual name of anyone in privity with such party, or of a term or device which is descriptive of and used fairly and in good faith only to describe the goods or services of such party, or their geographic origin.”
Is Article 49 of the Chinese Trademark Law analogous to Section 1115(b)(4)? In other words, does Article 49 enumerate the specific and limited instances of fair use under Chinese law?
How broad is Article 49? What’s more, does it include both descriptive fair use (where a party uses common words such as geographic designations to describe its goods or services) and nominative fair use (where a defendant uses plaintiff’s trademark to describe defendant’s product, but asserts, as a defense, that it is impossible to refer to the product or service in any other way)?
At present, there is a lot of confusion as to what constitutes nominative fair use in China. U.S. Educational Testing Service Center (ETS) brought a case alleging trademark infringement against the Beijing New Oriental School. Defendant had used ETS’s registered trademark, “TOEFL,” as a part of the name of its own book, the TOEFL Teaching Material Series, and on its language tapes entitled “TOEFL Listening Test Cassette.” TOEFL stands for “Test of English as a Foreign Language.” In its 2004 appellate decision, the Beijing People’s Court acknowledged the widespread use of ETS’s trademark in the market. Nonetheless, it held that defendant’s use came within nominative fair use reasoning that defendant’s purpose in using the trademark was to emphasize that its content was pertinent to the TOEFL exam. Under the court’s shaky reasoning, defendant did not try to cause misunderstanding or confuse the consumer as to the resource. Instead, defendant sought to enlighten consumers as to the content of its publications.
Unfortunately, this case cannot be viewed as construing Article 49 for purposes of fair use. Regrettably, the court did not even reference Article 49 in its verdict. Thus, the confusion as to the content and limits of Article 49 continues.
Trademark law serves several purposes. One is to protect the holder’s right to use the marks and to maintain its reputation. This right must be balanced against the holder’s overreaching, which results in unfair competition. In addition, consumers must be protected. Finally, the rights and interests of competing producers and operators are also in the mix. Article 1 of the Chinese Trademark Law sets forth the goals and purpose of the law and addresses all these interests.
Despite the Article 1 goals, other trademark law articles do not specify how to achieve this balance. Article 49 does not even mention the term nominative fair use. How then, did the court rely on this principle to render its judgment?
China is a civil law country. Under the civil law tradition, judges may decide cases based on broad legal principles. This is because many statutes are not sufficiently specific. Each Act sets forth principles upon which a judge may rely when deciding gaps in the legislative language. Article 1 of the Chinese Trademark Law does this. Chinese defendants have prevailed arguing fair use over the objections of foreign plaintiffs who claim that there is no fair use set forth in Chinese law. Nonetheless, judges are applying standard decision-making processes in these cases. The problem clearly lies in the vague and insufficient language of the trademark statutes. Obviously, parties cannot plan their conduct in such an environment.
III. Go Ahead or Stand Still: What is the Way Out?
Until the State Council legislators draft new trademark legislation that clearly addresses fair use, we can only look to courts to gradually refine and construct the framework of the privilege. Indeed, at present, the entire Chinese judiciary is undertaking a top-down effort to improve its understanding of the trademark fair use privilege.
The Chinese Supreme Court has rendered several opinions under the name of “answer,” or “reply.” These serve as a foundation of judicial interpretative direction in this area. “Answers” and “replies” are roughly analogous to an interlocutory appeal in United States’ courts. The 2004 Supreme Court answer to the Nanjing Court concerning a trademark infringement dispute in front of that court is an example.
Plaintiff Nanjing Liyuan Residential Property Developing Ltd. had registered the service mark “Baijiahu,” which it then used to describe its property development services. “Baijiahu” means “Baijia Lake” in Chinese. Defendant Nanjing Jinglanwan Real Estate Exploitation Corporation then used the name “Baijiahu” to advertise the residences it had developed. The appellate court did not buy defendant’s argument that it was only using the term “Baijiahu” in a geographical sense. Instead, it found that defendant had not acted in good faith in using this descriptor because it sought to confuse purchasers.
The appellate court asked the Chinese Supreme Court for guidance in determining whether the use of identical geographic names in the non-trademark sense on the same or similar products is lawful. In response, the Supreme Court advised the court below to look at the following factors: (i) the purpose and method by which the alleged infringer uses the place name; (ii) the prestige of the trademark and the prestige of the place name; (iii) how clearly the relevant products or services are represented to consumers; (iv) the degree of attention that is paid by the relevant public when it chooses this type of product or service; and (v) the specific circumstances and situations where the place name is used.
Even though civil law systems do not recognize judicial precedent, an opinion of the Chinese Supreme Court will greatly influence lower courts, and may even approach de facto precedent. Thus, the Baijahu analysis will certainly serve as a basis for future decisions and jurisprudential development in the question of fair use in Chinese trademark law.
High courts in Chinese provinces are starting to take the lead in construing fair use in their jurisdictions. For example, in 2006, the Beijing High Court issued the Answers to Several Issues Concerning the Trial of Civil Dispute Cases Involving Trademarks. This 2006 issuance was not a holding in the American sense in that it did not decide a case or controversy before the court. Instead, acting in pursuance of Chinese law, the court provided directives and guidance to courts below, a type of anticipatory advice common in China. The three critical answers are known as Articles 26, 27, and 28.
Article 26
Article 26 addressed the constituent elements of fair use. The Beijing High Court enumerated these as follows: (i) used in good faith; (ii) not using the mark as one’s own trademark; and (iii) used to describe one’s own product.
Article 27
In Article 27, the Court set forth conduct that satisfies the Article 26 fair use elements. These are, where defendant: (1) uses the common name, device, size of the product included in the registered trademark; (2) uses the designator that directly shows the nature, use, quality, major material, genres and other characteristics of the product; (3) when selling the product, uses others’ registered trademark in order to explain the origin, indicate the use or other that go to the essence of the product; (4) uses its own business name or trade name that is identical or similar to other’s registered trademark in a right way; (5) uses the geographic name of the business where defendant is located, and that name that is identical or similar to the other’s registered trademark; and (6) other conduct that can be deemed as trademark fair use. While these six subcategories are similar to Article 49 of the SAFIC Regulations, the sixth factor, “other conduct that can be deemed…” greatly broadens the scope.
Throughout China, courts are attempting to clarify the fair use privilege by offering tests and details. In the U.S., courts are focusing on case-by-case evaluations of the fair use issues. This vast pool of cases clearly demonstrates a wide range of factors arising in practice. Various Chinese courts have set forth facts and circumstances tests to determine: (i) good faith and use of a mark for reasons other than a trademark; (ii) whether the plaintiff’s trademark has been used prominently, including the typeface of the character and how they are combined; (iii) whether the explanation as to the producer is attached and how; and (iv) how to compare the strength of the two marks to determine whether one mark has taken advantage of another.
This kind of quasi-lawmaking is both useful and significant even though there is no de jure concept of binding legal “precedent” in China. Courts tend to take decisions similar to those in higher courts within their regions or to the Chinese Supreme Court, based on the belief that higher courts are wiser and more able. In addition, when courts below are uncertain about a case, they send the case to their superior court for inquiry in order to maintain consistency in decision making. This judicial conduct demonstrates the dilemma of ruling outside the law, as discussed in Part II of this article. By moving to a de facto system of precedent, the judiciary is deviating from the civil law tradition.
It is clear that Chinese courts are absorbing legal notions from abroad and widening their thoughts continuously. In the United States, federal courts had been divided as to whether defendant had the burden of negating the likelihood of consumer confusion when raising the statutory defense of fair use. It wasn’t until 2004 that the United States Supreme Court decided this issue, granting certiorari “to address a disagreement among the Courts of Appeals on the significance of likely confusion for a fair use defense to a trademark infringement claim, and the obligation of a party defending on that ground to show that its use is unlikely to cause consumer confusion.”2 Although the court settled certain procedural issues,3 on remand, parties continued to argue the substantive law of descriptive fair use. Questions of proving confusion remain in dispute. What’s more, there is no agreement in U.S. jurisdictions as to the other statutory affirmative defense to a trademark infringement claim: nominative fair use.
Article 28
In Article 28, the Beijing Court provides that “as to a trademark character that has become generic, others can use it in the sense of its generic meaning, not as a trademark; if [it is] not likely to cause the confusion of the relating public consumers.”
Both Articles 26 and 28 allow defendants to advance a fair use argument without expressly requiring them to prove that their use does not cause consumer confusion. Thus, the Chinese Supreme Court’s position is actually similar to the holding in the KP case, where the U.S. Supreme Court held that “some possibility of consumer confusion must be compatible with fair use, and so it is.”4
IV. Conclusion
Despite the commonly accepted idea that China lags behind in intellectual property law making, the Chinese judiciary is tenacious in carrying out its duty to try novel and even intractable cases. Courts use their understandings of the principles of the trademark law as a guide. Additionally, they accumulate experience in practice and refer to valuable holdings from abroad. What’s more, Chinese courts are moving towards the goal of harmonizing their decisions. The Supreme Court’s Opinion Concerning Reinforcement of the Judicial Work in the Area of Intellectual Property Right in Order to Provide the Judicial Protection for the Innovative Society, issued in 2007, further demonstrates this trend.
Clearly, all this critical work cannot be left permanently in the hands of the courts. Chinese legislators will have to update trademark legislation in the near future.
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Pengcheng Gao is a Chinese attorney currently working on an LL.M. at Chicago-Kent College of Law. He can be reached at gpchoveringroc@yahoo.com.cn.
1. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S 111, 120 (2004).
2. KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 543 U.S. 111, 117 (2004).
3. Id. at 121, holding that burden of proving likelihood of confusion rests with the plaintiff, and that the defendant does not need to show that confusion is unlikely in order to prevail on a defense of fair use.
4. Id.
October 1st commemorates two key legal developments in the People’s Republic of China. On October 1, 1949, the P.R.C. was founded. On October 1, 2007, the P.R.C.’s Property Right Protection Law went into effect. This is the first complete and systematic law to protect the legal rights of property owners in China. The law protects all owners within the Chinese territory, and is not limited to owners of Chinese nationality. This new law demonstrates that China has committed to protecting private party under rule of law.
The salient characteristic of the law is the establishment of five basic legal principles. These are: (1) equal protection for private property rights; (2) statutory rights in property protection; (3) publication of property rights; (4) a unitary right in a unitary “res;” and (5) the distinguishing principle. While these rights may not seem extraordinary to a common law lawyer, they forge seminal new rights in private property protection in China.
Equal Protection for Private Property Rights
During the years when China’s economy was entirely state planned, legal rights in privately held property were inferior to those granted to state-owned and collectively-owned property. Since the 1998 Reform, however, individual property owners have grown in number and influence. In 2001, China joined the WTO. Both domestic and international legal changes led China to amend its constitution in 2004. Under the 2004 amendment, private property holders are entitled to national protection. Furthermore, this protection specifically extends to rights in real property.
Pursuant to this principle, article 1 of the new Chinese Property Right Protection Law defines “res” very clearly. “Res” includes real property and chattel. The legal right in real property under the new Chinese law grants the right to directly control the property. Unlike the common law, this right is not construed as a “bundle of sticks.” Instead, it is an exclusive right held by the property owner in the specific, identified “res.” Real property rights include possession, usufruct, and security interests.
Article 4 of the law protects the property rights held by the nation, collectives, and persons, whether natural or legal, on an equal footing. No other organizations or individuals may trespass upon these rights. Critically, no distinction is made between the legal rights held by any of these three categories of owners.
You can still hear arguments, in China, that private property is not entitled to the same level of protection as state-owned property. Nonetheless, these arguments are without legal basis. Under the new law, which entered into force on October 1, 2007, private property rights may not be disturbed. Any breaches, particularly violations by governmental entities, will be sanctioned. State owned property will now be administered separately from private property. The Law of State-Owned Asset Management will now govern property held by the Chinese government.
Statutory Rights in Private Property
This is a civil law principle, derived from Roman law. Under the civil law, property rights are set forth exclusively in statutes. No parties may modify the substance, content or type of right held under law through their conduct or otherwise. This statute-based right serves to protect parties to any relevant transaction. Article 5 of the Chinese Property Right Protection Law, for example, provides that the substance and categories of private property rights shall be set forth in law.
The private property right is an exclusive right to directly control a specific object or identified “res.” The owner is entitled to exercise this right without the interference of others. The right of proprietorship includes possession and use rights as well as usufruct and disposition rights. The owner may not exceed any of these rights, as set forth under statute, or they will not be enforced. The right of usufruct allows the holder to possess, use and benefit from the real property of another.
Any party, foreign or domestic, who purchases land in China, is actually purchasing an exclusive right of usufruct. All land in the Chinese territory is owned by the nation or by collectives. Generally speaking, no usage term shall exceed 70 years. However, the holder has a right to extend the term before the usage term expires. What’s more, the government has a duty to extend the right unless there is a demonstrable public need for the land.
Before the enactment of the new Property Right Protection Law, the legal relations between parties to leases were vague in the extreme. Rights and duties were not at all clear. People had to rely on administrative regulations to settle disputes. Owners’ rights were frequently violated.
Farmers’ rights to manage their leaseholds were frequently and egregiously violated. Chinese farmers may not buy their farms, because land belongs to the collective in the countryside. Nevertheless, they do have leasehold rights in their farms, as set forth under Chinese law. The October 1 Property Right Protection law has clarified their rights. Under Chapters 10 and 11 of the new law, rights to build on one’s land and the farmer’s right to manage his leasehold are all legally established usufruct rights. No one may interfere with this exclusive right.
A security right in real property is an obligation promised by a debtor to guarantee payment of his debt. This creditor’s security right entitles him to payment, before all others, if the debtor fails to perform on the loan. Since the housing reform of 1998, more and more people purchase their homes through mortgages obtained from banks. Under the terms of the mortgage, the bank has the right to repossess the property when the debtor is not able to repay the loan either in full or on time. Nonetheless, banks do not regularly exercise their right to repossess because there are very limited ways, under law, for them to dispose of repossessed housing. Thus, in case of default, banks typically negotiate with debtors or require the developer to buy the property back.
Publication Principle
Under this principle, all transfers of real property rights must be announced to the public. Bona fide good faith purchasers will not be protected unless they announce their newly held rights to the public.
As for a chattel, physical delivery is the mark of property right transfer. Registration marks the transfer of rights in real property. These requirements serve to protect third parties and maintain order and safety in transactions.
In order to effectively publish your real property right under the new law, a new purchaser must register with two Chinese authorities: (1) the land administration organ; and (2) the building management department. Parties contemplating the acquisition of land usage rights should make a formal inquiry with the land registration department of the land administration organ to verify that the selling party actually owns the right he purports to transfer.
Buildings are not regulated by the land administration organs. Instead, owners must register their building titles with building management departments, a distinct Chinese agency. Unless he registers and certifies his title with the building management department, a building owner cannot prevail against a good faith purchaser.
Although the land and building management agencies are located in cities throughout China, no local bodies have ultimate jurisdiction over land in China. Unlike the states in the United States, the regions and provinces do not have sovereign rights in land. Land is under the sole jurisdiction of the nation, and local management organs are agents of the national government.
A Unitary Right in a Unitary “Res”
Under this principle, ownership of a single or unitary “res” is indivisible. Thus, once a chattel becomes a part of a real estate because of apposition, the real property owner holds the exclusive right in the fixture, as well. The owner then owns one object, not more than one. The principle is significant to identify the scope of the real property right and to settle disputes.
Distinguishing Principle
The distinguishing principle, also known as the separation principle, is grounded in the civil law of Germany. Under this principle, the validity of the purchase contract does not determine whether the property right has actually been transferred. Instead, the property right is only conveyed upon delivery of the chattel or registration of the real estate.
Before the enactment of the Property Right Protection Law, however, Chinese courts have usually construed the effective transfer of the real property based on the validity of the purchase contract. Chinese judges did not divide the two legal actions, as required under this principle.
Thus, they would enforce a transfer of ownership where the chattel had never been delivered or the real estate had not been registered if they found the terms of the sales contract to be valid. They would also invalidate a sales contract because the real estate transfer had not been duly registered. Both types of judgment allow the breaching party to avoid his legal duties. Article 15 of the Property Rights Protection Law establishes the distinguishing principle, thus separating the validity of the sales contract from the transfer of the real property right.
One final change wrought by the new Property Right Protection Law is of monumental importance to due process rights in property in China. Formerly, there was no clear line between an individual’s right in his property, and the state’s right to seize and keep that property where the owner was allegedly violating a law or ordinance. An on-point example involves street vendors. Formerly, administrative organs of Chinese cities would punish vendors who failed to obtain appropriate licenses by seizing their goods without any lawful procedures. There was no legal distinction between the vendor’s failure to duly obtain a license and the vendor’s legal rights in his goods. Under the new law, the vendor has a legal right in his property that may not be breached or infringed unless the relevant Chinese agency holds an enforceable judgment.
The Property Right Protection Law guarantees orderly transactions order and safety, and will certainly facilitate the healthy development of China’s economy.
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WANG Ying is a partner in the Beijing Dowway Law Firm. She is also a member of the Real Estate and Construction Commission of the Beijing Bar Association. Ms. Wang is currently completely an LL.M. degree in international and comparative law at Chicago-Kent College of Law. She can be reached at sarahywang@hotmail.com.
The following are excerpts from the Illinois International Business Calendar which is an effort among the International Trade Association of Greater Chicago, the Office of Trade & Investment of the Illinois Department of Commerce and Economic Opportunity, and the Illinois District Export Council on behalf of the U.S. Export Assistance Center Chicago. More information can be obtained by visiting the International Trade Association’s Web site at www.itagc.org.
Mar. 18
MIDDLE MARKET GROWTH IN UNCERTAIN WORLD MARKETS: RISK AND OPPORTUNITY.
Third annual Association for Corporate Growth Chicago international conference. Topics include:
International Private Equity and Corporate Growth- Strategies in Uncertain Times; Strategic Expansion Opportunities in BRIC Growth Markets: Brazil, Russia, India and China; Trends in Cross-Border Operating Company Expansion; Cross-Border Expansion for PE Firms, Investment Banks and Related Consultants; What’s Ahead Internationally for Key Industry Sectors?; Changing Capital Markets: Raising Debt and Equity in Uncertain Times. Keynote Speaker: Robert Reich, Professor of Public Policy, University of California Berkeley and former Secretary of Labor. 7:30 a.m.-5:30 p.m., Chicago Sheraton Hotel & Towers, 301 East North Water Street, Chicago. ACG Members registered by 2/26 - $349; thereafter - $375; Non-members registered by 2/26 - $375; thereafter - $475. For information & registration, please call Terry Cobb at 630/455-1740; e-mail: tcobb@acg.org or see: www.acgchicago.com.
Mar. 18
INCREASING YOUR GLOBAL SALES USING THE INTERNET.
Webinar sponsored by the Midwest offices of the U.S. Commercial Service with UPS, Shipping Solutions, and Fifth Third Bank. Presentation by Regina Heise, Director, U.S. Commercial Service-Kansas City. 10:00-11:15 a.m., CST. Fee: $40. For information & registration, please see: www.buyusa.gov/minnesota/exportwebinars.html.
Mar. 23 - Apr. 2
INFRASTRUCTURE TRADE MISSION TO CHINA.
The Illinois Office of Trade & Investment invites environmental technology and architectural design firms to join this mission to Guangzhou, Shanghai, Shenyang, and Beijing. With the support of the U.S. Department of Commerce’s Commercial Service, participants will receive business briefings and meetings with pre-qualified Chinese firms, as well as in-country market promotion, hospitality and full logistical support. No participation fee; participants are responsible for transportation and lodging expenses. For information & registration, please call Zhigang Ren at 312/814-2335 or e-mail: zhigang.ren@illinois.gov.
Mar. 26
EUROPEAN MARKETING DOs AND DON’Ts: MARKET ASSESSMENT AND OPPORTUNITIES EVALUATION WITH A FRENCH FOCUS.
Business breakfast seminar sponsored by the French-American Chamber of Commerce-Chicago Chapter and the Invest in France Agency. Presentation by Anne Guigou, International Marketing Director, Baxter Healthcare. 8:00-10:00 a.m., Sofitel O’Hare, 5550 North River Road, Rosemont. FACC Members-No charge; Non-members - $20. For information & registration, please call 312/578-0444 or e-mail: information@facc-chicago.com.
Apr. 12
CHINESE LANGUAGE IMMERSION
Session, sponsored by the College of Lake County, designed to build Chinese speaking, reading and writing skills. No proficiency is required. 9:30 a.m.-12:00 p.m., College of Lake County, C Building, Lower Lobby, 19351 West Washington Street, Grayslake, IL. No charge. For information & registration, please call 847/543-2948 or e-mail: gliu@clcillinois.edu.
Apr. 16 - 17
COMPLYING WITH U.S. EXPORT CONTROLS.
Two-day program sponsored by the: Bureau of Industry and Security (BIS); Illinois District Export Council; U.S. Commercial Service Chicago. Led by BIS’ professional counseling staff, this program provides an in-depth examination of the Export Administration Regulations (EAR). The program will cover the information exporters need to know to comply with U.S. export control requirements on commercial goods. Speakers will focus on: what items and activities are subject to the EAR; steps to take to determine the export licensing requirements for your item; how to determine your export control classification number (ECCN); when you can export or re-export without applying for a license; export clearance procedures and record keeping requirements; Export Management Compliance Program (EMCP) concepts; and real life examples in applying this information, including a number of “hands-on” exercises that will prepare you to apply the regulations to your own company’s export activities. Doubletree Hotel Chicago O’Hare Airport, 5460 North River Road, Rosemont, IL. Fee: $365. For information & registration, please see: http://export.gov/eac/show_detail_trade_events.asp?EventlD=27453. For sponsorship opportunities, call Jeff Graber at 312/353-7711 or e-mail: jeffrey.graber@mail.doc.gov.
May 5-19
GLOBAL STRATEGY CERTIFICATE PROGRAM.
Three-part certificate program, sponsored by the University of Illinois Business & Industry Services, is designed to help your business take advantage of, and profit from, growth opportunities in the continually evolving global business environment.
Part 1 (May 5): Global Strategic Analysis & Design; Part 2 (May 12): Keys to Growing Sales in International Markets; Part 3 (May 19): Keys to Doing Business Successfully in International Markets. 8:00 a.m.-4:00 p.m., 1100 East Warrenville Road, Naperville, IL. Fee: $1,100 ($550 with grant funding). For information & registration, please call Mary Rose Hennessy at 630/505-0500 x225; e-mail: jmoravik@uiuc.edu or see: www.bis.uiuc.edu.
May 10
CHINESE LANGUAGE IMMERSION.
Session, sponsored by the College of Lake County, designed to build Chinese speaking, reading and writing skills. No proficiency is required. 9:30 a.m.-12:00 p.m., College of Lake County, C Building, Lower Lobby, 19351 West Washington Street, Grayslake, IL. No charge. For information & registration, please call 847/543-2948 or e-mail: g1iu@clcillinois.edu.
June 20 - July 7
STUDY IN CHINA.
Joint program sponsored by the Chicago Chinese Cultural Institute and Central University for Nationalities, Beijing. Students will spend half-time in language study and the balance in cultural studies. Fee: $2,800 (includes airfare, room & board, classes, teaching materials, visa application, cultural activities, etc.). For information & registration, please call ZJ Tong at 312/842-1988; e-mail: tong@chicagocci.com or see: www.chicagocci.com/studyinchina.htm.
Aug. 15
2008 INTERNATIONAL REAL ESTATE EXPO-CHICAGO.
Conference sponsored by the Chicago International Real Estate Council. Includes informational sessions covering international trends and issues. 9:00 a.m.-5:30 p.m., Holiday Inn Chicago Mart Plaza, 350 North Orleans Street, Chicago. Fee: $49. For information & registration, please call Jessica Sivels at 312/214-5534; e-mail: jsivels@chicagorealtor.com or see: www.chicagorealtor.com/international.
About the Sponsoring Organizations...
Founded in December 1977, The International Trade Association of Greater Chicago (ITA/GC) was incorporated in January 1979 as an Illinois not-for-profit, voluntary business association dedicated to promoting international commerce in all its forms by providing a forum for the exchange of practical information and insight within the international business community.
The Office of Trade and Investment (OTI) of the Illinois Department of Commerce and Economic Opportunity (DCEO) is the State of Illinois’ lead international advocate in promoting job retention and creation in Illinois through International Trade and Investment. To contact the OTI of DCEO, please call 312-814-2828 or visit: www.illinoisbiz.biz/bus.ito/index.html.
The U.S. Export Assistance Center Chicago is part of the Commercial Service of the U.S. Department of Commerce and is committed to assisting U.S. firms in realizing their export potential. To contact the U.S. Export Assistance Center, please call 312-353-8040 or visit: www.buyusa.gov/uppermidwest.
Comprised of 26 volunteers appointed by the U.S. Secretary of Commerce, the Illinois District Export Council supports, assists and advises the U.S. Export Assistance Center Chicago in its mission to increase the exports of the United States. For further information, please e-mail: info@illinoisdec.org.