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Program AgendaWednesday, October 287:00 a.m. – 6:00 p.m. 7:15 a.m. - 8:30 a.m. 8:15 a.m. - 9:30 a.m. This program will discuss “Mareva injunctions” and the possibility of a new law that affords pre-judgment relief that ensures a collection pool in money damages cases. So far, the experience in the U.S. with regard to this common law remedy utilized in other common law jurisdictions such as England and Canada. At present, the Uniform Law Commission is studying whether a model law would be appropriate. Other types of remedies, such as enforcement of foreign injunctions or orders preserving evidence, are more common abroad, but are starting to find their way into American courtrooms. This program discusses these remedies, and includes Canadian lawyers to discuss their experiences, as well as the director of the Uniform Law Commission to explain the process and impact of uniform laws. Sponsoring Committees: Program Chair: Moderator: Speakers: 8:15 a.m. - 9:30 a.m. In several markets around the world, including Latin America and the US, liquidity shortages, over leveraged positions, bank failures and government intervention is forcing companies to sell-off assets. Speed, more than price, is paramount to the success of these deals. This represents a quantifiable opportunity for buyers who have managed to hoard cash through the financial crisis. Leading the charge are PE and VC firms as well as wealthy individuals who can approve a purchase quickly. Countering the opportunity is the considerable risk that comes with buying assets with minimal time to conduct proper due diligence. Buyers, and their advisors need to be better informed of both the opportunities – where they can be found and who are the new buyers as well as the risks – an explanation of the best practices undertaken by savvy investors to avoid or mitigate risks associated with these attractive investments. Program Chair: Moderator: Speakers: 9:45 a.m. - 10:30 a.m. Members of the Section and attendees to the 2009 Fall Meeting will be welcomed to Miami Beach and to South Florida, by Stephen N. Zack, President-Elect of the American Bar Association. Opening Plenary Address – Dr. Hernando de Soto This year's Fall Meeting will kick off with a keynote address by the renowned Dr. Hernando De Soto, President of Peru's Institute for Liberty and Democracy, on the topic of the world economic crisis. Time magazine has chosen de Soto as one of the five leading Latin American innovators of the century and among the 100 most influential people in the world. He has also been listed by Forbes magazine as one of the 15 innovators "who will reinvent your future," and in 2005, readers of Foreign Policy magazine in the U.S. and Prospect magazine of the UK ranked him among the top 13 "public intellectuals" in the world. Dr. De Soto is also a dynamic and engaging speaker, and no one will leave the conference without fresh insights into the current situation. 10:30 a.m. - 10:45 a.m. 10:45 a.m. - 12:15 p.m. Climate change presents huge challenges for governments, business and citizens alike. As countries begin to restrict carbon emissions, the regulatory burden threatens to push emission-intensive activities offshore. Carbon leakage undercuts emission reductions and threatens to penalize countries that regulate emissions by transferring jobs to countries that do not. Developed country governments are countering this threat by considering adoption of emission allowances, carbon tariffs and other import restrictions to offset carbon leakage. Developing countries claim that these measures are contrary to international trade obligations and that they should not have to bear the burden of combating climate change at the expense of their development prospects. The implications are potentially troublesome for all, and pit north against south, poor countries against rich, environment against labor. Sponsoring Committees: Program Chair: Moderator: Speakers: 10:45 a.m. - 12:15 p.m. How do you advise your client when compliance with one country's laws violates the laws of another? Elements of the U.S. trade embargo of Cuba seek to impose sanctions of one form or another on non-U.S. entities that engage in business with Cuba. Simultaneously, "blocking measures" in Canada, Mexico and Europe penalize companies that comply with the U.S. trade embargo. Often, these conflicting regimes force companies to decide between violating the laws of one jurisdiction or another. The situation has intensified in recent years as trade and investment in Cuba has increased and as economies (particularly Canada, the U.S. and Mexico) have become more integrated. Leading practitioners and in-house counsel will provide an overview of key measures of U.S. and foreign regimes and discuss the design and implementation of compliance strategies that address these conflicts and minimize exposure to enforcement action in one or more jurisdictions. Sponsoring Committees: Program Chair: Moderator: Speakers: 10:45 a.m. - 12:15 p.m. Think you have your forum selection all figured out? What happens if the selected forum decides to subject the dispute to a foreign law? Will some neutral academic hijack the proceedings? Did you know some national courts take up to five years to make rulings on rudimentary questions of foreign law – and what comes out is often unrecognizable? Come and find out the rules of the game and what you can do as an advocate to retain some control and influence. Leading academics and practitioners will show you the ropes and map out strategies for effective representation. Sponsoring Committees: Program Chair: Moderator: Speakers: 10:45 a.m. - 12:15 p.m. The emphasis on economic stimulus in the United States has spurred States to consider how to build the numerous infrastructure projects that may be required as a matter of safety and public welfare. Europe and Canada are far ahead of the United States in developing partnerships between government and the private sector, so called Public Private Partnerships or P3's, that allow crucial projects to be built much more quickly and with less public funding. This program will provide attendees with background into how these projects are developed, why Europe and Canada are ahead of the U.S., and what the U.S. government and the States are doing to facilitate P3's. It will also provide practical pointers to help attendees represent the inevitable non-U.S. P3 sponsor who expresses an interest in P3's in their States. Sponsoring Committees: Program Chairs: Moderator: Speakers: 10:45 a.m. - 12:15 p.m. Recently, several states have taken dramatic legislative action to regulate the nature and scope of nongovernmental organization (NGO) activities. In some cases, these regulations have sought to restrict issues NGOs may address, or constrain their access to third-party funding. Governments have justified these measures as necessary in the face of alleged NGO corruption and interference in the political process. However, other observers view these laws as thinly veiled attempts to limit NGO influence across a wide range of matters ranging from human rights to greater government transparency. A panel of experts will examine the content and impact of legislative initiatives in Africa, China, and Latin America and the Caribbean, as well as efforts within the NGO community to define and implement internal accountability norms for the industry. Building on these presentations, a brief workshop session with audience members will help identify potential responses to some of the challenges raised. Sponsoring Committees: Program Chairs: Moderator: Speakers: 10:45 a.m. - 12:15 p.m. Corporate client demands for greater diversity, inclusion and equality among outside counsel have helped drive the legal profession's interest in and commitment to diversity. For multinational corporations and law firms, however, issues of diversity, inclusion and equality are not always quite the same as in the United States. Different laws, customs, religious beliefs, histories and experiences make diversity, inclusion and equality a particular challenge for the corporation or law firm striving for consistent and egalitarian treatment of and policies for a global workforce while still trying to promote diversity in a meaningful global context. Even diversity "buzzwords" and semantics can vary significantly from nation to nation. In this session we will examine how multinational corporations doing business in Latin America define diversity, the types of diversity strategies they are implementing, and the recommendations they would offer to other lawyers seeking to promote diversity in the US and Latin America. Sponsoring Committees: Program Chairs: Moderator: Speakers: 12:30 p.m. - 1:45 p.m. Thomas A. Shannon, Jr. is currently the Assistant Secretary of State for Western Hemisphere Affairs. He has been a career member of the Senior Foreign Service, serving as Special Assistant to the President and Senior Director for Western Hemisphere Affairs at the National Security Council from 2003 to 2005. From 2002 to 2003, he was Deputy Assistant Secretary of Western Hemisphere Affairs at the Department of State, where he was Director of Andean Affairs from 2001 to 2002. He was also U.S. Deputy Permanent Representative to the Organization of American States (OAS) from 2000 to 2001. He has served as Director for Inter-American Affairs at the National Security Council from 1999 to 2000; as Political Counselor at the U.S. Embassy in Caracas, Venezuela from 1996 to 1999; and as Regional Labor Attaché at the U.S. Consulate General in Johannesburg, South Africa from 1992 to 1996. During his career as a Foreign Service Officer, Mr. Shannon also served as Special Assistant to the Ambassador at the U.S. Embassy in Brasilia, Brazil from 1989 to 1992; as Country Officer for Cameroon, Gabon, and Sao Tome and Principe from 1987 to 1989; and as the Consular/Political Rotational Officer at the U.S. Embassy in Guatemala City, Guatemala from 1984 to 1986.On June 1, 2009, Assistant Secretary Shannon was nominated to be the next U.S. Ambassador to Brazil and awaits Senate confirmation. The topic of his luncheon address will be an Overview of U.S. Foreign Policy in the Western Hemisphere. 2:00 p.m. - 3:30 p.m. The relationship between Cuba and the United States has been a particularly stormy one over the past 50 years. The proximity of the island nation and its historical, cultural and economic links to the United States have made the antagonism all the more dramatic. As Fidel Castro has faded from the Cuban political scene, and the Obama administration has taken concrete steps to review and revise its policy towards the island nation, interest in the future of the relationship has grown. This program will present a brief overview of U.S. - Cuba relations, the development and implementation of U.S. sanctions against the Cuban government, the current status of U.S. legislation and regulation related to Cuba, the issues surrounding U.S. claims for expropriated assets, and the prospects for change in the legal and policy framework. The program will also go into some detail on the prospects for future housing and commercial property development in Cuba. Program Chair: Moderator: Speakers: 2:00 p.m. - 3:30 p.m. Trafficking in persons ("TIP") is a worldwide criminal offense that impedes upon the fundamental human rights of an alarming number of individuals. The International Labor Organization ("ILO") indicates that there are 12.3 million people in forced labor, bonded labor, forced child labor, and sexual servitude at any given time. Other estimates indicate that anywhere from four to 27 million have fallen prey to such acts. TIP often works in concert with other crimes like money laundering and forces individuals into severely debilitating situations. Ambassador Luis CdeBaca, who directs the Office to Monitor and Combat Trafficking in Persons at the United States Department of State, will lead the discussion by explaining the US government's current efforts to prosecute traffickers while properly assisting victims. Panelists will then expand on international standards that emphasize the importance of TIP victim assistance and protection as well as discuss process related challenges that prevent countries from fulfilling such international obligations. While governments legally bind themselves to instruments like The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, practice has shown that national implementation of victim protection measures can be less than adequate. Panelists will suggest ways in which such challenges can be overcome. Sponsoring Committees: Other Sponsors: Program Chairs: Moderator: Speakers: 2:00 p.m. - 3:30 p.m. The current financial crisis has had a ripple effect around the world. In an attempt to mitigate its devastating effects, companies all over the world might be tempted to reach out to their competitors thereby engaging in conduct targeted by antitrust law in various jurisdictions. The risk of such behavior may be greater for Latin American companies due to local managers' general unawareness of antitrust regulations. While many of the controversies surrounding parallel cartel investigations in the United States and Europe are settled, or at least well identified, their interaction with Latin American competition regimes poses practical questions that remain unanswered. This program will discuss the main aspects of cartel prosecution and leniency procedure in different Latin American countries that have recently introduced leniency programs, with a particular focus on multi-jurisdictional prosecution involving the United States and/or the European Union. Sponsoring Committees: Program Chairs: Moderator: Speakers: 2:00 p.m. - 3:30 p.m. The program will feature in-house counsel providing real life advice on ethical and legal issues resulting from the Global Financial Crisis and the dilemma of providing a Corporate Compliance Program, Document Retention Program and adequate eDiscovery Protocols in the time of limited financial resources in their company. What is the baseline? What is the legal minimum? What is the ethical minimum in the time of credit default swaps, Ponzi schemes,government bailouts and limited corporate budgets? Companies struggle to deal with these cutting edge issues. What is the right thing to do? Sponsoring Committees: Program Chairs: Moderator: Speakers: 2:00 p.m. - 3:30 p.m. There is nothing new about Ponzi schemes, but there is something new about the magnitude and global involvement of the frauds perpetrated by Bernie Madoff and others. This program looks at financial fraud in the new millennium from both legal and practical perspectives, focusing on the civil remedies available to practitioners where both common and civil law jurisdictions are involved, the search for assets and how the applicable law transcends national boundaries. Sponsoring Committee: Program Chair: Moderator: Speakers: 3:30 p.m. - 4:00 p.m. 4:00 p.m. - 5:30 p.m. This session will feature a panel discussion of civil law lawyers and U.S. attorneys of the use of US discovery procedures in aid of foreign litigation and arbitration, including those provided for by 28 U.S.C. Section 1782. The panelists will provide an overview of available techniques, analyze when and how they can best be used, and offer advice and strategies for maximizing their effectiveness. The objectives of the session will include developing a list of practical considerations for non-U.S. lawyers to take into account before pursuing US discovery and issues of which their American counterparts should be aware when conducting discovery for use abroad. Sponsoring Committees: Program Chair: Moderator: Speakers: 4:00 p.m. - 5:30 p.m. There is increased momentum in the international community for mediation of cross border child custody and visitation disputes. Recent initiatives in Europe and South America have demonstrated that mediation can be an effective means of dispute resolution in these legally complex and logistically challenging cases. In this session, a panel of distinguished practitioners and academics will discuss legal, practical, ethical, and cultural issues that impact international child custody disputes. The panel will share observations and insights in the struggle to protect "the child's best interest" in the context of nationalism and The Hague Convention on Civil Aspects of International Child Abduction. Sponsoring Committees: Program Chairs: Moderator: Speakers: 4:00 p.m. - 5:30 p.m. The emergency exception doctrines of state of necessity and force majeure are well known in customary international law. The former came to particular reknown in the context of investment arbitration following Argentina's 2001 financial crisis. ICSID tribunals established under the U.S.-Argentina Bilateral Investment Treaty took differing views about the respondent state's ability to rely on the doctrine to avoid its treaty obligations towards foreign investors. In the current global crisis, it is foreseeable that these emergency doctrines may be invoked more frequently by states seeking to balance their international obligations against threats to their essential interests. It is timely and imperative to re-examine these doctrines. Who should bear the burdens of the current crisis? Are the standards for invoking these doctrines self-judging or are they subject to arbitral determination? What is the necessity doctrine's scope in the wake of the Argentine cases? This panel will explore these and other pressing questions, which undoubtedly will have significant implications for foreign investors and for investor-state arbitration. Sponsoring Committees: Program Chair: Moderator: Speakers: 4:00 p.m. - 5:30 p.m. After fifty years of communist control, Cuba appears to be at the threshold of change. Over the last twenty years many communist countries transitioned to democratic capitalism. Poland, Hungary and other nations emerged as strong independent economies and nations. Are there similarities and differences that can provide an image of what Cuba may look like in ten or twenty years? What is the future of private property as a constitutional concept in Cuba? Program Chairs: Moderator: Speakers: 4:00 p.m. - 5:30 p.m. The world now lives in the computer age. Internet security breaches cause billions of dollars in losses to private and public entities on an annual basis. Most of these losses are never recovered, but the majority of them could have been prevented. Cybercrime, which includes computer hacking, fraud, and the theft of proprietary information, can be prosecuted effectively and much of it can be prevented. A panel of experts from law enforcement agencies and the private sector explain how the increasing threat to computer databases and to the internet can be addressed, and how so much of global cybercrime can be deterred. Sponsoring Committee: Program Chair: Speakers: 7:00 p.m. - 8:30 p.m. 8:30 p.m. - 10:00 p.m. Enjoy this first full evening of networking opportunities by dining with your fellow Committee members after the first full-day of programming. This social setting will provide a great opportunity to meet your colleagues in the Section, learn about and shape committee plans for the year, and become more active in the Section. |
