Archive for March 16th, 2011

March 16, 2011

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March 16, 2011

Meltdown panic reaches Germany – Japan in nuclear catastrophe

Spiegel Online International: With Japan, a mere 5, 500 miles away from Germany, the country’s failing nuclear facilities is causing widespread panic among Germans. ‘We are afraid’ – protestors are saying and sales of Geiger counters and iodine tablets are rocketing in the country.

On Monday in Germany, over 100,000 demonstrators were on the streets in around 400 towns and cities  all over the country. They were demanding the closure of all German reactors with banners saying: Fukushima is everywhere”. The government is reported to have closed down more than half of its nuclear plants as a result.

Germans are now firmly in the company of the many concerned in other countries who are asking questions about nuclear power safety following the ongoing disaster in Japan.

There are fears that the accelerating anti-nuclear protest in Germany could spread to its close neighbour, France, which has 58 reactors, is the world’s 2nd largest producer of nuclear energy and has problems with overheating reactors.

[Nuclear Safety Contributor]

March 16, 2011

Gulf states and Saudi Arabia unite against ‘pro democracy’ uprisings in Bahrain

Following the recent killings of a soldier belonging to Saudi forces brought in to aid the government’s battle against the country’s pro-democracy protestors, Bahrain’s king has put the country in a state of emergency.

Last Sunday, pro-democracy demonstrators in their thousands had sealed off Bahrain’s financial center and 200 or so people had been injured by the military’s use of tear gas and clubs. This led the king to give Bahrain’s military unrestricted powers to quell the Shiite-led ‘pro-democracy’ protests which are threatening to oust the incumbent Sunni monarchy.

Saudi Arabia and Gulf states send in military aid and troops to quell the Bahraini ‘pro-democracy’ movement

Gulf leaders, including Saudi Arabia’s rulers have been encouraging the Bahraini king to remain steadfast as there is fear that Shite gains in Bahrain would fuel uprisings in other Gulf states where the Sunnis are in ascendancy.  Recent violent clashes have resulted in a 24-year-old protester, Ahmed Farhan, being shot in the head and killed whilst many others suffered severe injuries from shotgun rounds and clubs used by the authorities.

Press TV reports that Saudi Arabia and many other Gulf states are stepping up military aid including troops to Bahrain to assist the Bahraini monarchy to defeat the pro-democracy protestors. This happened after the day that the U.S. Defense Secretary Robert Gates had visited the country.

[Middle East Contributor]

March 16, 2011

Japan nuclear disaster – fourth explosion, reactor on fire, radiation discharged into atmosphere


Huffington Post: This morning, a fresh fire erupted at the troubled Fukushima Dai-ichi nuclear facility – the fourth in around 5 days. The fast-deteriorating plant exploded a powerful burst of radiation into the atmosphere and the authorities are in disarray over the incident.

The cause for the explosion has not been explained by the plant’s operator, Tokyo Electric Power Company, but experts are suggesting that it is most likely to do with the meltdown process which is already in full swing and is affecting all six reactors at the plant.

All work to prevent further meltdown has been stopped due to radiation levels now being too dangerous for the workers and the authorities watch on helplessly as the facility continues to deteriorate at an alarming rate. Radiation levels at over 1,000 millisieverts have been recorded, enough to cause severe radiation poisoning.

[Nuclear Disaster Contributor]

March 16, 2011

EU commits millions to foreign countries in grants whilst imposing ‘austerity’ measures for member states

The European Union’s current policy of giving millions in grants to foreign countries whilst at the same time imposing stringent austerity measures on all member states due to the financial crisis, is in trouble it seems.

Whilst the EU was imposing severe austerity measures for public spending cuts, etc., on member states including UK, Ireland and Greece, as recent as January 26, 2011,  the Caribbean island of Jamaica benefited from the EU’s  EUR28.87million grant to assist the country’s budgetary shortcomings.  Additionally, at the start of 2010, with the global financial crisis well in its course, the EU approved EUR230 million in grants to African and Caribbean countries, the funds being a portion of the  EUR 500 million grants plan the EU had agreed last August as part of a general aid package for the region.  “Developing countries were hit hard by the crisis due to their poor resilience to external shocks. This has left funding gaps in many … governments’ budgets,” EU Commissioner for Development and Humanitarian Aid Karel de Gucht said in a statement. The 3rd Africa-EU Summit held in November 2010, which interestingly enough was held in Libya, reported that aid programs that had been signed between the EU and Africa for the period 2008-2010 were up to EUR1.5 billion.

Whilst EU citizens are not denying that the countries in receipt of these cash injections are deserving,  they are complaining and angry over their packaging as grants, not loans, which will never be paid back when EU member states have to repay ‘bail out’ packages dished out to them by the EU to stave off their economic collapse.  Furthermore, as the conditions surrounding the ‘bail-outs’ loans given by the EU to its troubled member states which require them to dramatically cut public expenditure, some countries, like Latvia and Bulgaria, may not even be able to afford to pay social and retirement benefits to their citizens.

In Ireland and Greece, both hit hard by the financial crises and which had to be ‘bailed-out’ by the EU, austerity measures are leading to civil unrest with politicians saying that they are untenable by their severity.   This month, the  Greek EU commissioner, Maria Damanaki, criticised her own institution for the austerity measures saying that they could lead to:  “social degradation” and demanded an alternative program. She said: “We have been too shy with the growth and job part of our resolve. While no one could deny the need for fiscal consolidation, one could have aimed at a better balance between austerity and growth.”

As for Ireland, the UK Telegraph reports that exit polls from Ireland’s 2011 general election held on Friday indicates that the governing party, Fianna Fail (FF), which has been in charge of Ireland for more than 60 years is on its way out. Many are seeing this as the public’s punishment of the government for  its maladministration of the economy in the financial crisis and its poor negotiation of the country’s ‘bail-out’ deal with the EU.

In 2010, Ireland had to accept a £72 billion EU-IMF funds injection to solve the massive public debts that have arisen when it had attempted to save severely troubled Irish banks.  Whilst the bail-out had been essentially for the purpose of saving the Eurozone, its repayment will have a dramatic effect on the living standards of the Irish people.  Analysts are saying that the repayment will take up 85 per cent of Ireland’s income tax income by 2012 and this has angered Irish voters.  Repayments will cost an average Irish family around £3,900 a year in extra taxes. Also, part and parcel of the bail-out’s imposed austerity plan will be a reduction in the country’s minimum wage, savage cuts to public services and more than 90,000 jobs lost. Currently unemployment in Ireland is running at around 14 percent.

[Finance & Economy Contributor]

March 16, 2011

Date rape, social fears and orgasms – OXYTOCIN

Health Contributor

Oxytocin is an inhalable drug which is hailed as a cure for social fears and a powerful ‘love’ drug giving users enhanced orgasms. According to  Andreas Meyer-Lindenberg of the US National Institute of Mental Health: “It is like social Viagra“. Experiments have also shown the drug to be a potent sexual accelerator.

Oxytocin  now on sale as ‘Liquid Trust’ by Verolabs . The drug, a hormone, is useful for bringing on labour contractions, breastfeeding and orgasm and has been shown to increase the bonding process in animals. It is administered via a nasal spray when users then experience rising trust in others and a rapid decrease in their social fears. They also experience high levels of sexual arousal.  Doctors are confident that the drug will be useful in the treatment of people with mental illnesses involving fear of others, autism and schizophrenia and also as a treatment for those with sexual dysfunctions.

But Oxytocin is being viewed carefully by health and sexual crime experts who are saying that it could be used as a powerful date-rape drug as its use increases both trust and sexual arousal.  Doctors are therefore saying that Oxytocin should not be used for recreational purposes.

March 16, 2011

Article: Guide to Drafting Arbitration Clauses in International Agreements

Dr. Edward Lestrade is President of the Online International Arbitration Court and his ‘Guide to Drafting Arbitration Clauses in International Agreements’ is one of the top 10 downloads in its class in the Social Science Research Network. It is reproduced here.

Increasingly, in Europe, the parties to international commercial agreements are specifying arbitration as the primary means of dispute resolution. The main reason for that it seems, is the perception that the high costs involved in the traditional national court dispute resolution processes, can be avoided where arbitration is chosen as the means of resolving disputes under the agreement.  Secondly, it is felt that the matter can be decided informally and quickly by experts as opposed to a judge in a national court who may, or may not be an expert in the field of the issues concerned. Whilst there are some merits in this kind of thinking, it is becoming increasingly apparent to parties to such  agreements, especially in the new European Union states where alternative dispute resolution methods have not been widely practised in the past, that the careful and skilful drafting of the arbitration clause are crucial to the avoidance of some serious problems concerning its effectiveness.  As such, this article intends to provide a background summary and a  checklist for drafters to assist them in the construction of the desirable and effective contents of arbitration clauses in agreements that primarily concern international commerce.

International Law Governing Arbitral Agreements – brief background

The dominant treaty for the recognition and enforcement of foreign arbitral  awards is ‘The Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ (it is also termed: The New York Convention; the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards; and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards). It was signed in 10 June 1958 and entered into force, 7 June 1959. Its contracting states comprise most countries active in international trade and include: the USA, UK and most of Europe.

The Convention applies to the recognition and enforcement of arbitral awards made in the territory of a foreign state. It applies to non-domestic arbitral awards in the foreign state.  Of course, there are other international conventions applying to foreign state enforcement of arbitral awards (eg., UNICITRAL Model Law on International Commercial  Arbitration, 1985), however, the New York Convention is the  dominant treaty for the recognition and enforcement of foreign arbitral awards and as such, this article will focus on those agreements relative to its scope.  Generally, the New York Convention provides for an arbitration award in a contracting state to be freely enforced in any other contracting state, but for only certain, limited defences such as:-

Legal incapacity of a party to the arbitration agreement
⇒ Invalidity of the arbitration agreement under its governing law
⇒ Procedural impropriety and unfairness in the proceedings
⇒ Out of scope decisions by the arbitrator, or where such decisions are  conditional on matters outside the scope of the arbitration
⇒ The arbitral award has not yet become binding on the parties, or has been suspended, dismissed, or otherwise by a competent authority in the seat of the arbitration, or in accordance with the law of the arbitration agreement
⇒ The matter to be decided upon by the arbitrator was not capable of  resolution by arbitration
⇒ Enforcement would be contrary to public policy.

Constructing the Arbitration Clause

Enforceability

Firstly, the parties must also ensure that the award granted by the tribunal will enforceable. Therefore checks should be made that the country where enforcement is likely to be sought is a contracting state to the New York Convention, or other treaty which provides for the enforcement of foreign arbitral awards.

Arbitration Clause to be in Writing

The Convention and most arbitration courts require that the arbitration agreement  is to be contained in a written document signed by the parties. As such oral arbitration clauses are not effective.

Choice of Law

In international commercial agreements, there will be at least 2 jurisdictions  involved. A simple example is: Seller A company is located in Germany; Buyer B company is located in the UK. As the parties are in different jurisdictions, they are free to choose which law will govern their agreement. This aspect does not change if they choose to submit to arbitration as opposed to the traditional national court procedures. In addition, drafting must have regard to the distinction between procedural and substantive law in the arbitration agreement.

That is because the procedural and substantive law governing the agreement does not have to be under the same system of law.  However, generally, they are the same and where the parties do not make this  distinction, then the choice of law will apply to both aspects of law in the arbitration. Where the parties do not specify a choice of law, then this matter will be left to the arbitrator who will have regard to the default rules of the arbitration court/ institution where this applies and of the applicable treaty in force.  Provisions could also be made in the agreement to allow the arbitrator to make  such interlocutory decisions relating, say to the giving of security to cover the expected costs of either of the parties.

Extent of Court Intervention.

It may become necessary for a party, or the parties to approach a court within the  territory of the seat of the arbitration for the purposes of obtaining an interlocutory, or interim order. Therefore, the extent to which this is permitted should be specified in the agreement. However, it should be noted that the rules of most arbitral institutions provide for the circumstances where such a national court may intervene, but these standard provisions may not suit the parties and the drafter is encouraged to examine such rules prior to accepting them as the  as the default rules.

Choice of Procedural Rules

Ad Hoc, or Institutional Arbitration

Generally, the parties will need to decide whether the arbitration procedure will  be ‘Ad hoc’, or ‘Institutional’. Where the arbitration is ‘Ad hoc’, the parties themselves decide on the procedure of arbitration proceedings. Where institutional arbitration is chosen, the procedure set by the relevant institution. However, the parties are free to vary them where the institution is agreeable.  Where the parties have chosen institutional arbitration, the place of arbitration is usually the seat of the institution. However, in ad hoc arbitration, the parties are able to decide that the arbitral proceedings may be conducted wherever they wish. The parties may choose from a wide selection of rules of procedure, including those of the national jurisdiction. The rules of the arbitral institution can be used either specifically, or by default (depending on the provisions of the agreement for arbitration services), or in amended form by the parties.

The drafter of the rules clause should be a lawyer familiar with the rules of the  more reputable arbitral courts/ or institutions and also the procedural rules of the national courts which may have review jurisdiction over the dispute, and the procedural rules of the place/ country where the arbitration is seated.

Language of the proceedings

It is important to specify the language of the proceedings. This is especially important in international settings so as to provide for coherence in the proceedings.

Specification of the Place and Nature of the Arbitration

An arbitration clause should be certain where and how disputes will be resolved.  Where the arbitration clause is valid, and the ensuing dispute is within its scope and determinable by arbitration, then either party is able to obtain the intervention of a national court to stay any proceedings initiated by the opposing party in  contradiction of the arbitration agreement. If the parties fail to agree on a place of arbitration, then the arbitrator is able to choose the seat on their behalf, but will need to consider: the implied intention of the parties, convenience of the parties, choice of law by the parties, and other similar factors.

Generally, the procedural rules of the place of arbitration dictate the procedure of  the arbitration and collateral issues. As such, the drafter should ensure that the seat of the arbitration is specific in the arbitration clause as failure to do so often causes delays in the start of the arbitration process. It could also be used by a  party reluctant to the arbitration, to stall and delay the arbitration process. Upon specifying the seat, it is crucial to determine what assistance the local  courts would be prepared to give to the arbitral tribunal, by way of securing evidence, issuing subpoenas for witnesses if required, granting orders for the inspection of property, and other such matters relevant to the settlement of the dispute.  The drafter should be aware that confidentiality issues should be addressed in the agreement as the procedural rules regarding proceedings generally do not automatically cover this issue.

Parties to be aware of ‘No Appeal’ from Arbitrator’s Decision

The drafter should ensure that the parties are aware that the arbitrator’s award  will be final and binding on them, with a very limited right of appeal or review.  But, different national legal systems do have differing views in this regard. In addition, those states that have signed the New York Convention, have very little scope to review international arbitration awards, and are compelled to order a stay of all proceedings contravening the provisions of international arbitration clauses.

Appointment of the Arbitrator

The various arbitration institutions provide for the procedures for the appointment  of arbitrators. As such, the drafter must be familiar with the appointment procedures these institutions. The default scenario is that where this is not specified in the arbitration clause, the rules of the institution will prevail. However, the parties are also free to select the arbitrators by specifying their own procedures provided, where an institution is engaged, the institution is amenable to that. The parties should also agree on the number of arbitrators, as certain institutions provide that in the absence of such agreement, the parties will be assumed to have chosen three arbitrators and of course, the more arbitrators, generally, the more costly the proceedings are.

Costs of Arbitration

The costs of the arbitration are largely dependent on the type of arbitration  procedure selected and on the institution chosen. So the drafter should make some price comparisons prior to the selection of an institution.

Scope of Arbitral Clause in respect of the Parties Concerned with the Agreement

In agreements where there is likely to be more than one party to a transaction,  for example, where sub-contractors are concerned, it will be useful to provide for all parties to the agreement to be the arbitration clause.

The drafter should also provide for multiple arbitrations concerning the same cause of action or to the  same subject matter, to be able to be consolidated into a single hearing.

Eisemann’s Arbitration Clause Drafting Criteria

Frederic Eisemann who served as Secretary General of the ICC International  Court of Arbitration proposed certain criteria as essential in respect of the functions of an arbitration clause.  The first should specify compulsory consequences for the parties with regard to  the procedure for dispute resolution within their agreement.

These consequences would include the obligation to submit the dispute to arbitration, the procedures for so doing and to regard the arbitrator’s award as final and binding.  The second criterion excludes the intervention of a state’s court in the settlement  of a dispute, prior to the decision of the arbitrator. However, it may be useful to provide for a certain level of state court’s intervention where, for example, interlocutory relief is required and its award is beyond the authority of the  arbitrator, or arbitration court. This could refer to: the issuing of subpoenas; searching, or freezing orders, etc.

The third criterion provides to give the arbitrators authority to resolve the disputes  under the agreement. These powers could include the authority to make various procedural and interim orders.

The fourth envisages the putting in place of a system that provides of the  optimum conditions for effective and speedy determination of the arbitration which can be enforced by a state’s court.

Eisemann’s ‘Pathological Clauses’

According to Eisemann, bad clauses are “pathological”. For example, often the  description of the seat of the arbitration is incorrect. The effect of this clause may result in a collateral dispute regarding the seat of the arbitration which would need to be resolved by the arbitrator or by a court – all this will certainly add to  the costs of the arbitration. Other frequent errors are the failure of the arbitral clause to specify issues concerning the applicable procedural rules, the number of arbitrators and the applicable substantive law.  The ‘pathologens’ can be used  by a defaulting party to delay the arbitral process.

Care should be taken in limiting the application or the scope of the arbitration unnecessarily. For example: ‘issues arising out of the performance of the agreement are to be referred to arbitration’ – this would have the effect of specifying only ‘performance’ issues for arbitration. Whereas: ‘all disputes arising in connection with the agreement’ would have a complete scope.

When an appointing authority (for the arbitration court, or arbitrator) care must be  taken to ensure that the appointing authority is able (and willing) to make the  appointment.

Again, it is important to determine whether the appointing authority will require and receive any fees for its appointment role and in that case how the  fees will be met. Such defects would mean that the parties would need to have the issues decided by a state court – again adding unnecessary costs to the arbitral clause.

Generally, pathogens can be resolved upon application to a state court, however,  there are costs and delays which will normally lessen the efficacy of the choice of dispute resolution via arbitration.  Finally, it is important for drafters to appreciate that arbitration agreements need  to contain detailed and clear provisions about how the dispute will be resolved.  Failure to do so can result in significant delays where a party is reluctant to co-operate in the dispute-resolution process.

Summary

Drafters of arbitration clauses should bear in mind Eisemann’s principles.  Imprecision and any ambiguity should be scrupulously avoided. Clauses should be kept simple without being vague. The place of the arbitration should be
chosen carefully. Due consideration should be given to who the arbitrators will be  – their nationality, qualifications and status. That is especially relevant in jurisdictions where corruption is prevalent.

The drafter should check that the enforcing court is a party to the relevant  arbitration treaty and of its track record in the enforcement of arbitral awards. A single language should be chosen for the arbitration – the English language is
probably the most effective where various nationalities are involved.  Furthermore, the clause should be tested against a worst-case scenario and a most unamenable environment. The drafter should be aware of the default rules of the arbitration court and also the reputation and integrity of the court, or arbitrator.

Where model clauses are used, it should be ensured that the model clause is effective and sufficient for the particular needs of the parties and the  arbitration

It is important to specify the applicable law of the arbitration as if this matter is  silent, then generally the arbitrator is able to decide on both the procedural and substantive law of the arbitration and this could lead to a disadvantage to a party and an advantage to the other.

In order for arbitration clause to serve its purpose, the parties themselves should  pay adequate attention to the wording of the arbitration clause. The arbitration clauses should be drafted depending on the type, scale and complexity of the  possible dispute, the location, language and culture of the parties, the  advantages and disadvantages of the respective substantive and procedural laws. Generally, it is very difficult to specify which of the particular elements of the  arbitration clause the most important one is. Each of them complement each other and is dependent on others, however, it is hoped that this article will give drafters a wider perspective for the efficiency of arbitration clauses in  international commercial agreements.

March 16, 2011

Skin blended bra by Marks and Spencer UK – is this the future?

Models Joelle Kayembe, Ana Tanalia, Sarah Wiffen and Catherine Thomas outside M&S in Marble Arch _________________________________________________________________________________________________ Mail Online Tamara Cohen reports today that the ‘showing bra’ could be a thing of the past thanks to UK M&S’s new bra range designed to blend bras with skin tones. The ‘invisible’ bra which blends with a woman’s skin is on the tabs to be a best-seller. Will you try the bra? Let us know if you do (girls only please!! 🙂 … Read more here and comment…

March 16, 2011

Dildo-weilding Woman Attacks Cop

A US law officer was traumatized by a woman he tried to help when she went for him with a dildo. The woman was charged and convicted, but she says she was only acting in self defence.  This incident brings a new dimension into the use of dildos and sex therapists are considering the implications.

What are your views? Have you ever been attacked by a dildo, or by someone with a dildo? Remember commenting on Times of Dominica is free.. so read more by clicking on this link and comment away!