Digest

Digest

Role Reversal: Microsoft sued in China on IP claim

On Monday, November 16th, Beijing’s No.1 Intermediate People’s Court ordered Microsoft to pull some versions of Windows off of the Chinese market for violation of Intellectual Property rights. According to the court, Microsoft exceeded the scope of its licensing agreement with Chinese software company Zhongyi by using certain Chinese character fonts in Window’s 98, 2000, 2003, and Windows XP. Microsoft plans to appeal, claiming that its licensing agreement was not only for Windows 1995.

The suit comes after extensive pressure from the United States and European Union for China to enforce intellectual property rights on behalf of companies like Microsoft. Michael Vella, the head of China litigation for Morrison & Foerster, LLP sees this as the beginning of a trend in which Chinese companies will take their own IP claims to court.

The injunction is unlikely to affect Microsoft’s long-term business goals since roughly 80% of Microsoft’s operating systems in China were pirated from Microsoft in the first place. Chinese courts are, of course, working to prevent this piracy as well. In fact, a Chinese court recently sent four bootleggers to jail for selling illicit versions of Windows 7 in advance of its launch last month.

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ICC Chair Cautions on Economic Recovery

The Chairman of the International Chamber of Commerce, Victor K. Fung, last week expressed concern about rising world protectionism and lackluster progress on free trade negotiations.  The combination, he argued, would imperil the world’s fragile economic recovery and undermine progress already made towards emerging from the current downturn.

Chairman Fung made his remarks as he addressed the Asian Pacific Economic Cooperation CEO Summit in Singapore.  Although he praised public stimulus spending around the world for laying the groundwork for long-term economic growth, he criticized the G20 governments, especially the United States and China, for adding trade barriers.  Protectionism, he told the group, undermines successful economic recovery, and economic nationalism in the US-China trade relationship threatens to be particularly damaging.

The failure to conclude the Doha Round of trade negotiations also signals lackluster commitment to free trade and imposes another potential obstacle to worldwide recovery, Chairman Fung argued.  Although praising the G20’s ostensibly strong commitment to Doha, Chairman Fung chastised the world community for failing to conclude an agreement despite eight years of trying.

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APEC Leaders discuss economic growth during financial crisis

Last weekend, the Leaders of the Asia-Pacific Economic Cooperation (APEC) met to discuss economic growth in the Asia-Pacific region in light of the worldwide financial crisis.

The conversation focused on developing balanced, inclusive, and sustainable growth.  To achieve this end, the Leaders are looking to foster structural reforms in areas like infrastructure development and social security.  They aim to allocate the benefits of growth across the population by promoting small businesses, job creation, and women’s education through income supplements and short-term social safety nets.  In making these reforms, the leaders will take into account sustainability and work to make green technologies available.

The Leaders have maintained their definitive rejection of protectionism and are working to eliminate trade barriers.  They are hoping for a successful conclusion to the WTO’s Doha Development Agenda by early 2010.  Exploration continues on the prospect of a Free Trade Area of the Asia Pacific (FTAAP), and APEC hopes to achieve regional trade integration by working on liberalization “at,” “behind,” and “across” the border, particularly in areas like supply chain connectivity and intellectual property rights.

The Leaders will also work to ensure human security and governmental transparency.  In terms of security, they are particularly concerned with protecting the food supply from terrorist interference and stopping the spread of H1N1 and other global pandemics like AIDS.  With regard to transparency, they are asking governments to ratify the UN Convention against Corruption.

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North and South Korean Vessels Clash in Disputed Waters

On Tuesday, November 10, the navies of North and South Korea exchanged fire in disputed waters off the western coast of the peninsula, damaging ships from both sides and reportedly killing a North Korean sailor. The incident began when a 215-ton North Korean vessel entered South Korean-controlled waters. Ignoring warnings from the South, the ship exchanged fire with two 130-ton South Korean vessels before re-crossing the border, reportedly in flames. The North, which claims the waters where the incident took place, has blamed the South for instigating the confrontation and issued repeated warnings through its state news service.

South Korea’s options in responding to this incident are limited. Seoul’s right to military retaliation is constrained by the ongoing border dispute. The end of the Korean War never produced a peace treaty, and the North and South have technically been observing a truce since 1953. The North has never accepted the current sea boundary, a UN-drawn border called the northern limit line, and its ships regularly stray into waters controlled by the South. In this context, the South cannot make an undisputed claim that its territory was invaded.

South Korea’s options for less direct action are similarly constrained. While the South could initiate economic sanctions and asset-freezing, it believes that such measures could add to the desperate poverty of the North’s citizens and slow the recent détente between the two countries. In a sign that the confrontation has not altered trade relationships, a North Korean freighter was allowed to enter South Korean waters yesterday on its way to Incheon. Meanwhile, any attempt to arbitrate the dispute before an international body would require the consent of one of the most isolationist regimes in the world.

The North has a history of initiating skirmishes in order to escalate pressure before major regional events; the last time the countries clashed was in 2002, while the South was hosting the World Cup. In this case, analysts believe, the North may be trying to send a message to President Obama, who is currently visiting the region and is scheduled to arrive in Seoul on Wednesday. North Korea wants a formal peace treaty to replace the 1953 truce, including reconsideration of disputed territory. It also wants bilateral negotiations with the U.S., which it believes could lead to its acceptance as a nuclear power. President Obama, who has made engagement with “rogue states” a cornerstone of his foreign policy, plans to send special envoy Stephen Bosworth to Pyongyang for talks over ending the North’s nuclear program.

Digest

ICTR Sentences Tea Executive for Role in 1994 Genocide

On November 5th, a three-judge panel at the International Criminal Tribunal for Rwanda (ICTR) sentenced Michel Bagaragaza, the former head executive of the Rwandan tea industry, to eight years in prison for his role in the 1994 Rwandan genocide. The ICTR, which presides in Tanzania, found Bagaragaza guilty on one count of complicity for his role in having substantially contributed to the death of 1,000 ethnic Tutsis. Bagaragaza’s sentence includes credit for time he has already served since his detention in 2005.

As director general of OCIR/The, the government office controlling the tea industry, Bagaragaza oversaw 11 tea factories employing approximately 55,000 people. In addition to his government position in the tea industry, Bagaragaza was also the vice-president of a bank and a political leader in Gisenyi prefecture. His role in the 1994 genocide arose when 1,000 Tutsis sought refuge at Kesho Hill and at Nyundo Cathedral in Rwanda’s Gisenyi prefecture, close to the tea factories Bagaragaza oversaw. On April 8, 1994, Bagaragaza met with Thomas Kuradusenge, a senior official of the Giciye commune, and learned of Kuradusenge’s plan to carry out the killing of the 1,000 Tutsi seeking refuge. According to prosecutors, Bagaragaza aided and abetted Kuradusenge in carrying out those killings, authorizing that vehicles and fuel from the tea factories Bagaragaza oversaw be used in the attack, and ordering that the attackers be provided with weapons Bagaragaza had allowed the army to conceal at the tea factories since 1993. Bagaragaza also ordered that personnel from the factories participate in the attacks, according to a summary of the tribunal’s judgment. On subsequent occasions, Bagaragaza gave Kuradusenge large sums of money for the purchase of alcohol, so as to encourage those carrying out the killings in the Kabaya and Bugoyi areas to continue to do so.

Bagaragaza was initially charged with conspiracy to commit genocide, genocide, and in the alternative, complicity in genocide. On August 15, 2005, he voluntarily surrendered himself to the ICTR, pleading not guilty to each of the three counts listed in the initial indictment. Following procedural complications, he eventually pleaded guilty to the complicity charge in August of this year.

In sentencing, the judges noted that Bagaragaza had shown “genuine remorse for his actions,” providing “invaluable assistance to the Prosecution in its investigations.” They said that Bagaragaza had “to a remarkable degree contributed to the process of truth-finding with respect to the Rwandan tragedy and to national reconciliation.” The ICTR further noted that the defence had provided credible showing that Bagaragaza demonstrated no bias against Tutsis, and that his participation in the organization of the killings was likely motivated by concern for himself and his family. However, the court went on to state that the evidence did not suggest that Bagaragaza, “being a very resourceful person,” would have faced imminent danger had he not complied with the requests of the perpetrators.

Bagaragaza was represented by Counsel Geert-Jan Alexander Knoops from The Netherlands. The Prosecution was led by Wallace Kapaya, assisted by Patrick Gabaake, Mousa Sefon and Iskander Ismal.

The United Nations Security Council authorized the creation of the ICTR in 1994. An estimated 800,000 ethnic Tutsis and moderate Hutus were killed in the genocide that began in early April of that year.

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Kimberley Process meets to combat conflict-diamond trade

The Kimberley Process (KP) held a Plenary meeting in Swakopmund, Namibia last week, where it adopted a work plan for the Marange diamond mining fields in Zimbabwe, agreed to monitor “conflict diamonds” from the Côte d’Ivoire following UNSC Resolution 1893 (2009), and made decisions on the general enforcement mechanism of the KP rules. The Democratic Republic of Congo will be the 2011 Kimberely Process Chair.

The KP initiative began after 2000 discussions between interested governments, the diamond industry, and members of civil society of how to combat “conflict diamonds,” which have been used to finance wars in Africa’s diamond-rich countries. By 2002, the KP adopted the Kimberly Process Certification Scheme (KPCS), which requires participants to rigorously control diamond exports and imports and incorporate internal controls for the production and trade of diamonds. To ensure compliance, the KP requires statistical reporting on a regular basis in addition to other verification measures. With the Support of the United Nations and the European Community, the KP now has 49 Participants, with the members of the European Community counted together as a single member. The participants include all key centers for the production, polishing, and trade of diamonds.

The KP’s review of the Marange mining fields occurred as a result of recent reports suggesting non-compliance and human rights abuses. These reports followed the Zimbabwean government’s takeover of the fields during operation “Hakudzwoki” (no return) back in November of 2008. As a result, the KP adopted a double-track approach, using scientific measures to halt the flow of conflict diamonds from the area and sending a high-level KP envoy to the area. As part of the action plan adopted at the Swakopmund Plenary meeting, Zimbabwe agreed to bring mining into compliance with the KP so that the diamonds can be used for economic development rather than war.

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