HOW JUSTICE MAY BE REACHED THROUGH ADVOCACY
Published by the Ankara Bar Association
Volume 2 • Issue 1 • January 2009
ISSN: 1308-0636 The Owner on behalf of Ankara
Bar Association & Editor in Chief V. Ahsen Coşar Executive Editor Cemal Dursun Committee Chair
Cemal Dursun Vice-Chair Committee Levent Aydaş Managing Editor
Habibe İyimaya Kayaaslan, LL.M (UK) Technical Editor Larry D. White, JD
Board of Editors Cemal Dursun, LL.M (The Netherlands)
Levent Aydaş Nursel Atar, LL.M (USA) Altan Liman, LL.M (The Netherlands) Ş. Saadet Özfırat van Delft Ayşegül Özdemir, LL.M (UK)
Ece Yılmaz, MA (Malta) Kadir Yılmaz, LL.M (UK) Sadık Onur Gelbal
Cemre Kocaçimen, LL.M (Turkey) Özge Evci, LL.M (Turkey)
Özgür Metin
Board of Advisors Sami Akl
Mustafa Bozcaadalı
Prof. Wendy Davis Prof. Yüksel Ersoy
Prof. Arzu Oğuz Dr. Gamze Öz Aidan Robertson The Place of Management Ankara Barosu Başkanlığı, Adliye Sarayı, Kat: 5, Sıhhiye, Ankara, Turkey Printed by Teknoform Basım Yayım www.teknoform.web.tr
Type of Publication Biannually in English
Place of Publication ¡
Ankara ¢ £ ¡ • ¤ Articles and letters that appear in the Ankara Bar Review do not necessarily reflect the official view of Ankara Bar Association and their publication does not constitute an endorsement of views that may be expressed. • Readers are invited to address their own comments and opinions to £ Ankara Barosu Başkanlığı, ¥¦¥ Adliye Sarayı, Kat: 5, Sıhhiye, Ankara ¦§ Turkey or
[email protected] £¨©¥ © (alternatively:
[email protected])
C O N TENTS
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Foreword V. Ahsen Coşar From the Editor Habibe İyimaya Kayaaslan The Importance of Due Diligence Investigations: Failed Mergers and Acquisitions of the United States’ Companies Wendy B. E. Davis Business and International Human Rights Denise Lima
Legal Functions of the Concept of Significance in the Process of Environmental Impact Assessment Abdurrahman Saygılı Lex Mercatoria in International Arbitration Sülün Güçer Patenting
Biotechnological Inventions in Europe and the US Ayşegül Özdemir Sex Equality
Kathryn Culek Legal (Evidentiary) Value of the Unjust Treatment Argument Mehmet Akif Tutumlu Domestic Implementation of the Judgments of the European Court of Human Rights at the National Level: Turkey Ece Yılmaz Turkey’s Progress towards the Adoption of Acquis Communautaire Fırat Oktay
32 53 5 9 18 18 25 27 34 30 40 42 64 48 81 55 85 92 66
Property Acquisition: Foreign Real Persons in Turkey – I Müge Selçuk
100 76 What Civil Law Attorneys Should Know about the
105 Common Law Larry D. White, JD Recommended Reads 106 107 109 114 News from the Bar 111 121 126
Legal News
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Foreword by V. Ahsen Coşar President
Dear Readers,
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elcome to the first issue of 2009. In the foreword of this issue, I would like to write about the relationship between law and literature. From my point of view, there are some similarities and common aspects between law and literature. In this sense, literature ‘is a good window as any through which to look at life’ as well as law. Romans put it that ‘Ex facto ius oritur’ [Law grows out of facts]. It is right, because law has grown out of thousands of years of experience and it is still growing and changing as our society grows and changes. In this sense, law is sensitive to history, because in one way law is history. Literature also ‘grows out of facts.’ So, literature is also sensitive to history, because in one way literature is history. Mankind use law as an instrument to serve human purposes. Legal resources are means to social ends. The faith of man that he can affect destiny through law is one of the most enduring tenets of humanism. So, law is fundamentally humanistic in character.
were taking our first legal course, nearly all descriptions of legal activities, processes and institutions were abstract and unfamiliar to us. In order to overcome such kinds of initial difficulties, the use of literature can aid the students. In fact, when the writer of an essay, a poem, a play, or a novel tells us what men say or think about themselves and about others, he/she provides a clue to the ways men act. When the writer describes the quality of life some men envision, he/she exposes at the same time the sentiments and assumptions they want to affirm. By considering the needs and desires at the root of human actions in a variety of settings, the writer also depicts the intimate and complex connections between people and their surroundings, between the perceived necessities of individuals and the resulting public life. Thus a study of law through literature can provide a necessary link between the private life a student knows something about and the public life he/she wants to understand.
Man uses literature also as an instrument to serve human purposes. So, literature is fundamentally humanistic in character.
Here, I shall give an example from James Gould Cozzens, a contemporary American novelist. In his novel ‘The Just and The Unjust’, Cozzens compares the way two judges decided cases in a short excerpt. Let’s read it:
By the way of these remarks, I mean that literature is a good and useful instrument in the study of law. We remember that while we
“Judge Irwin nodded with a little nervous, smiling grimace. His nature was reserved and aloof -unless, perhaps, you were
a member of his own generationand it was difficult to imagine being familiar with him. Judge Irwin’s attitude was strict; but, by the simple if uncommon practice of disciplining himself just as strictly as he disciplined other people, he aroused even in a heavily sentenced prisoner, no special resentment. His air of virtue, instead of being hateful, had in it an austere sweetness. Judge Vredenburgh sat calm, full-blooded, the intelligent sensual man, irascible about what struck him as wrong or unfair, astute about the failings of human beings, dealing with facts and things as they were, with no special interest in why. Judge Irwin thought constantly of why. They were about the same age, in their early sixties; but Judge Irwin looked a good deal older than Judge Vredenburgh. He had little flesh on his face, and his finely formed, entirely bare skull was fringed with an inch or two of gray hair along the base from ear to ear. On the bench, he sat intense and earnest, tightening and relaxing his lips, clearing his throat, sometimes plucking with his thin long hand at his chin. To see him and Judge Vredenburgh sitting together when, for instance, they both doubted a witness, marked the contrast. Judge Vredenburgh cocked a hard, incredulous eye, pouting slightly, sometimes even giving his head faint annoyed shakes; Judge Irwin bent his angular, anxious gaze on the witness as though he hoped, because he wished so hard that men would not deliberately perjure themselves, to make this man stop. It would not be fair to say that Judge Irwin was less attentive to the facts than Judge Verredburgh, for he ended by acting on them with
precision, abstractly balancing the offense against what the statutes provided; but in a way he hated the facts. He hated them as symptoms of a disease of folly and unreason pandemic in the world, and constantly infecting and reinfecting his fellow men. A good example was Judge Irwin’s notorious antipathy to liquor. He understood no better than Cassio why men should put an enemy in their mouths to steal away their brains; but it was that pandemic folly and unreason that he blamed, rather than the individual. He did not even favor trying to abolish liquor by law, since that proposed the absurdity of blaming the liquor and enhanced the principle, false among free men, of preventing a choice instead of punishing an ab use. What Judge Irwin knew was that everyone with his experience knew: that if there were no such thing as liquor, half or even three quarters of the work in each term of court be eliminated. He was not fanatical about it; he did not suppose that a man who took a drink now and then, or even one who got drunk now and then, was a criminal. Undoubtedly he knew that his son liked a drink; and though he probably hoped that Mark never got as drunk as Mark had been last night. Judge Irwin would not be enraged if he would out -only, discouraged by the imprudence the short-sightedness that defined common sense and invited danger in seeking so brief and miserable pleasure.” Sincerely.
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From the Editor by Habibe İyimaya Kayaaslan
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he World has been going through a dramatic legal change since the last century to scope out emerging legal issues. With respect to the Republic of Turkey, the Turkish Civil Code was amended in 2001 and the Turkish Criminal Code was amended in 2005. In addition, the Draft Code of Obligations, the Draft Commercial Code, and the Draft Code of Civil Procedure are all expected to be enacted in this year. Concepts are inevitably being re-defined to take globalization into account. Therefore, the culture of change has to be embraced with comparative law methods perhaps. Saygılı emphasises that defining the concept of significance is a prerequisite for the EIA processes of every legal system. Culek comparatively examines the re-defined principle of equal treatment in the context of pregnancy and maternity using the insights of feminist postmodernist theory – is the glass ceiling for the supposedly disadvantaged becoming wider on the way to it eventually breaking? Furthermore Judge Tutumlu argues about the legal value of unjust treatment for have-nots, similar to the US President-elect Obama’s words regarding the “audacity of hope.” In a more global perspective regarding IP protection, in the name of the prevention of the abuse of hope, Özdemir evaluates the aspects of patenting biotechnology. The high risk of such booming technology leaves no doubt that the people alive at this moment will see our post-modern future as defined by Fukuyama and many others! We have experienced that learning from other jurisdictions is not adequate; the law maker is – without a doubt – obliged to consider the approach of judicial networks, transnational courts, international financial institutions, and transnational NGOs to see that the impact of legislation can be global. In this sense, Yılmaz examines the implementation of judgments of the ECHR whereas Oktay
studies the adaptation of the Acquis. In the context of arbitration, Güçer analyzes Lex Mercatoria and its applicability to the Turkish Legal System. White briefly represents the role and approach of the common law lawyers who seek to foster a greater harmony between the law and the society represented. Sure his experience from practicing in both civil and common law systems is precious for the Ankara Bar Association - a bar which desires that lawyers develop and employ transnational and cross-cultural skills. The effortless cross-border flow of social norms leads to greater interconnectedness of societies which challenge the traditional norms and concepts of business. Davis and Lima argue the course of business in such an environment. In the ABR’s previous issue, an article entitled “The Historical Development of the Ownership of Real Property in Turkey by Foreigners” was quite an attraction, thus there will be a series of articles regarding the acquisition of property by foreigners. In this issue Selçuk explains the acquisition by foreign real persons (Part 1); please do not hesitate to email her for your further questions as she works for the DG of Land Registry and Cadastre. In process of transformation, lawyers have the duty to support the positive side of an existing or coming law through statements, articles, pleadings, as well as to also provide objective feedback to the legal community and the public regarding possible negative aspects. The ABR aims to serve as a platform where discussion on the rule of law is nourished from such multi-dimensional and contradictory efforts - the coalition of opposites as defined in fine detail by Sartori.1 * Sartori, Giovanni; Demokrasi Teorisine Geri Dönüş, çev. Tunçer Mehmet Karamustafaoğlu Turhan, Ankara, Yetkin Yayınları, 1993.
The Importance of Due Diligence Investigations
The Importance of Due Diligence Investigations: Failed Mergers and Acquisitions of the United States’ Companies by Wendy B. E. Davis*
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ergers and acquisitions have become a favored method for expanding a business, both nationally and internationally. Companies compete globally for the opportunity to acquire or merge with other businesses. This frenzy of activity includes multi-billion dollar transactions, like HCA or AOL and Time Warner, as well as smaller midmarket acquisitions. In this highly competitive market, it is common to overlook the careful investigation that should preclude any acquisition decision. Ideally, acquiring corporations should carefully investigate all information pertaining to the business to be acquired before either party discusses the possibility of an acquisition. In the real world, many deals are sealed, with signed letters of intent1 or term sheets, with buyers having only limited knowledge of the seller, often based on public information. In these cases, the buyer expects the lawyers, accountants, and other investigators to gather information to confirm the buyer’s expectations of value and potential synergies as quickly as possible so the deal can be finalized. Whether the investigation occurs before the preliminary handshake, or after the offering price and significant terms have already been agreed to, the buyer should use due diligence to investigate the company to be acquired before the transaction is consummated and documented.2 This investigatory process is similar regardless of whether the structure chosen * Associate Professor at Albany Law School, New York, U.S.A. She can be contacted at “
[email protected]”. 1 A letter of intent is generally a non-binding proposal to agree, with no liability incurred by either party if the transaction is not consummated. See, e.g., Apex Equity Partners Inc. v. Murray, 18 Misc. 3d 1137, 2008 WL 498468, No. 111623/2006, N. 2 The term “due diligence” originated in the Securities Act of 1933, 15 U.S.C. § 77 k, in reference to the duties of a director to make disclosures in public offerings. Although the term is not defined by statute, it is generally viewed as an assessment of the legal risk, evaluation of the viability of the target, and a review of disclosure obligations. See David A. Katz, “Due Diligence in Acquisition Transactions”, PLI Course Handbook 2003 at 581.
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ankarabarrevıew 2009/1 is an asset purchase, stock acquisition, or merger. The term ‘seller’ as used herein is intended to indicate any target of such a transaction. The process is also necessary regardless of whether the seller and buyer operate exclusively in one country, or if foreign entities and laws will be implicated. Buyers who neglect this process, or who are less than diligent in their investigations, may hope to rely on the seller’s representations and warranties. Courts have found such reliance to be unreasonable, and therefore denied a buyer’s claim of harm as a result of a breach of those representations and warranties, where the buyer did not sufficiently investigate to discover the seller’s problems, as will be discussed in Section II, below. I. THE PURPOSES OF A DUE DILIGENCE INVESTIGATION When a company is considering the acquisition of a target, the purposes of a due diligence investigation include: 1. To ascertain the appropriate purchase price to be paid by the buyer, and the method of payment, including earn outs; 2. To determine details that may be relevant to the drafting of the acquisition agreement, including the substance, extent, and limitations of representations and warranties and any relevant escrow or hold-back agreement for a breach of the same; 3. To evaluate the legal and financial risks of the transaction; 4. To evaluate the condition of the physical plant and equipment; as well as other tangible and intangible property to be included in the transaction; 5. To analyze any potential antitrust issues that may prohibit the proposed merger or acquisition; 6. To determine compliance with relevant laws and disclose any regulatory restrictions on the proposed transaction; and 7. To discover liabilities or risks that may be deal-breakers. Appointing appropriately skilled members of the due diligence team is critical to ensure the information is adequately understood and its impact accurately evaluated. Time and costs will, of course, play a role in the identification of team members, but buyers should avoid a situation where potentially significant information is disclosed to a representative of the buyer who is not sufficiently skilled or qualified to recognize the risk. Buyers need to keep an open mind, so that risks and liabilities will not be underestimated in the enthusiasm of the transaction.3 3 See, generally, the HA2003 Liquidating Trust v. Credit Suisse Securities (USA) LLC, 517 F.3d 454 (7th Cir. 2008) (illustrating the dangers of ignoring negative information).
The Importance of Due Diligence Investigations
After the due diligence investigation has been completed, two important steps remain. The first is to create a detailed written report of the investigation results. This report can be an important tool for both parties, as evidence of the disclosures made by the seller and knowledge of the buyer.4 This tool may be important in developing a plan to incorporate the information into the transaction agreement, as well as in any subsequent litigation.5 The second step, which is equally as important as the investigation but is often overlooked, is analyzing the information and determining the impact such information should have on the proposed transaction. An action plan should be developed to strategize what to do with the information disclosed, including what additional information is necessary or what additional actions, investigations, or warranties by the seller should be pursued. A buyer that determines that information disclosed by the seller is not significant, such as potential liabilities, may be precluded from a subsequent claim for recovery based on those liabilities.6 II. PROBLEMS RESULTING FROM LESS-THAN-DILIGENT REVIEW Courts are hesitant to provide a remedy to a purchaser that neglects the due diligence process, either by failing to adequately investigate or by ignoring the information discovered.7 In 2000, a manufacturer of promotional products acquired a start-up company with electronic commerce experience for $240 million.8 The start-up had never made a sale, and was “burning through venture capital at $3 million a month.”9 The business consultant hired to do the due diligence informed the buyer’s chief executive officer that the start-up’s revenue projections were “wholly speculative exercises.”10 The buyer decided to acquire the startup notwithstanding this warning, causing the buyer to file for bankruptcy protection just one year later.11 In a suit attempting to shift the blame to the investment banker that issued a fairness opinion, the court denied recovery, finding that the investment banker was contractually obligated to rely on the start-up’s projections, even though the buyer had knowledge that these projections were unrealistic.12 The court also refused to blame the investment banker for not foreseeing the end of the dot-com boom, 4 For a case where the knowledge of the buyer was harmful to the buyer’s claims, see U.S. Lubes, LLC v. Consolidated Motor Oils, Inc., 2008 WL 140798 (N.J. Super. Jan. 16, 2008) (finding buyer breached a duty of good faith and fair dealing by setting an unrealistic sales goal that determined the price paid to seller, when buyer’s actions prevented seller from achieving the sales goal and buyer knew of the lower profit margins of those sales.) . 5 See, e.g., Boston Edison Co. v. U.S., 80 Fed. Cl. 468, 492 (Fed. Cl. 2008) (citing the buyer’s due diligence field notes as evidence). 6 See, e.g., Via Christi Regional Medical Center, Inc. v. Leavitt, 509 F. 3d 1259, 1277 (10th Cir. 2007) (“the consolidating parties’ due diligence before the consolidation revealed that the risk from these contingent liabilities was acceptably low(…) [the buyer] cannot now make a mountain out of what it previously determined to be a molehill.”) . 7 See generally, Wendy B. Davis, The Importance of Due Diligence Investigations in Mergers and Acquisitions, 11 N.Y. Business Law Journal 24 (Spring 2007). 8 The HA2003 Liquidating Trust v. Credit Suisse Securities (USA) LLC, 517 F.3d 454, 455 (7th Cir. 2008). 9 Id. at 455. 10 Id. at 456. 11 Id. at 456. 12 Id.
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ankarabarrevıew 2009/1 when the buyer had failed to request an update of the opinion.13 As this case shows, buyers may become emotionally involved in the enthusiasm for the merger, causing them to ignore negative information when it is discovered, which can lead to disastrous results. In a recent District of Maryland case, Sherwood Brands v. Levie,14 the court denied recovery to a buyer who alleged fraud and misrepresentation by a seller. The buyer paid $2 million for the stock of a candy cane manufacturer, following a 21-day due diligence review.15 The buyer did not receive all of the information it requested in its due diligence checklist, but decided to close notwithstanding the omission. The buyer alleged reliance on projections of future income prepared by the seller. After the closing, the buyer discovered that the seller was not as valuable as the buyer had hoped, in part because numerous liabilities were not disclosed, including a failure to fully fund employees’ 401K pension plans and unpaid unemployment taxes. The court found that the buyer could have discovered these liabilities and did not have a right to rely on income predictions made by the seller, as such were mere puffery.16 The buyer assessed the risk associated with the deal and made a calculated decision about the level of due diligence it wanted to conduct prior to closing the merger transaction.17 In accord with the Sherwood Brands case, other courts have not been sympathetic to buyers who complete acquisitions without adequate due diligence, denying recovery to “sophisticated businessmen” who make “errors in judgment.”18 In a 1995 Southern District of New York case, the court denied recovery for fraud19 alleged by the purchaser in a $400 million deal, where the purchaser had agreed to a due diligence period limited to 17 days, even though the seller’s key personnel made themselves unavailable for much of the 17-day period.20 The court found that the buyer had waived its right to terminate the agreement based on the results of their investigation, and therefore could not complain that it reasonably relied on the seller’s representations as to projected future income which did not materialize. The court did not make a determination as to recklessness, instead analyzing the buyer’s actions as lacking reasonable reliance. 13 Id. at 458; see also Joyce v. Morgan Stanley & Co. Inc., __ F.3d __, 2008 WL 3844111 (7th Cir. 2008)( finding no liability in issuer of fairness opinion); Tariq Mundiya, “Fairness Opinions: Courts Scrutinize Role of Investment Banks”, 239 N.Y.L.J. 5 (2008). 14 Sherwood Brands, Inc. v. Levie, No. Civ. RDB 03-1544, 2006 WL 827371 (D. Md. March 24, 2006), aff’d 2007 WL 4622915 (4th Cir. Dec. 28, 2007). 15 Id. 16 Id. at *13 (“to the extent that Leonard Levie made any projections about Asher’s future performance, such as projecting a profit for Asher for 2002, or expressed general opinions concerning potential synergies that may result from a merger between the two companies, it was unreasonable for Sherwood to rely on such predictions.”). 17 Id. at *13 (“the securities fraud laws cannot be an insurance policy for cases where a sophisticated business entity comes to believe, post-closing, that it has paid to much for another company.”). 18 Manufacturers Hanover Trust Co. v. Drysdale Sec. Corp., 801 F.2d 13 (2d Cir. 1986); Harsco Corp. v. Bowden, No. 94 Civ. 6191 (LMM), 1995 WL 152523 at *7 (S.D.N.Y. Apr. 5, 1995); Silva Run Worldwide Ltd. v. Gaming Lottery Corp., No. 96 Civ. 3231 (RPP), 1998 WL 167330 (S.D.N.Y. 1998) (“Having agreed in writing that it had only relied on publicly available information …, and its own investigation of these companies, in deciding to participate in these offerings, plaintiff, run by sophisticated investors involved in a multimillion deal, cannot now, faced with an investment gone bad, claim that it relied on material misrepresentations and omissions as to material facts by [the seller].”). 19 Based on the antifraud provisions of the Securities Exchange Act of 1934, § 10(b), as amended, 15 U.S.C.A. § 78j(b). 20 Harsco, 1995 WL 152523 at *7.
The Importance of Due Diligence Investigations
Although most courts now agree that the buyer’s reckless conduct, rather than simple negligence, will preclude a buyer’s recovery for a seller’s fraudulent failure to disclose, recent decisions have denied recovery based on a finding that the buyer’s reliance on the seller’s statements or projections was not reasonable, because the buyer was given the opportunity to discover the accurate information. A leading case illustrating this principal is IBP v. Tyson Foods.21 Tyson Foods had agreed to buy IBP for $4.7 billion in 2001, after a 25-day due diligence investigation. Four months later, Tyson brought suit to terminate the merger, claiming it relied on oral representations made by IBP officers that were misleading.22 The Delaware Chancery Court granted specific performance to IBP, refusing to allow the buyer to rescind the merger agreement, finding that the buyer could not reasonably rely on oral representations when the written contract stated that only representations expressly included in the written agreement were part of the bargain. The court noted that caveat emptor (buyer beware) was still the rule, especially when sophisticated business entities were involved. Because the court found no duty in the seller to disclose, buyers must be cautious and comprehensive in asking the relevant questions. A more recent Delaware Court likewise denied a buyer’s claim of fraud where the buyer failed to demand accurate financial information, and failed to understand the information provided by the seller.23 The court ultimately determined that the buyer’s lack of business skill caused the failure of the business post-acquisition.24 In a ruling contrary to the IBP decision, the same Delaware court found that a buyer was not precluded from alleging fraud by a buyer in Cobalt Operating, LLC v. James Crystal Ent. LLC.25 The court recognized that a due diligence investigation is expensive, and therefore buyers may negotiate for representations in the contract to alleviate the need to verify minute details of the seller’s business.26 Because the seller made representations regarding the accuracy of its financial statements, the court found the buyer’s reliance on such representations to be reasonable, and the buyer’s failure to discover the fraud was reasonable because it was intentionally hidden by the seller.27 This decision should be a warning to sellers to use caution when making representations, but buyers should remain cautious in relying on representations as a substitute for due diligence, as the previously discussed cases show. Sellers should exercise caution when stating an opinion as to the quality of the product or service sold or the potential for future profits. Such 21 IBP, Inc. v. Tyson Foods, Inc., 789 A.2d 14 (Del. Ch. 2001). 22 Id .at 73. 23 Homan v. Turoczy, No. Civ. A. 19220, 2005 WL 2000756 (Del. Ch. Aug. 12, 2005). 24 Id. 25 Cobalt Operating, LLC v. James Crystal Ent. LLC, NO. Civ. A. 714 – VCS, 2007 WL 2142926 (Del. Ch. July 20, 2007). 26 Id. at *28. 27 Id.
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ankarabarrevıew 2009/1 statements are generally referred to as “puffery,” and usually do not result in liability under traditional common law. Notwithstanding this tradition, a District of Kansas court found that statements could amount to fraud where the statements were made by an insider and related to actual past or present facts and not merely predictions, and where such statements resulted in an increase in the market price of the security purchased.28 The court was considering the 1999 proposed acquisition of Sprint by WorldCom for $129 Billion. The merger eventually was blocked by the Department of Justice because of antitrust concerns. Buyers of manufacturing companies also need to be aware of successor liability for potential product liability claims. A buyer that fails to conduct an adequate due diligence investigation of the seller’s product defects, and potential future liability for past wrongdoing, may be liable for punitive damages for its own direct misconduct in failing to warn others of dangers that could have been discovered in an adequate due diligence investigation.29 Buyers considering an acquisition should be skeptical and tenacious in their investigations of the seller and the seller’s business. Sellers should avoid making unrealistic predictions as to future profits, and exercise caution in their promises to potential buyers. Careful drafting of the agreement, including disclaimers, representations, warranties, and remedies, will benefit both parties. III. THE SCOPE OF A DUE DILIGENCE INVESTIGATION Many experienced buyers, and the attorneys who represent them, will use checklists to remind them of issues to review in their due diligence investigation. Sample checklists are available on-line, in most M&A treatises, and in the archives of law firms; however, the value of such forms is limited and attorneys should use them with skepticism. It is critical to customize any checklist to reflect the specific issues of each deal, and to think creatively rather than rely on a form. For example, one transaction was rolling along smoothly with the buyer in the final stages of a due diligence review, when a representative of the buyer did an internet search of a key employee of the seller and learned the employee had changed his name several years ago. Although there was no evidence that the name change was for fraudulent purposes, there was sufficient suspicion that the venture capitalists financing the deal immediately backed out and the deal fell apart.30 Checklists should be only a starting point to your investigation. The following are some of the broad topics that should be reviewed. A. Organizational Status 28 In re Sprint Corporation Securities Litigation, 232 F. Supp. 2d 1193, 1216-1217 (D. Kan. 2002). 29 See Douglas R. Richmond, Product Liability: Corporate Successors and the Duty to Warn, 45 Baylor L. Rev. 535, 583-84 (Summer 1993). 30 Confidentiality requirements prevent disclosure of the identity of the transaction.
The Importance of Due Diligence Investigations
The buyer will need to confirm that the seller has filed all necessary documents of incorporation, as well as current annual reports, to ensure it is duly organized as a corporation, limited partnership, LLC, or other entity. Corporate Articles of Organization or Certificates of Limited Partnerships are filed in the offices of the Secretary of State, and such records are open to the public. Corporations that do business in more than one state will need to register to do business as a foreign corporation in each state in which they operate. The failure to register in each state may result in invalidity of contracts or penalties. The determination of what actions of the corporation will qualify as doing business in each state depends on the laws of each state, but owning real estate, maintaining an office, and employing local employees will require registration in most states. The buyer will also want to confirm the identity of the officers and directors of the seller, as well as their authority, to ensure that all transaction documents are properly executed and authorized. Minutes, notices, and votes of shareholder and director meetings should be reviewed to ensure appropriate approval of the intended transaction. Any defensive measures adopted by the seller, such as shareholders’ rights to purchase additional shares, or limitations on directors’ terms or authority, should be investigated and evaluated for their impact on the intended transaction. B. Contractual Obligations The buyer should review all contractual obligations of the seller, including supplier agreements, joint venture agreements, leases, licenses, employment agreements, and financial obligations. The buyer will need to determine which contractual obligations it will assume, and whether the proposed sale to the buyer will result in a default or other consequences under any contract, based on change- in- control provisions. Exclusive dealing arrangements will need to be analyzed to disclose any conflicts with the buyer’s existing contracts. Accounts payable to vendors, as well as debts owed to banks and others, should be confirmed and considered in any calculations of value of the acquisition. C. Labor The buyer may want to retain key employees of the seller, either temporarily to facilitate the change in control or to continue as long- term employees. Employment contracts with such employees should be reviewed to determine obligations for salary, bonuses, and benefits, and whether the sale will trigger any additional compensation, as well as covenants not to compete should the employees decide to leave. Union contracts should also be reviewed, as well as grievance logs or complaints. The status of any non-citizen employees should be reviewed. Visas and
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ankarabarrevıew 2009/1 other immigration permits are often dependent on an employer/sponsor, and if the name or identity of the employer will be different after the merger, this may have significant consequences for the employee. If the U.S. Citizenship and Immigration Services (USCIS) determine that a visa has become invalid as the result of a merger, a key employee may be prohibited from re-entering the country. Even more damaging, if an employee whose visa has been invalidated has traveled outside the U.S. and returned without informing the USCIS of the change in status, she may be deemed to have committed entry fraud, which is a lifetime bar from ever entering the U.S.31 Criminal background checks and employment histories of the key employees, founders, and officers should be considered. An internet search may also be revealing. D. Insurance Insurance contracts should be reviewed for sufficiency of coverage, conflicts with buyer’s insurance agreements, and compliance by seller. Insurers should be notified of the change of ownership. E. Tax Tax returns for several prior years should be reviewed and the IRS and local taxing authorities should confirm payment of all taxes owed, including payroll, excise, real estate, and income taxes. F. Accounting In 2002, Congress enacted the Sarbanes-Oxley Act, Pub. L. No. 107204, 116 Stat. 745 (2002), 15 U.S.C. § 78 et seq. (2000). This act requires the managers of publicly owned corporations to certify that the financial statements of the corporation fairly represent the financial affairs of the corporation. As soon as the acquisition is completed, the managers of the buyer must make these representations as to the seller. The buyer must be certain that the seller, who may be a non-publicly traded corporation and therefore exempt from compliance with Sarbanes-Oxley, has used proper accounting standards in preparing accurate and complete financial statements. Many sellers are hesitant to represent such compliance to the buyer, because their accounting practices may not be as detailed or rigorous as required, and in fact this may be one reason the seller has chosen to sell rather than go through the process of an initial public offering to become publicly traded. G. Employee Benefits Employee benefits such as retirement and disability plans should be reviewed to determine compliance with IRS regulations. Funding of such 31 See Mark Ivener, “Stopped at the Border”, HR Magazine, Vol. 51, No. 6, June 2006.
The Importance of Due Diligence Investigations
benefits should be reviewed by experts. The buyer will want to know if any benefits or compensation will be triggered by the proposed sale. The impact of the transaction on any employee stock option plan (ESOP) should be evaluated. H. Litigation and Product Liability Outstanding lawsuits should be reviewed to determine potential liability that may be assumed by the buyer, as well as threatened litigation. Consider the case of Bristol-Myers acquiring Medical Engineering Corporation (MEC) in 1982. MEC manufactured silicone breast implants which had not been FDA approved. Such approval was not required, because the U.S. Food and Drug Administration (FDA) provided that implants could be sold without approval, but safety and effectiveness data could be required at some unspecified future date.32 When the FDA demanded the data in 1988, the FDA deemed the data submitted by Bristol-Myers and other implant manufacturers to be inadequate and called for a voluntary moratorium on the sale of the implants. Even though the FDA never stated that the implants were not safe, but merely that the information relating to their safety was inadequate, a panic was caused by the announcement, resulting in a flood of lawsuits. The cases against Bristol-Myers, Dow Corning, 3M, and other manufacturers of breast implants resulted in a $4.25 billion settlement.33 Predicting potential liability can be challenging. Although Bristol-Myers may have conducted an extensive due diligence review, and MEC was not lacking any required approvals, the results were devastating. A more thorough review should have revealed the potential for a future demand by the FDA for statistics, as well as MEC’s lack of preparedness for such a demand. I. Environmental Liability Hazardous waste site assessments may be appropriate for all real estate owned or occupied by the seller. Because the contaminator may be liable for clean-up costs even after the property is sold, buyers may also need to assess properties that have been sold by the seller. Buyers may be liable for clean-up costs as operators or owners of the acquired real estate. J. Valuation of Acquisition Financial projections, which are the only reasonable indicator of the worth of the acquisition to the buyer, are merely an educated guess as to future performance. The buyer will need to study the market and customer base of the seller and predict the influence of the transaction on those customers. Customers of the seller should be contacted to determine any quality control issues or other product inadequacies, as well as to verify accounts receivable. Competitors should also be considered, to determine 32 21 U.S.C. § 360 (c); see also William M. Brown, “Grandfathering Can Seriously Damage Your Wealth: Due Diligence in Mergers and Acquisitions of Medical Device Companies”, 36 Gonz. L. Rev. 315 (2000-01). 33 William M. Brown, supra note 33, at 324.
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ankarabarrevıew 2009/1 how the seller performs relative to the competition and the competitors’ future predictions regarding the market. K. Antitrust If either the buyer or seller has a significant market share or few competitors, the Hart Scott Rodino Act, 15 U.S.C. § 18a, may require an advance notice of the merger to be sent to the Federal Trade Commission. If the industry is heavily regulated, then the regulating authority may require notification or approval, for example the Federal Communications Commission, Federal Aviation Administration, or Food and Drug Administration. L. Foreign Regulations Many U.S. companies are acquiring businesses in China, Brazil, and other emerging economies. Local counsel should be retained early in the process to analyze local laws to determine the permissibility of the transaction, and to provide a more in-depth determination of any additional legal consequences of the transaction. M. Intellectual Property All patents, copyrights, trademarks and trade secrets owned by the seller need to be identified and cataloged. The level of review will depend on the value assigned by the buyer to such assets. If the buyer’s primary purpose in making this acquisition is to acquire a key product to enhance its product line, then the patent or copyright protecting rights in that product will become much more important. The buyer will need to ensure that the patent is owned by the seller corporation, and that the employee who invented or created the product is not claiming individual rights. Any licensing of the patent will need to be reviewed. The claims of the patent will determine exactly what rights the company has to exclude others from manufacturing or marketing similar products. If the patent was not artfully drafted in the first place, a buyer may find that his most valuable asset is worthless because competitors can reverse engineer or work around it. N. Document Retention The buyer will need to learn the location of all documents, including financial and tax records, human resources records, and government compliance evidence. The buyer will need to be satisfied that the seller has retained adequate records for an appropriate period of time to meet the standards set forth in relevant federal and state regulations, as well as to comply with the buyer’s internal policies. IV. CONCLUSION Companies that are planning an acquisition or merger should plan to
The Importance of Due Diligence Investigations
devote sufficient time and resources to discover potential problems with the seller. A failure to carefully review may result in a determination that the buyer is not reasonable in relying on the statements of the seller, and the buyer may be precluded from bringing an action against the seller if fraud is discovered after the sale is consummated. Undisclosed potential liabilities may negate any value of the acquisition and result in financial ruin for the acquirer.
A SAMPLE DUE DILIGENCE CHECKLIST 1. Organization • Obtain copies of the articles of incorporation and confirm the identity of officers, corporate name, and business. • Confirm filing of all required annual reports. • Review states where the seller is doing business and confirm registration. • Review by-laws for authority of officers to sign transaction documents. 2. Contractual Obligations • Obtain copies of all contracts with suppliers and determine penalties and potential liability for failure to continue contract post-acquisition. Determine any exclusivity provisions that may conflict with exclusive deals of the buyer. • Obtain copies of all contracts with customers and determine whether terms can be complied with post-acquisition. Determine if contract will be valid if identity of target as seller changes. • Review all contracts for existing and potential default by the seller. • Review all leases and other administrative contracts. 3. Labor • Obtain list of all employees who are non-citizens and visa details. • Review union agreements. • Review any employment agreements. • Order criminal record checks on all key employees and officers. 4. Insurance • Review all insurance policies, confirm effective dates and payment of all required premiums, and notify insurers of change
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ankarabarrevıew 2009/1 of ownership. 5. Tax • Confirm with IRS and state and local taxing authorities that all income and payroll taxes are current. • Review tax returns and compare to financial statements. • Confirm with town and county that real estate taxes are current. 6. Accounting • Review all financial records for Sarbanes-Oxley compliance. • Discuss revenue recognition policies and practices with accounting manager. 7. Employee Benefits • Confirm funding of pension plans. • Review health insurance contracts. • Develop integration plan for employee benefits to ensure consistency. 8. Litigation • Review all complaint or dispute correspondence. • Review all litigation, including Westlaw, Lexis, and internet searches. • Discuss potential liability with legal counsel. • Review all required approvals from regulating agencies. Environmental • Obtain hazardous waste site assessment on all real estate owned or occupied by seller within the past 5 years. • Check with local authorities for reports of underground storage tanks. • Confirm with U.S. DEP and state agencies for compliance. Valuation of Acquisition • Determine the seller’s market size, share, and projected potential. • Analyze how any anticipated new regulations will affect the market. • Research whether any new technologies could impact the market. • Identify the seller’s largest customers and evaluate the likelihood that such customers will remain after the merger. • Determine what new products, services, or innovations are currently being developed by competitors. • Analyze how the seller compares to its competition in terms of service, customer loyalty, and quality. • Predict necessary future capital expenditures. • If the seller is to be carved out of its parent, determine what new stand-alone costs may be required for services formerly performed by the parent. • Evaluate the potential for future cost reduction synergies as a
The Importance of Due Diligence Investigations
result of the merger. • Identify any product quality issues by reviewing returns or customer complaints. 9. Antitrust • Analyze market share to determine violations of antitrust regulations. • Determine whether notification to Federal Trade Commission will be required. 10. Foreign Regulations • Establish relationships with local counsel to determine any additional local laws that will impact the proposed transaction. 11. Intellectual Property • Identify and catalog all patents, trademarks, and copyrights claimed by the seller, the date, location, and number of registration, and the registered owner. • Review any license agreements, whether seller is the licensor or licensee. • Review patent applications and claims to ensure that technology is appropriately covered. • Review procedures for protection of trade secrets.
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Business and International Human Rights by Denise Lima*
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ndoubtedly, there is a move from the traditional concept of human rights law based on the Universal Declaration of Human Rights (UDHR) to a new emergent paradigm. We are looking now at a “marketfriendly paradigm of human rights.”1 The focus on corporations has been provoked by examples of apparent human rights abuses: e.g. sweatshop labor in the footwear and apparel industries; environmental, health and cultural degradation driven by extractive companies; and personal integrity and freedoms abuses by security forces to protect the interests of corporations.2 As an example, human rights organizations have expressed increasing alarm about the situation in Burma. The International Trade Union Confederation has listed eleven multinational companies as being accused of providing support and legitimacy to the intolerable military regime. In this case, the state not only fails to protect human rights, but is itself the perpetrator of human rights violations, and therefore, companies may find that they are complicit if they work in concert with the state. This article examines the current international human rights law applicable to multinational and transnational corporations. More specifically, the article focuses on the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (the “Norms”).3 * LL.M International and Commercial Law, University of Greenwich, London, UK; Master of Comparative Law, University of Aix-Marseille, France. She can be reached at “
[email protected]”. 1 Baxi, U., 2005. Market Fundamentalisms: Business Ethics at the Altar of Human Rights. Human Rights Law Review, 5 (1), p.1. 2 Kinley, D. and Chambers, R., 2006. The UN Human Rights Norms for Corporations: The Private Implications of Public International Law. Human Rights Law Review, p. 449T. 3 Sub-Commission on the Promotion and Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, 26 August 2003, E/CN.4/Sub.2/2003/12/ Rev.2 (2003), cited as the “Norms”.
Busıness and Internatıonal Human Rıghts What is clear is that at the present time the Norms do not have an immediate international impact. They are simply the first step towards regulation. Therefore, the article argues that there is a need to go further in that matter. Indeed, it is recommended that the UN General Assembly adopt the Norms, with support from governments. I Emergence of Human Rights in Business Ethics A. From the Traditional Conception The UN has a considerable role in the development of human rights law. One of its major successes was undoubtedly the Universal Declaration of Human Rights (UDHR) adopted and proclaimed on 10 December 1948 by the General Assembly as “a common standard of achievement for all peoples and nations.” The UDHR had obviously an important impact on the international human rights movement. Indeed, it was the first time that basic civil, political, economic, social and cultural rights were spelled out at the international level. These rights have over time been accepted as fundamentals. The UDHR is a part of the International Bill of Human Rights. Likewise, while the international human rights movement has been strengthened with treaties and other instruments, the rule of human rights law is also on its way to establishment at the regional and national levels. The bottom line is that governments have traditionally been the dutybearers of international human rights obligations. As parties to international human rights treaties, states are bound to respect, to protect and to fulfill expectations regarding human rights. Amongst those areas in the UN system of protections of human rights which need to be improved, there is a concern about corporate governance and business conduct. This is because the influence of corporations has grown as a result of globalization. The UN is now considering the scope of the roles and responsibilities of corporate actors with regard to human rights. There is however an increasing debate about the unclear practical link between business and human rights. One can admit that the traditional concept of human rights has moved towards a business concept of human rights. As Baxi (2005) has highlighted in the Future of Human Rights: [there is] a contrast between the paradigm of the Universal Declaration of Human Rights (UDHR) and the emergent paradigm of the trade-related, market-friendly paradigm of human rights by which it was confronted.4 B. Emergence of an International Legal Framework The UN is considering which human rights can and should apply to corporations and in what way. The Office of the UN High Commissioner of Human Rights (OHCHR) is a UN agency that has been requested by the UN Secretary-General to serve as “guardian” of the ten principles of 4 See Baxi, supra note 1.
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ankarabarrevıew 2009/1 human rights and to promote these principles in the business sector. Its work has focused on four areas as described below. First, the High Commissioner has advocated the development of minimum human rights standards to be applicable to the corporate sector and the implementation of voluntary initiatives towards corporate social responsibility. Second, the OHCHR is actively involved in the UN Global Compact, which is a voluntary initiative regarding strategic policy for businesses. The objective is to commit businesses to align their operations and strategies with the ten universally-accepted principles relating to human rights, labor, environment and anti-corruption. Indeed, by considering businesses to be a primary agent of globalization, their collaboration can benefit all economies and societies. At present, over 4700 corporate participants and stakeholders – many of them large transnational companies from over 130 countries – have signed onto the UN Global Compact. Obviously, this reflects the growing understanding that there is a need for businesses, together with governments, civil society, labor and the United Nations, to collaborate on common goals. Today, the UN Global Compact stands as the largest corporate citizenship and sustainability initiative in the world. Third, the UN Commission on Human Rights created in 2005 with resolution 2005/69, the office of the Special Representative of the Secretary-General on the Issue of Transnational Corporations and Other Business Enterprises,5 and this mandate has been extended by the Human Rights Council. The work of the Special Representative consists of convening a consultation annually with business executives to discuss human rights challenges. The first consultation was convened in 2005 to consider existing initiatives and standards relevant to the extractive sector.6 In 2007, another consultation took place with representatives from the financial sector.7 Finally, the OHCHR assists the working group on the working methods of transnational corporations of the Sub-commission on the promotion and protection of human rights. The working group was responsible for drafting the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights and accompanying Commentary. II. The Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights A. Particularities of the Norms The Norms have been compiled and drafted as a statement of the human rights obligations of transnational corporations. It consist of twenty-three 5 The appointment of Professor John Ruggie of the Kennedy School of Government at Harvard University was made on 27 July 2005. 6 Commission on Human Rights, Report of the UN High Commissioner on Human Rights on the sector consultation entitled “Human Rights and the Extractive Sector”, 10-11 November 2005, E/CN.4/2006/92. 7 Human Rights Council, Report of the UN High Commissioner on Human Rights on the Sector Consultation Entitled “Human rights and the Financial Sector”, 16 February 2007, A/HRC/4/99.
Busıness and Internatıonal Human Rıghts “paragraphs,” rather than “articles,” as stated in the Commentary on the Norms, and provide the scope of general and specific obligations. It covers equality of opportunity and non-discriminatory treatment; the right to the security of persons; labor rights; respect for national sovereignty and human rights; consumer protection; economic, social and cultural rights; and environmental protection. The Norms follow a basic international law format, but what makes the Norms and their Commentary so particular is that corporations are the duty-bearers. This is because even if there is generally no evident correlation between corporations’ behavior and human rights abuses, it is quite right to suggest that corporations may be able to assist in generating respect for international human rights. Importantly, the Norms have adopted a catch-all approach. Indeed, transnational corporations are the central duty-bearer, but the Norms also cover all businesses that have relations with transnational corporations The Norms also make clear that States retain the primary responsibility to respect, protect and attain human rights. It also assumes that all responsibilities relating to human rights that are applicable to states extend also to corporations.8 The first paragraph of the Norms details the general obligations of transnational corporations and other business obligations to respect, protect and fulfill expectations regarding human rights “within their respective spheres of activity and influence.” The notion of “sphere of activity and influence” is used to distinguish between different spheres of responsibilities, but is not typical of the wording in other human rights instruments.9 According to the Commentary, the Norms describe five types of obligations. First, it includes the obligation to use “due diligence” so that “their activities do not contribute directly or indirectly to human abuses.” Second, corporations “may not directly or indirectly benefit from abuses of which they were aware or ought to have been aware.” Third, corporations shall “avoid complicity in human rights abuses.” Fourth, they shall “refrain from activities that would undermine the rule of law as well as governmental and other efforts to promote and ensure respect for human rights.” Fifth, corporations “shall use their influence in order to help promote and ensure respect for human rights.”10 Clearly, the Norms have adopted a “belt and brace” approach to introduce the notion of complicity in human rights abuses. Indeed, a corporation could now be liable for the actions of third parties.11
8 Baxi, supra note 1, at 18. 9 Kinley and Chambers, supra note 2, at 452. 10 Baxi supra note 1, at 11. 11 Kinley and Chambers, supra note 2, at 455.
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ankarabarrevıew 2009/1 B. Criticisms and Issues When the final version of the Norms was adopted by the SubCommission in 2003 and submitted to the Commission, it had become a controversial subject that faced opposition from business alliances, including the International Chamber of Commerce and the International Organization of Employers, and from national governments including those of the United States, the United Kingdom and Australia. On the other hand, some non-governmental organizations, academics and human rights advocates supported the adoption of the Norms.12 One of the arguments against the Norms was their procedural legitimacy; however, since the Commission has twice considered the Norms, it is not appropriate to discuss the manner of their making at such a late stage.13 According to the “one size fits all” argument, it has been argued that the Norms are not a precise instrument that companies can use as a guide. According to that view, the Norms cannot create a universally applicable standard for human rights due to differences between industries. However, it has been generally argued that the Norms present a holistic approach by covering human rights relevant to all business sectors.14 Some have argued that the vagueness of the Norms leaves corporations vulnerable to arbitrary criticism. However, it should be kept in mind that the Norms are a basic instrument of international human rights law and simply provide a general framework. Indeed, it is states’ duty to articulate the specifics when creating domestic legislation. Therefore, it is unnecessary to draw attention to this criticism.15 One valid concern would be related to new concepts as to the separate responsibilities of the state and the corporations, or the notion of complicity. However, the reasoning justifying this approach is that the Norms cover situations where a state fails in its human rights duties or even where the state is itself the perpetrator of human rights violations.16 The argument of “privatizing human rights” is often used by those who have attacked the Norms. According to this view, the Norms represent a shift of human rights responsibilities onto the private sector. This argument is not relevant since the Norms proclaim that the states still have the primary responsibility for the protection and promotion of human rights.17 Importantly, it has been argued that the Norms should not extend the definition of human rights by including social, economic and cultural rights since they are not traditional human rights. One must admit that these matters are considerably important to states and corporations, and that business activities are most likely to have a direct impact in these areas 12 Id., at 457-458. 13 Id., at 462. 14 Id., at 466. 15 Id., at 467. 16 Id., at 468. 17 Id., at 480.
Busıness and Internatıonal Human Rıghts rather than on civil and political rights. As a safeguard against arbitrary criticism, the burden of proof is shared between those who make the claims and the corporations who have been accused of violating human rights. It is relevant to highlight that these rights have been implemented in most countries’ domestic laws, at least in Western countries. The only complexity lies in identifying both the holders of these rights and those who have the duty to protect the collective rights to development and to a healthy environment which are included in cultural rights. Nevertheless, these rights are an integral part of international law and are undeniably related to corporate activities. It is quite wrong to suggest that business is negatively involved in economic development and environment, but it is necessary to balance the protection of individual rights and the positive impact that business activities can have on communities at large. What is really proposed by the Norms is that corporations must be engaged in the attainment of the end goal for the international community – “sustainable development.”18 III. The Next Step? A. Legal Effect of the Norms In recent years, the voluntary initiatives to make corporations legally accountable for their human rights abuses have not been effective enough. Therefore, the Norms seek to establish a legal framework in this area or, at least, they are the first step towards a legal framework.19 The most important legal impact is obviously that the Norms place corporations at the center. This requires the international legal community to recognize commercial, for-profit entities as actors in international law. There is no room to argue against such recognition, but it is true that lacking a central body, the difficulty is that only states can establish whether or not an entity has international legal personality. However, the behavior of states seems to demonstrate an emerging recognition of some form of legal personality for transnational companies in public international law.20 Regrettably, the Norms have no binding legal effect, since they were compiled by the Sub-Commission which does not have the ability to enact new international law. Indeed, the Norms have a “declaratory effect.” They may however reinforce rights contained in international law. The bottom line is therefore that the Norms should be implemented and enforced within domestic human rights law. In any event, they might have an impact on domestic law.21 B. Need a Development into Positive Law International law can only be created through a treaty or customary international law. At the moment no treaty incorporates the Norms nor is there such emerging development in customary international law. As 18 Id., at 473. 19 Id., at 490. 20 Id., at 479. 21 Id., at 482.
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ankarabarrevıew 2009/1 a result, the Norms cannot now be considered to constitute a part of international law. The Norms might become a general practice accepted as law by states. This means that states could engage in the implementation of the Norms through any mechanism of enforcement. The complexity lays in the diversity of practice, but the Norms might acquire legal authority as customary international law if followed in business practice or used as an instrument of interpreting existing treaty law. Finally, to conclude, it is recommended that the Norms be adopted by the UN and, therefore be developed into positive law. Indeed, they could have an immediate international legal effect if they were to be adopted by the UN General Assembly with an effective implementation procedure. It is evident that business alliances do not want an international standard establishing corporate accountability for human rights abuses and therefore they are advancing many criticisms of the Norms. Nevertheless, such regulation is very much in the interest of corporations, states and communities at large. Indeed, it will help interconnect nations and business entities through a common interest. Considering this fact, it cannot be concluded that the Norms are not the appropriate instrument through which to develop an international framework for corporate accountability for human rights abuses; they are not the final word but are a giant first step. At present, as stated by Kinley and Chambers: Ultimately and ideally, therefore, we are looking for a mature instrument of public international law to emerge, after appropriate modification and amendment, from the presently neophyte Norms.22 To sum up this article, it seems that the Norms do not create corporate accountability for human rights abuses, but at the very least, they have provoked interest and marked out the boundaries for future debate.
22 Id., at 495.
Legal Functions of the Concept of Significance in the Process of EIA
Legal Functions of the Concept of Significance in the Process of Environmental Impact Assessment by Abdurrahman Saygılı*
S
ignificance is an essential concept in the international, national and regional law texts that regulate the process of the Environmental Impact Assessment (EIA).1 Nevertheless, there is no clear definition of the concept of significance in such legal texts.2 In other words, there is no clear legal definition of it; it is still undefined. It is important to stress that the concept of significance has a threshold/limit function in the EIA process. This threshold/limit function provides the acceptability of the possible negative impacts. In practice, it is common that traditional law is not able to find solutions with its traditional concept of damage nor it is possible to implement the concept of damage in a concrete case. Therefore, the concept of possible negative impact is contained in the legal texts as an alternative for the cases where the damages appear in the long term. The concept that legally provides the acceptability of possible negative impacts is the significance. Thus, the activity shall not be permitted even though there is no damage projected. Moreover, the concept of significance has another function in the EIA process apart from that stated above. It also renders a flexibility, or discretion power, to the administration in the decision-making process. This short article will stress the functions of the concept of significance. In the first section, the concept of significance will be explained from the aspect of the traditional discretion power of the administration. In the second section, the concept of significance will be evaluated within the dimension of environmental law and the EIA process. The Concept of Significance from the Aspect of Administrative Discretion The powers that the administration has are examined in two parts. In the jurisprudence, these powers are defined as the bound/related power and the discretion power.3 Since the concept of significance is related to discretion power, we should primarily explain significance in the context of the discretion power. * PhD, Ankara University, Faculty of Law, Lecturer in Public Law. He can be contacted at “
[email protected]”. 1 For example, “significance” is mentioned in the Transboundary EIA Convention, the EU EIA Directive and the Turkish EIA Regulation. 2 Rob Sippe, “Criteria and Standards for Assessing Significant Impact,” Handbook of Environmental Impact Assessment, Vol. 1, Judith Petts (ed.), Blackwell Science Pub., 1999, p. 74; Tracy Glynn, “Environmental Impact Assessment (EIA): A Guide for Reviewers”, (http://www.cenrce.org/eng/caucuses/assessment/docs/ eia_guide_for_reviewers.pdf,) p. 12, (accessed on 09 November 2005); Alan Gilpin, Environmental Impact Assessment – Cutting Edge for the 21st Century, Cambridge University Press, 1999, p.6; Nigel Rossouw, “A Review of Methods and Generic Criteria for Determining: Impact Significance,” 6 African Journal of Environment and Management, June 2003, p. 44; Jane Holder, Environmental Assessment ( The Regulation of Decision Making), Oxford University Press, Great Britain 2004, p. 104. 3 Metin Günday, İdarenin Takdir Yetkisi [Administrative Discretion], Unpublished Phd Thesis, Ankara 1982, p. 1.
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ankarabarrevıew 2009/1 Discretion power means “the administration has the flexibility while making decisions and in its acts in that power grants the administration to choose one of the forms of those acts.”4 There are various appearances/ forms of administrative discretion power. In the first form, the lawmaker has clearly defined the grounds for the administrative transaction and also has granted the administration the power to choose the means of the possible acts and transactions. In the other form, there is no clear definition of the grounds for the administrative transaction or act – either they are unclear or not defined at all.5 Huber compares the discretion power of the administration to a “Trojan Horse” and he finds it to be a breach of the principle of the rule of law.6 However, in accordance with the writings of Günday, the lawmaker has obliged the administration to find the most just and fair solution by granting the power of discretion to the administration.7 Briefly, the power of discretion grants the freedom to the administration to determine the grounds for the administrative transactions.8 After these observations, we should discuss whether the concept of significance is a reflection of the administration’s traditional discretion power or not. In one aspect, the concept of significance is a way to express the traditional discretion power of the administration during the EIA process. Because in this aspect of administrative law, the administration is the body authorized to decide which planned event/act shall take place in the future. This power of the administration is a discretionary power. The possible future effect(s) of the event/act should be taken into consideration by the administration. The administration shall not give permission for the event/act if it thinks that such event/acts may cause any adverse effects. The administration can render a contra verse decision as long as it is an objective one and in compliance with the law. That discretion power of the administration, in the legal texts that regulate the EIA process, is expressed by the concept of significance. The EU Directive for EIA, is a good example to define the concept of significance in the context of the discretion power of the administration. The EU Directive for EIA has established a dual system for acts which are subject to the process: the compulsory EIA and the discretionary EIA. Article 2(1) of the Directive for EIA states: Member states shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made 4 Id. at 3., See Jürgen Schwarze, European Administrative Law, European Commission Pub., 1996, p.261-262. 5 Günday, supra note 3 at 4-7. 6 H. Huber, Niedergang des Rechts und Krise der Rechtswissenschaft [Decline of the Law and Crisis of Legal Science], Festgabe für Giacometti [Celebration for Giacometti], 1953. 7 Günday, supra note 3 at 15. 8 Id., at 39.
Legal Functions of the Concept of Significance in the Process of EIA
subject to a requirement for development consent and an assessment with regard to their effects. These projects are defined in Article 4. This article is very closely related to Articles 4(1),(2) of the Directive that define in detail all the projects which may have a severe impact on the environment. These are the projects listed in Annex I and Annex II. The member states shall try the possible precautions for the projects which are listed in Annex II, or go through them case by case or they shall establish a method composed of two alternatives. Such structure provides to the member states a wide space to operate,9 especially for the projects which are subject to Annex II. However, the member states do not have such a wide space to operate in all areas. The member states are obliged to take into account some other criteria which are listed in Annex III of the Directive.10 In other words, they are restricted regarding the criteria that they may take into account while using the discretion power. If there are any possible serious impacts on the environment as a result of the project, the obligatory process from Annex I should be implemented. Nevertheless, the most important point here is the use of the discretion power by the decision-making authority. The misuse of the discretion power will be critical to determining whether the environment is fully protected or not. The Function of the Concept of Significance in the EIA Process with Its Environmental Law Dimension The concept of significance has, apart from its function as a part of the EIA process, other functions such as harmonizing the scientific criteria, standards and judgments in the EIA process and determining not only the moral values of the administration but of anyone who participated in the process. This means that the concept of significance has two functions, both as a traditional discretion power of the administration and as a tool to pressure for the individuals and groups who care about the environment. But at the end, the authority that will decide the significance is the authorized administrative body. The significance depends on the moral values of the officer that will decide that. Therefore, this shows the subjective side of the concept of the significance and it is very often criticized because of this feature.11 The concept of significance is at the heart of the determining, anticipating, evaluating and decision-making processes of the EIA.12 Therefore, the definition of significance must be done very well. Although there are no clear definitions in the legal texts, there are some definitions in the jurisprudence and some interpretations have been made as well. 9 Holder, supra note 2, at 107. 10 Criteria for projects are mentioned in Annex 3 under three titles: projects properties, projects locations and potential effects properties. 11 Gilpin, supra note 2 at 6. 12 See Rossouw, supra note 2, at 44-45.
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ankarabarrevıew 2009/1 In accordance with Duinker and Beanlands, the significance of environmental impacts has been centralized around the results of human activities and the importance of such results is determined by the moral values of the society concerned. On the other hand, Thompson attached the significance of an impact to the cost or value of an influence on the society. According to Thompson, the focus of the EIA should be a judgment that clearly defines the impact on the chosen groups that are elected to represent the society or the impact that directly affects the society’s own moral values. According to Sadler, the concept of significance has a subjective identity, carrying a moral value and is therefore bound with a condition. Moreover, he added that significance is related to the threshold values and therefore bound with the evaluations of the scientists.13 Apparently, all these statements are confusing and not clear at all. However, they also bring new dimensions and approaches in order to be able to frame the concept of significance. First of all, the concept of significance carries an inherent moral value. In other words, significance has the potential risk to be shaped and designated by the personal values, ideas, personal aspects of the authorized person, group or administrative body. The significance is also related to another concept, which is the character of the impact. Finally, the judgement of significance shall be designated in a system dominated by the anthropocentric approach. In light of this information, it is said that the concept of significance has subjectivity and interpretation criticisms.14 If there is a wide space for the authorized body while making the decision whether an activity may have environmental impact or not, then here we can talk about the discretion power of the administration. While there are certain steps to take when making a decision, if the administrative body making this decision has interpreted some criteria, then we can obviously say that the administrative body has used its discretion power.15 We can now go one step further to understand in which phases the concept of significance is taken into consideration during the whole EIA process. Significance is used in the different phases of the EIA process: preexamination phase (screening), examination phase (scoping), preparation of the EIA phase and finally the decision-making phase.16 Significance has different meanings in all these different phases.17 We shall define these phases briefly. The meaning of significance in the pre-examination phase is whether it is necessary to execute the EIA process or not. The potential 13 For these views, see Sippe, supra note 2, at 78-80; see also Rossouw, supra note 2, at 46. 14 Holder , supra note 2 at 108. 15 Id. at 109. 16 For a detailed explanation of these process, see Abdurrahman Saygılı, Çevre Hukuku Açısından Çevresel Etki Değerlendirmesi [Environmental Effect Assessment for the purposes of Environmental Law], Imaj Yay., Ankara, 2007. 17 Ulf Kjellerup, “Significance Determination: A Rational Reconstruction of Decisions”, 19 (3) EIA Review, 1999, p. 4.
Legal Functions of the Concept of Significance in the Process of EIA
risks of the project are evaluated in this phase. In the examination phase (scoping), the content of the important impacts are designated; the methods and approaches in this phase are facilitation (kolaylaştırma), stakeholder engagement (paydaşların yükümlülüğü), negotiation and compromise. The preparation of EIA phase is the most essential phase because all the authorities that are obliged to implement the EIA have to prepare a report regarding that. While preparing these reports, all the important documents and information are gathered together, the definition of impacts are used and all the significance criteria are united in order to submit to the authorized decision-making bodies. In this phase, some methods and approaches are generally used; designating in advance the criteria which shall be used in impact assessment, submitting professional judgments, mapping, and animation of the project on paper are the methods and approaches which are widely used. The last phase is the decision-making phase. The authorized decision-making bodies shall examine the impacts as to whether the consequences of these impacts shall be legally acceptable and then they shall render their final decision. It is important to balance and measure the positive and negative impacts very well before rendering any decisions. Or else, in the future, the affected or interested parties can file a lawsuit against this decision and have it cancelled. CONCLUSION As a legal tool, the EIA process has caused transformations in the traditional law but still many concepts of traditional law are being widely used in EIA. One of these concepts is the discretion of the administration. However, we do not encounter this concept when we examine the legal texts that regulate the EIA process; it is replaced with the concept of significance instead. The reason for such preference is not to stress that the EIA process is unique or to cause any confusion; the reason for that is due to the unique feature of the process – it demands the traditional institutions and demands to create some other new institutions. The most important and precious example of such new institutions in the EIA texts is the concept of significance. Apart from being the name of the traditional discretion power of the administration in the texts that regulate the process, it is also an alternative resolution to the environmental problems which show many differences from the regular ones. Significance is also important because it changes the approach and attitudes of the administration. It can be only possible that administrative bodies that use the discretion power can decide in favor of the environment by the methods and approaches that the concept of significance brings. Meanwhile, the environmentalist groups and individuals may participate in the EIA process by interpreting the concept of significance. In these aspects, the concept of significance, although having some negative aspects, can enrich the traditional discretion power in favor of the environment.
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Lex Mercatoria in International Arbitration by Dr. Sülün Güçer*
I. Applicable Law in Arbitration When parties agree that any dispute that may arise between them shall be referred to arbitration, in addition to the subject matter of the dispute, the determination of the applicable law is also of major importance. Although the parties may not have the liberty to choose the applicable law in national courts, this freedom has been granted to the parties in arbitration. The parties may choose that the disputes between the parties shall be resolved according to applicable laws of a national country or according to generally accepted principles, also known as lex mercatoria. It should be stated that the parties may also determine that applicable law to the dispute shall be the law of a national country and lex mercatoria.1 Within this context, the definition of lex mercatoria and its close relation with arbitration, commercial rules and generally accepted principles should be evaluated. II. Lex Mercatoria Commerce in Europe experienced a renaissance in the 11th and 12th centuries.2 This evolution was caused first of all by the fact that the eastern markets had become reachable and second by the political and economic evolutions in Europe. 3 This process caused a class, i.e. merchants, to create its own law. The roots of this law are based on Rhodes Maritime Law and ius gentium founded on Roman and Greek Laws.4 It should be stated that this law, which is based * Attorney at Law, Member of Ankara Bar, PhD Ankara University, Faculty of Law. She can be conacted at “
[email protected]”. 1 Lando, Ole, “The Law Applicable to the Merits of the Dispute,” in Lew, Julian DM: Contemporary Problems in International Arbitration, London, 1987, 104; Davidson Matthew, “The Lex Mercatoria in Transnational Arbitration: An Analytical Survey of the 2001 Kluwer International Arbitration Database,” accessed on 08 May 2002, at http://www.cisg. pace.law.edu. 2 Goldman, Berthold, “Lex Mercatoria,” Forum Internationale, Deventer, 1983, 3. 3 Berman, Harold and Kaufman, Colin, “The Law of International Commercial Transactions (Lex Mercatoria)”, 19 Harvard International Law Journal 224 (1978). 4 Oğuz, Arzu, “Hukuk Tarihi ve Karşılaştırmalı Hukuk Açısından Uluslararası Ticaret Hukuku (Lex Mercatoria) --
Lex Mercatoria in Internatıonal Arbıtratıon
on customs and traditions, showed its first development in maritime law. Afterwards, taking into account the development of commerce, lex mercatoria evolved to encompass maritime law. 5 This process, which had begun by the renaissance of the Roman law, had spread all over Europe and survived until recently. 6 It is a generally accepted fact that the adoption of the Roman law started in Italy and ended up in Scandinavia after approximately 400 years. 7 Over almost all of Europe (except in the UK) a new law called ius commune, which was not superior or superseding but coexisting with regional laws, aimed to fill the gaps in the regional laws and which was based on Roman law, had started to flourish.8 In other words, the presence of regional laws in Europe had not prevented the flourishing of a common law. 9 The term lex mercatoria is a modern expression of the ius commune. 10 In other words, lex mercatoria, ius commune and law merchant have the same meaning. Even though the merchant law was born in an environment of dualism, i.e. feudal and Roman law, its failure to answer the needs of merchants should be assessed. Furthermore the definition of the new lex mercatoria and its basis should also be determined. III. Medieval Merchant Law The term medieval refers to the period after the collapse of the Roman Empire in the fifth century. The most important difference of this period from today was the lack of national countries. Since there were no national countries there were no national laws. Therefore one can state that the presence of different law systems resulted in different laws being applied to different persons. Within this context it should be stated that the application of law was not regional but personal. 11 Although in medieval law the concept of change in title was present, change in title with consent was only interpreted as a gift or donation. The transfer of title in commercial terms as it is interpreted today was accepted by the end of the 10th century.12 Within this context, it should be stated that up until that time commerce was present, but was considered to be only a trifling exchange in terms of donation. Since transportation was dangerous Unidroit İlkelerinin Lex Mercatoria Niteliği”, 50 AÜHFD 14 (2001). 5 Trakman, Leon, “The Evolution of the Law Merchant: Our Commercial Heritage”, 12 Journal of Maritime Law and Commerce 4, 1980. 6 This common law (ius commune) had been left by the entering into force of the German Civil Code in 1900. Koopman, Thijmen, “Towards a New “Ius Commune,”” in Witte, Bruno and Forder, Caroline, The Common Law of Europe and the Future of Legal Education, Kluwer Law, 1992, 44. 7 Id. at 43. 8 Oğuz, Arzu, “Sözleşmeler Hukukunda Hukukun Birleştirilmesi,” 49 AÜHFD 44 (2000); Koopmans, supra note 6, at 43. 9 Oğuz, Arzu, Karşılaştırmalı Hukuk, Ankara, 2003, p. 57. 10 Fortier, Yves, “The New, New Lex Mercatoria, or Back to the Future”, 17 Arbitration International 125 (2001). 11 For example a priest was living in accordance with the canon law system, however canon law would not be applied to a farmer. Volckart, Oliver and Mangels, Antje, “Are the Roots of the Modern Lex Mercatoria Really Medieval?”, 65 Southern Economic Journal 435 (1999). 12 Id. at 436.
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ankarabarrevıew 2009/1 and expensive, the goods in commerce were categorized as luxury goods. The change in the personal status of merchants after the 10th century, i.e. after the grant of free person status to merchants, led to an increase in commercial transactions. In the 11th century, the medieval period was characterized as dangerous and unstable with regard to legal transactions. For this reason, merchants experienced a transformation and formed guilds in order to protect trade from looters. It should be understood that, in the medieval period, merchants were engaging in commerce by changing places with their goods. Therefore, by organizing themselves into guilds, merchants were both protecting themselves from the looters while increasing the volume of their commerce. Since commerce was practically not regulated in legal systems in the 10th and 11th centuries, the guilds started to create their own system of law. Since the legal systems did not regulate commerce in the medieval period, other then the formation of lex mercatoria today, the medieval law had only been completed and had not been replaced by “law merchant.”13 However the law merchant subject to creation today is in process of replacing national legal systems. According to a legal system created by the guilds, disputes were generally solved within the guilds. The execution of the decisions was assured by the reputation of the merchants. Nowadays, the loss of reputation could be a reason for a decrease in commercial transactions or even the total loss of it, however in the medieval period the loss of reputation generally resulted in expulsion from the guild. 14 The most important sanction within the guild was expulsion; however another sanction available within the guilds was that if a foreign merchant was an enemy to a merchant member of a guild then all guild members would be an enemy to this merchant. All disputes between a merchant and a non-merchant were subject to feudal law and courts. However, since an oath was a primary source of proof before the feudal courts, merchants who were constantly traveling were unable to find reliable persons to give an oath. In this case, merchants especially were subject to duel or an institution called an “ordeal” in which the accused were thrown into hot or boiling water; if they survived, they were not guilty.15 Only after the evolution of the cities into prototypes of national countries in the11th and 12th centuries, and the possibility of the successful execution of decisions had increased, did the disputes between the guilds and disputes between the members of a guild evolve. The main reason for feudal lawmakers to protect merchants and to enact new laws granting special rights and privileges to the merchants was the13 Id. at 439. 14 Id. at 440. 15 Id. at 442.
Lex Mercatoria in Internatıonal Arbıtratıon
ir addiction to luxury goods.16 Finally with those special rules and laws, merchants had become a privileged class in society and all the rules that applied to the members of that class had started to be called the ius mercatorum.17 It should be remembered that the term lex mercatoria had first been stated in the Fleta Laws in 1290, which stipulated that merchants were not subject to standard laws and rules but were considered to have a different status.18 The formation of regional (city) laws had minimized the execution problems stated above that had affected the merchant law. It should be stated that in most of the cities, new courts were established in order to solve disputes between foreign and local people. The only difference with those courts was that they were speedily rendering their verdicts and there were no appeals for those verdicts. It is clear that those courts constituted an answer to the merchants’ need for fast resolution of disputes. Within this context, it should be stated that those courts were answering the same needs as the merchants today who seek recourse to arbitration to settle disputes. It is clear that merchant law which was constituted during medieval ages had affected regional (the cities’) law.19 The differences between cities’ laws on similar issues was probably due to differences between the guilds’ rules. One can ask what is the relation between this law and new lex mercatoria? IV. The New Lex Mercatoria It should be stated that merchant law, lex mercatoria, had flourished during the medieval age and started to be nationalized afterwards. However it did not die and has started to be rejunevated today.20 Modern lex mercatoria is defined as an international law system applied by international merchants based on commercial rules and principles. 21 Some of the writers state that the term lex mercatoria is not new; it is based on the ius gentium present in Roman law and even on ancient Egypt law. 22 16 Id. at 432. 17 Id. at 443. 18 Id. at 443, n. 44. It should be stated that in UK although the law merchant had evaluated in parallel with Europe, it showed major differences thereafter. It is an undisputable fact that in 16th and 17th centuries courts dealth with a considerable number of commercial disputes. However in order to define the commercial rules and principles for merchants, new legislation was needed. Taking into account this need, Lord Mansfield had ruled that law merchant was not commercial rules and principles to be proved by the merchants but it is an issue which should be ruled by the courts and which should be applied to all persons. Trakman, Leon, “The Law Merchant: The Evolution of Commercial Law”, 28, 1983; Trakman, supra note 5 at 156; Berman and Kaufman, supra note 3 at 226. 19 The main characteristics of medieval lex mercatoria were that it was the transnational law, its principla source was mercantile custom, function of judgment was governed not by professional judges but by the merchants themselves, its procedure was speedy and informal. Milenkovic, Tamara, “Origin, Development and Main Features of the New Lex Mercatoria”, Economics and Organization, Vol. 1, No 5 ,1997, 89. 20 Berman and Kaufman, supra note 3, at 273; Trakman, supra note 5, at 153. 21 Commercial rules and principles are based on 12th century. These rules and principles are based on mutual good will and trust. Ululsoy, Erol, Ticari Örf ve Adet Hukuku, Istanbul, 2001, 68-69; Kilian, Monica, “CISG and the Problem With Common Law Jurisdictions”, 10 Journal of Transnational Law & Policy 219; Baron, Gesa, “Do the UNIDROIT Principles of International Commercial Contracts form a new Lex Mercatoria?” at http://www. cisg.pace.law.edu, 1998, 2; Lopez-Rodriguez, Ana Mercedes, “Lex Mercatoria”, 2002, 46-56, available at http://www.rettid.dk; Volckart and Mangels, supra note 11, at 430; Goldman, Berthold, “The Applicable Law: General Principles of Law – the Lex Mercatoria,” in Lew, Julian DM: Contemporary Problems in International Arbitration, London, 1987, 116. 22 Ferrari, Franco, “Uniform Interpretation of the 1980 Uniform Sales Law”, 1994 Georgia Journal of International and Comparative Law 183 (1994), available at http://www.cisg.pace.law.edu; Lopez-Rodriquez, supra note 21, at 46.
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ankarabarrevıew 2009/1 This legal system called lex mercatoria is not enforced by any national law and is not contained in an international agreement.23 Lex mercatoria, which was applied in the medieval age, had disappeared or melted into different legal systems by the 19th century when national laws and rules emerged.24 Finally national laws had started to differ more and more because distance between the legal systems and commercial life had been established. However lex mercatoria did not disappeare completely. During this time, merchants founded international organizations, independent from states, (like the International Chamber of Commerce, (ICC)) in order to regulate commerce and inured rules with these organizations to bind the states as well as the merchants.25 It is not surprising that lex mercatoria is active today since merchants, especially international merchants, believe that national rules are not appropriate for commerce, that conflict of law rules are complicated and finally that dispute resolution procedures take too much time.26 For these reasons, the will to constitute rules which are flexible, fast and devoted to results is spreading.27 This will is considered by some lawyers to be the driving force behind the formation of a new lex mercatoria. Within this context, the assertions of two schools which are for and against lex mercatoria should be stated. Those who are against lex mercatoria assert that those rules are not “laws” and therefore they are not binding. Furthermore they state that since lex mercatoria is based on general terms and conditions as well as actual practice, it would be difficult for those rules to become law in the future.28 Another assertion is that lex mercatoria is incomplete and is difficult to understand.29 However, the questions remain on what grounds these rules are based and where these rules can be found? On the other hand, some assert that lex mercatoria is valid law and had obtained its binding character from the fact that this law had been accepted by the societies which form the state and regulate international commerce.30 Therefore it could be stated that lex mercatoria lacks the classical characteristics of laws while at the same time it suffers the characteristics of national laws.31 23 It had been stated that lex mercatoria is a law of an economic organisation which lacks any center and it represents the social fonction of a law. See Zumbansen, Peer, “Piercing the Legal Veil: Commercial Arbitration and Transnational Law”, 8 European Law Journal 416 (2002). 24 Baron, supra note 21, at 3. 25 Id. 26 Davidson, supra note 1, at 4. 27 It had also been stated that international commerce at present is due to lex mercatoria which is constantly evolving (Schmidt-Trenz, Hans-Jörg and Schmidtchen, Dieter, “Private International Trade in the Shadow of the Territoriality of Law: Why Does It Work?”, International Trade and the Territoriality of Law, Universitat des Saarlandes, 2001, 336. 28 Lopez-Rodriques, supra note 21, at 49, Baron, supra note 24, at 5. 29 Kilian, supra note 21, at 221. 30 Lando, O, “The Lex Mercatoria and International Commercial Arbitration”, 34 ICLQ 752 (1985). 31 Baron, supra note 24, at 6.
Lex Mercatoria in Internatıonal Arbıtratıon
V. Sources of the New Lex Mercatoria The new lex mercatoria is defined as a legal system32 comprising commercial rules and principles, model laws, general terms and conditions, general principles33 and international arbitration. 34 However it should be stated that different definitions exist and those definitions do not represent an unanimous view. Since there is no unanimity in the definition of the lex mercatoria, opinions regarding its sources also lack unanimity. However a generally accepted source list shall be given below. Within this context it should be stated that some lawyers think that lex mercatoria should be accepted widely as customary law – a synonym for international law,35 however others think that it should only comprise model laws and other recommendations that international organizations prepare.36 The main source of the lex mercatoria is commercial rules and principles. It is generally accepted that commercial rules and principles are rules accepted by merchants as binding without any need of a specific approval mechanism.37 These rules and principles are generally codified by professional associations.38 The second main source of the lex mercatoria is model laws and international contracts. An example of model laws is the Uniform Customs and Practice for Documentary Credits-UCP, prepared by the International Chamber of Commerce, and an example of international contracts is the Uniform Law on the Sale of Goods-CISG. General principles of law can also be a source of lex mercatoria. Examples like pacta sund servanda, rebus sic stantibus and goodwill are principles which have survived from the medieval age until today. 39 Determination of these principles necessitates the examination of different national laws on a comparative basis – very hard work. 40 However studies like the Principles for International Commercial Contracts conducted by UNIDROIT (the International Institute for the Unification of Private Law) facilitate this determination. It should be pointed out that these principles are a result of studies conducted to determine terms and principles common in 32 Volckart and Mangels, supra note 24, at 430. 33 General law principles had been defined as source of lex mercatoria and different work groups unified for the determination of these principles prove that lex mercatoria can be identified. Lopez-Rodriquez, supra note 24, at 52). 34 It is a well known fact that arbitration has great importance in the renaissance of the new lex mercatoria. Due to the fact that the arbitrator is simply not a guardian of the national law system but a person who is trying to reach justice by preserving the parties’ benefit and interest. Moreover it should be stated that internatinal law is constituted on three pillars namely the parties’ interest, pacta sund servanda and arbitration. Goldstajn, Aleksander, “The New Law Merchant”, Journal of Business Law, 1961, 12; Goldstajn, Aleksander, “The New Law Merchant Reconsidered”, in Schmitthoff, M., Frankfurt, 1973, 174; Schmitthoff, M. Clive, “International Trade Law and Private International Law”, Festschrift für Hans Dölle Bd. II, Vom Deutschen zum Europäischen Recht, Iusg. E. v. Caemmerer, A., Nikisch, K. And Zweigert, Tübingen, 1963, 270. 35 While defenders of this opinion tend to include laws, international practices, commercial principles and international organization regulations into the term lex mercatoria. 36 Baron, supra note 24, at 4. 37 Volckart and Mangels, supra note 11, at 430. 38 As an example, INCOTERMS provisions and force majeure provisions of the ICC can be given. 39 Lando, supra note 30, at 750, Volckart and Mangels, supra note 11, at 431. 40 Lando, supra note 30, at 750.
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ankarabarrevıew 2009/1 different legal systems.41 International commercial arbitration constitutes a basis for the lex mercatoria since the commercial principles, general terms and conditions of commerce are backed up by the general principles of law and this system is the basis of international arbitration.42 VI. The Relation Between the New Lex Mercatoria and Arbitration First of all it should be stated that lex mercatoria has only limited applicability in national legal systems due to the fact that national laws and procedures have priority. Unlike national legal systems, lex mercatoria has more applicability in international commercial arbitration. Therefore it is a commonly accepted fact that lex mercatoria and international arbitration have a direct connection with each other. Most of the contracts and rules concerning international arbitration prepared after the 1950s stipulate that the arbitrators should take into account international commercial rules and principles even if the arbitration clause does not refer to lex mercatoria.43 This determination is in parallel with the character of international commerce since the principle aim is to apply the rules of the international commerce during the arbitration. Nowadays most commercial contracts (approx. 90%) include an arbitration clause. 44 Although some of these clauses stipulate that the law to be applied to the arbitration is a particular national law, some of them refer to lex mercatoria and/or equity. VI.A. Explicit References to Lex Mercatoria First of all, parties may refer to lex mercatoria explicitly in the arbitration clause as the law to be applied to the arbitration. It should be noted that when the parties stipulate lex mercatoria as the law to be applied to the arbitration, the arbitrators may be obliged in some cases to prove a real and creative effort to determine the principles of law and procedures to be applied. 45 Some assert that although the process of arbitration should grant some flexibility to the arbitrators, lex mercatoria is too vague and indefinitive, i.e. the power granted to the arbitrators is inappropriate and create difficulties to the arbitrators as well. 46 Apart from the determination problem of the lex mercatoria it should be stated that parties have the right in most national legal systems to choose the law to be applied in case of a dispute between the parties. This rule also applies to arbitration. Within this context Article VII of the European 41 Erdem, Ercüment, “Lex Mercatoria ve ICC Tahkimi”, Milletlerarası Tahkim Semineri, Ankara, 6 April 2004, 24. 42 Volckart and Mangels, supra note 11, at 432. 43 See Article VII of the European Convention on International Commercial Arbitration, Article 17 of the Rules of Arbitration of the International Chamber of Commerce. 44 Volckart and Mangels, supra note 11, at 432. 45 It had been stated that the arbitrators in some cases should use their creativity due to the fact that lex mercatoria provides limited source. Lando, supra note 30, at 752. 46 Kilian, supra note 21, at 222.
Lex Mercatoria in Internatıonal Arbıtratıon
Convention on International Commercial Arbitration may be given as an example. According to this Article, “The parties shall be free to determine by agreement, the law to be applied by the arbitrators to the substance of the dispute.” Determination of lex mercatoria as the law to be applied to the arbitration may either be done by an explicit referral or by a reference to general law principles, international commercial rules and principles and general terms and conditions of commerce.47 VI.B. Implied Reference to Lex Mercatoria Implied reference to lex mercatoria as the law to be applied to the arbitration may be determined by the evaluation of the contract concluded by the parties. Based on the evaluation of the contract provisions, one can determine the law to be applied to the arbitration as either a national law or lex mercatoria. Implied reference to lex mercatoria is considered to be present most usually when the parties grant the arbitrators the right to act as amiable compositeur. It is an undisputable fact that arbitrators acting as amiable compositeur should take into account and solve the dispute according to bona fide principles and general rules and principles, or in other words, lex mercatoria.48 VI.C. Lack of Selection of Applicable Law Although determination of the applicable law for disputes is mostly welcomed by the arbitrators and accepted as a tool to construct the mutual trust and stability between the parties, for different reasons some international commercial contracts do not contain any choice of applicable law. Failing any determination by the parties as to the applicable law, the arbitrators shall determine and apply the appropriate law for the arbitration. In this case, lex mercatoria may be applied by the arbitrators if deemed appropriate. Determination of the lex mercatoria by the arbitrators is mainly due to the fact that lex mercatoria is more appropriate to the needs of international commerce, the expectations of the parties and the legal nature of the arbitration. Furthermore it must be stated that most international contracts and documents regulating international arbitration refer to the international commercial rules and principles, as well as trade usages, and state that these rules and usages must be taken into account by the arbitrators whether there is an explicit reference to a national law or not. Within this context, Article 17 of the Rules of Arbitration of the 47 Şanlı, Cemal, “Milletlerarası Ticari Tahkimde Esasa Uygulanacak Hukuk”, Ankara, 1986, 322. 48 Id. at 325.
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ankarabarrevıew 2009/1 International Chamber of Commerce may be given as an example. According to this article, “in all cases the Arbitral Tribunal shall take account of the provisions of the contract and the relevant trade usages.” VII. The Turkish Law System and the Applicability of Lex Mercatoria It should be stated that there is no provision within the Turkish Procedural Law concerning the law to be applied by arbitrators. However, taking into account the application of lex mercatoria more often within arbitral decisions, the Turkish legal system has also recognized that arbitrators are not bound by the law to be applied to the arbitration, i.e. they can rule based on generally applied commercial rules and principles.49 This reasoning is based on the fact that according to Article 533 of the Turkish Procedural Law, arbitral decisions cannot be overruled due to the fact that they are against the substantive law. 50 51 According to Article 12/C of the International Arbitration Law (Law 4686), the arbitral tribunal or the sole arbitrator shall render a decision according to the contract concluded between the parties and in accordance with the applicable law decided by the parties. Therefore the parties’ mutual will and understanding shall prevail. According to the same article, generally applied commercial rules and principles related to the applicable law shall also be taken into account during the interpretation of the contract provisions. According to Turkish law, commercial rules and principles are construed as principles that have been applied for a long time and accepted as binding by merchants. 52 Customs are to be construed as habits and not to be accepted as binding commercial rules and principles; therefore they may only be used to interpret the parties’ understandings. 53 It should be stated that due to the provision in Law No 4686 stating that “commercial rules and principles related to the applicable law shall be taken into account during the interpretation of the contract provisions,” commercial rules and principles that are only present in the applicable law may be accepted. 54 However it is clear that international commercial rules and principles are more recognized then national principles. Although the provisions of Law 4686 are generally in line with the UNCITRAL model law or similar regulations, this provision, which is against the UNCITRAL principles, may attract criticism. It is noteworthy that according to Article 28/4 of the UNCITRAL model law, an arbitral tribunal shall render its decision in accordance with the contract provisions and commercial 49 Özdemir, Didem, “Milletlerarası Ticari Tahkimde Esasa Uygulanacak Hukuk Olarak Lex Mercatoria”, Gazi Üniversitesi Hukuk Fakültesi Dergisi, Jun-Dec 2003, Vol. VII, Issue 1-2, 130. 50 Alangoya, Yavuz, Medeni Usul Hukuku Esasları, Istanbul, 2001, 585. 51 Please see decision E. 4, K. 1, dated 28 January 1994. 52 Arkan, Sabih, Ticari İşletme Hukuku, Ankara, 2004, 86; Ulusoy, supra note 21, at 75, 87. 53 Arkan, supra note 52, at 88. 54 Akinci, Ziya, Milletlerarası Tahkim, Ankara, 2003, 181.
Lex Mercatoria in Internatıonal Arbıtratıon
rules and principles applicable to the commercial transaction. Therefore commercial rules and principles applicable to the commercial transaction are not considered to be national commercial rules related to a particular country. It is a clear fact that the arbitral tribunal or the sole arbitrator shall designate the applicable law to the dispute, if the applicable law has not been determined by the parties. According to Article 12/C of Law 4686, the arbitral tribunal or the sole arbitrator shall designate a national law which has the closest relation to the dispute in case the applicable law has not been determined by the parties. According to Law 4686, arbitrators may decide an arbitration case in accordance with bona fide principles and/or as a mediator or amiable compositeur only if the parties explicitly authorize them to do so. Arbitrators shall resolve the dispute in accordance with their own conscience if the dispute shall have been decided to be resolved according to bona fide principles. 55 Since the arbitral decision may be annulled or the execution may be denied due to a wrong determination of the applicable law, the determination of the applicable law is crucial at this stage. The arbitral decision may only be annulled if it is determined that the arbitrators had violated their authorization. It should be stated that an incorrect determination of the applicable law had been stated as a reason for annulment of an arbitration award both in Law 4686 and the UNCITRAL model law. 56 In conclusion, within an international arbitration conducted according to Turkish law (Law 4686), provided that the consent of the parties had been given, arbitrators may resolve the dispute in accordance with lex mercatoria comprising commercial rules and principles. Furthermore it should be stated that the Court of Appeals has also accepted that the primary consideration in arbitration is the best interests of the parties.57 (However) As stated above, an arbitral award may be subject to annulment if the arbitrators were not authorized to act as they did by the parties.
55 Id. at 163. 56 Id. at 167. 57 Please see decision E. 4, K.1. dated 28 January 1994.
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Patenting Biotechnological Inventions in Europe and the US by Ayşegül Özdemir* I) INTRODUCTION
T
he patent system is designed to grant inventors and innovators exclusive rights over their inventions for a certain period of time in exchange for public disclosure of their inventions.1 Biotechnology is a new technique for industries and specialists and is making astounding progress. Advances in biotechnology are so rapid that many things are now possible, which, even a few years ago, would have seemed unimaginable.2 It is a type of genetic engineering in medical and veterinary research resulting in modified productions and improved animal breeds.3 It is the use of microorganisms, mammalian cells and their products for industrial, agricultural, and medical purposes.4 This is also a growing discipline with a remarkably strong market. In 2006, global turnover was estimated at $60 billion, up 15 per cent from 2005.5 This rapid development has led to huge problems in biotechnology, particularly in patenting biotechnological inventions. In modern biotechnology, patents are a controversial issue and are more interesting for the public than any other technical field. Advances in biotechnology are bound up in ethical, religious, political and legal issues. Breakthroughs in this area of research invariably reach the headlines in the news. There have been reports on genome sequencing of gene development into protein expression, and enthusiastic discussion on the isolation of stem cell cultures, which makes human cell cloning possible. With public interest aroused, the occasion could arise when a scientific research institution, in order to protect their research investment, would have to consult a patent lawyer for advice. A rapidly increasing amount of genetic code and * Member of Ankara Bar; Partner at Cansel Law Office; LL.M. at Exeter University. She can be contacted at “
[email protected]”. 1 See Deming Liu, “Now the Wolf Has Indeed Come! Perspective on the Patent Protection of Biotechnology Inventions in China”, 53 American Journal of Comparative Law 207, 207 (2005). 2 Noelle Lenoir, “Biotechnology, Bioethics and Law: Europe’s 21st Century Challenge”, 69 Modern Law Review 1, 1 (2006). 3 W. Cornish and D. Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, (Sweet and Maxwell, London, 2003), p.823. 4 Austin (Tex) Bus. J., Oct. 10, 1997, available at 1997 WL 12611805. 5 http://www.epo.org/topics/issues/biotechnology.html.
Patenting Biotechnological Inventions in Europe and the US sequencing material is being patented provided that the patent is not so biotechnologically broad that it creates a monopoly or illegitimate patent production based on lack of product or potential product specificity.6 Consequently, the idea that breakthroughs in genetic knowledge could be monopolized by a few multinational companies is a major cause of concern. Throughout the world, patent offices, legislators and courts are deeply involved with these issues. Legal answers are more likely to be reached than political or ethical considerations satisfied. The ethics surrounding these issues must not be ignored nor can they be an obstacle to legal provision for potential inventions. II) HISTORICAL REVIEW Inventors have been filing applications for biotechnological patents for over a hundred years. Patent No. 3, granted in Finland on 8 November 1843, introduced a novel method to produce yeast cultures. On 29 July 1873, microbiologist Louis Pasteur obtained a patent from the French Patent Office for his improved yeast-making method.7 In the last 50 years, very important biological advancements have taken place. Biological advancements usually require substantial investment for research. Therefore, investors turn to Intellectual Property Rights (IPRs), particularly patent systems, in the hopes of insuring their rights over their investment. In this way, the concerns of biotechnological research, its inventions, and IPRs are closely linked. The United States was the first in the field with its decisions regarding the patenting of “living matter.” Early patents from the US were granted for bacterial and viral vaccines. Until the 1980s, it was usually agreed that “living things” were not patentable. This policy was revised in the 1980 landmark case of Diamond v. Chakrabarty. The invention concerned the discovery of a genetically-altered bacterium, which, when modified, could break down crude oil. As the US Supreme Court famously noted in this case, it now seemed possible to issue patents on “anything under the sun that is made by man.”8 The Court decided that Chakrabarty’s invention was not a “product of nature” but a “man-made” bacterium, which did not occur naturally in nature. Thus, the court stated, it was “not nature’s handiwork, but Amanda Chakrabarty’s own; accordingly the Court held it was patentable subject matter.”9 Thus, from then on, an invention involving a living organism could fulfill the criteria to be patentable subject matter, since a genetically modified bacterium, a bioengineered microbe, had been created to provide a useful function – to dissolve oil. In the 1987 case of Ex parte Allen, the Board of Patent Appeals and Interferences ruled that polyploid oysters containing three sets of 6 John Salinas Lopez, “Should Genetic Code Be Patented?,” Law and Society Review at UCSB, Vol.1 (2002) Genetic Code 57. 7 http://www.epo.org/topics/issues/biotechnology.html. 8 447 U.S. 309 (1980). 9 Ibid. at 310.
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ankarabarrevıew 2009/1 chromosomes instead of two were patentable subject matter.10 The decision resulted in the United States Patent and Trademark Office (USPTO) making an announcement that thereafter it would consider “non-naturally occurring, non-human multicellular living organisms, including animals, to be patentable subject matter within the scope of the Statute.”11 Only one year later, in 1988, the first patent on a mammal was granted in the U.S. for the Harvard mouse (US Patent 4,736,866). Many patent applications in the U.S. have followed for genetically modified animals. The same case underwent a very complex process before it was finally granted a patent in 2004. The European equivalent to the US Chakrabarty case was the “Rote Taube” decision.12 In this case, the patent application was refused because of difficulties in reproducing the invention but it was accepted that a process of animal breeding based on classical crosses and selection could be patentable material. In 1973, the European Patent Office established the European Patent Convention (EPC), based on established national laws. Biotechnology, although a developing new field that is making discoveries that could never have been foreseen, is dealt with by a traditional body of law. In July 1998, EU Directive 98/44/EC on the legal protection of biotechnological inventions, known as the “Biotech Patent Directive” was adopted. Its purpose was to clarify the distinction between what is patentable and what is not.13 III) IMPORTANCE OF PATENTS IN THE FIELD OF BIOTECHNOLOGY The major reason that inventors apply for patents is to protect their control over the technologies that they have invented. However there are also other reasons. A large patent portfolio is considered to be an indication of a strong company and can put companies in an advantageous position to attract investors and collaboration partners. Although there is the opposing argument that the costs of patenting and the requirement to disclose technical information are disproportionally large in comparison to the benefits, it is nonetheless clear that biotechnological inventions are patented extensively. In addition to this, companies derive great advantages from cross-licenses and the ability to undermine competitors. So the main object seems to be, not the protection of the technology per se, but the restriction of competition. Patents are the most appropriate way of protecting biotechnological inventions. Other methods of protection, such as trademarks and trade secrets, are less relevant for biotechnological inventions because of the ease with which drugs can be copied through chemical reverse engineering.
10 2 USPQ 2d, 1425 (PTO Bd. Pat. App. & �������������� Int., 1987). ������������������������ USPTO, April 21, 1987. 12 BGH, Beschluss vom 27.03.1969 – X ZB 15/67 (BPatG). ������������������������������������������������������ http://www.epo.org/topics/issues/biotechnology.html.
Patenting Biotechnological Inventions in Europe and the US IV) PATENTABLE SUBJECT MATTER According to Article 27.1 of the WTO Trade Related Intellectual Property Rights (TRIPS) Agreement, “patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application.” These requirements are arranged in all national legislation schemes in different provisions. Besides, these traditional requirements in the field of biotechnology there may be other requirements for the patenting procedure. Investors planning to obtain patent protection for biological inventions may confront different legal systems, patent authorities, substantive and procedural requirements, since the field is territorial in nature A) Most relevant provisions regarding biotechnological inventions 1) Europe: European Patent Convention Art. 52-57, 83, 84; Rules 23 b-e, 28 and Directive 98/44/EC 2) US: Title 35 United States Constitution Section 101-103, 112, 287(c) B) Prerequisites of patentable subject matter For a living thing to be patentable, it must meet two prerequisites of patentable subject matter. The living thing must be an “invention” within a “patentable class.” In all national legislation schemes, these prerequisites must be in place for a patent to be granted for a biotechnological invention. Each of them will be examined by focusing on the legislation separately. 1) First prerequisite – the distinction between Inventions and Discoveries The specific definition of an invention is not included either in the United States Patent Act or in the European Patent Convention and discoveries are excluded from patentability.14 a) The United States To be eligible for a patent, an invention must fit within one of the statutory categories of patentable subject matter established in Section 101 of the US Patent Act: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.15 The case of Diamond v. Chakrabarty was the first time a court made 14 Convention on the Grant of European Patents (5 October, 1973, Munich; as amended for the last time 10 December, 1998) Art. 52. Patentable inventions are described by giving the list of exclusions that “shall not be regarded as inventions: (...) (a) discoveries, scientific theories and mathematical methods;(b) aesthetic creations; (c) schemes, rules and methods for performing mental acts, playing games or doing business, and programmes for computers; (d) presentations of information. 15 5 U.S.C. Section 101.
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ankarabarrevıew 2009/1 a decision to change the paradigm of enquiry for biotechnological inventions. The meaning of the statute was clarified in a broad sense for biological inventions in the Chakrabary decision. The U.S. Supreme Court decided in this case that “anything under the sun that is made by man” is patentable subject matter. According to the court decision, what is needed to evaluate biotechnological patent claims is to determine whether a product is of a living nature, or is of human invention, rather than of making one’s judgment based on whether the product is living or inanimate. Applying this criteria means natural products can be seen to be biologically active substances or chemical compounds and not merely as products of nature. Thus, the issue is already settled. As long as the living matter applications under 35 USC Section 101 are a product of human ingenuity – viruses, single cells or multicellular organisms, they, can, like plants and nonhuman animals be considered to be living matter. A common issue arising from biological inventions is the problem of novelty and the distinction between discovery and invention. Pure products of nature are not patentable. In order for the subject matter of natural origin to be patentable under 35 U.S.C. Section 102, a human being must impart a new form, a new quality, at least one new property, or combinations thereof, to the original product existing in nature. The main issue regarding patentability of biotechnological inventions concerns the extent to which they are made publicly available and how the claimed inventions are different from what is found in nature. Products, which have a higher purity or activity from the original, have distinguishing physical properties or a different physical form may be patentable. b) Europe “Discoveries (...) shall not be regarded as inventions.”16 Similarly in Europe, just as there is in the US, there is a legal objection to allowing patents for living things. This view is based on the “product of nature” doctrine. If a new property of a known article or of a previously recognized substance existing in nature is found, it is a “discovery” and not patentable as such.17 However, if an applicant proves that a substance found in nature can be put to a new use (for example, a micro-organism X is proved to be useful in diagnosing Y disease) or if another technical effect is established, then such a “living thing” and its use may be patentable as an invention.18 Thus, the concept that ‘discovery’ is necessary in order for a patent to be granted is interpreted narrowly under the EPC as well as other exclusions. A leading decision on patentability of naturally-occurring substances and the distinction between discovery and invention was made by the 16 EPC, Convention on the Grant of European Patents, Art.52 (2) (a). 17 Guidelines for Examination, Part C, Chapter IV, Section 2.3; http://www.european-patent-office.org/legal/ gui_lines/ index.htm. ������� Ibid.
Patenting Biotechnological Inventions in Europe and the US German BpatG (Bundespatentgericht) in the Antamanid case.19 The decision made clear that substances occurring naturally are patentable if they are new and have been isolated by technical means. It also has to be publicly available in that form and that it could not have been found without technical intervention. An isolated gene, which is identical to the gene found in nature, may be patentable if the gene sequence has never been isolated before. Article 3 of the Directive makes it clear that once the criteria have been met, the biological products or material, or a process by means of which it is produced, processed or used, is patentable. The isolated element of the human body is only patentable in its natural state. The factors that make the element so are the technical processes used to identify purity and classify it and to reproduce it outside the human body, techniques which human beings alone are capable of putting into practice and which nature is incapable of accomplishing by itself.20 When it comes to human beings, there is the commonly accepted approach that such intervention and human parts should not be patented. Therefore, it would seem important to exclude unequivocally from patent ability, processes for modifying the germ line genetic identity of human beings and processes for cloning human beings.21 Art. 52(1) of the EPC defines patentable inventions as: European patents shall be granted for any inventions which are susceptible to industrial application, which are new and which involve an inventive step.22 In Article 52(2), the second part of the article lists subjects which shall not be regarded as inventions. Discoveries are strongly excluded from patentability in this article. 2) Second prerequisites a) Ordre public and morality This area is exclusive to EU Patent Law. EPC Article 53 (a) and (b) bring further restrictions on biotechnological patents. As stated in part (a) it excludes inventions contrary to “ordre public” or morality and in (b) excludes “plant or animal varieties or essentially biological processes for the production of plants or animals.” EU Directive 98/44/EC and its 1:1 implementation into Rules 23b-e of the EPC further specifies exceptions to patentability that are in conflict with “ordre public” or morality. Excluded is cloning of human beings, modification of the human germ line, using human embryos for industrial or commercial purposes and genetic modification of animals that causes ������������������������������������������������������������������� BpatG, Beschluss vom 28.07.1977 – 16 W (pat) 64/75 “Naturstoffe.” 20 Recital 21. 21 Recital 40, the Directive. 22 EPC Article 52(1).
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ankarabarrevıew 2009/1 them suffering without substantial medical benefit.23 Although EPC Art. 53(a) explicitly states that inventions contrary to the “ordre public” or morality are patentable, the meaning of these two terms are not clarified. The concept ordre public has an untranslatable character.24 It was originally used in continental Europe. In some documents, the concept of ordre public means public security and the physical integrity of the individual and environment,25 but it is more than that. Briefly, ordre public means the proper order of the whole society.26 Although according to EPC Art. 53(a), inventions contrary to morality are excluded from patenting, the grounds regarding morality are uncertain and flexible, for what is seen to be contrary to morality changes with time and place. Sometimes attitudes even vary in a particular country at a particular time. Moreover, there is the belief that “morality issues are marginal, or even irrelevant to patent law,” that patents have more in common with finance, than morality.27 However, there is a great public concern over this matter, particularly over patenting biotechnological inventions, since there is the fear that they may damage society. Morality after the Directive The European Union adopted a Directive on the Patenting of Biological Inventions in 1998. It came into force on 6 July 1998 as Directive 98/44.28 Member States had to implement this Directive before July 2000. However, there was some opposition to the Directive in Europe. For instance, Netherlands applied to the Court of Justice for a modification while Germany, France, and Austria did not implement the Directive before 2004.29 First of all, the Directive defined the distinction between what is patentable and what is not. For example, an invention relating to individual human, animal or plant genes and gene sequences, and their functions, can be patented as long as the other patentability criteria are fulfilled.30 In the first draft of the Directive, there was no reference to morality regarding patenting. In the course of time public concerns were voiced and the Directive became a focus for the consideration of the ethical and social dimensions of biotechnology.31 Those evaluating the patenting of biotechnological inventions were of the view that the patent system, as it stood, was an inappropriate instrument to deal with ethical questions because the existence of a patent cannot control how an invention is exploited.32 23 D.Schertenleib , E.I.P.R. 2004, pp.203-213 (general review on patentability of living organisms in Europe). 24 Cornish and Llweyn, supra note 3, at 224. 25 See Guidelines for Examination, supra note 17. 26 P.W. Grubb, Patents for Chemicals, Pharmaceutical and Biotechnology, Oxford Un. Press (2004), p. 281. 27 Ibid. 28 OJ Official Journal 1998 L 213/13. 29 Grubb, supra note 26, at 278. 30 http://www.epo.org/topics/issues/biotechnology.html 31 Lionel Bently and Brad Shermann., Intellectual Properity Law (2004), Oxford Un. Press, Oxford, p. 439. 32 Ibid, at 439.
Patenting Biotechnological Inventions in Europe and the US In the view of the evaluators, the means to control biotechnological inventions should be the responsibility of a different regulatory system. After discussions, the Directive compromised, accepting that inventions must be unpatentable should their commercial exploitation be contrary to ordre public or morality. There are institutions and organizations in the world which play a key role in deciding on ethical issues. One such institution is the Nuffield Council on Bioethics in the UK, which examines ethical issues raised by new developments in biology and medicine.33 The Nuffield Council supports embryonic stem cell research when it can be proved that such research is not contrary to public welfare or morality.34 b) Plant and Animal varieties EPC Article 53 (b) states that patents shall not be granted on “plant or animal varieties or essentially biological processes for the production of plants or animals.” Upon first impression, it seems that even a living thing may qualify as a “manufacture” or a “composition of matter” and as such would meet the statutory subject matter requirements in the United States.35 The EPC, however, expressly excludes all living inventions such as “plant or animal varieties” from patentability and distinguishes them from microbiological36 ones. The term “variety” creates a difficulty in this case since its definition is still vague. This exception does not infer “general exclusion of inventions in the sphere of animate nature”37 and is interpreted narrowly meaning that if an invention does not deal with a single plant or animal variety it can still be patentable provided other requirements are satisfied.38 c) Patentability of therapeutic and diagnostic methods According to Art. 52(4) of the EPC “methods for treatment of the human or animal body by surgery or therapy and diagnostic methods practised on the human or animal body shall not be regarded as inventions which are susceptible to industrial application.” In the US, therapeutic and diagnostic methods carried out on humans are patentable. However, medical activities “which means the performance of a medical or surgical procedure on a body,” may be limited by 35 U.S.C. Section 287 (c). Remedies cannot be sought against a medical practitioner or a health care entity with respect to such medical activity. However, the level of regulation is different and the final outcome and the implications are the same, since Europe and Japan exclude methods for treatment and diagnosis from patentability by law and the US limits the enforcement of such patents. These medical treatments should not be monopolized and 33 http://www.nufieldcouncil.com. 34 Ibid, at 440. 35 Diamond v. Chakrabarty, 206 UPSQ 193 (Sup.Ct.1980). 36 “Microbiological” is defined as involving mono-cellular organisms, bacteria. See Guidelines for examination, supra note 17. 37 Implementing Regulations to the Convention on the Grant of European Patents, Rule 23(c). 38 Katrina McClatchey, The European Patent Office and the European Patent: an Open Avenue for Biotechnologists and “Living Inventions”, 2 Okla. J. L. & Tech. 25 (2004).
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ankarabarrevıew 2009/1 the practitioners should be free to use such methods for the benefit of their patents. C) The Essential Requirements 1) Novelty The first and clearest requirement is that nothing can be patentable which is not new.39 It is widely known that the requisites for novelty and inventive application are not easily applied to patenting procedures for biological products and processes. This has been a continued discussion in many countries, mainly in the United States and the European Union, and has been dealt with by new regulations and policies on the issue. Patents on genes have been reviewed on many grounds. A common complaint is that genes are naturally occurring entities that exist in living organisms and thus are not invented but discovered. This argument does not bear any weight in science or in law.40 The DNA sequences used by biologists are ‘new’ in the sense that they have never existed in that form before and also they are always modified to an appreciable extent. The law has recognized for some time that the DNA we use is created and not discovered. Specifically on the subject of genetic patents, a joint statement of the USPTO, EPO, and JPO41 confirmed that genes are patentable. More recently, the new European Biotechnology Directive 42 and the Examination Guidelines of EPO also support this view. In the United States, under Section 102 of the statute, what is claimed as an invention must be new in order to be eligible for a patent.43 The novelty bar calls for the examination of the relevant “prior art,” which contains the teachings of printed publications. Section 102(a) requires that the applicant has invented the claimed invention prior to its use by others in the United States and prior to its patenting or description in a printed publication anywhere in the world.44 Section 102 (f) further specifies that the applicant must have been the true first inventor, and may not have derived the invention from others.45 As Section 102 shows, the novelty requirement is treated simultaneously with newness.46 In the substantive law of both systems, the novelty requirement is based on the idea that the inventor cannot patent something that already exists in the public domain. In court decisions, the concept of novelty is generally discussed in conjunction with the product of nature doctrine. 39 Philip w. Grubb, Patents for Chemicals, Pharmaceuticals and Biotechnology, Oxford, 2004, 4th Edition p.58. 40 Denis Schertenleib, The Patentability and Protection of DNA-BASED Inventions, (2003) E.I.P.R., p.126 41 Reported in 7 Biotechnolgy Law Review 159 (1998). 42 Art.3.2 Directive 98/44 on the Legal Protection of Biotechnological Inventions. 43 35 U.S.C. Section 102 (a), (e), (f), (g) 44 35 U.S.C. Section 102 (a). 45 35 U.S.C. Section 102 (f). 46 35 U.S.C. Section 102.
Patenting Biotechnological Inventions in Europe and the US For example, in Funk Brothers Seed Co. v. Kalo Inoculant Co.,47 a patent application was invalidated on the basis of lack of novelty, since the company’s claim was for a mixture of six naturally occurring bacteria which trigger nitrogen-fixing functions in leguminous plants. This was not the same as the Chakrabarty case, where the bacteria was new and human-engineered. In its decision, the court reasoned that each bacterium is a “manifestation of the laws of nature, free to all men and reserved exclusively to none.”48 In Europe, the main point of the novelty requirement is that the invention has not been previously made available to the public. Within the realm of human genetics, novelty is proven if the total genes or a larger gene section, including the partial sequence, has previously been made known. In the case of the isolation of gene sequences with no known function, even where there is a structural partial identity between the claimed and the known gene sequence, an inventor can acquire a use patent on the basis of the description of a new function.49 The emergence of novelty does indeed depend on the value of this knowledge for technical activity, rather than upon the purely intellectual information. On this basis, a use patent is not granted for the means of attainment of the use, but for the previously unknown use itself.50 This fact is important in view of the high production rate of gene sequences by the Human Genome Project. Some of these are available from public databases, but now it is enough that this fact will not invalidate the novelty requirement for related technological developments in the future. On the other hand, if the new use has benefits for medicine, the court’s definition has been changed to compensate for the exclusion from patentability for methods of medical treatment. Significantly, it is now possible to patent second and additional nonmedical uses.51 The basic assumption in patent law is that the discovery of a use for a previously unknown thing or substance may found claims to the thing or substance itself, whatever it is subsequently used for.52 As a result, the second inventor can be acknowledged just for the new use claims. The Directive does not in any way affect the concept of current patent law, according to which a patent may be granted for any new application of a patented product.53 As a result, the sequencing and isolation of the gene itself is relatively straightforward. The inspirational work comes in with the exploration 47 Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948). 48 Ibid. 49 Andreas Oser ‘ Patenting (Partial) Gene Sequences Taking Particular Account of the EST Issue,’ 30 IIC 1-18 at 11. 50 Plant Growth Regulating Agent/BAYER, 1990 OJ EPO 114, at 115. 51 In Friction Reducing Additive/MOBIL OIL, 1990 OJ EPO 93, the enlarged Board of Appeals concluded that a new use of a known compound may reflect a newly discovered technical effect. (‘If that technical feature has not been previously made available to the public by any of the means set out in Art 54(2) EPC, then the claimed invention is novel, even though such technical effect may have taken place in the course of carrying out what has previously been made available to the public’). 52 William Cornish, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights, (4th ed) p 186. 53 Recital 28.
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ankarabarrevıew 2009/1 of the functional aspects. Therefore, the patent system may be giving out rewards incommensurate with achievement in such a case that is peculiar to the state of the technology. Protecting initial discoveries with a broad monopoly assumes that these discoveries comprise the major breakthroughs. For inventions in human biotechnology, this is not necessarily true. 2) Inventive Step/Non-Obviousness Requirement This requirement is called the inventive step in Europe, and nonobviousness in the US. The critics of patenting say that generally there is a lack of inventive activity in innovations. They usually originate primarily from manipulation or combination of genetic material already existing, or, more definably, it is just the isolation of organisms and substances that occur naturally in nature. The most frequent argument against biotechnological inventions and processes is that they are discoveries, rather than inventions. However, the biotechnological institutes and organizations are still making investments in this field as they see the patent system as the only way of achieving the protection for their innovations, once they have become known to the competitors. The American requirement for non-obviousness states that the invention is not patentable, if considered as a whole, it would be obvious to any person having ordinary skill in the art. This test is similar to the inventive step test in Europe, which focuses on the idea that inventions should be examined as a whole product. It involves a fact-oriented determination, where failed attempts by others to achieve the claimed invention are important.54 With special importance for biotechnology inventions, factors of “reasonable expectation of success” and “unexpected properties” were introduced.55 If the prior art stimulates motivation for the invention and enables an expert in the art to invent something with a reasonable expectation of success, the living invention will be considered obvious as a result and cannot be patented. On the other hand, the invention can be non-obvious if the applicant can justify that his invention has an unexpected yield and superior purity. The approach of the United States Court of Appeal for the Federal Circuit (hereinafter the “Federal Circuit”) to DNA-based inventions is applied in a manner that lowers the standard bar for patentability, thus expressly making the quality poorer. As noted earlier, non-obviousness precludes patentability if, given the prior available technology (known as the “prior art”), the invention would have been obvious to someone of “ordinary skill in the art.” In the 1990’s, two cases, In re Deuel56 and In re Bell,57 the Federal 54 Indre Kelmelyte, Can Living Things Be Objects Of Patents?, 2 International Journal of Baltic Law 8 (April 2005). 55 Laurie L. Hill, The Race to Patent the Genome: Free Riders, Hold Ups, and the Future of Medical Breakthroughs, 11 Tex. Intel. Prop. L. J. 221 (Winter 2003). 56 51 F. 3d 1552 (Fed. Cir. 1995). 57 991 F. 2d 781 (Fed. Cir. 1993).
Patenting Biotechnological Inventions in Europe and the US Circuit has, however, rejected arguments by USPTO patent examiners who are skilled in the art of biotechnology, that knowing a general method for identifying genes through the use of nucleotide probes, as well as the complete or partial amino acid sequence of a protein, renders the DNA base sequence for that protein obvious.58 The Federal Circuit has justified its decisions by arguing that, with respect to patent claims to DNA sequences, the non-obviousness determination must focus on the DNA molecules as chemical compounds rather than on the method for isolating the DNA.59 Thus, according to the Federal Circuit, any given DNA sequence (whether a full DNA sequence that encodes a gene or a mere sequence fragment) is obvious only if the prior art actually recites a similar or identical sequence and not simply a method for isolating the sequence.60 In this regard, DNA sequences can be non-obvious no matter how easy or routine it is to isolate the sequences.61 The biotechnology Patent Protection Act was signed into law in 1995. This made sure that those patentable processes resulting in a patentable composition of matter are patentable. The European inventive step requirement is explained in EPC Article 56. It states that the invention must not be obvious to a person skilled in the art. The Board of Appeal of the EPO has developed an approach, called the “problem-solution approach,” to assess whether an invention involves an inventive step. All EPO branches apply this approach to decide whether an invention involves an inventive step. This approach consists of three steps: closest prior art, objective technical problem and obviousness. •The first step, closest prior art, consists in assessing what it is the most promising starting point from which a skilled person could have arrived at the invention. •The second step determines the technical problem which the claimed invention aims to solve. This implies determining the feature(s) distinguishing the claimed subject-matter from the closest prior art, determining the technical effect(s) of the distinguishing feature(s), and finally the objective technical problem is how to adapt or modify the closest prior art to obtain the identified technical effect.62 “Alleged advantages to which the patent proprietor/applicant merely refers, without offering sufficient evidence to support the comparison with the closest prior art, cannot be taken into consideration in determining the problem underlying 58 Indeed, the USPTO patent examiners have gone so far as to say that “when the (amino acid) sequence of a protein is placed into the public domain, the gene is also placed into the public domain because of the routine of cloning techniques.” Ex Parte Deuel, 33 U.S.P.Q.2d 1445, 1447 (Bd. Pat. App. & Int’f 1993) (citing the views of the USPTO examiners). 59 bid. at 1559 (“The USPTO’s focus on known methods for potentially isolating the claimed DNA molecules is also misplaced because the claims at issue define compounds, not methods.”) (citing In re Bell, 991 F.2d 781, 785(Fed. Cir. 1993)). 60 Arti K. Rai, “Intellectual Property Rights In Biotechnology: Addressing New Technology,” p. 834 61 See Rebecca Eisenberg & Robert Merges, Opinion Letter as to the Patentability of Certain Inventions Associated with the Identification of Partial CDNA Sequences, 23 AIPLA Q.J. 1, 32 (noting that the Federal Circuit’s ‘s approach “would seem to make all novel DNA sequences patentable, however trivial the scientific advance that led to their identification. This position collapses the novelty and non-obviousness requirements for DNA sequences.”). 62 http://en.wikipedia.org/wiki/Closest_prior_art.
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ankarabarrevıew 2009/1 the invention and therefore in assessing inventive step”.63 •The third and the last step concluded by the “could-would approach”. The question is the climax to assess whether the invention involves an inventive step. Is there any teaching in the prior art, as a whole, that would, not simply could, have prompted the skilled person, faced with the objective technical problem formulated when considering the technical features not disclosed by the closest prior art, to modify or adapt said closest prior art while taking account of that teaching (the teaching of the prior art, not just the teaching of the closest prior art), thereby arriving at something falling within the terms of the claims, and thus achieving what the invention achieves?64 •The key point of the third step is that the skilled person should not have arrived at the claimed invention by changing it. Whether he would have done so because the prior art incited him to do so in the hope of solving the objective technical problem or in expectation of some improvement or advantage is the question.65 3) Industrial Applicability/Utility Requirement a) The United States In order for an invention to satisfy the 35 USC Section 101 utility requirement, it must be useful. In 1995, the utility examination guidelines were published by the USPTO. These guidelines stated that the utility should be both specific and credible. The Federal Circuit issued a patent law decision in September 2005 that inevitably rendered hundreds of pending patent applications worthless and that will raise the bar for proving gene sequence and protein-related inventions useful. The Federal Circuit ruled against the patent applicants in In re Fisher by upholding the decision of the USPTO Board of Patent Appeals and Interferences that bars patent protection for gene fragments that do not have a “specific and substantial” utility. The court had its first opportunity to comment on the USPTO Revised Utility Examination Guidelines of 2001 with the presentation of the Fisher case. Focusing on the patentability of research tools, it found that none of the claims made by Fisher to ESTs met the requirements of the specific and substantial utility tests. b) Europe The European Patent Office (EPO) showed that, in these jurisdictions, an invention shall be considered to be susceptible (or capable) of industrial application “if it can be made or used in any kind of industry, including agriculture.” The general understanding is that the term “industry” shall be interpreted in the broadest possible sense. 63 Investigates the “could-would” question when determining if the skilled person is prompted to combine two prior art references. 64 http://en.wikipedia.org/wiki/Closest_prior_art. 65 Ibid.
Patenting Biotechnological Inventions in Europe and the US With regards to utility, the EU Directive has included a provision that needs clear specification of the function, Recital 23 reads: Whereas, in order to comply with the industrial application criterion it is necessary in cases66 where a sequence or partial sequence of genes is used to produce a protein or part of a protein, to specify which protein or part of a protein is produced or what function it performs. 4) The Disclosure (written description) requirement The United States The disclosure requirement is not covered in European legislation, but is in the United States. The Patent Act embodies a written-description requirement to ensure that an applicant has actually invented what is claimed and that the public will be in possession of the claimed invention after the expiration of the patent.67 The new guidelines issued by the USPTO, the Guidelines for Examination of Patent Applications, under 35 U.S.C. Section 112, “written description” requirement, set forth the methodology for determining the adequacy of a written description.68 For each claim, the examiner should first determine what the claim as a whole covers and give the claim its broadest reasonable interpretation.69 The entire patent application is then reviewed to understand how the applicant provides support for each element of the claimed invention and determine whether the applicant has demonstrated possession of the claimed invention. Such a review is to be conducted from the standpoint of one of skill in the art at the time the application was filed. Information that is well known in the art need not be described in detail in the specification.70 In contradiction to the non-obviousness requirement, the Federal Circuit has used the written requirement in a manner that somewhat raises the patentability bar.71 V) THE ONCO MOUSE CASE The following case is given as an example to illustrate the importance of patenting biotechnological inventions and also to discuss the problems therewith. The history of the Harvard Onco-mouse began in the early 1980s after the successful development of a “transgenic non-human mammal, all of whose germ cells contain a recombinant activated onco-gene 66 Soames, C.J. and Kowalski, Inventive Step and Genomics, 3 Nature Review 729. 67 35 USC Section 112. 68 Guidelines for Examination of Patent Applications Under the 35 USC Section 112, “Written Description” Requirement, 66 Fed. Reg. 1099 (Jan. 5 2001) (bb. p. 98) 69 Ibid at 1105. 70 Ibid. 71 This raising of the patentability bar in the context of the written description requirement does not, however, by any means counter the effect on the public domain of the Federal Circuit’s having virtually eliminated the non-obviousness bar with respect to DNA. The virtual elimination of the non-obviousness bar allows a vast proliferation of patents on relatively trivial inventions that are nonetheless essential for future research. By contrast, the raising of the written description bar typically serves merely to narrow the scope of the claims that can be made for some of these inventions. Even with narrow claims, the patent owner still exerts an inefficient level of control over future research.
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ankarabarrevıew 2009/1 sequence introduced into said mammal or an ancestor of said mammal, at an embryonic stage.”72 This invention was disclosed to art and a claim for patent was made by the President and Fellows of Harvard College in the USA. The genetically modified mouse with a predisposition for developing cancer was intended for use in tests.73 Applications along the same lines were made in many countries: Australia, Canada, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom. As earlier mentioned, the U.S. Supreme Court in Chakrabarty accepted that “anything under the sun that is made by man” is patentable.74 It can be readily assumed that inventions made beyond the sun would also be considered patentable under the provision of the U.S. Code which reads as “any invention (...) title.” When making the decision, the Court emphasized particularly the need to broadly construe Section 101 of Title 35 of the U.S. Code. In conclusion, the Court found that the claimed bacterium “plainly qualified as statutory subject matter.” Another notable point is that the Court refused to consider moral and policy arguments against granting patents for living matter.75 The Court also stated that these moral and policy arguments presented issues beyond the Court’s capabilities and as such were more suitable for consideration through the legislation process. The outcome of the decision made in Chakrabarty has influenced other decisions rendered in similar situations. Particularly, it opened the door to patenting the Onco-mouse in the United States. Although no objections were proposed by the commissioners, the patenting of the Onco-mouse in the US took nearly four years. The first application was filed on June 22, 1984 and the patent was granted on April 12, 1988.76 The Onco Mouse in Europe The patent application for the Onco-mouse in the EPO became such a lengthy procedure that it has been called a “saga.”77 After the filing in the US, the inventors also applied for a European Patent from the European Patent Office on June 24, 1985. This was the first-ever application to the EPO involving an animal. Criticism of the patent procedure focused on the question of whether an animal as such could be patented at all.78 More specific concerns were voiced about the potential for making commercial profit from engineered 72 Emir Aly Crown Mohammed, “Cat in the Hat, a Mouse in the House - Comparative Perceptives on the Harvard Mouse,” IPJ, V.18, (2004-2005), p. 170. 73 http://www.epo.org/topics/issues/biotechnology.html. 74 Mohammed, supra note 72, at 172. 75 Matthias Kamber, Coming out of the Maze: Canada Grants the Harvard Mouse, 35 George Washington International Law Review 764 (2003). 76 Patent number 4,736,866. See Mohammed, supra note 72, at171. 77 Grubb, supra note 39, at 276; Bentley and Shermann, supra note 31, at 441. 78 http://www.epo.org/topics/issues/biotechnology.html
Patenting Biotechnological Inventions in Europe and the US laboratory animals, with a number of groups proclaiming their opposition to laboratory testing on animals in general.79 The application was refused on July 14, 1989 on the grounds that the basic requirements of Art. 53(b) and 83 of the EPC were not met, because an animal variety was contrary to Art. 53(b).80 The exclusions from patentable inventions in Article 53(b) read as “plant or animal varieties or essentially biological processes for the production of plants or animal; this provision does not apply to microbiological processes or products thereof.” After the first refusal of the EPO branch Examining Board, the case was appealed to another body of the EPO, the Board of Appeals. The Board of Appeals criticized the Examining Board`s decision and, with their concluded decision on May 13 1992, the EPO granted European Patent No. 0 169 672 to the Harvard Onco mouse. This patent included many of the privileges and interests which were granted already in the earlier US patent issuance.81 This created oppositions from a lot of political parties, NGOs, religious groups and individuals. Opposing applications were made especially by green activists, animal rights and farming interest groups. The Opposition Division of the EPO had dealt with the case from on and within the influence of the new 1998 EU Directive on biotechnological inventions -- 98/44/EC had its final acceptance in July 2004, 19 years after the patent application was made. They stated that another criterion had to be taken into account. This key criterion found a balance between “suffering and substantial medical benefit” in Rule 23(d) of the EPC. The Opposition Division has particularly taken into account Rule 23 (b) and (c), which provides for patents for “plants or animals” under conditions laid down in the Rule 23 (d). Rule 23(d) also excludes from patentability “processes for modifying the genetic identity of animals which are likely to cause them suffering without any substantial medical benefit to man or animal and also animals resulting from such processes.”82 The Opposition Division stated that another criterion has to be taken into account. This key criterion found a requirement for balance between “suffering and substantial medical benefit” in Rule 23(d). The Opposition Division stated that if there is suffering in accordance with EPC Rule 23(d), this suffering must be balanced by a substantial medical benefit.83 When stating the benefits provided by the invention, the Opposition Division emphasized two points. The first was that the date of the patent application would be taken into account for the assessment, not the date at which the assessment was actually made. This meant that later evidence 79 Ibid. 80 Grubb, supra note 39 at276; Mouhhammed, supra note 72, at 173. 81 http://www.epo.org/topics/issues/biotechnology.html 82 For details of this procedural issue, see Grubb, supra note 39, at 276; Mohammed, supra note 72, at 177-179. 83 Harvard/Oncomouse (2003) OJEPO 473, 503 (Opposition Division).
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ankarabarrevıew 2009/1 from the application date would be invalid for the assessment.84 Second, as an answer to the question – how is the benefit to be assessed? - the Opposition Division focused on the subjective view point of the inventor. According to the general principles of the law, this subjective view point should be “bona fide.” Thus the inventor’s bona fide belief would be decisive for the medical benefit which is essential for right to patent for biotechnological inventions.85 In conclusion, according to the opposition, Division Rule 23d (d) was not a ban to the patentability.86 The opponents also argued that the Onco-mouse patent fell afoul of Article 53 (a) of the EPC. Regarding this argument, the Opposition Division said that Art. 53 (a) would only apply to exceptional cases. They also added that they had no intention of applying extreme positions. They meant that they would not take responsibility for possible abuses of the invention.87 According to the Opposition Division, ordre public and morality issue had to be examined first since the laws and regulations are common and these laws and regulations are the best indicators of the values of the whole society -- what they consider to be right or wrong. In the end, the Opposition Division issued a written decision early in 2003 which limited the granting of a patent to rodent species considered to be suitable animals for experiment.88 Some parts of the content and major principles of this decision were given and discussed above. An appeal was also filed in May 2003, and a final decision was rendered by the EPO Board of Appeals in July 2004. In this decision, mice were designated instead of rodents. Finally, after 19 years the first Onco mouse application was filed to the EPO, it was granted a patent. This final decision cannot be further appealed at the EPO level. However, an application against the present patent of the Onco-mouse will be given to obtain an invalidity decision from a court at the national level. VI) FOUR APPLICATIONS OF DNA SEQUENCES IN RELATION TO PATENT CLAIMS: 1) Research Tool Patents and Experimental Use a) Research Tools The concept “research tool” covers the full range of resources that scientists use in their laboratories that have no immediate therapeutic or diagnostic value.”89 The term research tool as used in biotechnology can be defined in various ways. For example, one broad meaning was proposed by Walsh, et al. as “any impute into the process of discovering a drug or any other medical therapy or method of diagnosing a disease.”90 Another 84 Mohammed, supra note 72, at 179; Bentley and Shermann, supra note 31, at 441-442. 85 See Ibid. 86 Bentley and Shermann, supra note 31, at 442. . 87 Harvard/ Oncomouse, 2003 OJEPO, at 503. 88 T 315/03 (EPO) 89 Australia Law Reform Commission; 1 file://C::/DOCUME~1/DO2ADD~1.DRB/LOCALS~1/Temp/R2PATWN2. htm. 90 J.P. Walsh, A. Arora and W.M.Cohen, “Effects of Research Tool Patents and Licensing on Biomedical Innovation” in Patents in the Knowledge Based Economy (Cohen and Merrill ed.,Na.Ac.Press,Washington D.C.,2003),p.287.
Patenting Biotechnological Inventions in Europe and the US definition was given as “the full range of tools that scientists use in the laboratory.”91 Research tools may cover a gene, a protein, a process or a procedure. Some particular examples are polymerase chain reactions, cell lines, monoclonal antibodies, reagents, animal models, growth factors, ambinatorial chemistry and DNA libraries, chemical markers, genomics databases, microarrays, assays, transgenic mice, embryonic stem cells, and any cell receptor or any enzyme.92 Any research tool in the above list is important to the drug industry for the process of drug discovery and for human health; each may be used severally or in combination with others. Normally all these are patentable if they meet the criteria in the country in which a patent is requested. The main question here to be answered is what exemptions to patent infringement might apply to typical uses of these types of research tools. Recommendation of the Nuffield Council In the opinion of the Nuffield Council, patents on DNA sequences used as research tools should be granted restrictively. The Nuffield Council encourages the use of the Utility Guidelines for DNA sequences established by the USPTO and applied by the EPO. The Council advises the USPTO, EPO and JPO to observe how the Guidelines work in practice, aiming at a more clear expression of the inventor’s contribution. The Guidelines should be changed if this goal is not achieved.93 The Nuffield Council points out one particular type of research tool – ESTs – in case rights are granted to include all DNA sequences that consist of EST being the original patents’ subject, the applicant should not get the patent.94 They recommended to that national patent offices that “[t]he EPO and the World Intellectual Property Organization (WIPO) [should] limit patent claims for ESTs strictly to their specified uses to avoid dependency on subsequent patents which have overlapping DNA sequences. We further recommend that WIPO and the EC (39) closely monitor the development of EST patents worldwide.” b) Experimental use A great deal of development takes place in the science of biotechnology every day. Experimentation to further general understanding must continue in this rapidly advancing area. In order to provide this, it is important to keep certain areas free of patent constraints, which are expressed through the experimental use exemption. Many national laws on patenting traditionally allow such an exemption for the non-commercial activities of researchers, particularly in a university or government laboratory. 91 NIH Guidelines, http://ott.od.nih.gov.textonly/rtguide%5Ffinal.html. 92 Fiona Bor, Exemptions to Patents Infringement Applied to Biotechnology Research Tools (2006) E.I.P.R., 6. 93 Ibid, at 59, 60. 94 Ibid, at 58.
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ankarabarrevıew 2009/1 i) Europe The present European Law allows exceptions for experimental uses while private, non-commercial uses are also allowed.95 For example, a scientist working alone without any financial support can claim a right to free use of a patented research tool. This is only possible where no physical material has to be obtained from the patentee or licensee.96 According to a decision of the German Supreme Court, the experimental use exception covers clinical trials on human patients, where it is necessary to discover other medical applications or to provide more information on effects of treatment. In the event that any clinical test is being undertaken in a hospital with a separate purpose to improve the health of the patients, it can also be applied.97 Recent developments in EPC countries show that the experimental use exception may also be applied to commercial research. However, a distinction must be drawn between the work, which is undertaken only for improving or modifying the invention, and other kinds of activities that would be totally contrary to the purpose of patent system. Although there have been few cases relating to experimental use, an exception for patent infringement regarding the statutory provisions of English law, particularly Section 60 (5), (a) (c), of the UK Patent Act, provides a rare example: Smith Kline and French laboratories Ltd. v. Evans Medical This case is about the private purposes exemption. The court in this case decided that private exemption exists only when he/she is carrying out an act for his/her own use. The court put a two-stage test involving: 1) To determine whether an act is private or public and 2) To determine whether the act has or has not been carried out for commercial purposes. An act will only be exempt when these two stages have been passed.98 ii) The United States Section 271 of the US Patent Code (35 USC) states that “whosoever without authority makes, offers to sell, or sells any patented invention (...) infringes the patent.” However, until recently, the US courts have applied a common law experimental use defense, although the US courts have also taken into account certain circumstances which restrict the application of this rule. In addition to this common law experimental defense, there is a statutory experimental use defense under section 271(1) (e) of the Patent Code, but this latter one is no longer relevant. A direct outcome of this decision is that the private purpose exemption 95 Cornish and Llewelyn, supra note 3, at 842 96 Ibid, at 842. 97 Klinishe Versuche I and II (1997) R.P.C. p. 623: (1998) R.P.C. p. 423. 98 Bor, supra, note 92, at 6.
Patenting Biotechnological Inventions in Europe and the US is mainly related to an individual who carried out scientific experiments at home with no commercial objective in mind. This does not cover any act carried out by a company; therefore there is no direct relevance to this kind of exemption for companies which are dealing with biotechnological research.99 An act undertaken for experimental purposes relating to the subject matter of the invention would also be exempt from patenting. This view supports the idea that patent law exists to stimulate the advancement of science and should not be used to inhibit it. Namely, the advancement of science has priority over the enforcement of patent rights.100 This principle of exemption was adopted by the community patent convention (Art. 31 b of CPC) and has been transposed into the patent laws of various European countries. When applying the experimental purposes exemption to biotechnological research, one difficulty is whether the exemption covers trials carried out in order to secure patent protection. The heart of the problem is whether such trials are considered to be “experiments” or not. According to a decision of a court in the Monsanto case,101 an act cannot be considered “experimental” when the essential goal of the trial is merely to verify existing knowledge. However, it is applied to “research that is directed to generating new information about the invention itself to find out how it works, or to improve on it.”102 2) Diagnostic Tools Patent protection through a diagnostic tools basis can be provided in the case of the association of a gene and a disease. From this perspective, the major issue is to identify mutations by making a comparison between the appearance of a patient’s gene sequence and a normal one. It is sufficient to be able to identify a mutation in a gene in order to fulfill the utility requirement and receive patent protection. A broad scope exists for a patent on diagnostic tools. In most cases, the patents include the mutated, normal DNA sequence and the protein for which the sequence codes. The patent covers both the patented tool and all future screenings that could identify the mutation. Since the patents also cover proteins, it is not possible to develop alternative tests that screen for these specific proteins without a license. Thus, the original patent plays a great role for future research on diagnostic tools. All of them will be dependent on the original patent. Point of view of the Nuffield Council on Diagnostic Testing The Nuffield Council advises to apply the requirement for the granting of product patents, especially the criterion of inventiveness, very strictly to applications for patents that provide the owner with rights over DNA 99 Ibid. 100 Ibid. 101 Monsanto v Stauffer (1985) R.P.C. 515, CA 102 See Bor, supra note 92, at 7..
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ankarabarrevıew 2009/1 sequences for use in diagnostic testing.103 According to the Nuffield Council, the EPO, the JPO and the USPTO should find a way to achieve this. The goal of this recommendation is to provide product patents concerning DNA sequences used for diagnostic testing with an exceptional character. The USPTO and the US Government should consider changing their patent regulations.104 The Nuffield Council points out that use patents are an effective means of rewarding the inventor and encouraging others to develop alternative tests.105 3) Gene Therapy It is possible that different mutations can cause the same disease within a single gene. Research efforts have been recently aimed at repairing or removing the mutated sequence and change it with a normal one.106 This makes us able to cure illnesses including Alzheimer’s disease and spinal cord injuries. Granting patent protection for gene therapy does not constitute a problem and will not confine future researches. Since some kinds of gene therapy are considered unexceptionable for ethical reasons, attention is concentrated on the “somotic cell gene therapy which affects only non-reproductive cells.”107 In Europe, since the gene therapy methods are considered medical treatment, they are not patentable, but the vectors and constructs used may be so. On the other hand, “ex vivo” process steps will be patentable as being the last step of administering the transformed cells to the patient is not claimed. In the USA, all steps of the process are patentable.108 Point of view of the Nuffield Council The Council suggests widely denying patent protection for the use of the relevant DNA sequences in gene replacement therapy by regarding it as obvious and therefore rejecting the inventive step. The main issue of patent protection should be the development of secure and effective methods of appropriate gene delivery, rather than providing simply the definition of the sequence used in therapy.109 4) Therapeutic Proteins These proteins are made artificially and used as pharmaceuticals. The therapeutic nature of the proteins has been known for a long time. According to the prior knowledge, it was only possible to produce proteins from humans and animals with the use of tissue. It has been possible only from the mid-1980s to produce them on a large scale using an artificial method. Then companies started to patent the genes that 103 Nuffield Council on Bioethics, The ethics of patenting DNA - a discussion paper (2002) at 53 (hereinafter “Nuttfield Council”). 104 Ibid at 53. 105 Ibid at 54. 106 Ibid at 61. 107 Grubb, supra note 39, at 267 108 Ibid at 268 109 Nuffield Council, at 62 and 64.
Patenting Biotechnological Inventions in Europe and the US code for therapeutic proteins. The patents cover both the specific DNA sequences and structures of the proteins.110 It seems that a large group of companies are interested in these products. In contrast with other gene patents, protein patents may easily be patented, since they provide a protein that is new and inventive. But it is important that they are only granted a relatively narrow scope and that there really is a practicable use. Namely, a significant utility takes place before the patents are issued. Proposal of the Nuffield Council It is generally recommended by the Nuffield Council to grant patents for DNA sequences applied to the development of new medicines based on therapeutic proteins. However, the claims should be defined narrowly, in order to keep the protection range low. This should lead to the protection only of the protein and not to the whole DNA sequence.111 VII) CONCLUSION Historically, patent systems have been developed to encourage invention and innovation.112 A patent system motivates the creation of useful inventions, including the investment required to develop and commercialize them; society’s recognition of individuals who disclose their inventions and patents enables the systematic registration of a wide range of discoveries. Without any doubt we need a patent system. Even though patent systems and their implementation result in massive problems, It’s believed that it is necessary to keep them. The selected cases represent distinct and important decisions of biotech patents, namely DNA sequences and whole living organisms. The Oncomouse patent litigated throughout its lifetime. The main issue was driven by public concern. This case raised new questions concerning patentability and led to landmark decisions. Today it is accepted that DNA sequences and proteins are patentable if its function is known. However in Europe there are strict conditions on patenting higher organisms. The application for the patent on the Onco-mouse 20 years ago has created a new field and there will be new challenges for patent protection in the future due to the rapid development of biotechnological research. Patents on biotechnological inventions have created monopolies especially within public health. Biotechnological patents on the one hand are giving massive rights to the patent owners; on the other hand, patents create monopolies in inventions that have been aimed at the public interest. As a result, these very conflicting situations give rise to a dilemma. Although it is obvious that the current legal instruments are not suitable for the protection of biotechnology, governments worldwide rely on old and inappropriate structures for the protection of genetic inventions. Today there is no distinction between inventions and discoveries; the 110 Ibid at 62-63. 111 Ibid at 64. 112 Lui, supra note 1, at 207.
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ankarabarrevıew 2009/1 inventive step is basically irrelevant and the utility requirement is largely unessential. Regarding their purpose, well-suited corrections and additions will contribute to new innovations being made and help to distribute these to people worldwide. In its report, The Nuffield Council on Bioethics recommended a rather restrictive approach for granting patents on DNA sequences. Patents on diagnostic tests should be sharply examined for the criterion of inventiveness, the granting of patents on research tools should be discouraged, patents on gene therapies should be thoroughly analyzed if they are not obvious and patents on therapeutic proteins should be narrowly defined. Patent offices and courts should feel encouraged to make use of the patent system in a more rational way as far as patents on DNA sequences are concerned. The promises of biotechnology are great and must be allowed to develop within a fair, competitive and intellectual property framework, which can only be achieved through worldwide legislation and the establishment of a single appellate jurisdiction.113 From my point of view, in order to achieve this goal, it would be necessary to combine the function of the major institutions like the USPTO, EPO and JPO and establish a common regulation. The approach to biotechnological inventions in the United States is more generous than in Europe. Europeans tend to stick to the morality issues and for that reason the patent bar granting biotechnological inventions is very high. On the contrary, the United States is more liberal, which has a global impact on the world economy. USPTO and the Federal Circuit have badly rendered the decisions affecting the issues. Commentators talk about the financial motivations behind these decisions. Thus, many companies find the US an attractive place to invest since it is easy to obtain a patent there. The European countries are probably losing investment because they operate a more stringent system than the US. The attitudes of the European countries are criticized. In my view, the administrators of the European countries must go on to follow their own ways; it is not necessary to change the decisions since the countries in Europe have totally different cultures and backgrounds. It seems unlikely that the European approach will be changed in the near future. One possible solution is for a related organization such as the WIPO to take control of biotechnological patenting. As a first step, the USPTO, EPO and JPO could come together for negotiations under WIPO’s umbrella. In the long term, other countries need to be involved, and it might be possible to seek an agreement to construct a totally new system which deals with biotechnological patent issues. It is necessary to seek a wider attendance of countries in order to be effective for imposing new rules to these and other countries. Regarding the cultural, political, ethical, and social differences, it could be thought that these countries can make rules 113 Schertenleib, The Patentability and Protection of DNA-Based Inventions, (2003) E.I.P.R.
Patenting Biotechnological Inventions in Europe and the US more effectively since a single system takes into account everyone’s needs and requirements. However, it is necessary to adopt minimum standards for the countries starting with the US, the EU countries, and Japan. In fact, there are many other areas in which lists of minimum standards are already applied. These standards can be adopted through the WIPO. Since the WIPO procedures are not compulsory, it is unknown whether the system will work or not. In order to achieve this system, the sensitivities of society must be improved and the public must be enlightened on this issue. The primary initiatives may be taken by the voluntary groups including NGOs. The lobbying activities of the companies must be reduced and politicians should be convinced to take the issue seriously. This article has detailed the differences between the American and European models. On the one hand, the European model takes an ethical approach, and on the other, the American model is liberal, where the thresholds are mostly very low to grant a patent. In my view, income must be obtained through industrial activities on biotechnology; in the meantime, ethical considerations are also taken into account. Patents could be granted for biological inventions in the present system, but this should not give rise to any monopoly for the patent holders. The risk of cancer constitutes a great danger for the human beings at present. For instance, a lot of women are facing a risk of breast cancer, while the children have anemia or AIDS. Therefore, patients and the people in danger need inventions for a better treatment and a better/long life. These inventions are scientific in nature and are necessary for human beings to survive. Patenting is a part of this unique system and it cannot be approached without ethical considerations, no matter how much income it provides. A common set of criteria must be taken into account and applied when issuing a patent; thus a continuous process must be provided for these inventions. Despite all political and ethical concerns, public debates and worldwide litigation, the importance of biotechnological research in general, and of patents in particular, is likely to further increase rather than decrease in the future. It is in the interest of most people to increase their life span, whatever the costs, search for new sources of nutrition for the constantly increasing population, but also for the curiosity and motivation of scientists to find inventions on one hand and high investments in this field on the other hand. This branch of technology is extremely lucrative but also makes IP protection necessary. Otherwise it may risk not achieving the very objectives it seeks to achieve, with the end result that the disease is cured, but the patient killed.114
114 Lui, supranote 1, at 259
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Sex Equality by Kathryn Culek*
D
uring the 1980s, North American feminist and feminist legal scholarship came to be dominated by what is now referred to as the sameness/difference debate. At issue were diverging opinions on the appropriate legal and political strategies to achieve women’s equality. Should women focus on their similarity to men or should women emphasize (and perhaps even celebrate) their differences? Framed as mutually exclusive, diametrically opposed approaches, there seemed to be no common ground or space for dialogue between the two. In the end, the debate was not so much solved as it was eclipsed by more divisive debates on differences amongst women. Challenges to the presumed homogeneity of the category ‘woman’ resulted in fragmentation and a proliferation of multiple, particularized identities; rendering the language in which the sameness/difference debate was conducted unintelligible. Within the European Union, this debate continues to inform feminist legal scholarship (the result of feminists’ use of the anti-discrimination framework); however, it has not come to dominate the focus of their work as it did in North America. The majority of scholarship on sex equality law in Europe is written from a liberal feminist perspective; it is informed by a particular understanding of women’s disadvantage, from which legal and political strategies were developed to achieve women’s equality.1 * ARCH Disability Law Centre 425 Bloor Street East, Suite 110 Toronto, ON, Canada M4W 3R5. She can be contacted at “
[email protected]”. 1 The reference to a homogeneous group of ‘women’ is problematic, particularly in light of criticisms that such broad categorizations result in differences being erased and/or ignored. My (very) weak excuse is that while it is not possible to speak of ‘women’ without specifying which women within North American feminist and feminist legal theory, it still appears appropriate to generalize about ‘women’ within Europe. Although it is completely outside the scope of this paper to explore such differences, one likely cause is the particular nature of anti-discrimination law within the EU. Sex discrimination was the only form of discrimination (apart from nationality discrimination) originally included in the Treaty of Rome (Article 119 on equal pay). Other grounds of discrimination such as race, age, disability and sexual orientation were only to appear after an amendment in 1997 to add Article 13 (on the basis of which were adopted the
Sex Equality Women, liberal feminists argue, ought to be treated the same as men in all circumstances, save during pregnancy, when physical difference requires different treatment. Outside of this limited space of permissible difference, different treatment is disadvantageous to women’s equality rights as it most likely rests on gender stereotypes rather than on any true understanding of women’s nature. Given this perspective’s commitment to equal treatment before the law, any time the European Court of Justice strays from the permissible exception of pregnancy, it is invariably vilified for reproducing and reinforcing traditional gender roles and stereotypes. At the same time, jurisprudence that allows different treatment during pregnancy is praised as a demonstration of the Court’s progressive commitment to substantive equality. The result of the Court’s indiscriminate application of sameness and difference approaches to equality is, according to liberal feminist legal scholars, a body of jurisprudence that is “ambiguous,” “incoherent” and “contradictory.” This essay attempts to reread the jurisprudence on pregnancy and maternity using the insights of feminist postmodernist theory. In particular, it will be argued that the case law is (and will be) necessarily ambiguous and incoherent, consistent with the multiplicity and diversity of meanings attributed to women’s differences (i.e. biological and/or socially-constructed) and to the concept of equality. Upon this view, liberal feminists’ concerns with clarity and coherency may be construed as attempts to universalize one particular vision of equality to all women, regardless of the differences. Coherency therefore, in addition to being descriptively impossible, may not even be normatively desirable. At the same time however, the introduction of ambiguities and contradictions poses a threat that women’s equality may be fragmented to the point where it becomes impossible to speak about/argue for equality at all. I believe that we can avoid this danger while simultaneously avoiding the drawbacks of liberal feminist legal theory by taking our inspiration from the case law of the Court. Just as the Court has struggled to delineate the boundaries of women’s difference, a space in which derogation from the principle of equal treatment will be permissible; similarly, we can re-imagine women’s equality as a space of dialectical tension between sameness and difference. PART I: LEGAL FRAMEWORK Pregnancy and anti-discrimination law have historically had an uneasy relationship; at first, it was unclear whether pregnancy could even be accommodated within the equal treatment framework. According to the Aristotelian model of equality, “things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion Racial Equality Directive in June 2000 and the Framework Directive in November 2000). As the visibility of other forms of discrimination increases, greater instability in the category of ‘women’ is to be expected. See Mark Bell, AntiDiscrimination Law and the European Union (Oxford: Oxford University Press, 2002).
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ankarabarrevıew 2009/1 to their unlikeness.”2 Since no man could become pregnant, there was no one to whom a pregnant woman could be compared and consequently, pregnancy could be excluded from anti-discrimination law.3 Although today, disparate treatment because of pregnancy is clearly acknowledged as discrimination on the grounds of sex under sex equality law, doubts continue – this time on the part of feminist legal scholars – about whether anti-discrimination principles can in fact adequately account for pregnancy and whether attention ought to be shifted to other legal remedies. At the core of any discussion on pregnancy and maternity lies the issue of women’s essential nature in relation to men. In order to access Directive 76/207/EEC4 or the Equal Treatment Directive, the legal claim must be framed in terms of similarity or difference. Article 2(1) sets out the principle of equal treatment: 1. For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status. Although the concept of ‘discrimination’ is not defined within the Equal Treatment Directive, it is well established in the Court’s jurisprudence that discrimination arises through the application of different treatment to similar situations or the application of similar treatment to different situations.5 The nature of the legal concept of equality makes it impossible for feminists to escape the tension between sameness and difference. In contrast to pregnancy, maternity is not dealt with under the principle of Equal Treatment, but constitutes a special exception under Article 2(3), which states: 2. This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity. Without this derogation, provisions that granted special entitlements to women because of their pregnancy, such as maternity leave, prohibition on night work, could be challenged as contrary to the principle of equal treatment. The scope of the pregnancy and maternity protection exception was laid out in Hofmann,6 where the Court held that it was legitimate in terms of the principle of equal treatment first, “to ensure the protection of a woman’s biological condition” and second, “to protect the special relationship between a woman and her child” after childbirth. In a move away from the treatment of pregnancy and maternity as an issue of equal treatment between men and women, Directive 92/85/ 2 Gillian C. More, “Equal Treatment of the Sexes in EC Law” (1993) 1 Fem. Legal Stud. 45 at 48. 3 Claire, Kilpatrick, “How long is a piece of string? European Regulation of the Post-Birth Period” in Hervey, Tamara K. and David O’Keeffe, eds., Sex Equality in the European Union (Chichester: John Wiley & Sons, 1996) at 82. 4 Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [hereinafter the Equal Treatment Directive]. 5 For example, Case C-342/93 Joan Gillespie and others v Northern Health and Social Services Boards [1996] [Gillespie]. 6 Case 184/83 Ulrich Hofmann v Barmer Ersatzkasse [1984] [Hofmann].
Sex Equality EEC7 or the Pregnancy Directive was adopted by the Council in order “to implement measures to encourage improvements in the safety and health at work of pregnant workers who have recently given birth or who are breastfeeding.”8 The protectionist language and content of the Directive is most likely the result of the legal basis under which it was adopted;9 however, it is clear from the Preamble that such protections are not to “work to the detriment of directives concerning equal treatment for men and women.”10 The Pregnancy Directive goes further than the Equal Treatment Directive by imposing a requirement on Member States to provide a minimum of employment protection. Among the more important provisions, Article 8 mandates that pregnant workers are entitled to a continuous period of maternity leave of at least 14 weeks, allocated before and/or after confinement11 of which two of those weeks are compulsory.12 Article 10(1) codifies the Court’s case law by explicitly prohibiting the dismissal of workers from the beginning of their pregnancy to the end of maternity leave “save in exceptional cases not connected with their condition which are permitted under national legislation and/or practice and, where applicable, provided that the competent authority has given its consent.” PART II: LIBERAL FEMINIST PERSPECTIVES ON PREGNANCY AND MATERNITY Academics commenting on pregnancy and maternity in the EU tend to adopt a liberal feminist framework.13 Although differences do exist amongst feminists – even within the category of liberal feminism – in this instance there is a significant uniformity of opinion that makes it possible to speak of a liberal feminist position. This section is not intended to be a comprehensive summary of current literature, but rather attempts to highlight some of the more important commonalities and areas of agreement. General Introduction to Liberal Feminism In light of the damaging consequences of being classed as an inferior ‘other’14 it is not surprising that some women have argued that they are equal to men and should be treated equally. These women, referred to 7 Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) [hereinafter the Pregnancy Directive]. 8 Ibid. at Article 1(1). 9 Article 138 EC (ex Article 118a) concerning health and safety at work under which only a qualified majority was necessary. 10 Pregnancy Directive, supra note 7 at para 25. 11 Pregnancy Directive, ibid. at Article 8(1). 12 Pregnancy Directive, ibid. at Article 8(2). 13 This is my own assessment as the authors do not self-identify as liberal feminist. Some support for this conclusion is found in Jo Shaw’s chapter “Gender and the Court of Justice” in The European Court of Justice at 94. 14 The notion of the ‘Other’ has its roots in existentialist thought and can be traced back within feminist theory to Simone de Beauvoir’s famous work, The Second Sex. Among her more famous statements, de Beauvoir wrote: For him she is sex - absolute sex, no less. She is defined and differentiated with reference to man and not he with reference to her; she is the incidental, the inessential as opposed to the essential. He is the Subject, he is the Absolute - she is the Other.
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ankarabarrevıew 2009/1 as liberal feminists, make a simple claim to equality by denying their substantial differences from men. Women’s disadvantaged position within society is not due to any natural or inherent biological differences, but rather stems from socially-constructed gender roles and stereotypes. Activities and characteristics traditionally associated with women, such as motherhood and family, are eschewed in favor of participation in the male public sphere. The liberal feminist legal project might be best characterized as barrierremoval. Feminists in this category normally have faith in the potential of traditional equality rights (and indeed the entire legal apparatus) to remedy women’s disadvantage. Liberal feminists concentrate on the elimination of practices and laws that treat women differently than men, which act as barriers to women’s full and equal participation in the public sphere, i.e. education, employment and politics. Any differential treatment within law – even if intended to ameliorate women’s disadvantage – is viewed with a high degree of suspicion by liberal feminists, as such special protections/ entitlements only serve to reproduce and reinforce culturally-determined stereotypes and gender roles. Liberal Feminist Scholarship on Pregnancy and Maternity Traditionally, liberal feminism has had difficulties theorizing pregnancy within its framework of equal treatment. The theory works best for women who are able to approximate the male norm. Women who are pregnant or who have childcare responsibilities are left with no other choice than to conform to the male norm or be excluded. In recognition of the limitations for these groups of women, liberal feminism has had to undergo a shift in thinking. Currently within European feminist scholarship, there appear to be two approaches to pregnancy:15 one which is more traditional and the other, which depending on your location might appear more progressive. The first group is those liberal feminists16 who attempt to mitigate the negative impact of a formal application of the equal treatment principle to pregnant women, but who still insist on retaining a symmetrical approach. They argue that pregnancy is not a unique condition justifying special treatment, but is one of the many physical conditions that affect an employee’s ability to work. Pregnant women should therefore be treated no differently from similarly treated workers with disabilities or illness. For example, if a male co-worker would be dismissed because of his absences due to illness, then under this approach, the pregnant worker should also be dismissed. A second group of liberal feminists, who form the majority of authors writing on pregnancy in the EU, recognize a very limited space of women’s difference during pregnancy which ends upon childbirth (i.e. maternity is not included). As only women are affected by pregnancy, detrimental treatment because of pregnancy is necessarily discrimination 15 Kilpatrick, supra note 3. 16 See Evelyn Ellis EC Sex Equality Law (Oxford: Clarendon Press, 1998).
Sex Equality on the grounds of sex. This approach ensures that women will be entitled to a remedy regardless of the treatment received by her male co-worker. The recognition of difference does not necessarily signify recognition of the intrinsic value of reproduction; rather it is intended to more equitably distribute the social and economic costs of pregnancy. In stark opposition to their position on pregnancy, liberal feminists refuse all possibility of recognition of difference for maternity. This attitude is understandable in light of the fact that historically women’s difference has been used against them, no more so than in the area of reproduction where women’s capacity to bear children has been used to justify their confinement to the private sphere of the family and home. The fear raised by liberal feminists is that “permitting differential treatment may well legitimate stereotypes and entrench women’s disadvantage.”17 Liberal feminist scholarship on sex equality in the EU has focused its attention on the ways in which legislation and jurisprudence on maternity continues to be informed by traditional discourses on motherhood and mothering. According to one set of authors, “the framework in which the Court has operated (and still operates) was based on the idea that women have the main responsibility for childcare and on the public/domestic sphere dichotomy.”18 The general consensus is that the Court has had a poor track-record with respect to maternity. The solution proposed therefore is to remove the maternity exception from the principle of equal treatment. Childcare should be addressed within the principle of equal treatment to encourage participation by both sexes in childrearing instead of as a derogation deserving of special protections. In essence, liberal feminists have distinguished pregnancy and maternity along the axes of sex/gender and biology/culture. Pregnancy is a manifestation of women’s biological difference, in opposition to maternity, a socially-constructed difference, which unlike pregnancy is neither inherent nor natural. Whereas special benefits for pregnancy are acceptable, “rights in respect of child-care obligations to mothers rather than to both parents perpetuates women’s primary responsibility for childcare.”19 PART III: BEYOND LIBERAL FEMINISM Liberal feminism purports to provide the answer as to which differences and similarities ought to be taken into account; however, this is only one concept of equality and we might easily imagine an opposite understanding of equality. Difference feminism20 places itself in opposition to liberal feminism. Difference feminists reject the notion that they have to become like men and forfeit traditionally female experiences such as pregnancy, 17 Sandra, Fredman, “European Community Discrimination Law: A Critique” (1992) 21 ILJ 119 at 126. 18 Caracciolo Di Torella, Eugenia and Annick Masslot, “Pregnancy, Maternity and the Organisation of Family Life: an attempt to classify the case law of the Court of Justice,” 26 Eur. L. Rev. 239 at 258 (2001). 19 Fredman, supra note 17, at 122. 20 The label ‘difference feminism’ actually refers to a number of feminist perspectives, which despite their theoretical disagreements accept that women are different from men.
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ankarabarrevıew 2009/1 childbirth and childcare. Instead, they take the identity that has been denigrated within dualistic modes of thought, such as pregnant woman, mother, and use it to construct a positive identity. Women are different from men, and thus equality requires different treatment or special accommodations, not similar treatment as liberal feminists would suggest. Whatever the equality approach preferred – whether liberal or difference feminism – by arguing that some differences are relevant and others are not, women who do not or cannot identify with those classifications will be excluded. The reality is that neither liberal feminism nor difference feminism alone can adequately account for the complexities of women’s experiences during pregnancy and maternity. Each communicates critical insights, but ultimately can only offer partial and limited solutions. As Tamara K. Hervey notes, “questions of gender differences are not readily solvable by application of one ‘right answer’.”21 A new understanding of equality is therefore necessary. Postmodernist Theory The rise of postmodernism within feminist and feminist legal academia in North America essentially brought the sameness/difference debate to the end. Many women felt excluded by the dominant feminist and feminist legal theories. The postmodernist skepticism of grand narratives capable of encompassing the totality of women’s experiences, capitalized on this general sentiment. Indeed, postmodernist feminism completely transformed the way feminists interacted with theory and knowledge. Sweeping statements gave way to the promotion of local, situated forms of knowledge. Theories such as liberal or difference feminism which claimed an ability to explain the equality of all women were replaced by more modest claims, such as what equality meant for a single lesbian mother of color. The correlate was, of course, the end of categories of identity. The idea that there was a broad category of ‘women’ (and ‘men’) with similar needs and interests was refuted and replaced by the idea of a multiplicity of individualized, particular identities. In this context, the liberal and difference feminism presumption that it could speak to and for all women was discounted. The advantage of such an approach was that the sameness/ difference dualism completely collapsed. Without the idea of a group of women and men, how would it be possible to even discuss whether one was similar to the other? While these sorts of inquiries are necessary, particularly for feminists trying to think beyond the inherent limitations of the concept of equality, it is doubtful whether this amount of fragmentation and uncertainty could successfully be operationalized within law. While the goal is to recognize the complexities and ambiguities of women’s equality, the danger is in fragmenting to the point where there are no common threads running 21 Tamara K. Hervey and David O’Keeffe, eds., Sex Equality in the European Union (Chichester: John Wiley & Sons, 1996) at 410.
Sex Equality through women’s experiences. With no minimal level of coherence, how would it be possible to argue that women are entitled to legal remedies? In other words, how would it be possible to bring about legal and political change?22 Despite the limitations of the equality framework, I believe that we still need to engage strategically with it for pragmatic reasons. If we only were to adopt a postmodernist approach, we would be in effect cutting ourselves off from the principle of equal treatment as any attempt to work within the current equality framework must necessarily incorporate elements of sameness and difference. To even be heard, legal claims must be intelligible within the internal context of EU sex equality law. Feminist legal projects adopted using only an external perspective23 would be potentially limiting the force of their strategy by failing to engage with the “language games” used by internal actors such as judges, lawyers, legislators.24 Alternate approach In this section, I will examine the ways in which we might overcome the sameness/difference dualism while still remaining within an internal perspective. Eco-feminist Val Plumwood’s work25 on the nature of dualisms and dualistic thinking offers a useful set of criteria for thinking about the content of what she refers to as “an appropriate relationship of non-hierarchical difference.”26 First, we must recognize the dependency of sameness and difference on one another. Each is constructed in opposition to the other, and in so doing, places the other into the background. Second, sameness and difference are often viewed as mutually exclusive and separate when in fact, they are better conceived of as continuous. Third, both sameness and difference need to be questioned and critiqued.27 What is needed essentially is a theory that can both encompass and mediate between sameness and difference and at the same time, allow space for the liberal critiques of difference and the difference critiques of sameness. I propose that instead of viewing the relation between sameness and difference as exclusive (i.e. either sameness or difference), we reconceptualize of the concept of sex equality as a positive dialectic between sameness and difference. Unlike liberal feminism, which only recognizes continuity between male and female, or difference feminism, which only recognizes difference, a dialectical relationship would recognize the complex interaction of both continuity and difference. 22 Kathryn Abrams, “The Constitution of Women,” 48 Ala. L. Rev. 861 (1997). 23 Postmodernist, critical legal scholars, feminist scholars, etc. are concerned with the distinction between “internal” and “external perspectives.” (Litowitz, 1997: 25) (An analogous distinction suggested by Jo Shaw (2001: 87) might be “legalist” versus “political visions.”) Postmodernist (like Marxist) theory operates at an external level, usually neglecting the “language game” which takes place internally within the legal system. In contrast, an internal perspective works from within, “viewing the system as a coherent, ordered set of objective rules.”(Litowitz, 1997: 25) Although presented here as separate and distinct, critiques at both the internal and external perspectives are necessarily connected. On the one hand, external critique allows insiders to gaze upon the legal system from another location, and on the other hand, internal critique translates/makes intelligible language used by those situated externally. 24 In response to this dilemma, some critical legal scholars have argued for “multiple levels of consciousness” which involves a self-conscious and political deployment of the language of equality, while simultaneously working from the outside to critique the notion of equality itself. 25 Val Plumwood, Feminism and the Mastery of Nature (New York: Routledge, 1993). 26 Ibid. at 60. 27 Ibid.
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ankarabarrevıew 2009/1 In many respects, such an approach shares affinities with the “differentiated approach to equality”28 put forth by Tamara K. Hervey in “The Future for Sex Equality Law in the European Union.” Hervey writes of her “differentiated approach to equality”: It therefore constitutes a method of exploring women’s difference (and sameness) as created by a complex web of social structures – in other words difference as relational, dependent upon circumstance and particularity; rather than inherent, as part of the essence of womanhood. If we recognise difference (and sameness) as relational, and dependent upon circumstance, then we also need a relational and dependent definition of sex equality.29 Like Hervey, I believe that what is required is a more fluid concept of sex equality that can respond to the changing equality needs of women. Sometimes, a sameness approach will be appropriate and at other times, the recognition of difference will be critical to the full recognition of women’s equality. This means that unlike the liberal feminist concept of equality, sameness and difference will not fall neatly into the maternity vs. pregnancy distinction. Maternity does not always have to be dealt with under a sameness approach. While I may personally agree with liberal feminists that parenting responsibilities ought to be shared between parents (where there are two parents, irrespective of their genders), the current reality is that women are disproportionately responsible for childcare. As Christine Littleton argues: If women currently tend to assume primary responsibility for childrearing, we should not ignore that fact in an attempt to prefigure the rosy day when parenting is fully shared. We should instead figure out how to assure that equal resources, status and access to social decision-making flow to those women (and few men) who engage in this socially female behavior.30 To accept different treatment is not to necessarily accept that there is a biological basis to childrearing, but merely to acknowledge that as social relations are currently organized, there is a difference between men and women. At the same time, the assertion by the majority of liberal feminists that pregnancy is a contained physical marker of women’s difference that must always be treated differently within law can be problematic as well. While I appreciate the fear that introducing similar treatment may lead to adverse consequences for pregnant women, recognition of difference does not necessarily correlate in every case to positive outcomes on women’s equality. For example, in Gillespie,31 where the amount of pay during 28 29 30 31
Hervey, supra note 21 at 407. Ibid. at 408. Littleton, Christine A., “Reconstructing Sexual Equality”, 75 Calif. L. Rev. 1279 at 1297 (1987). Gillespie, supra note 5.
Sex Equality maternity leave was at issue, the Court in holding that the principle of equal pay did not apply, stated that women taking maternity leave “are in a special position which requires them to be afforded special protection, but which is not comparable either with that of a man or with that of a woman who actually work.”32 Protections are now in place for pregnant workers with respect to dismissal/failure to hire within the Pregnancy Directive but it appears that the next major issue to be litigated will be pay; in particular, the levels of pay during maternity leave and during sick leave because of pregnancy-related illness. To be clear, a dialectical tension between sameness and difference is not the same as a ‘both/and approach,’ which tends to be the instinctive response to ‘either/or’ problems, i.e. the limitation of selecting either liberal feminism or difference feminism. By ‘both/and’ I refer to some attempt to combine what was previously polarized into a new whole; the classic example perhaps being androgyny. The distinction between a ‘both/and’ response and the approach I am proposing can appear quite subtle (even Tamara K. Hervey’s approach sometimes slips into the former33) but a ‘both/and’ solution is essentially liberal feminism: differential treatment is applied where women are different and similar treatment is applied where women are the same. Of course, this tells us nothing about why or how difference and sameness are constructed and maintained through sex equality law. PART IV: (RE)READING THE CASE LAW As we previously saw, liberal feminists would prefer a distinction between difference and sameness premised on the distinction between pregnancy and maternity. The Court however allows differential and similar treatment within each of the areas; hence, the liberal feminist assertion that the jurisprudence on pregnancy and maternity is incoherent and contradictory. Rather than assume that the disjointed results must necessarily lead us to the conclusion that there is no common thread, I argue that we ought to re-imagine the case law as a space which begins from childbirth and continues past the end of maternity leave. In this way, we are able to examine where the boundaries or tensions between sameness and difference are currently located. Dekker and Hertz or Where does pregnancy end? In the Dekker34 and Hertz35 decisions, the Court for the first time examined women’s employment rights during pregnancy and maternity with respect to the principle of equal treatment (as found in the Equal Treatment Directive). Dekker and Hertz were delivered on the same 32 Ibid. at para 17. 33 See Hervey, supra note 21 at 407 that special protections for women would be limited to “situations women’s biological difference from men mandates differential treatment.” 34 Case C-177/88 Elisabeth Johanna Pacifica Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJVCentrum) Plus [1990] [Dekker]. 35 Case C-179/88 Handels- og Kontorfunktionaerernes Forbund i Danmark v Dansk Arbejdsgiverforening [1990] [Hertz].
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ankarabarrevıew 2009/1 day and generally speaking set up the boundary between equal treatment (sameness) and differential treatment (difference) that persists today in the Court’s jurisprudence with respect to pregnancy: pregnant women are entitled to be treated differently from the start of pregnancy until the end of their maternity leave. At the end of maternity leave, women’s differences end and equal treatment is reintroduced or perhaps more accurately, the norm of equal treatment is re-established. Feminist legal scholars were left a bit confused by the way in which the Court simultaneously delivered a progressive decision, supportive of women’s substantive equality (Dekker) and on the same day, adopted a formalistic and arbitrary equality perspective in Hertz. Evidently, Dekker has been considered quite favorably by feminists, while Hertz is read with either condemnation and/or shoulder-shrugging (of the kind, what else could the Court have done?) In this part of the essay, I propose to examine these two decisions, as well as subsequent case law that reaffirms this distinction, not to show that it is incoherent and arbitrary – which it most likely is – and not to argue that the Court got it wrong (or right) but instead to discuss the tension between sameness and difference that lies behind the fixed boundary. The case of Dekker concerned a refusal to hire a pregnant worker because of the financial burden that would result to the employer. Mrs. Dekker was three months pregnant at the time of the interview. She informed the hiring committee of her condition and her name was put forth as the most suitable candidate for the post. When the employer subsequently learned that Mrs. Dekker’s daily maternity benefits would not be covered under its insurance scheme, she was refused employment on the basis that the employer would not be able to afford to hire a replacement during her maternity leave. The Court’s most important holding in Dekker is the recognition of women’s difference during pregnancy. It rejected the need for a male comparator to demonstrate discrimination on the grounds of sex, stating “[] only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex.”36 It was therefore irrelevant that there were no male candidates for the post. The elimination of the need for a male comparator was a clear recognition by the Court that women during pregnancy are different from men. Hertz confirmed that dismissal of a female worker during pregnancy would also constitute direct sex discrimination.37 In its later jurisprudence, the Court has confirmed this principle38 and extended the approach to cover dismissal because of pregnancy-related illness during pregnancy. 36 Dekker, supra note 34 at para 11. 37 Hertz, supra note 35 at para 13. 38 For example, the Court held in Case C-32/93 Webb v. EMO [1994] at para. 24 [Webb]: “[] there can be no question of comparing the situation of a woman who finds herself incapably, by reason of pregnancy discovered shortly after the conclusion of the employment contract, of performing the task for which she was recruited with that of a man similarly incapable for medical or other reasons.” See also Habermann-Beltermann [1994] at para 15.
Sex Equality Subsequent preliminary references to the Court regarding the rights of pregnant workers from the United Kingdom have attempted to distinguish previous case law and reintroduce a male comparator.39 However, at this point, it would appear that the Court will not permit the introduction of any comparator during the worker’s pregnancy, whether male, female, or another pregnant female.40 In Dekker, the Court also held that direct sex discrimination “cannot be justified on grounds relating to the financial loss which an employer who appointed a pregnant worker would suffer for the duration of her maternity leave.”41 Subsequent jurisprudence has attempted to determine what justifications, if any, would be permitted to justify detrimental treatment of pregnant workers. Thus far, the Court has held that a pregnant worker cannot be dismissed or not hired for any of the following reasons: she was unable to carry out work engaged to do because of a statutory provision,42 she was engaged to replace another woman on maternity leave,43 or she was unable to perform work from the outset of employment for the duration of the pregnancy because of a statutory provision.44 All of these judgments gradually extended the protection of pregnant women with indefinite employment contracts, but left open the question of whether discrimination might be permissible in the case of fixed-term contracts. In Webb v. EMO, the Court appeared to place emphasis on the fact that the employment was of an indeterminate length, raising concerns that discrimination would have been permitted had it been a determinate employment contract. In TeleDanmark, the Court removed any doubts by holding that as dismissal of a pregnant worker on account of pregnancy constitutes direct sex discrimination, “whether the contract of employment was concluded for a fixed or an indefinite period has no bearing on the discriminatory character of the dismissal.”45 This brief review of the case law on discrimination against pregnant workers during pregnancy reveals that the Court has created a clear protected space of women’s difference. When a pregnant woman experiences detrimental treatment as a result of her pregnancy, such as refusal to hire or dismissal, it will constitute discrimination on the grounds of sex. Within this zone, the Court will not permit a pregnant woman to lose or fail to obtain employment because of her pregnancy, regardless of her particular employment circumstances. The start of the space of difference – the beginning of pregnancy – corresponds to our commonsense belief that such a moment marks the appearance of difference between women and men. The more difficult question however, is where women’s 39 Webb, ibid. 40 The only exception in which the Court compared the situation of a pregnant worker with a male co-worker experiencing illness is Hoj Pedersen [1998], where the comparison served to ameliorate the situation of pregnant workers. The statutory provisions in question provided that pregnant women suffering from pregnancy-related illness or disability would receive their full pay. The Court found that as both were in a similar situation, the provision was discriminatory. 41 Dekker, supra note 34 at para 12. 42 Habermann-Beltermann, supra note 38. 43 Webb, supra note 38. 44 Case C-207/98 Mahlburg [2000]. 45 Case C-109/00 Tele Danmark [2001] at para 31.
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ankarabarrevıew 2009/1 difference ends. Whereas historically or traditionally, women were considered to remain different long after the birth of their children, today changing attitudes have blurred where the marker ought to lie. The question of where women’s difference ends was addressed in the Hertz judgment. There the Court was faced with the more complicated case of dismissal for pregnancy-related illness. Mrs. Hertz had resumed work after the expiry of her maternity leave, but the following year was forced to take sick leave as a result of pregnancy-related illness. She was subsequently dismissed by her employer on the grounds of prolonged absences from work. The issue in front of the Court was whether dismissal in such circumstances was “contrary to the principle of equal treatment since a male worker is not subject to such disorders and hence cannot be dismissed on that ground.”46 The opinion of Advocate General Darmon gives us a clear indication the (male) decisionmakers experienced in this case. If the Court were to hold that it was direct discrimination on the grounds of sex, no justification for the dismissal would be possible (Hertz), thereby creating a sort of “immunity”47 for the employee under the equal treatment principle. After rejecting such an approach, AG Darmon then proposed a sort of double standard approach to pregnancy-related illness whereby not all women who were pregnant or had given birth would be treated the same. Instead, the “normal risks of pregnancy and confinement, and the common attendant complications” would be distinguished from “medical conditions which do not belong to the ordinary risks of pregnancy and should therefore be treated on the same footing as “ordinary” sickness.”48 In its judgment, the Court rejected the Advocate General’s suggestion to create distinctions amongst pregnant women, preferring instead to maintain the same rights for all women who fell inside the limit of maternity leave: Although dismissal of a female worker on account of pregnancy constitutes direct discrimination on the grounds of sex, in the case of an illness manifesting itself after the maternity leave, there is no reason to distinguish an illness attributable to pregnancy or confinement from any other illness.49 After maternity leave ends, the focus of inquiry becomes whether the woman who suffers from a pregnancy-related illness was dismissed in similar circumstances as her male co-worker dismissed for illness. If she was, there is no discrimination on the grounds of sex. In Brown v. Rentokil, the Court reaffirmed its distinction between pregnancy-related illness during pregnancy until the end of maternity leave and pregnancy-related illness after the end of maternity leave. Ms. Brown was dismissed while pregnant, after she exceeded the number of 46 47 48 49
Hertz, supra note 35, at 8. Opinion of AG Darmon at 43. Ibid. at para 48. Hertz, supra note 35, at para 17.
Sex Equality consecutive sick days allowed within her contract of employment. The Court held that: dismissal of a female worker during pregnancy for absences due to incapacity for work resulting from her pregnancy is linked to the occurrence of risks inherent in pregnancy and must therefore be regarded as essentially based on the fact of pregnancy.50 Ms. Brown’s dismissal therefore constituted direct discrimination on the grounds of sex. On the other hand, Ms. Hertz’s dismissal which occurred after the end of her maternity leave was not; her absences were compared to a male employee’s absences from work due to illness. Special protections for maternity Early decisions: Hofmann and Commission v. France Liberal feminists denounce any special protections for maternity that the Court permits under the exception in Article 2(3) of the Equal Treatment Directive. As discussed earlier, liberal feminists take the position that maternity should be subject to equal treatment and should not, in any circumstance, constitute a special protection or special entitlement; the fear being that any kind of differential treatment that the Court allows will not only be based on gendered stereotypes but will also perpetuate and reinforce these stereotypes. Thus, any time that the Court finds a provision cannot fall under the maternity protection exception; liberal feminists consider the case to be correctly decided. Unfortunately (for these feminists), the Court appears to be inconsistent with respect to the maternity exception. The Hofmann decision has continued to draw the ire of liberal feminists since it was decided in 1984, particularly as the Court has reaffirmed its holding in more recent judgments. Mr. Hofmann argued that the optional maternity leave which the state granted to mothers only was a violation of the principle of equal treatment. The optional maternity leave which followed the expiry of an eight-week (compulsory) protective period allowed mothers to extend their maternity leave until the child reached six months of age while receiving a daily allowance from the state. Mr. Hofmann argued that the goal of the leave, which was to protect mothers against the “multiplicity of burdens” imposed by motherhood and employment, could be achieved by making the leave available to fathers as well. In finding that the measure fell within the scope of the pregnancy and maternity exception of Article 2(3) of the Equal Treatment Directive, the Court held in its now (in)famous statement that “the directive is not designed to settle questions concerned with the organization of the family, or to alter the division of responsibility between parents.”51 The Court found that in creating an exception for pregnancy and maternity, the Equal 50 Case C-394/96 Brown v. Rentokil [1998] at 24. 51 Hofmann, supra note 6 at para 24.
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ankarabarrevıew 2009/1 Treatment Directive recognized the legitimacy of protecting women in two respects: First, it is legitimate to ensure the protection of a woman’s biological condition during pregnancy and thereafter until such time as her physiological and mental functions have returned to normal after childbirth; secondly, it is legitimate to protect the special relationship between a woman and her child over the period which follows pregnancy and childbirth, by preventing that relationship from being disturbed by the multiple burdens which would result from the simultaneous pursuit of employment.52 The Court has continued to insist on this construction of maternity leave up until the present53 (incidentally, it has dropped the questionable ‘normalcy’ language). Soon after Hofmann, in 1988, the Court delivered the Commission v. France54 decision, giving some feminists hope that it was moving away from its Hofmann analysis. The Commission brought proceedings against France for failing to adopt within the prescribed period all the measures necessary for the implementation of the Equal Treatment Directive. At issue was a law that allowed the application of collective agreements granting special rights to women that were already in force. The French government argued that as the special rights were intended to protect women and ensure their effective equality with men, they did not give rise to discriminatory working conditions. Among the special rights included were the extension of maternity leave; the shortening of working hours; the advancement of the retirement age; the ability to obtain leave when a child was ill; the granting of additional days of annual leave with respect to each child; daily breaks for women working on keyboard equipment or employed as typists or switchboard operators; etc.55 The Court found that contested provisions could not be justified by Article 2(3) as they included “protection of women in their capacity as older workers or parents – categories to which both men and women may equally belong.”56 Recent decisions: Abdoulaye57 and Griesmar58 The more recent decisions of Abdoulaye and Griesmar appear to shed some light onto the disparate outcomes in Hofmann and Commission v. France; for although they concern equal pay Article 141 EC (ex Article 119) in addition to the Equal Treatment Directive, they provide a clear indication of the Court’s construction of sameness versus difference. It 52 Ibid., at para 25. 53 For example, in late 2004, the Court was still continuing to cite the two criteria from Hofmann in C-284/02 Land Brandenburg v Ursula Sass [2004]. 54 Case C-312/86 Commission v. France [1988] [hereinafter Commission]. 55 Ibid. at para 8. 56 Ibid. at para 14. 57 Case C-218/98 Abdoulaye and Others [1999] [hereinafter Abdoulaye]. ��������������������������������������������������������������������������������������������������������������������� Case C-366/99 Joseph Griesmar v Ministre de l’Economie, des Finances et de l’Industrie et Ministre de la Fonction publique, de la Réforme de l’Etat et de la Décentralisation [2001] [hereinafter Griesmar].
Sex Equality would seem that the Court - as in its pregnancy-related illness decisions – permits different treatment during maternity leave (Hofmann and Abdoulaye) but insists on returning to the norm of similar treatment once the maternity leave ends (Commission v. France and Griesmar). The Abdoulaye decision concerned a group of male workers at a car manufacturing plant who claimed that they should also be entitled to a lump-sum payment made to pregnant women commencing maternity leave provided for in their collective agreement. The plaintiffs’ argument was highly interesting (though ultimately unsuccessful) in that it attempted to introduce equal treatment at childbirth. Although the male workers conceded that maternity leave granted exclusively to women was justified on the basis of physiological differences between men and women, they argued that: [the birth of a child] is also a social event which concerns the whole family, hence also the father, who should not therefore be excluded from receiving the allowance, as this would constitute unlawful discrimination.59 The Court held that female workers on maternity leave were not in a comparable situation to male workers and therefore, a lump-sum payment was permissible “where the payment is designed to offset the occupational disadvantages which arise for those workers as a result of their being away from work.”60 The Griesmar decision concerned a code provision which granted female civil servants a service credit in respect of each of their children. Mr. Griesmar, a retired French magistrate and father of three children, argued that the denial of the service credit to men was sex discrimination. Citing Abdoulaye, Commission v. France, and Hofmann, the Court held that the proper test to determine whether women and men were in a comparable situation was: whether that credit is designed to offset the occupational disadvantages which arise for female workers as a result of being absent from work during the period following childbirth, in which case the situation of a male worker is not comparable to that of a female worker, or whether it is designed essentially to offset the occupational disadvantages which arise for female workers as a result of having brought up children, in which case it will be necessary to examine the question whether the situations of a male civil servant and a female civil servant are comparable.61 Based upon the explanations of the French government, the Court determined that the purposes of the credit fell into the second category – that of bringing up children, and therefore, infringed the principle of equal pay. These decisions on pregnancy and maternity demonstrate that in the 59 AG Alber’s opinion, at para. 5. �� ���Abdoulaye, supra note 57, at para 22. ���Griesmar, supra note 58, at 44.
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ankarabarrevıew 2009/1 face of competing arguments as to if women are different, how they are different, and what should be the legal effect of those differences made by the Member States, the Commission, the parties, feminist scholars, and National Courts, etc. the Court is faced with the tension between sameness and difference and is essentially delineating spaces. With respect to maternity jurisprudence, the Court has drawn a line between maternity, a biological difference that only affects women, and parenting, where men and women are in a similar situation (regardless of actual social reality). In the pregnancy and pregnancy-related illness cases, women are likewise protected before the end of maternity leave and afterwards, are to be treated like men. CONCLUSION In this essay, I argued for a reconceptualization of the concept of sex equality as a positive dialectic between sameness and difference in response to what I perceived to be a theoretical impasse within liberal feminism. My approach was not so much an ‘answer’; in fact I argued that the time has come to avoid theories that attempt to provide comprehensive solutions. Rather, I envisioned it to be more of a process that allows space for thinking about sameness and difference without getting weighed down in endless debates about the true nature of women and correct or incorrect judgments. Liberal feminism, with its constant emphasis on the proper application of sameness or difference to particular areas of sex equality, misses the opportunity to examine where the borders are fixed and where movement is possible.
Legal (Evidentiary) Value of Unjust Treatment Argument
Legal (Evidentiary) Value of the Unjust Treatment Argument by Mehmet Akif Tutumlu*
I. INTRODUCTION The situations are similar:
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woman or a man, holding a court petition, enters the judge’s office with a sad face, directs his/her sad look to the judge on the bench with a plea for help: the defendant municipal authority has refused their application to connect utility services (water, electricity, gas) to their new apartment, recently bought from the builder, due to the absence of a housing license (iskan) and all the family members – perhaps including some pregnant, paralyzed, or some other disadvantage – suffer from this situation. Honorable Judge, please protect me from this unjust treatment! Certainly, the unjust treatment cases are not limited to the ones described above; there are hundreds of them and the judges must render a decision for each and every one of them. As lawyers and addressees of such cases from daily life, I believe that it is important to open a discussion about the concept of unjust treatment – its position in law and particularly the proof value of it; that is the aim of this article. II. THE CONCEPT The adjective form of “mağduriyet” (unjust treatment) is “mağdur”(victim) and it is stems from “gadr” in Arabic. Mağdur (victim) is someone who has been subjected to unjust treatment (gadre).1 * Judge, Ankara. He can be contacted at “
[email protected]”. 1 DEVELLİOĞLU, Ferit, Ottoman-Turkish Encyclopedic Dictionary, 10th Edition, Ankara 1992, p. 670; OZÖN, Mustafa Nihat, The Great Ottoman-Turkish Dictionary, 8th Edition, Istanbul, 1997, p. 471.
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ankarabarrevıew 2009/1 In legal terminology, “mağdur” (victim)2 describes a person who suffers an injury as the result of a criminal or unjust act. The “-et” tail converts the word from an adjective to an adverb. We encounter discussion of the victim very often in the Criminal Procedural Law. The rights of the victim, as the person who has directly been injured by the crime, are addresses in the Criminal Procedural Code (Law No. 5271, in the 4th book, 1st part (Art. 233, 236)).3 Nonetheless, the concept of unjust treatment cannot be seen in the Code although the word “victim” is present. If we go through the norms that regulate our Civil Procedural Law, in both our Civil Procedural Code and in other special Codes that regulate the civil procedure, I could not find any provision in which the concept of unjust treatment/victim is addressed. Indeed, the normative language prefers to use the concept of fair/unfair pairs. III. LEGAL (EVIDENTIARY) VALUE OF UNJUST TREATMENT ARGUMENT As Derrida once said, all the sayings and speeches are relevant mostly as rhetoric and to language games,4 primarily in cases whereas the vertical dimension of the language has been used. In this aspect, the concept of unjust treatment is put on the track of language with a rhetoric motif. This has happened over time as the meaning of the concept of the unjust treatment has expanded. The hard times that a person has to carry and which are difficult to endure influence the present meaning of the concept. It can be widely seen, especially in the injunction and case petitions, that the concept of unjust treatment is used as a strong argument and there is no legal rule that bans it.5 In this case, the opposing party evaluates this argument as an anti-thesis and the judge evaluates it in the aspect of proof and logical norms. In the aspect of logic/good judgement, to bring forward the argument of the concept of unjust treatment in a court case – that is to say that the petitioner is in a difficult situation – is accepted as a logical error6 that is called an appeal to pity (argumentum ad misericordiam). Professor İbrahim Emiroğlu explains “argumentum ad misericordiam,” which can be understood as to emphasize the need for pity instead of the condition and evidence which the law requires, as: “(...) it is absolutely wrong for the ones who need mercy to bring 2 YILMAZ, Ejder, Legal Dictionary, 7th Edition, Ankara, 2002, p.759. 3 It is considered that the concept of unjust treatment is recognized and therefore the descriptions do not take place in the general regulation (Article 2). 4 SIM, Stuart, Derrida and the End of the History, (Trans. by Kaan H. Ökten), İstanbul, 2000, p. 35. 5 See Turkish Civil Procedure Code (HUMK), Art. 179/3. 6 EMİROĞLU, İbrahim, Logical Errors (PhD Thesis), Ankara, 2004, p. 194.
Legal (Evidentiary) Value of Unjust Treatment Argument forward their case on the grounds that the consequences would have been worse for them if it did not happen instead of the other way around.”7 The same logical error is explained by Associate Professor İrfan Erdoğan as the call for the feeling of sorrow.8 Briefly, it is “ if/when my demand is not fulfilled, I shall be in a worse situation.” If we apply this logical norm to the example contained in the preamble, there is no causal connection between the person who could not get his/ her apartment connected to the utility services/gas, water, electricity) and the act of denial by the municipal authority.9 That means that the person could not get his/her apartment connected to the utility services, not due to the unlawful denial of the authority to them, but because he/she moved in his/her apartment before the builder had obtained the compulsory housing license. Another example is from the High Crime Court (where I completed my judicial traineeship). The defendant’s lawyer demanded that his client (the prisoner) be released from the prison; his argument was that “the conditions of the prison are not appropriate!” There is no need to say that there is no causal connection between the conditions of the prison the defendant’s right to release for the crime! Legal Evaluation This means that the evaluation of cases and facts which are the subject of a dispute are subject to the legal value being measured by the judge. It is important to stress that the fact hypotheses which are described as unjust treatment should not be considered to be unrealistic all the time. If we go back to our first example, the failure to allow the subscription of water, electricity and gas due to the failure to obtain the housing permit is an unjust treatment that would harm the consumer. Apparently, there is a causal connection between the act and the fact; thus, conditions for the protection of the consumer have been attained. IV. TENSION OF THE PRELIMINARY INJUNCTION It is essential to look at the situation closer from the aspect of requests for preliminary injunctions for high-value conflicts. Such requests are usually brought to the court with “high-octave” speeches of unjust treatment and are moreover submitted to the court with panic and anxiety. At first sight it might be considered that such effects/illusions are in the nature of a preliminary injunction. However, it is vital to separate two issues carefully here. Although the conditions for the preliminary injunction, such as urgency of the matter, the potential damage to the court case or the potential danger to the court case are the compulsory conditions in order to render such a decision, they are not enough by themselves alone. The party requesting the preliminary injunction must 7 Id. 8 ERDOĞAN, Irfan, Positivist Methodology, Ankara, 2003, p. 57. 9 See Development Code (İmar Kanunu), Art. 31.
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ankarabarrevıew 2009/1 prove them as well. The proof mentioned here is the approximate proof.10 Accordingly, the party that requests the preliminary injunction must submit all the required evidence with the court petition that proves that he is justified in the related main conflict and the other party is not at all. That means that without any valid and strong grounds, it is not possible to issue a preliminary injunction by just relying on the exaggerated unjust treatment arguments. While stating that, I do not mean that I do not take into account the argument of the high tension of the possible potential damage and danger of the court case. Nonetheless, the judge’s rulings, which are not, at least, supported by the approximate proofs, would reveal the fact and suspicion that some other measurements than the legal ones take place while making such a ruling.11 CONCLUSION Courts are the institutions which separate the just from the unjust and protect the just within the legal framework. In this respect, there should be no doubt that – in the technical meaning – the victims are going to be protected. However, the legal system does not grant the right to a person to get out of a situation into which he put himself by his own inaccurate and illegal acts. Stated another way, it is one of general principles of law that a person cannot get any legal benefit from his own inaccurate and illegal acts. On the other hand, it is absolute that the courts are entitled to render decisions upon concrete and strong evidence, rather than upon exaggerated rhetoric that aims to convince and persuade without any proof.12 As human beings, sometimes it is obvious that we tend to help people without taking into account the fact that they have themselves created the situation. Especially in the resolution of disputes between people, we must take into account the rational norms and logical ways within the framework of law rather than emotional norms13 such as pity.
10 See PEKCANITEZ/ATALAY/ÖZEKES, Turkish Civil Procedural Law, 5th Edition, Ankara 2006, p. 408, Art. 617 et seq. 11 In some regulatory preliminary injunction cases, (for example, in divorce cases, living allowance, relations with the children, leaving the house in favor of the other party etc.) there is no extra need for evidence. The same rule applies for situations specifically addressed in the laws and for precautions that the judge can take on his/her own initiative. 12 ÖZLEM, Doğan, Science, History and Interpretation, Istanbul, 1998, p. 124. 13 We shall end this article with a memory: In a water subscription case, a woman entered my office with a 2 year-old baby in her arms. When she started to tell me her situation with a sad face and gestures, I had her file brought to my office. The woman did not have role (defendant or plaintiff) in the case. I asked her about that and she said that the actual plaintiff was her husband and he was waiting outside of the office. I called her husband inside and I told both of them that their acts were not appropriate at all. I certainly refused the request for a preliminary injunction, for which the legal conditions were not present. Meanwhile, the baby in her mother’ arms was looking at me, looking at the books and sometimes sucking his finger silently. I gave him a bar of chocolate because as they were leaving I felt sorry for him the most.
Domestic Implementation of the Judgements of the ECHR at the National Level: Turkey
Domestic Implementation of the Judgments of the European Court of Human Rights at the National Level: Turkey by Ece Yılmaz*
“(…) The point that we have not seen as natural and reacted to with surprise and regret is that Turkey was not invited to the establishment of the Council (...) Therefore, we cannot restrain ourselves from openly expressing the indignation we feel that emerged from this forgetfulness that demonstrated [the existence of] negligence and indifference to our country [in Europe] (…)”1
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hese lines were written by a journalist, Hüseyin Yalçın, on 8 May 1949 in order to express his deep sadness for the exclusion of Turkey from the establishment of the Council of Europe. Fortunately, a few months afterwards, on 9 August 1949, Turkey became the 13th Member State of the Council of Europe and ratified the European Convention on Human Rights on 18 May 1954. However, the Strasbourg Court gained its real popularity with the Turkish Parliament, government, and public when Turkey declared its recognition of the individual application procedure on 28 January 1987.2 Although 59 years have passed, there is still a widespread impression in Turkey that the European Court has been manipulated by some countries as a political springboard due to some highly politicized, biased, and antiTurkey decisions. In order to express their discontent with such decisions, even some Turkish lawyers, politicians, and bureaucrats make witty comments that Strasbourg judges are sitting with their one hand raised.3 * Trainee Lawyer at Ankara Bar Association, MA in Human Rights & Democratization at University of Malta. She can be reached at “
[email protected]”. 1 Yalçın, H., “Avrupa Birligi Müessisleri ve Türkiye,” Ulus, 8 May 1949; See also Çalış, S., “Turkey’s Integration with Europe: Initial Phases Reconsidered,” pp.5-6, available at http://www.sam.gov.tr/perceptions/Volume5/JuneAugust2000. 2 See Council of Europe website at http://www.coe.int. 3 It refers to the motion used by the judges to express their vote for the existence of a violation in a case – the judges raise their hand. Essentially the joke is that the judges seem predisposed to find a violation on the part of the Republic
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ankarabarrevıew 2009/1 On the other hand, in light of a recent survey, 20,141 applications were lodged against Turkey from 1998 to 2006. Turkey is the second country, following Italy, in the number of judgments against it, with 1097 judgments. As of 1 January 2007, 10% (9,000) of the total number of cases (89,900) pending before the European Court are directed against Turkey.4 At first glance, it might seem surprising that so many people have come to assume that a court based in a French town will be their only hope for justice but these numbers become more significant when one considers the bill that Turkey is urged to pay. Bearing the above in mind, Turkey’s implementation of the European Court’s judgments in several fields has attracted the special attention of the Committee of Ministers and other members of the Council of Europe many times. This article will touch on the main issues that have been discussed during the implementation process in Turkey. I. The Implementation Process in Turkey Article 2 of the Constitution of Turkey defines the Republic as a “democratic, secular, and social state governed by the rule of law (…) respecting human rights.”5 In connection with the European Union (hereinafter “the EU”) accession process, in May 2004, an amendment was adopted to Article 90, which provides that international agreements that have been ratified become an internal part of the national legal system and can be directly enforced. Furthermore, it states that “in the case of a conflict between international treaties in the area of fundamental rights and freedoms duly put into effect and the domestic laws, (…), the provisions of international agreements shall prevail.”6 By virtue of the new amendment, the supremacy of Turkey’s international obligations in the field of human rights over domestic law is clear. This constitutional principle has a great influence on the direct effect of the European Convention on the Turkish legal system. Turkey has removed most of the substantial reservations and declarations with respect to the European Convention and its protocols, however, it is necessary to underline that several key articles still have been interpreted in the light of Turkish national law. II. Some Problems Concerning Fundamental Freedoms II. A. Prohibition of torture and inhuman or degrading treatment or punishment and the right to a fair trial, especially the independence and impartiality of the judiciary Turkey was invited to introduce effective domestic mechanisms and procedures for the rapid implementation of the judgments of the European Court concerning problems regarding torture and inhuman or degrading treatment or punishment. of Turkey. 4 European Court of Human Rights, Survey of Activities 2006, Strasbourg, 2007. 5 Article 2 (Characteristics of the Republic) of the Constitution of the Republic of Turkey. 6 Article 90 (Ratification of International Treaties) of the Constitution of the Republic of Turkey.
Domestic Implementation of the Judgements of the ECHR at the National Level: Turkey
Measures were brought into force to ensure the independence and impartiality of the state security courts, a concern based on the presence of military judges in these courts. In fact, they were abolished in 2004 along with the abrogation of Article 143 of the Constitution.7 In addition, new safeguards have been put into place to prevent the security forces from participating in “unlawful killings, disappearances, acts of torture and ill-treatment and the destruction of moveable and immoveable property, such as houses, villages, and crops.”8 Furthermore, Turkey has been particularly encouraged to take appropriate action concerning the excessive length9 and ineffectiveness of domestic proceedings brought following ill treatment inflicted by members of the security forces, due to the structural problems related to events in the past.10 The zero tolerance policy of the authorities is also a positive step in the fight against impunity in order to prosecute officials charged with torture or inhuman or degrading treatment. Since March 2004, a Judicial Modernization and Penal Reform program in Turkey has been drafted in cooperation with the Council of Europe.11 Major steps have been taken and are still being taken in order to increase the knowledge of the Strasbourg case law among judges, prosecutors, judicial inspectors, governors, high-ranking police and gendarmerie officers, and lawyers. The judgments of the European Court concerning Turkey are systematically translated and re-published in Turkey.12 Moreover, the adoption of laws amending the Turkish Penal Code, the Law on Penal Procedures against Civil Servants, and the Law on the Fight against Organized Crime are aimed at harmonizing Turkish legislation with the common standards laid down by the Council of Europe.13 Abolishing the death penalty, the adoption of longer prescription periods, improvements in the conditions of police custody, reforming the prison system, enhancing the rights of the defense and entitlement to a medical examination are some of the examples of the considerable progress that have been welcomed by the European Committee for the Prevention of Torture (CPT).14 In response to CPT comments and the recommendations of the Parliamentary Assembly, Turkey was stimulated to remain vigilant throughout the whole country to implement these reforms.
7 Resolution 1380 (2004), Honouring of obligations and commitments by Turkey, para. 9. See e.g., Hulki Güneş v. Turkey (App. No. 28490/95), judgment of June 19, 2003, Ağaoğlu v. Turkey (App. No. 27310/95), judgment of December 06, 2005 and Yılmaz Yıldız v. Turkey (App. No. 66689/01), judgment of October 11, 2005. 8 Doc. 10111, 17 March 2004, Honouring of obligations and commitments by Turkey, paras. 148-157. 9 Cases pending for supervision of execution as appearing in the Annotated Agendas of the Committee of Ministers’ Human Rights meetings and decisions taken (sections 2, 3, 4 and 5), 06 December 2006, p.180. 10 Ibid. p.186. See e.g. Batı and Others v. Turkey (App. No. 33097/96), judgment of June 03, 2004. See also Doc. 10111, 17 March 2004, Honouring of obligations and commitments by Turkey, paras. 148-157. 11 Speech by the Deputy Secretary General, Judicial Modernization and Penal Reform in Turkey, Ankara, 24 April 2007. 12 Id. 13 Resolution 1256 (2001) [1], Honouring of obligations and commitments by Turkey, para. 10. 14 Greer, S., The European Convention on Human Rights, Achievements, Problems and Prospects, Cambridge University Press, p.101. See also Resolution 1380 (2004), Honouring of obligations and commitments by Turkey, para. 8. and Doc. 10111, 17 March 2004, Honouring of obligations and commitments by Turkey.
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ankarabarrevıew 2009/1 II.B. Right to respect for private and family life and right to protection of property With regard to the right to respect for private and family life, the Court has reproached Turkey many times. In the judgment of Akdivar and Others,15 the Court held that the Turkish authorities were responsible for the burning of the applicants’ houses and their moving elsewhere in relation to the right to have one’s home protected from attacks by the State and its agents.16 A similar result was reached in the case of Okyay Ahmet and Others,17 wherein Turkey had failed in its obligation to guarantee the applicant’s right to their private and family life due to the non-enforcement of the Court decisions in cases of environmental protection.18 In spite of the progress made in this case, currently there are more than 1500 other applications lodged with the European Court alleging violations on the same grounds. Regarding the judgment of Oneryıldız,19 the Court found that national authorities had failed to carry out their obligations to implement the decision. In particular, the compensation had not been paid to the applicant for the death of his relatives and for the destruction of the property in a methane explosion at a rubbish pile in 1993.20 Similarly, concerning the judgment of Unal Tekeli,21 the applicant was refused to have only her maiden name registered after her marriage. Turkey was encouraged to provide specific measures on the traditional grounds of family unity,22 in particular women’s rights. II.C. Freedom of thought, conscience, and religion In connection with Turkey’s specific situation, Turkey has struggled to find an appropriate balance between religion and secularism in a Muslim majority country. On this point, the judgment of Leyla Sahin23 is an important example. Ms. Sahin was banned from medical school based on the prohibition of wearing a headscarf at the university. However, the Grand Chamber of the European Court held that the ban was justified to protect the secular status of the State where there were “extremist political 15 Akdivar and Others v. Turkey (App.No 99/1995/605/693), judgment of 16 Sep.1996. 16 Kilkelly, U., A Guide to the Implementation of Article 8 of the European Convention on Human Rights; The Right to Respect for Private and Family Life, Human Rights Handbooks, No. 1, 2003, p. 59. 17 Okyay Ahmet and Others v. Turkey (App.No36220/97), judgment of July 12, 2005. 18 Taşkın and Others v. Turkey (App. No. 46117/99), judgment of November 10, 2004, Okyay Ahmet and Others v. Turkey (App. No. 36220/97), judgment of July 12, 2005. 19 Oner Yıldız v. Turkey (App. No.48939/99), judgment of November 30, 2004. 20 Cases pending for supervision of execution as appearing in the Annotated Agendas of the Committee of Ministers’ Human Rights meetings and decisions taken (sections 2, 3, 4 And 5), 06 December 2006, pp.182-183. 21 Unal Tekeli v. Turkey (App. No. 29865/96), judgment of November 16, 2004. 22 Ibid. pp.181-182 “Turkish Civil Code which obliged married women to bear their husband’s name throughout their married life. This provision was amended in 1997 to allow married women to put their maiden name in front of their husband’s surname. The new Civil Code, enacted in November 2001, maintained this rule (new Article 187).” “(…) The Ministry of Justice is preparing a draft law which is destined to amend Article 187 of the Civil Code in order to ensure that future violations of the same kind will be avoided. On 11 April 2006 the Turkish authorities informed the Secretariat that the issue of an identity card for the applicant with her maiden name on it constituted a good example of the direct effect given by the executive authorities to the Convention and to the case-law of the European Court notwithstanding the impugned legislation.” 23 Leyla Sahin v. Turkey (App. No. 44774/98), judgment of November 10, 2005.
Domestic Implementation of the Judgements of the ECHR at the National Level: Turkey
movements.”24 Likewise, in the judgment of Hasan Zengin25, the applicant alleges that the way of teaching religious culture and ethics in Turkey infringes his daughter’s right to freedom of religion inconformity with their religious convictions, namely Alevism. II.D. Freedom of assembly and association The provisions regarding the permitted activities of associations and organizations are scattered in a number of laws and regulations in Turkey. In particular, Article 33 of the Constitution, despite amendments in 2001, permits the restrictions “on the grounds of protecting national security and public order, or prevention of crime commitment, or protecting public morals, public health.” In accordance with the newly revised Law on Assemblies, Meetings and Demonstrations, governors are not authorized to ban demonstrations. In addition, Article 33 of the Constitution has been amended to state that “associations may be dissolved or suspended from activity by the decision of a judge in cases prescribed by law.” The latter provision at least reduces the possibility for government interference in the activities of associations by requiring a judge to make the appropriate finding, not a government official. Further, restrictions on the registration and functioning of NGOs were mainly removed with a revision of the 1983 Associations Act.26 In terms of dissolution of political parties, since the beginning of modern Turkey, more than twenty “Islamist” or “separatist” parties have been dissolved.27 Despite the right of the democratic countries to defend themselves against extremist parties, it is important to note that the dissolution of political parties should be an exceptional remedy used only in cases where the party in question violates or threatens “civil peace and the democratic constitutional order of the country.”28 In relation to the same resolution: “Democracy does not benefit from this cat and mouse game” and further, it tarnishes Turkey’s image abroad. A further factor is the reopening of domestic proceedings of political parties and conviction of the members of those parties. Reference may 24 Id. 25 Hasan Zengin v. Turkey, (App. No. 1448/04). The European Court has not pronounced a judgment on the case yet. 26 Article 33(4) of the Constitution of Republic of Turkey. “Associations may be dissolved or suspended from activity by the decision of a judge in cases prescribed by law.” See also Doc. 10111, 17 March 2004, Honouring of obligations and commitments by Turkey, para.17. “Only the courts may refuse to register associations’ statutes or dissolve or suspend their activities.” 27 Greer, S., The European Convention on Human Rights, Achievements, Problems and Prospects, Cambridge University Press, p.98. See also Dicle for the Democratic Party (DEP) v. Turkey (App. No. 25141/94), judgment of December 10, 2002, Freedom and Democracy Party (ÖZDEP) (App. No 23885/94), judgment of December 8, 1999, United Communist Party of Turkey and Others (App. No 133/1996/752/951), judgment of January 30, 1998, Socialist Party and Others (App. No 20/1997/804/1007), judgment of May 25, 1998, Yazar, Karataş, Aksoy and le Parti du travail du peuple (HEP) (App. Nos. 22723/93, 22724/93 and 22725/93), judgment of April 9, 2002. 28 Doc. 10111, 17 March 2004, Honouring of obligations and commitments by Turkey, paras.90-98. “(…) Under Article 69 of the Constitution as amended, “A political party shall be deemed to become the centre of such actions only when such actions are carried out intensively by the members of that party or the situation is shared implicitly or explicitly (…)”. The new Article 69 also provides for an alternative to dissolution, namely total or partial deprivation of state aid. In addition, under the newly amended article 149 of the Constitution, dissolution of a political party now requires a 3/5 majority of the Constitutional Court rather than a qualified majority. Further Sections 101, 102 and 103 of the Political Parties Act no. 4748 have been amended by Act of 26 March 2002. However, section 96 of the Act, which prohibits the use of the term Communist in the title of a political movement, has not been amended.”
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ankarabarrevıew 2009/1 be made, by way of example, to the judgment of Sadak and Others,29 in which Turkey was urged to adopt measures necessary to “reopen the proceedings impugned by the Court, or other ad hoc measures erasing the consequences for the applicants of the violations found.”30 However, in accordance with the Turkish Code of Criminal Procedure, the applicant can only obtain the reopening of proceedings concerning the Court’s judgments, which became final before 04 February 2003 or judgments rendered in applications lodged with the Court after 04 February 2003.31 III. The Main Causes of Shortcomings The problems of implementation confronting Turkey may take various forms. To gain a complete and comprehensive picture of the effect of the European Court’s case law on the protection of human rights and fundamental freedoms in Turkey, one should take into account the fact that Turkey is one of the countries suffering the longest from ongoing terrorism – more than twenty years. Inasmuch as Turkey has been beset with enemies and potential enemies throughout its history, she strictly adheres to her commitment to preserve the unity, sovereignty, and territorial integrity of the country. Besides, the case of Cyprus,32 and the recently resolved Loizidou,33 have been perfect illustrations of Turkey’s continued refusal to respect the Court’s judgments on account of “political reasons.”34 A serious economic crisis in 2001, the consequences of massive earthquakes and early elections due to political uncertainty led to the Turkish authorities, based on “budgetary reasons” to belatedly address these questions. This category might also be said to include the excessive length of implementation proceedings.35 Moreover, the consequences of some judgments end at the border of a number of sensitive topics. Alongside the arena of legal and political reforms, there is a danger zone where many people face unjustified interference. Risky areas include the conflict in southeastern Turkey and the question of minority rights, and the nature of the state. The forces and actors in politics also remains an essential point, although it should be noted that the formation of the Turkish identity due to its strategic location has brought it to the brink of making tough decisions on finding a balance between religion and secularism.36 29 Sadak and Others v. Turkey (App. Nos. 29900/96, 29901/96, 29902/96 and 29903/96), judgment of July 17, 2001. 30 Hunt, M., “State Obligations Following from a Judgment of the European Court of Human Rights,” in Christou, T.A. & Raymound, J. P., European Court of Human Rights: Remedies and Execution of Judgments, BIICL, p.39 (2005). 31 Cases pending for supervision of execution as appearing in the Annotated Agendas of the Committee of Ministers’ Human Rights meetings and decisions taken (sections 2, 3, 4 and 5), 06/12/2006, p 167-168. See also pp.188-191. “(…) in this respect, the case presents similarities with cases concerning the independence and impartiality of state security courts (…)”. For instance, Hulki Gunes v. Turkey (App. No.28490/95), judgment of June 19, 2003, see also Ocalan v. Turkey (App.No. 46221/99), judgment of May 12, 2005. 32 Cyprus v. Turkey, (App. No. 25781/94), judgment of May 10, 2001. 33 Loizidou v. Turkey (App. No. 15318/89), judgment of December 18, 1996. 34 Doc. 8808, 12 July 2000, Execution of judgments of the European Court of Human Rights, para. 8. 35 Id. For instance Ormancı and Others (App. No. 43647/98), judgment of December 21, 2004, (final on March 21, 2005). 36 Bates, E., “Supervising the Execution of Judgments Delivered by the European Court of Human Rights: The Challenges Facing the Committee of Ministers,” in Christou, T.A. & Raymound, J. P., European Court of Human Rights: Remedies and Execution of Judgments, BIICL, p.89 (2005). “(…) By March 2004 the monitoring Committee of the
Domestic Implementation of the Judgements of the ECHR at the National Level: Turkey
IV. Proposals for Improvement One should admit the fact that such human rights infringements as Turkey has been accused of should not exist in a country adhering to the rule of law. Every problem we encounter does not stem from unluckiness, prejudice, or injustice. Therefore, Turkey, as a country seeking accession to the European Union, should make more amendments to reform or repeal laws or regulations in order to obtain rapid and full execution of judgments of the Strasbourg Court. On this occasion, Turkey is called upon to introduce a decision-making body at the highest political level so as to coordinate all aspects of the domestic implementation process and to increase the effectiveness of the implementation of the judgments of the European Court.37 A further factor to be taken into consideration are the possible introduction of, or reforms to, viable remedies in individual cases at the national level after a finding of a violation by the Court. For instance, pardon or sentence reduction,38 revising the legislation on the re-examination or reopening of proceedings, and improving payment procedures. National authorities should also take necessary action with regard to the creation of a national ombudsman institution to develop a dialogue with NGOs and to strengthen NGOs’ freedom of action, ratify the required conventions, broaden the training of judges and prosecutors as well as police and gendarmerie (at all hierarchic levels) throughout the country, to improve the right to minorities, to continue progress towards female illiteracy and all forms of violence against women.39 Additionally, implementation of the existing laws and regulations already in force is also equally important for the full and effective implementation of the European Convention.40 Overall, Turkey should give up superficial improvements and assiduously get to the root of the problems. Throwing more money into a bottomless pit is not the right answer to the implementation question. It is not only to improve the quality of existing law or to introduce systemic changes, but also to enhance the awareness and sensitivity of public authorities and to bring about a change in mentality throughout the country. If there is no change in mentality, a better system for implementing judgments of the Court would be difficult to achieve. Although there is still a considerable way to go before this is achieved, as Terence said, “There is nothing so easy, but that it becomes difficult when you do it reluctantly.”
Parliamentary Assembly recommended that Turkey be removed from the monitoring procedure commenced eight years previously. The Committee made it clear that a number of outstanding issues remained , but stated that Turkey had achieved more reforms in a little over two years (up to March 2004) than in the previous ten.” Id. 37 Resolution 1516 (2006), Implementation of judgments of the European Court of Human Rights, para. 22. 38 Barkhuysen, T. & Van Emmerik, M., “A Comparative View on the Execution of Judgments of the European Court of Human Rights” in Christou, T. & Raymond, J.P., European Court of Human Rights: Remedies and Execution of Judgments, BIICL, London, p.5 (2005). 39 Resolution 1380 (2004), Honouring of obligations and commitments by Turkey. 40 Resolution 1516 (2006), Implementation of Judgments of the European Court of Human Rights, para. 22.
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Turkey’s Progress towards the Adoption of Acquis Communautaire by Fırat Oktay*
T
here are three aspects that make the most recent succession of new members to the European Union (EU) different from the previous membership expansion periods. These differences include more candidates than ever before, where most of the applicant countries had a level of economic development well below that of the present members. In addition to this, many of these candidates possess weak administrative capacities.1 Despite these differences, in 1997, the EU decided to begin negotiations with ten countries from Central and Eastern Europe, as well as Cyprus and Malta; these countries have already joined the EU. The EU also started considering Turkey’s application to join the Union.2 However, Turkey compares differently to the other candidates in four key ways. Firstly, Turkey is very large both in terms of geography and population. In the former case, a significant section of Turkey falls in Asia and the Middle East. Secondly, unlike a predominantly Christian Europe, Turkey is predominantly Muslim. In the past, Turkey has suffered from several setbacks, ranging from political and economic insecurity, to the interfering role of its army, to a record of human-rights abuses. * Contract Management Expert at TTNET. You may contact him at “
[email protected]”. 1 AVERY, G., 2001, “Reunifying Europe.”, The World Today, August-September, p. 41-43. 2 PUSCA, A., 2003, European Union: Challenges and Promises of a New Enlargement, New York, International Debate Education Association, p. 13.
Turkey’s Progress towards the Adoption of Acquis Communautaire Those more skeptical Europeans could therefore easily argue against previous Turkish proposals to join the European Union. However, since they became the ruling party, the government of Recep Tayyip Erdogan’s Justice and Development Party (Adalet ve Kalkınma Partisi) has enacted a swathe of reforms, in the hope of meeting the ‘Copenhagen criteria’ that governs eligibility to join the EU.3 Definition of the Copenhagen Criteria According to the Dictionary of the European Union, accession criteria, often referred to as the Copenhagen criteria, were adopted by the Copenhagen Summit of the European Council in June 1993, when the European Community committed itself to admitting the countries of Central and Eastern Europe (CEE). Accession was, however, to depend on the candidate countries meeting the following criteria: having stable institutions, guaranteeing democracy, the rule of law, human rights and protection of minorities; possessing a functioning market economy and the capacity to cope with the competitive pressures of the internal market; having the ability to take on the obligations of membership including adherence to the aims of the European Union, notably the political, economic and monetary union. In 1995, the Madrid Summit of the European Council added a further criterion: that the countries seeking membership should possess the administrative capacity to implement the acquis communautaire.4 Aim of the Article The aim of this article is to analyze the process of Turkey joining the European Union with regard to the acquis communautaire section of the accession criteria – or as it is often referred to – the ‘Copenhagen Criteria.’ The article will establish, especially by focusing on the acquis communautaire section whether Turkey has achieved fulfillment of the Copenhagen Criteria by evaluating the efficiency of Turkey’s efforts to fulfill these criteria. Criteria just for Turkey Concerning Turkey’s accession, the Council stated that: “While having full regard to all Copenhagen criteria, including the absorption capacity of the Union, if Turkey is not in a position to assume all the obligations of membership it must be ensured that Turkey is fully anchored in the European Structures through the strongest possible bonds.”5 In the article Turkey’s quest for membership of the European Union, the editors disagreed with this statement, particularly with regards to the manner in which reference was made to the Union’s absorption capacity as surprising and slightly puzzling. It is hard to see how the 3 ANON., 2004, A date with Turkey., Global Agenda, p. 1. 4 PHINNEMORE, D., 2002, Dictionary of the European Union, KY, USA: Taylor & Francis, Incorporated, p. 1-2. 5 Negotiation Framework, Luxembourg: 3 October 2005, point 2.
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ankarabarrevıew 2009/1 Union’s absorption capacity could be part of the Copenhagen Criteria. Yet, this is what the text suggests. These criteria set out the requirements to be satisfied by applicant countries, but it is not the responsibility of a candidate for membership to undertake action to safeguard or improve the Union’s absorption capacity. Therefore this is not an additional condition to be satisfied by Turkey but rather than an obligation to be assumed by the Union or perhaps an escape clause allowing the EU to back out of the accession process.6 Laçiner assumes that neither the politics nor even the economics of the changing relationship can be understood apart from the historical background and cultural dimensions. Therefore the main hypothesis of his study was that the present problems are mainly structural and rooted in the history of Turkey and Europe. In order to prove this, the study first attempted to address the motives behind Europe’s unwillingness to admit Turkey, and Turkey’s European obsession.7 Has Turkey Adopted the Acquis Communautaire Efficiently? According to the dictionary of the European Union, acquis communautaire is a phrase which collectively describes all the secondary legislation of the European Community (EC) passed under the provisions of the founding treaties and their subsequent amendments. It covers all the directives, decisions and regulations adopted by the EC. States that apply for EU membership have to accept the acquis communautaire.8 Denis Chaibi addresses the most pressing challenges facing Turkey in the EU accession process, stating that “accession will require drastic reform in Turkey”; a long and difficult journey started on October 3, 2005. Turkey’s accession talks will put Ankara’s EU bid, (as well as the EU’s role and identity), into a new perspective. To become a member, Turkey must meet three basic conditions, known as the Copenhagen Criteria. On the political level, Turkey must create stable institutions that guarantee democracy, the rule of law, human rights, and respect for minorities. Economically, the EU expects Turkey to have a functioning market economy. Turkey must also adopt the entire body of EU laws, known as the acquis communautaire, and adhere to the various political, economic, and monetary aims of the European Union. This third criterion will require Turkey to reform itself to adopt, implement, and enforce the EU’s values and legislation. Although it is often said that Turkey is “too big, too poor, and too Muslim” to join the EU – its size, its GDP per capital, and its religion should not be the main stumbling blocks on the road to accession. It is more the way Turkey will deal with these political, economic, and legal issues that will be decisive.9 6 ANON, 2005, Turkey’s quest for membership of the European Union, Common Market Law Review 42, no. 6 1 December, p.1561-1566. 7 LAÇINER, S., 2005, Civilisational Differences as a Condition for Turkish Full-Membership to EU, The Journal of Turkish Weekly, 9 February. 8 PHINNEMORE, D., 2002, Dictionary of the European Union, KY, USA: Taylor & Francis, Incorporated, p. 1-2. 9 ANON, Turkey’s EU Accession: The Long Road from Ankara to Brussels, ROUNDTABLE WITH BURAK AKÇAPAR DENIS CHAIBI, Yale Journal of International Affairs, Winter | Spring 2006, p. 51.
Turkey’s Progress towards the Adoption of Acquis Communautaire According to Palabiyik, joining the EU has become one of Turkey’s highest political priorities, and it is a major force in shaping regulatory reforms in the political, economic, social, and administrative sectors. These political, legal, economic, social and environmental aspects of the membership process to join the EU extend individual and national daily life standards to, and perhaps beyond, modern international standards. Accession Partnerships, National Programme for the Adoption of the Acquis, Regular Reports and the results of accession negotiations altogether identify priority areas for support in Turkey’s candidacy process. The key objective is to attain sustainable development, in addition to establishing economic and social policies in a suitable political climate; In addition, the development of an effective and efficient environmental strategy, planning and its implementation through collaboration of the public and private sectors, academic institutions, non-governmental organizations (NGOs), and citizens is highly needed.10 After the approval of the Accession Partnership, the Turkish government announced its own National Programme for the Adoption of the Acquis (NPAA) on 19 March 2001. With this document, Turkey heralded a new beginning in its efforts in various fields such as democratisation, human rights and liberal economic policies, as well as common market policies. The National Programme has been created with a careful appreciation of the requirements of Turkey as spelled out in the Accession Partnership. This comprehensive document demonstrates the will of Turkey to adopt the EU acquis in all areas that are required for the accession to the EU. More specifically, it lays down the tasks to be accomplished within the short and medium terms and thus, clarifies the responsibilities of the institutions within the harmonisation process.11 The Accession Partnership for Turkey was first adopted by the Council in 2001. A revised Accession Partnership was adopted in May 2003. The purpose of the Accession Partnership is to assist the Turkish authorities in their efforts to meet the accession criteria. It covers in detail the priorities for accession preparations, in particular implementation of the acquis, and forms the basis for programming pre-accession assistance with EU funds.12 The priorities of the Accession Partnership have been selected on the basis that it is realistic to expect that the country can complete them or take them substantially forward over the next few years. A distinction is made between short-term priorities, which are expected to be accomplished within one to two years, and medium-term priorities, which are expected to be accomplished within three to four years.13 10 PALABIYIK, H., 2006, Turkey and European Union Accession: Review of the National Program for the Adoption of the Environmental Acquis, The Journal of Turkish Weekly, 10 May. 11 ANON, 2006, TURKEY - ADOPTION OF THE COMMUNITY ACQUIS, [online], Available from: http://europa.eu/ scadplus/leg/en/s40013.htm [Accessed November 23th 2006]. 12 EU OPENING STATEMENT FOR THE ACCESSION CONFERENCE WITH TURKEY, COUNCIL OF THE EUROPEAN UNION ,Brussels: 12 October 2005. 13 Commission Report COM(2004)656 final - SEC(2004) 1201. Not published in the Official Journal.
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ankarabarrevıew 2009/1 Turkey has continued to address the priorities defined in the revised Accession Partnership. Overall, some further progress has been made, but substantial efforts will be necessary to complete the foreseen tasks. The revised priorities will reflect the progress achieved to date and address areas where further progress is required. For a considerable number of these priorities, the government will benefit from EU assistance, as projects directly related to these priorities have been included in the 2005 national programme.14 According to the overall assessment of the Commission on the 2005 Progress Report for Turkey, the country has made further progress in acceding to the relevant international and European conventions and has increased its efforts to execute decisions of the European Court of Human Rights (ECHR). Several protocols were signed, including Protocol No 14 to the ECHR and the Protocol amending the European Social Charter. The European Agreement relating to Persons participating in Proceedings of the European Court of Human Rights was ratified on 6 October 2004 and entered into force on 1 February 2005. The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families entered into force on 1 January 2005. Interview with Mr. Yaşar Yakış (the Chair of Turkey’s European Union Affairs Committee and AK Parti’s MP) During the interview that I made with Mr. Yaşar Yakış, who is arguably one of the most important authorities in Turkey concerning the EU and Turkey Relationships, I asked the following questions regarding the content: Question 1 - Does EU need Turkey? According to Yakış, the EU has sufficient capability to achieve its goals. However, with the accession of Turkey, EU would be able to achieve these aims more efficiently, cheaper, and easily with less human resources. Yakış further claimed that the influence of Turkey on the strategic regions of the world, such as the Balkans, Middle East, Caucasia and Central Asia would be useful for the EU as well. To support this idea, Yakış pointed out the request of the USA, while at the war against Iraq, to use Turkey’s airbases. Question 2 - Although Turkey is not member of the EU, do they exploit Turkey by making promises to grant it membership? Yakış stated that Turkey does not aim to complete the necessary requirements merely to join the EU. The main reason for the efforts of Turkey is to improve the welfare of the country by striving to attain EU standards.
14 TURKEY - Presidency Conclusions - Brussels, 16/17 December 2004 - [online]. Available from: http://ec.europa.eu/ enlargement/pdf/turkey/presidency_conclusions16_17_12_04_en.pdf [Accessed 7th November 2006].
Turkey’s Progress towards the Adoption of Acquis Communautaire Question 3 - Has Turkey sufficiently met the European Union’s expectations? According to Yakış this issue is relative. To demonstrate his idea, he compared Turkey’s and the Czech Republic’s accession processes. For Turkey, the EU set the fulfillment of Copenhagen Criteria as a precondition of the negotiation. However, in the progress report of the Czech Republic, EU stated that “although negotiations with Czech Republic continues for two years the government has not fulfilled the Copenhagen criteria” and currently the Czech Republic is a member of the EU without having fulfilled the Copenhagen Criteria. The approach of the interviewee from this example is that although Turkey currently fulfils the Copenhagen Criteria sufficiently, complete fulfillment will occur after accession. Furthermore, Yakış gave another example for that question. The EU demanded Turkey amend its constitution to stipulate that “If a judgment of the constitution concerning human rights is contrary to international agreement in that case international law is valid.” However, the constitution of South Cyprus, as a member state, still includes provisions against EU accession. The answer and the examples provided by Yakış indicate that the EU applies a double standard for Turkey concerning the fulfillment of the Copenhagen Criteria. Question 4 - Why have other candidate countries’ participation period been short and Turkey’s accession period is long and on-going. ? Yakış claimed that there are two explanations for this question. The first reason refers to the unfavourable historical image that Europeans hold of Turkey. The other reason is the size and therefore the possible affect on the population of Europe. Yakış stated that when the EU is negotiating with large states, it does so in a hesitant manner. To demonstrate this idea, he gave the accession process of the UK as an example. The UK accession process was harder than the other candidates, with its application being vetoed several times by President De Gaulle of France. He further added that this approach of the EU can be seen in the most recent enlargement in May 2005. As a relatively large country, Poland’s negotiations were longer than that of Malta’s, whose population is only 350,000. The analysis of this answer would be that the EU examination of Turkey is more intense than other candidates owing to the possible affect of Turkey’s sizable population by comparison to other European countries. Question 5 - Since Turkey is predominantly Muslim, how does this affect the accession process? According to Yakış, religious affiliation is not the part of the Copenhagen
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ankarabarrevıew 2009/1 Criteria. In official negotiations, therefore, there is no mention of religion. However, after the negotiations there is a requirement to confirm the accession by referendum, which will be voted by the European Community. Yakış supposes that the different religious character of Turkey will create a negative effect. Question 6 - Is the EU accession the last chance for Turkey? If the EU does not accept Turkey, can Turkey join another Union? Yakış argued that this recommendation has very strong support in the Turkish community, by highlighting the strength Turkey’s relationship with the other countries in the region, such as Russia and Iraq. However he believes that this approach is not logical, since both these countries are seen as less favorable union partners. Turkey, with the EU, would be stronger for the regional countries; likewise the support of the regional countries to Turkey would be cooperative in the process of accession. Question 7 - Is Turkey behind the other EU countries in human rights? According to Yakış, the concept of the human rights is not suitable to compare its content item by item. The interviewee demonstrated his ideas by citing examples from Bulgarian and British legislation. Yakış stated that in Bulgaria, when a person visits the country as a tourist s/he is required to give his passport to the host, the host brings it to the police, who keep it until the visitor leaves the country. According to the interviewee, this rule is rooted in communist Bulgaria, however in practice the application of the rule still continues. Yakış claimed that this practice could be considered to be a human rights violation, however Bulgaria has joined the EU already. In the case of England, Yakış compared the length of arrest under English Law and under Turkish Law. According to Yakış, even though England has a traditional belief concerning human rights, the length of time that can be spent under arrest under English law is relatively longer than for other EU countries. Yakış emphasised that the duration of under arrest had increased up to 96 days, but after long discussions it has been decreased to 28 days in England. However, the under arrest time was 9 days in Turkey; albeit it is shorter than many current members of the union, EU demanded Turkey amend the law, and currently the maximum time that can be spent under arrest in Turkey is now 4 days. The explanation of the answer would be that under the concept of human rights there are different values. Therefore, it is impossible to evaluate respect for human rights by comparing particular rules such as the length of arrest period.
Turkey’s Progress towards the Adoption of Acquis Communautaire The conclusion of the interviewee regarding human rights considerations is that the “utilisation of human rights in Turkey lags behind many of the EU countries, but it is forward of some of them.” Conclusion Turkey’s Progress Reports reveals that Turkey’s alignment with the acquis has progressed in most areas, however areas that still need to be addressed remain. It is most advanced in chapters related to the ECTurkey Customs Union but in this respect Turkey is not fully meeting its obligations. Alignment is also more advanced in areas where other international obligations exist which are similar to the acquis. Recommendation It can be said that Turkey has made sufficient progress in implementing the acquis effectively. However, supplementary legislative work is necessary. Turkey should concentrate on implementing its National Programme for the Adoption of the Acquis, corresponding to the Accession partnership priorities, more constantly across all chapters. In addition, new legislation should not diverge from the acquis. However, findings reveal that, owing to the dissimilar character of Turkey from other candidate countries, although there is no mention in official negotiations, the political dimensions, such as the debated Armenian Genocide issue and the future of Cyprus, as well as the Islamic character of Turkey, has had a substantial impact on the accession process. Therefore it is recommended that the country should continue to complete the adaptation of Acquis at sufficient level; however at the same it also needs to solve other external issues to achieve full EU membership.
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Property Acquisition: Foreign Real Persons in Turkey - I by Müge Selçuk*
E
very nation has its own legislation regarding acquisition of real property by foreign real persons within the scope of its own political, economical and social conditions. Acquisition of real property by foreign real persons in Turkey is restricted by laws in accordance with the national and international laws. Below are the related articles of the Constitution of the Republic of Turkey regarding to acquisition of real property by foreign real persons in Turkey: Article 12: “Every person has individual, inviolable, inalienable fundamental rights and freedoms.” Article 16: “Fundamental rights and freedoms of foreigners may be restricted by law in accordance with international law.” Article 35: “Everyone has the right to own and inherit property. These rights may be limited by law only in view of public interest. The exercise of the right to own property shall not be in contravention of the public interest.” Before providing the current regulations on the subject, a brief account of the historical development of the rules should be provided. The historical development of the regulations of property acquisition of foreigners in Turkey can be examined as before and after the foundation of Turkish Republic. * Legal Advisor at DG of Land Registry and Cadastre. You may contact her at “
[email protected]”.
Property Acquisition of Foreign Real Persons in Turkey Before the foundation of Turkish Republic Property acquisition right was recognized to foreigners by a special law (Uyruk-i Ecnebiyenin Emlake Mutasarrıf Olmaları Hakkında Kanun) enacted in June 8, 1868. Rights recognized to foreigners by the aforementioned law lasted until the World War I. Afterwards all the privileges accorded to foreigners were abolished by the law (Kavanin-i Mevcudede Uhudu Atikaya Müstenit Ahkâmın Lağvı) enacted in 1914 under wartime conditions. After the foundation of Turkish Republic In accordance with the reciprocity principle, real property acquisition by foreigners was introduced by the Treaty of Lausanne. The historical development of the subject can be examined in four time periods. a) Between the years of 1934 and 2003 Acquisition of real estate by foreigners was regulated by Articles 35 and 36 of the Land Registry Law No. 2644 of 1934. This period was rather steady with only two arrangements related to reciprocity principle which were annulled by the Constitutional Court in 1985 and 1986. According to the law: - The right to own and inherit property was recognized for foreign real persons only with the reservation of reciprocity and compliance with national legal restrictions. - Upper limit of area that a foreigner could acquire was limited to 30 hectares. Acquisition of more than 30 hectares required the permission of the Council of Ministers. - Foreign real persons could not acquire real property in villages and military zones.
b) Between the years of 2003 and 2005
Article 35 of Land Registry Law No 2644 was amended by Law 4916, which was enacted in 2003. With this amendment, the following were regulated: - The right to own property was recognized for foreign trading companies established in other countries as well as for foreign real persons - The reciprocity principle was abolished with regards to real property acquired by means of inheritance. - Foreigners were allowed to acquire real property in villages. - The reciprocity principle was not stipulated when establishing in rem rights. - With regard to public interest and security of the State, the Council of Ministers was authorized to determine the places where foreigners could
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ankarabarrevıew 2009/1 not acquire real property. Law No 4916 amending Article 35 of Land Registry Law 2644 was partly annulled by the Constitutional Court in 2005. c) Between the years of 2006 and 2008 Law No. 5444 came into force on January 7, 2006, and Article 35 of Land Registry Law No 2644 was amended by the new law: - The upper limit of area that a foreign real person could acquire was limited to 2.5 hectares. - Foreign real persons could acquire real estate that was registered for residential or business purposes in development plans. - Companies having legal personality established in foreign countries according to the laws of those countries could acquire real estates and in rem rights in Turkey according to the provisions of special laws. - With the exception of foreign real persons and trading companies established in other countries, no foundations, associations or other similar entities could acquire real property and in rem rights. - De jure and de facto circumstances were to be taken as basis in the determination of reciprocity. In implementation of this principle for the citizens of countries that did not grant land ownership rights to Turkish citizens, it was stipulated that the rights granted or not granted by that foreign country should also be granted or not granted to, whatever the case, to the citizens in the Republic of Turkey - The Council of Ministers could determine places where foreign real persons could not acquire real estates and in rem rights based on recommendations from public institutions regarding the areas of irrigation, energy, agriculture, mine, protected areas, religious and cultural areas, special protection areas, sensitive areas due to flora and fauna features, strategic areas due to public interest and national security. - The Council of Ministers was authorized to determine the places where foreign real persons could acquire real estate not more than 5 per cent in any one province. Law No 5444 amending the Article 35 of Land Registry Law 2644 was partly annulled by the decision of the Constitutional Court in 2007. d) The period between July 15, 2008 and present The Law No. 5782 came into force on July 15, 2008 to amend the 7th paragraph of Article 35 of Land Registry Law No. 2644. While preserving the current legal arrangement, the following provisions were introduced: - The total area of real estate that a foreign real person can acquire shall not exceed the %10 of the area within the borders of development plans in each city.
Property Acquisition of Foreign Real Persons in Turkey - The Council of Ministers may determine a different percentage within this limit considering the importance of a city in terms of infrastructure, economy, energy, environment, culture, agriculture and security. To summarize the current real property acquisition regime for foreign real persons according to Article 35 of Land Registry Law: - Foreign real persons can acquire real estate in Turkey that are registered for residential or business purposes in development plans with the reservation of reciprocity and compliance with national laws regarding military and special security areas. According to the Constitutional Court’s decision of July 2005, the location of the real property, its type, the reason for purchase and the conditions of transfer of acquisition of real property had to be specified in the Law. Therefore the purpose of an acquisition (residential or business) has been introduced as a new element to the new regulation. In other words foreign real persons shall acquire real estate that has been specified in development plans and out of the military forbidden zones, security zones and special security zones. According to the Military Forbidden Zones and Security Zones Law No. 2565, foreigners shall not acquire real property in the areas that are within the scope of the Law. The total area covered by all types of such zones corresponds to less than %0.08 of Turkey’s area. - The total area of the real property that a foreign real person can acquire shall not exceed 2.5 hectares in total for all over the country. The reason why there is a restriction of 2.5 hectares can be explained by means of statistics; EU nationals (real persons) have acquired a total of 43.056.859 m2 and a total of 63.130 pieces of real property in Turkey since 1934. The share of EU nationals’ acquisitions in total acquisitions by foreigners is %92. The average square meter per person for EU nationals is 598 m2, which considerably lower than the cap of 2.5 ha (25.000 m2) per person. - There is no restriction on establishing mortgages by foreigners. - The reciprocity principle is not stipulated in acquisition by means of inheritance. Real estates acquired through legal inheritance by citizens of countries that do not have reciprocity with Republic of Turkey are subjected to liquidation after the transfer of the real property. - The Council of Ministers can determine places where foreign real persons shall not acquire real estates and in rem rights based on recommendations from public institutions regarding the areas of irrigation, energy, agriculture, mine, protected areas, belief and cultural featured areas, special protection areas, sensitive areas due to flora and fauna features, strategic areas due to public interests and national security. There may be some areas regarded as strategic areas by the public
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ankarabarrevıew 2009/1 institutions due to public interest and national security, and Council of Ministers wanted to retain the right of introducing restriction in this issue. This right is not obligatory but optional. - The total area of the real estate that a foreign real person can acquire shall not exceed the %10 of the areas within the borders of development plans in each city. The Council of Ministers may determine a different percentage within this limit considering the importance of a city in terms of infrastructure, economy, energy, environment, culture, agriculture and security. Application to acquire real estate By Article 26 of the Land Registry Law No. 2644, the duty and authorization to regulate contracts concerning real property and in rem rights were given to Land Registry Offices. Foreigners who want to acquire real property or benefit from in rem rights will make their applications to the Land Registry Office where the real property is located. Required Documents for Application There is no difference between Turkish citizens and foreign real persons in terms of required documents for application. a. Title deed of the real property if available, otherwise a document indicating the city block and parcel of the real estate or verbal statement of the owner. b. Identity card or passport of foreigner given by his/her own country and two photographs. c. If the person applying is a representative, a power of attorney of the representative, and identity card with photograph, two photographs of the representative, and if some of the purchasers are not present during the transaction, their identity cards with photographs, two photographs and power of attorney of the representatives that represent the purchasers, are required. Transfer It is free, through banks and private financial institutions, to transfer revenue and value of sales earned from real property and in rem rights acquired by foreigners with or without exchange of foreign currency.
What Civil Law Attorneys Should Know about the Common Law
What Civil Law Attorneys Should Know about the Common Law by Larry D. White*
A
s we all have been taught, there are two major legal systems in the world – the common law system and the civil law system, right? But what is the common law? If you look up the term in a legal dictionary, such as Black’s Law Dictionary, you could find the following for common law: “The body of law derived from judicial decisions, rather than statutes or constitutions.”1 However, that explanation is a bit simplistic; the difference between civil law and common law is not just the source of the law – statutes or judicial decisions – but is more about a different approach to law. Let’s discuss these differences. Judges – the judge in a common law trial is there for fairness, not outcome. I think it is safe to say that the judge in a civil law system is responsible for ensuring the legal result is proper. The judge in a common law trial is responsible to ensure that the proceedings were fair according to the law. However, if a legal point was not raised at trial, the judge is not at fault—the attorney is. Attorneys – the attorneys in a common law trial bear the brunt of the burden to ensure that their clients “have their day in court.” In the common law, I like to think of two guiding concepts: 1. There are not right and wrong arguments, but better and worse 2. Everything can be challenged The second statement is a very broad one and possibly counterintuitive. What do I mean by “everything can be challenged”? Well, I mean everything. Under the American Federal Rules of Civil Procedure,2 Rule 11b states: “By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of * Lecturer at Ankara University, Faculty of Law. He can be contacted at “
[email protected]”. 1 Second Pocket Edition, 114. 2 State courts have their own, but similar rules.
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ankarabarrevıew 2009/1 the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” Subparagraph (2) leaves a great deal of room for attorneys – you can even argue for a complete reversal of existing law! Ludicrous? Perhaps not. If we look at the common law as a constantly evolving creature, it is easy to see how various parts of the law can change at different rates. For example, contract law could evolve quickly whereas perhaps family law could develop much more slowly. Therefore, as a result of changes in contract law, some family law concepts would then be “out of synch” or incongruous with contract law. Therefore, it would be quite appropriate for a case to be filed that would seek to align these concepts across the “boundaries” of different areas of the law. As such, cases to challenge the existing structure are designed to harmonize the various areas of the law. I think inherent in the common law tradition is a belief that this harmony of the law is something we constantly seek – not only harmony within the law itself but harmony with the evolving values of society. One burden we have to bear is the fact that lawmakers want to constantly put forth new legislation to reflect these new ideas. One of the great philosophers of the common law, Oliver Wendell Holmes, did not trust the legislature to mesh the new concepts with the old but considered that to be the job of the judiciary, assisted by the bar.3 Therefore, the next time you see a case that appears to contradict the law, it may be a lawyer trying to challenge the existing regime, based on evolution of other areas of the law, to foster greater harmony between the law and the society it represents. This is a core concept of the common law. 3 See Oliver Wendell Holmes, The Common Law, 1881.
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Yaman Akdeniz, University of Leeds, UK
Ashgate, May 2008, ISBN: 978-0-7546-2297-01 Yaman Akdeniz’s “Internet Child Pornography and the Law: National and International Responses,” is a study of the impact and the role of the Internet in the production, dissemination and collection of child pornography. His book initially focuses on the national approaches to the problem of child pornography and the government actions to stop it in England and Wales, the United States of America and Canada. The author raises questions about the novel and complex challenges of the Internet and explores various proposals to reduce the availability and dissemination of child pornography. The second part of his book, “Supranational and International Approaches”, details and assesses important developments at the European Union, Council of Europe, and United Nations level. In Part Three “Internet Service Providers’ Liability and Self-Regulatory Approaches,” the author concludes with additional and alternative methods of regulation in the field of self-regulatory and co-regulatory initiatives for fighting internet pornography. The availability of child pornography on the Internet has become a cause of huge social concern in recent years. The author underlines the fact that the total cleansing or elimination of Internet child pornography is a challenging task for nations. A key message conveyed within this book is that “effective implementation, enforcement and harmonization of child pornography laws could help to reduce child pornography.” however special attention should be given to “the wider problem of the sexual abuse and commercial sexual exploitation of children”. Yaman Akdeniz usefully analyzes this sensitive and emotive topic in a critical language. It is highly worthwhile reading for a wide variety of scholars and policy makers aiming to be informed on the comparative assessment of laws and policy initiatives towards child pornography. Of particular note, the book will be of interest not only to lawyers but to many practitioners and concerned citizens seeking to grasp the subject often surrounded by misinformation. ‘In Internet Child Pornography and The Law, Yaman Akdeniz does an excellent job of applying responsible, thoughtful, scholarship to a subject often surrounded by misinformation. This is an important book for anyone interested in understanding how law and legal thinking must be reshaped to respond to globalization and new technologies.’ Philip Jenkins, Pennsylvania State University, USA ‘Yaman Akdeniz’s book is an important and timely contribution to this area of research. It brings a coherent perspective to an otherwise fragmented, and at times contradictory, arena and provides a balanced perspective on what has become an increasingly emotive topic. This will be an invaluable source of information to all whose work relates to child pornography and will help inform both practitioners and policy makers.’ Ethel Quayle, University College Cork, Ireland
1 http://www.ashgate.com/default.aspx?page=637&pageSubject=318&calcTitle=1&pagecount=1&title_ id=5777&edition_id=6625
Recommended Reads
Internet Child Pornography and the Law
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Protection of Property Rights within the European Convention on Human Rights Ali Riza Çoban, Assistant Professor of Constitutional Law, the Faculty of Law, University of Kırıkkale, Turkey Ashgate, April 2004, ISBN: 978-0-7546-2387-81
This book discusses the concept of property as a human right within the context of the European Convention on Human Rights. Within the last two decades, the Article established by the Convention has become a significant human rights instrument for member states of the Convention, with some 40 countries subject to the European Court of Human Rights on cases affecting the pecuniary rights of individuals. The author argues that a theoretical framework is required in order to clarify how far the Convention allows public authorities to interfere with property rights. The book addresses a number of issues, including the following questions: What is property?; Is property a human right?; How are rights to property limited?; How far can public authorities legitimately interfere with human rights? In order to do this, the author examines case law of the Convention organs and reflects on the results of cases in the light of the theoretical framework that has been established. ‘Çoban offers a thoughtful and careful account of contemporary property rights. It combines the theoretical justification for such rights and legal practice in the European Court of Human Rights. Çoban’s approach is broad and covers not only takings, but also the more frequent and challenging area of interferences with property rights less than takings. Such a wide-ranging work is significant for scholars of human rights.’ Professor John Bell, University of Cambridge, UK ‘(...) the book enables the reader to look at the right to property from an original perspective.’ New Zealand Universities Law Review ‘(...) an important contribution to the discussion of how to come to a more comprehensive and coherent legal construction of the human right of property. Çoban has intelligently conceived an interesting and well elaborated thesis on the human right of property (...) a recommendable and attractive read.’ Netherlands International Law Review
1 http://www.ashgate.com/default.aspx?page=637&calctitle=1&pageSubject=499&pagecount=6&title_ id=6675&edition_id=7610 http://www.amazon.com/Protection-Property-Rights-European-Convention/dp/0754623874
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Second Health Law Assembly By Ankara Bar Association The Health Law Assembly, organized by the Education Center of the Ankara Bar Association, was held on 7-8 November 2008. Artificial inseminations, embryo transfers, abortion, plastic surgery law, euthanasia and medicine law were discussed in the Assembly. Mr. Özdemir Özok, the President of the Union of Turkish Bar Associations, made a speech at the Assembly, stating that although the law and medicine fields seem far apart, they are actually two related fields. Özok said, “Since their topics are humans, they are constantly in contact. There is no two other sciences connected this much.” Özok highlighted the indispensability of the law and medicine for people, and said, “Medical science guides and brightens the law on many topics.” Özok also stated that the right of integrity and inviolability of the body is secured by national and international documents, and any medical procedures contrary to this should be regarded from the aspect of patient rights. Mr. Vedat Ahsen Coşar, the President of Ankara Bar Association, pointed out that the recognition, protection and development of the right to health is one of the basic duties of the government which exists to serve the people. Coşar pointed the equivalence between the health and the level of owned and enjoyed liberty, and said “for that reason, health service must be well organized like other freedoms, be well regulated and be secured by laws in order to achieve fair distribution. It is the vital condition in order to be a social state and also to adopt a proper policy for justice.”
Legal News
2009/1 110 ankarabarrevıew ankarabarrevıew 2009/1 International Dispute Resolution: Practice, Procedure And Problems On 9-10 January 2009, Ankara hosted a conference, “International Dispute Resolution: Practice, Procedure and Problems”, organized in close cooperation with the Union of Turkish Bar Associations, the Ankara Bar Association and the IDR Group at Crowne Plaza Hotel situated in the heart of the city. Topicality of the issue attracted a large audience. The conference was initially focused on the international commercial dispute resolution with illustrative examples from Italy, China and Turkey. In addition, the conference explored the various roles of Lex Mercatoria in interstate dispute resolution, particularly in the construction industry and in the oil and the gas. The second day, it touched upon the enforceability of awards as well as arbitral procedure in Turkey. The speakers along with the participants also took the opportunity to discuss mostly debated aspects of the Draft Mediation Law. The goal was to provide a forum to discuss the increasing role of arbitration practice and procedure in international disputes. It brought together several distinguished participants and overseas guests, which provided a unique opportunity for those, who are interested in the topic.
Sports Law The First International Conference on Sports Law successfully took place in Ankara Bar Education Center from January 12th to 14th, 2009, dealt with the special affinity between sports and law. Vedat Ahsen Coşar, the venerable President of the Ankara Bar Association, made an opening speech by which he welcomed conference participants and guests. He underlined the importance of building interaction between sports and law, where special attention should be paid by lawyers, prosecutors, judges and academics. He also highlighted the fact it was the first international conference convened so far regarding this subject in Turkey. Murat Başesgioğlu, the State Minister for
Sports, and Justice Hasan Gerçeker, the President of the Supreme Court of Appeals, gave also a speech, pointed out the recent contributions to and future requirements on the sports law.
First-Class Honors To UYAP John Hunter, the head of the IT Department European Court of Human Rights, visited our country to review the UYAP (National Judiciary Informatics System) project within the context of the Project in Support of the Court Management System in Turkey. Hunter expressed his appreciation and stated his opinions in his report of 17 October 2008, as follows: “UYAP is probably one of the most advanced nation-wide court justice systems in the world and an excellent example of best practice for national courts. The Ministry of Justice of Turkey can only be congratulated on the implementation of the UYAP and the benefits that it will give to the Turkish national judiciary and the rule of law. I would like to thank all the officials and users of the UYAP system that I met for their frankness, the time they gave to me to demonstrate the system and for their warmth and overall enthusiasm for the continued development of this project. UYAP is a system that will continue to evolve over time and will become an integral element in the Turkish justice system. I wish the Ministry of Justice every success in the continuation of this Project.” For further information on UYAP, please visit http://www.uyap.gov.tr/english/index.html
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Ankara Bar Association Foreign Affairs Centre
V. Ahsen Coşar is Elected President of the Ankara Bar Association Vedat Ahsen Çoşar has been reelected as the president of Ankara Bar Association for the third time. The 60th Ordinary General Assembly Meeting of the Ankara Bar Association, held in the Ankara University Law Faculty Conference Hall, was concluded with the election and Vedat Ahsen Coşar has been reelected as the president of Ankara Bar Association for the third time by 2,960 votes. According to informal results, following Coşar, Sami Kahraman, the presidential candidate of Contemporary Lawyers’ Group, acquired 2,133 votes. The candidate of the Unity at the Bar Group, Erden Arısoy, however, received 1,319 votes. Following the announcement of the results, Vedat Ahsen Coşar stated that he would not stand for the presidency for the fourth time. Lawyers’ Choir Fascinated Audience Ankara Bar Association Turkish Classical Music Choir gave a beautiful concert at the Çayyolu Theater on 26 May. The concert including the works of Şekip Ayhan Özışık, conducted by Cumhur Koca, pleased the Çayyolu audience. The former chairman of
Ankara Bar Foreign Affairs Centre is a newly established centre of Ankara Bar Association, set up for the purpose of coordinating the separate commissions of Ankara Bar Association, primarily dealing with international relations, under one unique structure. The commissions, under Foreign Affairs Centre, are UIA (Union International des Avocats) Commission, Arabic Bars Commission, BCBA (Black Sea Countries Bar Association) Commission, ABA (American Bars Association) Commission, FBE (European Bars Federation Commission - Federation Barreaux d’Europe) Commission, Ankara Bar Review Commission. The Centre’s main goal is to activate the communication of Ankara Bar and its members, with the international legal community, including, but not limited to, foreign states, international bar/ lawyer organizations, law societies, NGOs, institutions, etc., through realization of joint projects, in order to broaden the visions of Ankara Bar’s members. Vocational trainings, exchange programs, joint seminars and workshops will be organized in this respect. Ankara Bar Association, Foreign Affairs Centre aims to establish and strengthen the relations between the lawyers in Ankara and lawyers all around the world, believing that exchange of ideas will eventually contribute to the rule of law. Ankara Bar Association is eager to play a more active role in the international law field bearing in mind its ramifications in national legal system. Mr. Levet Aydaş, Head of the Center can be contacted at “
[email protected]”.
News from the Bar
Koru Sitesi, Gülseren Alp’s spouse Ünal Alp, in particular, amazed everyone with his resounding voice.
2009/1 112 ankarabarrevıew ankarabarrevıew 2009/1 European Union Centre Ankara Bar Association
European Union Centre of the Ankara Bar Association (“EU Centre”) was founded on 31 December 2004 in order to inform members of the Ankara Bar Association about matters regarding the European Union (“EU”), the acquis and the candidacy process of Turkey. The team, including young lawyers with expertise on the EU law, held its first few meetings in order to draw up a strategic plan. In this context, the first goal is to amend the Regulation on the EU Centre and to submit it as a proposal to the Ankara Bar Association so as to determine new targets in the light of the current requirements. Following that, in the inaugural meetings, the Team has decided to concentrate on the following three significant points: 1.Arranging informative activities such as seminars, symposiums, workshops, study visits, educational programs etc. 2.Determining needs of the Ankara Bar Association, which could mainly be provided by the EU Projects. 3.Organizing an exchange programme between the EU bars and the Ankara Bar Association. The EU Centre is also expected to coordinate with the other national and international institutions and therefore, the Team has decided to inform the organizations involved that the Centre would be highly pleased to welcome all possible collaborations. In the forthcoming month, the EU Centre will announce its first activity and its strategic plan together with its draft schedule, the Head of the Centre, Mr. Serkan Çatalpınar, can be contacted at “
[email protected]” for further queries.
A Seminar On How To Develop The Mediation In Turkey In close cooperation between the Ankara Bar Association, the Union of Turkish Bars (UTB), the Ministry of Justice (MoJ) and Conflict Management International (CMI), a 2-day seminar was held in Ankara very recently. The inaugural speech by Judge Mustafa Akkuş,
Deputy Director of EU, set the ground for a healthy discussion for the following two days. In their introductory presentation, Dr. Bill Marsh and Dr. Charles Dodson of CMI together touched upon salient features of mediation as a legal concept as well as put it in legal and ethical context. Following was a video screening of an exemplary mediation had taken place in Munich between an American and a Russian company, both operating in the alcoholic beverages sector. In his presentation, Associate Professor Muhammed Özekes provided the audience with his historical and conceptual insights as to inner workings of the committee that drafted the Mediation Law that is now pending before the Turkish Parliament. Professor Süha Tanrıver greatly contributed to the presentation as the Head of Draft Mediation Law Committee. In the afternoon session, mixed working groups consisting of judges, law professors and practicing lawyers were formed to carry on the discussions in further detail. These groups later presented their conclusions to the other working groups. The second day (22 January) started off with an incisive speech by Mr. Güneş Gürseler, Secretary General of the UTB, also a distinguished lawyer. Mr. Gürseler gave voice to concerns of the Turkish law society, such as access to justice, right to defence and right to lawyer, and rightly pointed out that the inherent dangers the profession is now facing might possibly be exacerbated by the enactment of Draft Mediation Law. A lively discussion followed with the participation of each and everyone on different sides of the aisle of legal profession, taking the opportunity to vocalise their own concerns from their own perspectives.
