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International Law Practicum a Publication of the International Section of the New York State Bar Association NYSBA AUTUMN 2010 | VOL. 23 | NO. 2 International Law Practicum A publication of the International Section of the New York State Bar Association Practicing the Law of the World from New York New York to Sydney: Navigating Currents in International Law ................................................................................. 75 Hon. Jonathan Lippman The MOU Between New York and New South Wales ................................................................................................... 79 The Honourable J.J. Spigelman AC Memorandum of Understanding Between the Chief Justice of New South Wales and the Chief Judge of the State of New York on References of Questions of Law ............................................. 83 The New Proposals of the European Commission Regarding the Future of European Investment Treaties: Light at the End of the Tunnel? ......................................................................... 85 Dr. Lars A. Markert and Alexander Lang The Impact of Morrison v. National Australia Bank on RICO’s Extraterritorial Reach ................................................ 88 David E. Miller The Developing U.S. Law Regarding the Invisible Use of the Trademarks of Others in Cyberspace ....................... 93 L. Donald Prutzman The Consequences of the Dissolution of the Netherlands Antilles for the Practice of Corporate and Finance Law: A Puzzle with a Few Missing Pieces ...................................................................... 100 Bouke Boersma PERSPECTIVES ON ARBITRATION: Arbitration in Germany .................................................................................................................................................... 105 Philipp K. Wagner Offshore Arbitration—The Best Option for Non-Chinese Clients in China? ................................................................ 110 Zhang Shouzhi, Xu Xiaodan and Hu Ke Navigating the CIETAC: A Forum for Resolving Business Disputes in China ............................................................... 113 Jie Wang International Arbitration: Navigating the Arbitral Institutions and Venues ............................................................... 116 Professor Doug Jones The Recognition and Enforcement of Foreign Arbitral Awards in Korea .................................................................... 123 Benjamin Hughes PERSPECTIVES ON LIBEL TOURISM: Libel Tourism: Balancing Freedom of Speech, Jurisdiction and Comity ....................................................................... 130 Eric Stenshoel Libel Tourism: An Australian Perspective ....................................................................................................................... 137 Richard Potter COMMENTARY—The SPEECH Act: A Contradiction in Terms ............................................................................................. 140 John J. Walsh PERSPECTIVES ON ANTI-AVOIDANCE REGIMES: Anti-Tax-Avoidance Regimes for Trusts: The U.S. Perspective ...................................................................................... 145 Glenn G. Fox and Paul A. Ferrara Anti-Tax-Avoidance Regimes in New Zealand ............................................................................................................... 155 John W. Hart PRACTICUM: FORM AND POLICY The International Law Practicum is a semi-annual publication of the International Section of the New York State Bar As so ci a tion. The Practicum welcomes the submission of articles prepared by practicing attorneys. The length of an article, as a general rule, should not exceed 3,500 words, footnotes in clud ed. Shorter pieces, notes, reports on current or regional developments, and bibliographies are also wel- comed. All manu scripts must be sent either (i) in laser printed triplicate accompanied by a 3½" disk formated in Microsoft Word or WordPerfect to: The Practicum, c/o Daniel J. McMahon, Esq., New York State Bar Association, One Elk Street, Al ba ny, N.Y. 12207-1096; or (ii) by e-mail in Microsoft Word or Wordperfect format to either the Editor-in-Chief ([email protected]) or the Executive Editor ([email protected]). Both text and endnotes must be double-spaced. Endnotes must appear at the end of the manuscript and should conform to A Uniform System of Citation (the Harvard Bluebook). Authors are responsible for the correctness of all citations and quotations. Manuscripts that have been accepted or published elsewhere will not be considered. The Practicum is primarily interested in practi- cal issues facing law yers engaged in international practice in New York. Topics such as international trade, licensing, direct investment, fi nance, taxation, and litigation and dispute resolution are preferred. Public in ter na tion al topics will be considered to the extent that they involve private international trans- actions or are of general interest to our readership. Manuscripts are submitted at the sender’s risk, and the New York State Bar Association, International Section, assumes no responsibility for the return of material. Material accepted for publication becomes the property of the New York State Bar Association, International Section. No compensation is paid for any manuscript. The Practicum reserves the right (for space, budgetary, or other reasons) to move an ac- cepted manuscript from an earlier issue to a later issue. Articles, reports and other materials refl ect the views of the authors or com mit tees that prepared them and do not necessarily represent the position of the New York State Bar Association, International Section, or the Editorial Board of the Practicum. Deadlines Manuscripts intended for publication in the Spring and Autumn issues must be received by the Editor-in-Chief by the preceding 1 December and 1 June, respectively. Reprints Each author will receive three complimentary copies of the Practicum issue in which the author’s material is published. Additional copies may be ordered at cost before an issue goes to press by commu- nicating with Daniel J. McMahon, Esq., at the New York State Bar Association, One Elk Street, Albany, N.Y. 12207-1096 (telephone (518) 487-5582). Back Issues and Advertising Requests for back issues, advertising and subscription information and general correspondence should be sent to the Newsletter Dept., New York State Bar Association, One Elk Street, Albany, N.Y. 12207-1096. Back issues (2000 to present) of the International Law Practicum are available, in pdf format, online to Section members on the New York State Bar Association’s Web site at www.nysba.org/IntlPracticum. A searchable index is also available. INNTERNATIONALTERNATIONAL SEECTIONCTION Viisitsit uuss oonn tthehe WWebeb aatt wwww.nysba.org/Intlww.nysba.org/Intl 74 NYSBA International Law Practicum | Autumn 2010 | Vol. 23 | No. 2 New York to Sydney: Navigating Currents in International Law By Hon. Jonathan Lippman Good morning. I’m sorry that I can’t be there in per- in any kind of nuanced way in individual cases. He also son with you, but I am delighted that, through the won- pointed out that the use of expert witnesses results in for- ders of technology, I can still be a cyber presence today as eign law being treated as a question of fact in Australia, we have this dialogue on what I believe will be some very and not of law. interesting issues and developments involving Sydney, Australia, and New York State. There really should be a better way—a mechanism whereby courts of different countries can communicate I want to salute Chief Justice Spigelman, and the with each other so that the adjudicating court can receive entire judiciary and bar of New South Wales and all of reliable and neutral assistance in its efforts to correctly ap- Australia. I have learned so much about your justice sys- ply the law of the foreign nation. tem, and I have been tremendously impressed by your dedication to improving the administration of justice, What Chief Justice Spigelman proposed—and it im- both domestically and around the globe. mediately resonated with me—was that we work together to develop a protocol to facilitate mutual cooperation and I had the privilege of meeting Chief Justice Spigelman assistance between our respective court systems. That when he visited New York City this summer. We had a made a lot of sense to me, given New York City’s status very interesting conversation based on our shared per- as the world’s commercial, fi nancial and legal center. spectives as the chief judges of states that are so infl uen- Many of the leading lawyers and law fi rms specializing tial within our respective countries, and we talked about in international law are located here, and many deals and the many problems and interests we have in common. contracts are negotiated and fi nalized here, with New York law often governing. Clearly, New York’s courts and One of the topics we discussed was how the current judges have a strong interest in making sure that foreign fi nancial crisis is affecting the court systems in New South courts determine and apply our law correctly in their Wales and in New York. Recognizing that the crisis is decisions. This is also in the best interests of our sophis- international in scope and that our global economy is in- ticated legal community and our state economy. Indeed, timately interconnected, we are seeing a marked increase with the accelerating pace of globalization, courts all over in litigation involving foreign parties and cross-border the world will increasingly be called upon to decide cases legal
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