I L S V XVIII, N. , F MIL Editorial Staff hosted by Wayne State University Law School Letter from the Chair P J E. M, Faculty Editor P J Y. Q, Faculty Editor C A. P, Senior Editor Dear Members and Colleagues: B S, Junior Editor N M. S, Junior Editor S A. T, Junior Editor As my term as Chair- professional services and man of the State Bar of multidisciplinary practice. Michigan International Law Also, we participated in a In This Issue Section comes to an end, very informative session U.S. Government approves CAFTA to Promote I would like to express my on bar section leadership Free Trade with Central America – sincere appreciation for the and management. Andrew Doornaert .................................................2 opportunity and privilege At the Sections stra- Section Meetings at a Glance .................................3 it has been to serve you. I tegic planning meeting Foreign Corrupt Practices Act: Th e Impact of Sarbanes-Oxley and Other New Developments – will pass the gavel to Bruce this summer we launched Stuart H. Deming .................................................4 D.Birgbauer at the Sec- initiatives to enhance Th e Intesifying Confl ict between State and Federal tions Annual Meeting at member participation Government Procurement Policy – the Sheraton Detroit-Novi Hotel on (including participation in meetings Paul J. Carrier ......................................................9 October 6, 2005 and join the ranks and events via the internet), expand International Law Moot Court Competition to be held in Detroit ....................................................15 of the Ex-Offi cio. the committee structure, continue Th e Section has a long tradition the law school scholarship program, Changes in India's Patent Law and its Repercussions on the Global Drug Industry – of strong support and participa- and add a law student international Ashish S. Joshi ......................................................16 tion by its Ex-Offi cio members. At summer intern program. Enforcement of Investors' Rights Under many of the meetings and events I write this letter on the fourth Investment Treaties – over the past few years, a majority anniversary of the September 11th Grant Hanessian & Peter Swiecicki .......................20 of the participants were Ex-Offi cio attacks on our country, and in the Law Student Essay: Medical Malpractice Liability members. Th e Section benefi ts from midst of dealing with the tragedy on Under Chinese and American Law – Samuel Saks ...22 the cumulative wisdom during their the Gulf Coast. Th e incredible resolve Treasurer's Report ...............................................26 participation, and they help preserve of the victims of both to rebuild Minutes of Regular Section Meetings .................27 and perpetuate the quality of spirit their lives, and the generosity of all Section Tours Detroit Airport– Nathaniel Schmidt 30 and camaraderie that is so evident at Americans to insure that happens is Calendar of Events ..............................................31 our meetings. very heartwarming. Leadership Roster 2004-2005 ..............................33 Bruce Birgbauer and I represent- One of the reasons that our coun- Disclaimer: Th e opinions expressed here in are solely ed the Section at the 2005 State Bar try continues to be secure against those of the authors and do not necessarily refl ect those of Michigan Leadership Forum this both natural disasters and its enemies of the International Law Section or the Editors. summer. Th e Forum focused on issues is the Department of Homeland Se- Th e Michigan International Lawyer is published three times per year by the International Law Section, State Bar of Mich i gan, that impact the profession such as 306 Townsend Street, Lansing, Michigan 48933-2083. increased taxation on revenues from Continued on page 3 Copyright 2005 International Law Section, State Bar of Mich i gan. © All rights Reserved. 1 ichigan International Lawyer Submissions Guidelines U.S. Government approves The Michigan International Lawyer, which is published three times per year by the Interna- CAFTA to Promote Free Trade tional Law Section of the State Bar of Michigan, is Michigan's premiere international law journal. Our with Central America mission is to en hance and contribute to the pub lic's Andrew Doonaert, Miller Canfi eld Paddock and Stone PLC knowledge of world law and trade by publishing articles on con tem po rary in ter na tion al law topics and issues of general interest. The Michigan International Lawyer invites In August 2005, the U.S. Govern- so the duty-free privileges have unsolicited manuscripts in all areas of international ment approved the Central American lapsed on some occasions; interest. Manu scripts should be available in hard 2. To originate for CBERA and copy and electronic format. Manuscripts submit- Free Trade Agreement (“CAFTA”, ted for consideration cannot be returned unless which will remove trade barriers be- GSP, a part imported from accompanied by a $5 check or money order made tween the U.S. and Costa Rica, El Sal- non-benefi ciary country may payable to Wayne State University Law School for shipping and handling. vador, Guatemala, Honduras, Nicaragua have to undergo a “double sub- All submissions may be forwarded to the editor and the Dominican Republic. stantial” transformation which at the following address: Professor Julia Ya Qin, Editor CAFTA will reduce the duty rates can be more diffi cult to deter- Michigan International Lawyer for goods imported into the U.S. that mine compared to a tariff shift Wayne State University Law School 471 W. Palmer qualify as “originating” from one of the allowed under CAFTA which Detroit, Michigan 48202 countries above under the new coun- compares the Harmonized (313) 577-3940 Tariff Schedule Code (“HTS”) [email protected] try rules of origin. Th e rules of origin provide for tariff shifts and regional of the imported material to the value content formulas similar to the HTS code of the fi nished good; North American Free Trade Agreement and (“NAFTA”). Th ere are signifi cant dif- 3. The record-keeping require- ferences between some of the individual ments and eligibility require- CAFTA rules of origin compared to ments of CAFTA may be more compatible with a company’s Publication Deadline Dates the NAFTA rules of origin for similar imported items. Some CAFTA rules business and accounting prac- Michigan International of origin allow for lower regional value tices compared to the require- Lawyer content requirements, for example ments of CBERA and GSP. If you know of any upcoming event, 35% or greater, and in some cases the U.S. companies should give the please let us know. decision to transition serious Contact: regional value content requirement can Professor Julia Ya Qin, Editor be met through the “build-up method” consideration and may seek Michigan International Lawyer outside counsel to consider the Wayne State University or “build-down method.” Law School The Caribbean Basin Economic advantages and disadvantages 471 W. Palmer of participating in each trade Detroit, MI 48202 Recovery Act (“CBERA”) or General- (313) 577-3940 ized System of Preferences (“GSP”) program. [email protected] are special U.S. government trade It is not yet clear when CAFTA Winter Issue programs that currently exist, which will actually enter into force because Articles due December 1 allow goods from the CAFTA countries the language of the implementing Spring Issue to realize duty free status for qualify- Articles due March 1 legislation specifi cally avoids naming ing goods imported in the U.S. U.S. Fall Issue a date but it does indicate the U.S. Articles due August 1 companies currently taking advantage will enter into the agreement with of CBERA and GSP should consider each of the other countries as they transitioning to using CAFTA for the adopt it. following reasons: In addition to CAFTA, the Bush 1. CBERA and GSP have to be pe- Administration has overseen the riodically renewed by Congress implementation of Free Trade Agree- 2 VOLUME XVII, NO. 3, FALL 2005 ments with Australia, Chile, Jordan, Morocco and Singapore. Section Meetings On the horizon are Free Trade at-a-Glance Agreements with Bahrain, Th ai- October 6, 2005 land and the Andean countries in South America. Annual Meetng For more information about November 8, 2005 CAFTA and other free trade Meeting — Oakland County agreements, contact Andrew Doornaert, Esq. January 24, 2006 Meeting — Detroit Andrew P. Doornaert is a se- nior attorney in the Detroit offi ce April 18, 2006 of the law fi rm of Miller, Canfi eld, Meeting — Law School Paddock and Stone P.L.C. where he provides expertise in the area of June 20, 2006 customs and international trade Planning Session law. He reduces the costs and liabil- ity risks associated with import and September 2006 export transactions. His experience Annual Meeting includes tariff classifi cation, rates of duty and valuation of imported merchandise, Free Trade Programs (NAFTA, GSP, AGOA, CAFTA), From the Chair country-of-origin marking and Continued from page 1 labeling requirements, NAFTA verifi cations, customs compliance curity. Th e fact that a delegation from our Section toured the US Customs and assessments, customs penalty cas- Border Security area at the Detroit Metropolitan Wayne County Airport speaks es, foreign trade zones, customs volumes about the unit’s organization and confi dence. Also, the delegation was bonded warehouses, maquiladoras, be briefed by representatives from the Airport Authority on airport operations, value added taxes and other cus- expansion and preparations for Super Bowl XL. toms considerations that arise in Please plan on joining us at the Section’s Annual Meeting this year. Follow- the shipment of goods between the ing the business meeting there will be a program on the topic Business and United States and foreign markets. Legal Challenges in China and India for Automotive Suppliers. Of course, He also advises companies on ex- we would like you attend all meetings and events during the year.