Tag Archive | "European Union"

Legalization of soft-drugs: views from the U.S. and Italy

Photo Credit: Judith Hartmann

Photo Credit: Judith Hartmann

On June 14, 2017, legal experts from the US and Italy gathered at the Law School of the University of Naples “Federico II” to discuss the challenges and perspectives of soft-drugs legalization, in the context of the inaugural colloquium of the international convention set up between the nearly 800-year old Italian law school and Denver University Sturm College of Law.

The European Drug Report 2017, published just a few days before the colloquium by the European Monitoring Centre for Drugs and Drug Addiction, an agency of the European Union tasked with monitoring the supply, marketing, and usage of drugs in Europe, revealed that cannabis is the most widely consumed type of drug in the Old Continent, with as many as one out of five young adults (15-34 years) making use of it over the last twelve months in certain European countries such as Czech Republic, Italy, Spain, and France.

Although the Report confirmed that the health problems associated with cannabis use are significantly lower than those associated with other drugs, cannabis remains the most commonly seized drug in Europe, accounting for over 70 % of seizures and for 57 % of both supply and possession criminal convictions. Following recent changes in the regulatory framework for cannabis in certain parts of the Americas, a lively debate on the legalization of soft-drugs has sparked off in several EU Member States, whose cannabis policies currently range from restrictive models to the tolerance of some forms of personal use.

In this connection, Professor Sam Kamin, Vicente Sederberg Professor of Marijuana Law and Policy at the University of Denver Sturm College of Law, provided a detailed examination of the legal status of soft-drugs in the US, where an increasing number of states have legalized marijuana for medical and recreational use, whereas federal law still criminalizes the production, sale, and possession of that substance, in keeping with the international commitments undertaken in the UN framework.

Professor Kamin, who served on Governor John Hickenlooper’s Task Force to Implement Amendment 64 and the ACLU of California’s blue ribbon panel to study marijuana legalization, described the legal status of marijuana in the US as “untenable” and emphasized the uncertainty it gives rise to for firms and users in relation to aspects of federal law ranging from banking regulations to federal benefits. Professor Kamin also expressed the wish that the US would draw inspiration from other countries, such as Uruguay and Canada, which embraced soft-drugs legalization in a more consistent and principled manner.

In this connection, Judge Massimo Perrotti, sitting on the Sixth Criminal Chamber of the Naples Court of Appeal, described the legal status of marijuana under Italian law, swinging from a soft-prohibition model (the Iervolino-Vassalli Law of 1990) to a stricter one (the Fini-Giovanardi Law of 2006, which placed soft and hard drugs on equal footing) and then back to lenient criminalization, as in 2014 the Constitutional Court struck down the Fini-Giovanardi law causing the previous law on controlled substances to come back into force.

Judge Perrotti, who previously served as advisor on legislative affairs to the Italian Ministry of Justice, then examined the challenges that patients face in securing access to marijuana for medical use and the various soft-drugs legalization proposals currently being examined by the Italian lawmakers, notably the Giachetti Bill, which seeks to decriminalize home cultivation up to 5 plants per person and personal possession up to 5 grams (about 0,17 ounces) and to set up a State monopoly for the production and sale of certified-quality cannabis products for recreational use.

In this respect, it is noteworthy that, unlike US federal law, EU Law strongly defers to its Member States‘ marijuana policies. Framework Decision 2004/757/JHA, in particular, only requires EU Member States to criminalize cultivation of cannabis “when committed without right”; also, that item of EU legislation expressly excludes from its scope cultivation for “personal consumption as defined by [Member States’] law”, yet it points out that such a carve-out “does not constitute a Council guideline on how Member States should deal with” the issue. Moreover, in Josemans, the European Court of Justice took the view that combating drug tourism constitutes a legitimate interest enabling Member States to impose restrictions on free movement within the EU internal market, thus upholding the legality of Netherlands municipal rules banning non-residents from coffee-shops where the sale of soft-drugs is tolerated.

In addition to law school students from the University of Naples “Federico II” and the University of Denver’s Study Abroad Program directed by Professor Celia Taylor, several attorneys, academics, and advocacy groups attended the colloquium, which received the patronage of the US-Italy Fulbright Commission, a binational entity funded by the US Department of State and the Italian Ministry of Foreign Affairs.

Amedeo Arena is an Associate Professor of European Union Law at the University of Naples “Federico II” School of Law, where he serves as Coordinator of the academic cooperation agreement with Denver University Sturm College of Law

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The European Refugee Crisis: Unaccompanied Refugee and Migrant Children

Photo Credit: Getty Images

Photo Credit: Getty Images

The refugee and migrant influx into Europe continues. Since January 2015 approximately 1.2 million people have journeyed across the Mediterranean in an attempt to reach Europe. The majority arrive in Europe by sea, while almost 34,900 refugees and migrants arrived by land. These individuals are fleeing economic and social breakdown such as conflict, violence, and poverty, with the largest numbers leaving Syria, Afghanistan, and Iraq.

The crisis has had a substantial impact on children. UNICEF’s advocacy brief on the refugee and migrant crisis in Europe describes this crisis as a “children’s crisis.” By the end of December 2015, 1 in 3 refugees and migrants in Europe were children. And, based on arrivals in Europe since January 1, 2016, 27% were children.

Especially vulnerable are unaccompanied children. Children are among the most at risk of refugees and migrants – at risk of trafficking, exploitation, abuse, death, rape, and detention, among others. Unaccompanied children are those under the age of 18 years old and travelling alone. In 2015, approximately 25% of child asylum claims were made by unaccompanied and separated minors. However, it is difficult to gather accurate numbers of unaccompanied children because either they are not registering at borders or the country does not allow for their identification in formal registration procedures.

So, what is global community’s responsibility in addressing the issue of unaccompanied refugee and migrant children? According to the Convention on the Rights of the Child, the protection of unaccompanied children is a state obligation. One response to the problem of unaccompanied refugee and migrant children arriving in Europe was that of the United Kingdom, which passed the Immigration Act 2016, Section 67. The Act specifies that the “Secretary of State must… make arrangements to relocate to the United Kingdom and support a specified number of unaccompanied refugee children from other countries in Europe.” It further specifies that the number of children to be resettled will be determined by the government in consultation with local authorities. The Act does not specify a fixed number on arrivals in order to assess the local governments capacity and ability to help. The purpose is to resettle unaccompanied refugee children who have fled conflict in the Middle East and whom it is in their best interest to be transferred to the UK.

Although there are real considerations as to capacity and ability of countries to help unaccompanied refugee children, a greater effort should be made by the global community in collaboration with one another and individually to assist this especially vulnerable population as well as the refugee and migrant population as a whole.

Hannah Mitchell is a 2L at the University of Denver Sturm College of Law and a staff editor on the Denver Journal of International Law and Policy.

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The State of European Burqa Bans

 

 "The many garments of Islam including hijabs, niqabs, burkas, and burkinis." - Photo Credit AFP

“The many garments of Islam including hijabs, niqabs, burkas, and burkinis.” – Photo Credit AFP

Recent attacks in France and Germany have put the international community on alert and caused governments in those countries to draft or enforce legislation aimed at preventing future attacks. While countries in France have drafted legislation directly targeting what is believed to be symbols pertaining to Islamic extremism, Germany has chosen a more neutral approach by targeting all items of clothing that obscure facial identity in public places. However, despite the approach taken, both countries have come under heavy criticism for enforcing such laws in the name of public safety.

Though France was the first country to ban both the burka (full-face Islamic veil) and the niqab (partial facial covering) in 2011, the mayor of Cannes in southern France, David Lisnard, has recently faced criticism for banning burkinis (full-body swimsuits) from beaches. Many critics have questioned the legality of the ban by pointing out that French law only bans facial coverings. However, David Lisnard has disregarded those questions and instead attempted to focus the conversation on the public policy reasons behind the law. One reason cited for the ban was to prevent incidents of public disorder. The idea behind that reasoning is that beachwear displaying a religious affiliation at a time when France and places of worship are targets of terrorist attacks is a portent for augmenting tensions and disrupting public order.

Similar to the French, Germany’s Interior Minister, Thomas de Maiziere, has called for a partial ban on burkas in public places only days after saying a full ban on burkas would be unconstitutional. The law would prevent any facial veil in schools, universities, nurseries, public offices, or while driving. While the proposal still has to be approved before becoming law, many feel it is only a matter of time, given Germany’s victimization by Islamic State attacks and a record number of Muslim asylum seekers seeking entry into the country. Thomas de Maiziere has endorsed the partial ban as essential to the social cohesion of Germany’s citizens while in public and open society. Moreover, he has emphasized that the proposal is not a ban on the burka specifically, but rather a ban on any full veil where only the eyes are visible.

While government officials in France have faced criticism from citizens and political activist groups, Germany’s government officials’ political motives have been questioned. In response to the Cannes ban on burkinis, groups such as the League of Human Rights (LDH) and the Collective Against Islamophobia in France (CCIF) have announced their intent to challenge the law. In Germany, however, critics are questioning whether the proposal is purely political since recent statistics demonstrate it is uncommon to see a woman in Germany wearing a full-face veil or even a scarf. Moreover, two issues central to Germany’s general election next year will focus on asylum seekers and preventing future terrorist attacks.

Given the criticism and public outrage towards the Cannes’ ban on burkinis, future news may be expected regarding the status of the law. Also, Germany’s proposal may continue to make news up until the general election if the law is of importance to the main issues discussed in next year’s general election.

Nicole Chaney is a 2L at University of Denver Sturm College of Law and Online Managing Editor on the Denver Journal of International Law and Policy and Staff Editor on the Denver Law Review.

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EU-Turkey Agreement: What’s the Deal?

Photo Credit: AmnestyUSA

Photo Credit: AmnestyUSA

On March 8, 2016, the European Union (EU) and Turkey reached an agreement aimed at resolving the migrant crisis, which has grown exponentially over the past several years.

Since the beginning of the conflict, a total of 9 million migrants, have fled war-torn areas such as Syria, Afghanistan, and Iraq. In search of safety, most of these refugees have found a new home in neighboring countries like Turkey, Lebanon, Jordan, Iraq and Egypt. More than 1 million migrants have relocated to southern Europe, primarily Greece and Italy.

During the September 2015 meeting, EU members pledged to resettle 160,000 refugees in need of immediate protection. However, as of March 15, 2016, only 937 asylum applicants were relocated from Greece and Italy to other EU Member States.

Refugees typically arrive in Europe after crossing the Mediterranean Sea by boat. The journey that the migrants take is incredibly dangerous and has already claimed thousands of lives. Despite the difficulties, an average of 2,000 to 3,000 refugees continue to arrive in Greece every day.

The EU-Turkey deal is an attempt to find a mutual solution to the crisis.

According to the agreement, which came into effect on March 20, 2016, migrants arriving in Greece after March 20, 2016 would be sent back to Turkey if they do not apply for asylum or if their application is denied. In exchange for every returned Syrian, one legally registered Syrian refugee from Turkey may be resettled in Europe, and only up to a maximum of 72,000 refugees.  This so called “one-for-one” deal does not extend to illegal migrants. Further still, the agreement does not extend to the non-Syrian refugees who have fled the brutal violence in Afghanistan and Iraq. For these people, the route to Europe is now closed, and if they arrive in Europe illegally, they will be quickly expelled to Turkey.

Under the pact, the EU agreed to allocate €3 billion to Turkey to help finance readmission and resettlement of refugees arriving from Greece. These funds are also intended to help Turkey cope with almost 3 million Syrian refugees currently sheltered within its borders. In addition, by the end of June 2016, the EU has promised to grant Turkish citizens the right to visa-free travel within the EU’s Schengen zone. Turkey also asked the EU to reconsider its application to become an EU member state.

Even though the EU and Turkey are taking steps to ensure that the return of refugees and migrants is legal under international law norms, the United Nation High Commissioner for Refugees (UNHCR), as well as many humanitarian organizations, are gravely concerned about the blanket application of the terms of the agreement to all individuals seeking asylum. According to the UNHCR, the terms of the agreement violate the main principles of European and international law. Specifically, refugee advocates argue that international law requires that States assess each refugee case on an individual basis. Put another way, no automatic returns are allowed.

While the details of the agreement continue to be worked out, more than 50, 000 men, women and children remain stranded at the border between Macedonia and Greece awaiting their fate to be handed down by leaders of the EU and Turkey.

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Re-Writing History: The right to be forgotten

shutterstock_RTBF_195176492 (1)

Credit to: http://www.indexoncensorship.org/wp-content/uploads/2014/07/shutterstock_RTBF_195176492.jpg

Scientific research suggests that the act of forgetting memories fosters a healthy state of mind. The act of forgetting may be more difficult to achieve in a world where internet companies collect and store a broad range of information about their users’ lives and daily activities. Is it fair for individuals to ask everyone else to forget information that they do not want remembered? On May 13th, 2014 the Court of Justice of the European Union ordered Google to delete search results linking to a 1998 auction notice of a Spanish man’s repossessed home. Since the ruling went into effect, Google has received over 225,000 requests for the removal of links. This controversial ruling, labeled the “Right to be Forgotten,” puts into sharp focus the competing interests of global Internet companies and individual Internet users. The rule also raises a debate between the personal appeal in purging the Internet of undesirable information and the danger in creating a system that allows for censorship and the re-writing of history.

The ruling by the Court of Justice has three major holdings. First, the European Union’s 1995 Data Protection Directive applies to search engines because they are controllers of personal data. Second, even though Google Spain’s data-processing servers are located in the United States, the Court of Justice can apply European Union rules to Google Spain because it is located in a European Union Member State and it sells advertising space within that jurisdiction. Third and most importantly, under certain circumstances individuals have the right to request that search engines remove links containing “inadequate, irrelevant or no longer relevant” personal information about them.

The European Union is the most aggressive jurisdiction when it comes to protecting personal privacy rights. The “Right to be Forgotten” rule maintains Europe’s position as the champion of personal privacy. Other countries with more balanced privacy regulations are considering whether Internet forgetfulness could benefit their citizens. A Japanese man brought a case in a Tokyo Court because Google did not comply with a request to remove information relating to him from search results. The Hong Kong Court of Appeals will hear a petition from Google on the “Right to be Forgotten” in early 2015. Privacy organizations in Asia are strongly advocating for the “Right to be Forgotten” to apply in Asian countries. Critics warn that establishing such a rule could undermine corporate and political transparency in a region with a history of powerful people that manipulate information flows.

In the United States, the debate around the “Right to be Forgotten” rule has support on both sides of the argument. Critics say that the rule is vague, prone to abuse and amounts to censorship in violation of the First Amendment. On the other hand, eighty-eight percent (88%) of American citizens in a recent survey said that they would support a “Right to be Forgotten” rule. When opposing experts discussed the same argument in front of an American crowd as a part of an Intelligence Squared event, fifty-two percent (52%) of the crowd voted against a “Right to be Forgotten” law. As other countries ponder the merits of the rule, the European Union is pushing for it to apply worldwide and not just on websites for European countries. A worldwide imposition of European privacy standards could result in the rest of the world losing the “Right to Remember.”

The ability of information technologies to collect and store endless amounts of individuals’ personal information raises legitimate concerns regarding surveillance and personal privacy. The “Right to be Forgotten” carries a powerful emotional appeal for many people that wish to leave their past behind. Despite the fact that forgetfulness may have its benefits, our memories of the past have a great deal to do with what we can learn in the future. When individuals request that Google “forgets” information undesirable to them, they re-write the collective story we share as a society. The processes the brain uses to facilitate information recall demonstrate the appropriate way to handle past information. Forgetting is not as easy as flipping a switch, ask anyone who has tried to forget an embarrassing moment from their youth. Instead, forgetting has more to do with the brain’s ability to accumulate enormous amounts of fresh information that crowd out old memories. In a world where every moment is stored forever, the brain teaches us that forgetting may be easier with more information, not less.

Matthew Aeschbacher is a 4LE law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law & Policy.

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Critical Analysis: Germany takes center stage in diplomacy

Logo_Review2014

Credit: http://www.zif-berlin.org/fileadmin/uploads/ueber_zif/bilder/News-Bilder/Logo_Review2014.png

In order to reevaluate its foreign policy approach, Germany conducted a review (“Review 2014”) last year.  Review 2014 included multiple town hall meetings with German voters and debates among foreign policy experts around the world.  Even during Review 2014, voters’ and experts’ opinions and approaches changed.  Initially, the majority of German voters disagreed with the statement “Germany should be more engaged internationally.”  This position changed, however, as 2014 progressed.

When looking back at 2014, and the world events contained therein, it is no wonder Review 2014 transformed.  The Ebola crisis in Africa; Ukraine, Russia, and Crimea dispute; continued fighting between Israel and Hamas; the rise of ISIS; and the revival of the Euro crisis when Greece rebelled against austerity just to name of few, the Western powers were spread thin.  Germany, as France was preoccupied in Africa, the United States involved in the Middle East, and the United Kingdom taking, what some would say, a negligible stance on foreign policy, left Germany to attend to the crises occurring in Europe: Ukraine, Russia, and Crimea and the Euro and Greece.

Chancellor Angela Merkel showed her stamina in diplomacy when working to resolve these disputes.  Chancellor Merkel takes the approach that it is always better to keep talking than to fuel conflict.  Germany’s history essentially forces Germany to take this approach, however.  World War II and the politics surround the Berlin Wall are still too fresh to ignore.  Any fueling of the fire or unilateral action by Germany, automatically brings back feelings of a not so distant past.  Regardless of why Germany and Chancellor Merkel takes this approach, their persistent diplomacy and “ethical” methodology sits well with German citizens.

As a result of these events and Germany’s responses, Review 2014 led to the following goals:

These goals were posted online where Review 2014 encourages visitors to continue the conversation as Germany’s foreign policy evolves.

Review 2014 has evolved into a social platform to discuss and change Germany’s foreign policy approach.  Should other countries use a similar review process to address foreign policy or is this process unique to Germany?  Engaging citizens is never a bad idea and it would not be surprising to learn that the majority of Western citizens likely agree with the statement “speak softly and carry a big stick,” putting diplomacy before fueling a conflict.  However, other Western countries do not need to tread as lightly when making changes to foreign policy because they do not have the same recent tainted past.  Opening up discussions regarding politics to citizens using a social platform appears to be a unique way to communicate with voters, but let’s withhold any firm judgment for 18 months to see what Germany does with the goals from Review 2014.

Alicia Guber is a 3L and the Editor in Chief on the Denver Journal of International Law and Policy. 

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Critical Analysis: Data Breaches Signify Need for Unified Data Protection Laws

If you are reading this blog post then you have access to the internet, a network that you are currently sharing with 2.4 billion other people, some of which may not have your best interests at heart. Many people use this network for daily activities, ranging from shopping to social networking. As internet users interact with the web they leave behind data that, if acquired by people with malicious intent, can leave them vulnerable to identity theft, credit card fraud, and embarrassment. While internet users can and should take precautions to avoid scams, interacting with the internet necessarily requires leaving personal information in the hands of others. This fact of the internet presents many challenging legal issues regarding the responsibilities of the parties that acquire personal data.

Privacy protections on the internet need to be addressed on a global scale. Image Source: shutterstock

Privacy protections on the internet may need to be addressed on a global scale to establish cross-border data access rules. Image Source: shutterstock

Late last year, Target – a large American retail store with recently expanded operations in e-commerce – was hacked, compromising the credit card information and personal data of millions of customers. Within a month of Target’s hacking disclosure, Neiman Marcus announced that hackers exposed the customer payment card data collected by their systems. While data breaches seem to be occurring more frequently than ever, these particular incidents caught the attention of enough influential people to make this issue a political priority in the United States.

In early February the US Congress met twice to discuss whether the Federal government needs to take action concerning the increasing prevalence of major data breaches. One of the main issues discussed during the hearings was the lack of a unified policy regarding companies’ responsibility to disclose data breaches to their customers. Currently, laws requiring disclosure exist in forty-six U.S. states, but differences in the law of each state provide companies with a complex and unclear view of how to handle data breaches. Staying true to their recent form, Congress has yet to take any legislative action with regard to the issues discussed during the hearings.

In order to avoid being accused of taking a US-centric view of the problems posed by internet information governance I should note that many countries besides the US are acting quickly to legislate around issues concerning data breaches. In Russia, data collection is regulated under the Personal Data Law which was implemented on July 27, 2006. This body of law requires e-commerce companies to obtain written consent before they can collect certain private personal information and also ensures these companies take the appropriate technical measures to protect their customers’ data. The European Union identified the advantages of a unified data protection scheme back in 1981 when it proposed the Data Protection Directive. In 2012 the European Union announced its intent to remain at the forefront of data protection when it proposed a currently pending major reform to the data protection legislation in place.

If the increasing frequency of data breaches is any indication, the time for a more comprehensive and global legal framework to data protection is approaching rapidly. At the world economic forum in early 2014 Brad Smith, Microsoft’s chief legal officer, called for an international convention to establish cross-border data-access rules.  Many challenges to an international legal framework for data protection remain, including the many separate legal issues with varied stakeholders, the technical complexity and continuous innovation of the internet, and the difficulty of international agreement. Despite these challenges, the internet is a global system which at some point will require international legal solutions.

Matthew Aeschbacher is a 3LE law student at the University of Denver Sturm College of Law and a staff editor for the Denver Journal of International Law & Policy.

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Critical Analysis: The Changing Landscape of International Privacy

In the weeks and months to come, the international community will see the deployment of a number of new privacy initiatives.  The new privacy laws are likely to have been spurned by several factors including: the need to update existing laws that are nearly 20 years old; data breaches and government leaks; and the increasing pressure to come into compliance with the privacy standards established by the European Union.

Noteworthy developments are coming from across the globe, with some of the most recent reforms coming out of Malaysia, South Africa and Ukraine.

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New data and privacy developments are happening across the globe in an effort to update old policies.

Malaysia’s Personal Data Privacy Act came into effect last November, but a deadline requiring companies to register by February 15th is fast approaching.  The PDPA will require stricter data management standards for businesses and impose large fines on those who fail to comply.  This hurdle will come quickly for many small and medium-sized business owners who may not know how or have difficulty implementing the required changes.  Despite the government’s efforts, there are many who are still in the dark about the Act.

Also in November, South Africa signed into law the Protection of Personal Information Act, but has yet to see an enforcement date.  The Act expands on a general ‘right to privacy’ that had been established in 1996.  The aims of the Act were to give effect to the constitutional right to privacy and bring South Africa into alignment with the existing data protection framework.  A noteworthy provision for businesses is that much like the E.U. Safe Harbor requirements, the Act places restriction on the flow of personal data outside of South Africa.

The regulatory structure responsible for data protection in Ukraine has undergone major reform.  One of the biggest changes was the abolition of the Data Protection Office and creation of the Ombudsman—an independent official appointed by the Parliament.  The move brings Ukraine into line with E.U. policies on Data Protection.

Although the trend seems to be that countries are implementing policies and statutes to come into compliance with E.U. standards, the European Union is expected to vote to replace the 1995 EU Data Protection Directive (95/46/EC).  Although the reform has been in the works since 2012, a vote to finalize the issue has been delayed and may not take place until 2015.  Changes, initially expected to broaden data exchange between the U.S. and E.U., may have different implications for the existing Safe Harbor framework following the exposure of widespread NSA surveillance.

The expansion of privacy regulation is good news for consumers worldwide, but also important for businesses who handle personal data.

Jordan Edmondson is a Staff Editor for the Denver Journal of International Law and Policy.

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Critical Analysis: Proceed with Caution: Keeping Your Electronically Stored Information in the Cloud

In an era driven by technology, there are an ever-increasing number of corporations choosing to store their information electronically (“ESI”). ESI is anything that can be stored on an electronic medium system, such as: emails, spreadsheets, databases, images, etc. Further, because ESI is voluminous, corporations are storing it in server farms or, to the layperson,  “the cloud” as a cost-effective measure. The positive of this approach is that corporations can store virtually unlimited amounts of ESI for a very low cost. The negative is that the ESI might be stored in a “server farm” located in a foreign country. The problem with this is that many countries, primarily in Europe, have laws that prevent exportation of data for foreign litigation proceedings. The legal issue: What happens when corporations involved in U.S. litigation are requested to produce ESI located in a foreign country that has a data blocking statute?

Corporations must be careful when storing data as foreign laws conflict with US discovery obligations. Image Source: eDiscovery Blog

Corporations must be careful when storing data as foreign laws conflict with US discovery obligations. Image Source: The eDiscovery Blog

For one, litigants face consequences whether they comply with the discovery request or not. This is because the U.S. discovery rules are so expansive that they offend foreign justice systems where the court plays an important role in the search for evidence. In opposition to the U.S. discovery rules some nations have enacted blocking statutes that criminalize the exportation of ESI for purposes of foreign litigation. Even the European Union has become involved with by requiring compliance with its Data Protection Directive. Thus, corporations have a catch-22: (1) comply with the blocking statute and face sanctions from U.S. courts or (2) comply with the discovery request and face possible sanctions and/or criminal proceedings in a foreign country.

Another consequence is a delay in the discovery process. This delay adds to the cost of what is already viewed as the most expensive phase in the litigation process. More often than not, the cost of discovery, specifically e-discovery, is a valuable tool for encouraging settlement talks. However, when parties are consistently engaging in pre-trial motion practice over the issue that foreign blocking statutes cause, this “tool” becomes less valuable. Without the requested information, a party may have no idea how strong their legal position is and thus cannot engage in reasonable settlement talks. Thus, the impediments foreign blocking statutes have on litigants is a clearly an issue that corporations must consider.

Fortunately, the Supreme Court, through its pre-ESI decision in Societe Nationale Industrielle Aerospatiale v. U.S. Dist. Court for Southern Dist. of Iowa, has provided some hope for litigants faced with this conflict. 482 U.S. 522, 544 (1987). The Court, despite its holding that parties’ faced with blocking statues are required to produce requested documents, also instructed lower courts to consider the following factors in determining whether documents located in foreign countries are discoverable in the U.S: (1) The importance to the investigation or litigation of the documents or information requested; (2) The degree of specificity of the request; (3) Whether the information originated in the United States; (4) the availability of alternative means of securing the information; (5) and the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located. This decision, coupled with subsequent lower court decisions applying these factors to ESI cases, has placed litigants with discoverable ESI in foreign countries in a better position than was originally thought.

Despite the aforementioned decisions, corporations must be conscientious about where they store their ESI. Possibly because this legal issue is relatively recent, courts remain hesitant to not compel discovery of ESI where foreign blocking statutes conflict with discovery obligations. Until this conflict becomes resolute, it would be wise for corporations (and all potential litigants with ESI, for that matter) to ensure their ESI is kept in countries without blocking statutes. By doing this, litigants avoid the catch-22 foreign blocking statutes present in U.S. court proceedings. After all, ESI is the future, if not the present, of the discovery process.

Casey Smartt is a 2L and a Staff Editor on the Denver Journal of International Law and Policy

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Angela Merkel and David Cameron

How Germany Surpassed Great Britain … Economically At Least

In the wake of Prime Minister David Cameron’s call for a voter referendum on Britain’s membership in the EU, new grassroots groups have sprung up supporting a renegotiation of Britain’s EU membership.[1]  While Britain considers removing itself from the EU entirely, Germany has emerged as a powerful leader in the EU.  Some scholars have gone so far as to say that Germany is “keeping Europe afloat.”[2]  What led to Germany’s current power player status is complicated.  Whether it be Germany’s rapid economic growth or German Chancellor Angela Merkel’s personality is anyone’s guess.

Now, as Cyprus repeats the Greek meltdown, it has become clearer that the euro zone has not been able to create a “banking union” in any meaningful sense.[3]  Developing a true banking union is made more difficult by the fact that Germany continues to oppose creating a euro-wide deposit insurance program.[4]

Despite the Greek bailout in 2010, and the follow-up bailout in 2012 (of which Germany was the biggest contributor of funds[5]), the EU has record-high unemployment.[6]  As a result of Germany’s economic influence throughout the EU, it will likely be Merkel who dictates what happens in Cyprus.  While Britain was notably absent from discussions surrounding the creation of an EU banking supervisor, Merkel noted that it was “a big step toward more reliability and confidence in the euro zone.”[7]  This post explores some of the factors that led to Germany’s strong economic position in the EU and what that could mean for Britain in the future.

German Economic Influence

Angela Merkel and David Cameron

And with good reason, too!
(Spectator)

Most people in Germany, even down to the standup comedians, believe that Germany is economically dominant because of their “system of apprenticeships” and commitment to building a society that helps entrepreneurs.[8]   Germany also overhauled the labor market in an effort to hold down costs.[9]  On top of the societal systems, Merkel reminds Germans of Great Britain’s Margaret Thatcher as one who seems to “balance government accounts as though they were a household budget.”[10]  The difference, however, is that Thatcher had the British people’s support for doing so, but Merkel has no democratic mandate.[11]

This system has led to Germany being the only country in the EU with the funds necessary to deal with financial crisis.[12]  The German economic platform has also given Merkel the power to “dictate the terms under which struggling euro zone nations can apply for further credit, eroding the democratic autonomy of the Greek, Italian and Spanish parliaments.”[13]  In 2012, when Merkel approved the second round of bailouts for Greece, she stated: “The risks of turning away from Greece now are incalculable. No one can assess what consequences would arise for the German economy, on Italy, on Spain, the euro zone as a whole and finally for the whole world.”[14]  Despite these admonitions, the tide of approval for Greek bailouts was turning.

Various headlines such as “German money is being thrown away on the bankrupt Greeks” bore out a strong current of German criticism.[15]  Some posit that Germany continues to do provide bailout funds because of their “self-imposed obligation to help build a Europe where the petty nationalisms that had ruined the continent in two world wars could be definitively overcome.”[16]  As stated by Simon Winder, author of Germania: A Personal History of Germans Ancient and Modern: “The tragedy for the Germans is that they viewed the euro as their great, healing gift to the rest of Europe, an act of self-denial in which they cashed in their totemic deutschmark for the continent’s greater good.”[17]

Britain Meanwhile…

Britain continues to extricate itself from the EU and from any sort of indication that they are willing to assist other failing countries.  In the face of calls for Britain to leave the EU altogether and with Cameron seeking re-election, he is unlikely to offer any British assistance that will back British taxpayers into a European Union corner that they do not want to be in.  Pulling away from the EU at this point has left an opening that Germany’s economy has filled.

Where to From Here? Culture v. Economics

The contrast between the economic strength of Germany and the cultural influence of Britain is stark.  While Germany seems devoid of a cultural identity, “Britain is the cultural dynamo of Europe by a million miles.”[18]   What kind of actual power British cultural influence can bring to the EU with a fledgling British economic system remains to be seen.  What is clear, however, is that the world is looking to Germany for economic answers.



[1] Stephen Castle, British Group Backs Renegotiating E.U. Role, The New York Times, April 22, 2013.

[2] Stuart Jeffries, Is Germany too Powerful for Europe?, The Guardian, March 31, 2013.

[3] Hugo Dixon, A Union That Exists in Name Only, The New York Times, March 31, 2013.

[4] Id.

[5] Louise Armitstead, Germany Approves Greek Bail-out but warns Angela Merkel Against Further Help, The Telegraph, Feb. 27, 2012.

[6] David Jolly, Unemployment in Euro Zone Reaches a Record 12%, The New York Times, April 2, 2013.

[7] Raf Casert and Don Melvin, EU Backs Banking Supervisor, Greece Bailout, Yahoo! News, Dec. 13, 2012, available at http://news.yahoo.com/eu-backs-banking-supervisor-greece-bailout-145720588–finance.html.

[8] Stuart Jeffries, Is Germany too Powerful for Europe?, The Guardian, March 31, 2013.

[9] David Jolly, Unemployment in Euro Zone Reaches a Record 12%, The New York Times, April 2, 2013.

[10] Stuart Jeffries, Is Germany too Powerful for Europe?, The Guardian, March 31, 2013.

[11] Id.

[12] Louise Armitstead, Germany Approves Greek Bail-out but warns Angela Merkel Against Further Help, The Telegraph, Feb. 27, 2012.

[13] Stuart Jeffries, Is Germany too Powerful for Europe?, The Guardian, March 31, 2013.

[14] Louise Armitstead, Germany Approves Greek Bail-out but warns Angela Merkel Against Further Help, The Telegraph, Feb. 27, 2012.

[15] Stuart Jeffries, Is Germany too Powerful for Europe?, The Guardian, March 31, 2013.

[16] Id.

[17] Id.

[18] Id.

Posted in 1TVFA Posts, 2Featured Articles, Treana HickeyComments (0)

University of Denver Sturm College of Law

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