United States: Private Spyware Technology Companies Not Entitled to Foreign Sovereign Immunity

Source: US Global Legal Monitor

On November 8, 2021, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court holding that NSO Group Technologies, Ltd., and Q Cyber Technologies Ltd. (collectively, “NSO”) are not entitled to claim foreign sovereign immunity. (WhatsApp Inc. v. NSO Group Tech. Ltd., No. 20-16408, slip op. (9th Cir. Nov. 8, 2021).)

Background to the Case

NSO is a private Israeli company that develops and licenses surveillance technology (spyware) to governments for national security and law enforcement purposes. One of NSO’s products, Pegasus, enables remote, covert extraction of data from mobile devices. The plaintiffs in the lawsuit, WhatsApp, Inc. and Facebook, Inc., have sued NSO, alleging that NSO accessed their servers without permission in order to learn how to put Pegasus on WhatsApp users’ devices without detection. NSO asserts that it was acting at the direction of its foreign government customers.

NSO moved to dismiss the lawsuit on the grounds that it was acting as an agent of a foreign state and thus entitled to immunity under the common-law doctrine that protects foreign officials acting in their official capacity. The trial court denied NSO’s motion, and NSO appealed.

Foreign Sovereign Immunity Law

Foreign sovereign immunity has been part of the American legal system since the early days of the nation. Originally, sovereign immunity was a common-law doctrine, and the State Department was the arbiter of foreign sovereigns’ and ministers’ entitlement to immunity. In 1976, Congress enacted the Foreign Sovereign Immunities Act (FSIA) and transferred responsibility for deciding claims of foreign sovereign immunity from the State Department to the judiciary. The United States Supreme Court has repeatedly affirmed that the FSIA is a “comprehensive framework” for resolving claims of sovereign immunity. (WhatsApp Inc., slip op. at 11.)

Under the FSIA, codified at 28 U.S.C. § 1602 et seq., a foreign state is presumptively immune from the jurisdiction of United States courts unless an exception applies. The term “foreign state” includes a “political subdivision of a foreign state or an agency or instrumentality of a foreign state[.]” (28 U.S.C. § 1603(a).) An “agency or instrumentality of a foreign state” must be a separate legal person or corporation that is an organ of, or majority owned by, a foreign state or political subdivision. (28 U.S.C. § 1603(b).)

Holding of the Court of Appeals

The present decision turned on the question of whether the FSIA applies to all foreign entities (state and non-state) or only foreign state entities. (WhatsApp Inc., slip op. at 13.) Under the FSIA, presumptive immunity from suit is available to an entity that qualifies as a “foreign state.” NSO agreed that it does not qualify as a “foreign state” under the FSIA, but argued that it could claim common-law immunity because the FSIA does not expressly address foreign private entities.

In its analysis, however, the Ninth Circuit found that the text, purpose, and history of the FSIA demonstrate that it occupies the entire field of foreign sovereign immunity with regard to all entities, both foreign state and non-state. None of the policy reasons favoring sovereign immunity are served by granting it to private entities outside of the FSIA. Further, noting the interpretive canon expressio unius exclusio alterius (the expression of one thing implies the exclusion of others), it would not have made sense for Congress to have restricted sovereign immunity under the FSIA to foreign state entities and have intended for non-foreign state entities to resort to a legal scheme outside the FSIA. “The most reasonable interpretation then is that the definition of ‘foreign state’ forecloses immunity for any entity falling outside such definition, particularly where ‘foreign state’ is defined broadly.” (WhatsApp Inc., slip op. at 16.) Finally, the omission of private entities from the FSIA’s definition of “foreign states” “reflects a threshold determination about the availability of foreign sovereign immunity for such entities: they never qualify.” (WhatsApp Inc., slip op. at 18.)

The Ninth Circuit concluded that “an entity is entitled to foreign sovereign immunity, if at all, only under the FSIA. If an entity does not fall within the Act’s definition of ‘foreign state,’ it cannot claim foreign sovereign immunity. Period.” (WhatsApp Inc., slip op. at 14.) Because NSO does not qualify as a “foreign state” under the FSIA, it is precluded from claiming sovereign immunity from suit.

Email Alerts and Browse Page Updates: Congress.gov New, Tip, and Top for November 2021

Source: US Global Legal Monitor

Earlier this month, Robert shared news of the addition of the “Add to My Calendar” feature for upcoming committee hearings on Congress.gov. I have already used it several times to be reminded of when a hearing that I want to follow is scheduled.

Congress.gov continues to grow with new material. If you had done a global search six years ago there would have been about a million items in the results. Now there are almost 1.5 million items to search, including materials from the current Congress, over 90 years of the Bound Congressional Record, and hearing transcripts now starting with the 105th Congress.

We have made a number of enhancements with this month’s second release. We updated the old RSS and Email Alerts page to focus on the variety of alerts Congress.gov provides. See the new Get Email Alerts and Updates page for all the ways to subscribe. Also with this release, there is a new and improved appropriations alert under legislation on the page:

Appropriations Measures Considered by Congress
Email alerts when appropriations measures are considered by Congress. View Appropriations Status Table 

After you are signed in and select “Get alerts” on the site you will be subscribed and will receive an email update when any appropriations bill has action.

We added contextual links to alerts across the site. For example, if you are on the Most Viewed Bills or Enhancement Timeline you will now have an easy link to set up the respective alerts. We also added a new link to Get Email Alerts and Updates on the homepage.

New “Get Email Alerts and Updates” link on the Congress.gov homepage

In a recent update we added the option in the quick search and advanced search forms to default to modern legislation or also include historical legislation. With today’s release we are adding a similar historical check box to the Congressional Record quick search form. Checking the historical box will include the Bound Congressional Record in your search results.

Another section that we focused on enhancing this release is Browse. With the addition of earlier Congresses, the drop down list has been getting longer. This is now a type ahead field, which should be easier for the user. Interested in the 93rd Congress? Start to type 93 and it will be an option. Alternatively, you can type in a year like 1977 if you don’t know off the top of your head that it is in the 95th Congress. Also on the updated Browse pages is the specific date range for the Congress, so on the 95th Congress page you will see “January 4, 1977 – October 15, 1978.”

Newly Updated Browse Page with Type Ahead and Specific Date Range

We continued our quest to improve the accessibility of Congress.gov. The Glossary of Legislative Terms has been improved for accessibility purposes.

Enhancements

The following are the second set of Congress.gov enhancements for November.

Enhancement – Email Alerts and Updates – Appropriations Alert

  • Go to the redesigned Get Email Alerts and Updates page to see the full list of email alerts, updates and RSS feeds available for you to keep up with Congressional activity and current legislation.
  • To get alerts on appropriations legislation for the current fiscal year, use the “Get alerts” link under the heading Appropriations Measures Considered by Congress.
  • You will receive an email when new appropriations bills are introduced or when any current appropriations bills are updated.

Enhancement – Congressional Record – Search

  • Congress checkboxes on the Congressional Record search form give you the option to limit your search to 1995-2022 (Daily Edition issues) or Historical (1909-1994) (Bound Edition volumes).
  • Options for searching only headings and Members Remarks are disabled when you select only Historical Congresses.
  • Tooltips, visible when you move your cursor over the icon next to a Congress checkbox, display helpful reminders and link to the Congressional Record help page for more details.

Enhancement – Browse – Congress Type Ahead

  • Start typing to select a Congress on the Browse page, a directory of frequently-requested resources, lists of legislation and more.
  • Links to House and Senate calendars are available for previous Congresses under Congressional Activity.

Enhancement – Glossary of Legislative Terms – Improved Accessibility

  • Definitions are no longer collapsed in the Glossary of Legislative Terms, improving accessibility and allowing you to get the information you need with fewer clicks.

Enhancement – Congressional Record – Bound Edition

Congress.gov Tip

Did you know that you can search Congress.gov without a search term? Do a blank search and then use the filters (or facets) on the left to winnow your way down to a smaller results set. You can check the “Search Within” box in the search bar later on if you decide you want to add a search term to this results set. And, just a reminder, you can “Save this Search” and “Get Alerts.”

Most-Viewed Bills

The following is the most-viewed bills list for the week of November 21, 2021.

 
1. H.R.3684 [117th] Infrastructure Investment and Jobs Act
2. H.R.5376 [117th] Build Back Better Act
3. H.R.4350 [117th] National Defense Authorization Act for Fiscal Year 2022
4. H.R.1319 [117th] American Rescue Plan Act of 2021
5. H.Res.789 [117th] Censuring Representative Paul Gosar.
6. H.Res.57 [117th] Impeaching Joseph R. Biden, President of the United States, for abuse of power by enabling bribery and other high crimes and misdemeanors.
7. H.R.1996 [117th] SAFE Banking Act of 2021
8. H.R.133 [116th] Consolidated Appropriations Act, 2021
9. S.1260 [117th] United States Innovation and Competition Act of 2021
10. H.Res.774 [117th] Providing for consideration of the bill (H.R. 5376) to provide for reconciliation pursuant to title II of S. Con. Res. 14; and for other purposes.

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Jordan: Religious Authorities Drafting New Law Regulating Blood Money Payments (Diya)

Source: US Global Legal Monitor

On October 10, 2021, the king of Jordan’s adviser for tribal affairs, Atef al-Hajaya, confirmed that work is underway to issue a new law regulating diya — monetary compensation, or “blood money” — paid by a killer and his relatives to the families of the victims in homicide cases.

Al-Hajaya stated that the chief justice of the religious court (qadi al-qudah) and the Jordanian Board of Ifta’, an official religious institution authorized to issue religious decrees, are working together on drafting a new law regulating the amount of diya to be paid according to the circumstances of each homicide case. Al-Hajaya also stressed that individuals from victims’ families who carry out acts of violence against the perpetrator or his family, including burning, vandalism, and destroying their property, will be held accountable according to the law.

Blood Money (Diya) Under Jordanian Law

In addition to the secular criminal court system, article 105(2) of the Jordanian Constitution grants religious law (shari‘a) courts jurisdiction to enable offenders to pay diya to victims’ families.

Article 2 of Law No. 11 of 2016 on Religious Courts allows victims’ families to file blood money complaints before the courts against the perpetrator in cases of murder and injury. Furthermore, Religious Decree [Fatwa] No. 3428 of October 18, 2018, issued by the Jordanian Board of Ifta’, states that it is permissible under Islamic jurisprudence to receive compensation from a person who caused the death of another human being.

Determination of Blood Money Compensation

The Jordanian Board of Ifta’ determines the amount of blood money. According to Decree No. 129 (7/2009), issued by the Board of Ifta’, the amount of diya the offender must pay to the victim’s family is 100 camels. Because camels are not circulated as property in the majority of Islamic countries, the board has ruled that the prices of camels must be determined in the currency of the individual countries. Accordingly, on the basis of the board’s calculations, the value of 100 camels in the Kingdom of Jordan is 20,000 Jordanian dinars (about US$28,189).

According to the board, in cases of manslaughter, the diya compensation is to be 20,000 dinars and may come from male family members of the killer. In the event of premediated murder, the diya compensation is to be 25,000 dinars (about US$35,236) and must come from the killer’s personal money. If a single person’s actions cause the deaths of a number of people, he or she must pay blood money for each victim.

However, if the family of the victim demands retribution (qisaas) for the killer, they cannot receive diya compensation.

Sweden: Government Proposes Raising Student Loan Interest Rate

Source: US Global Legal Monitor

On October 31, 2021, the Swedish government tasked the Swedish Board of Student Finance (Centrala Studiestödsnämnden, CSN) with creating a new model to calculate the interest rate on all student loans taken out by students in Sweden after 1989. The CSN is a government agency responsible for managing Swedish student finance — that is, providing grants and loans for studies and collecting loan repayments.

The current interest rate would be raised so that state profits from collecting interest on the loans would cover any credit losses (kreditförluster) that the state suffers when student loans are not repaid as agreed. In addition, the revenue from the increased interest would also fund a new program to provide employed individuals with funding to attend university. The proposal to amend the interest rate is currently part of the government’s 2022 budget proposal.

Background to the Interest Rate Proposal

In 2016, after learning that the CSN had had difficulty in collecting student loan repayments, the government tasked the CSN with surveying and analyzing the problem. The CSN determined that the most common reason for nonpayment is that the borrower was residing abroad, with 93.6% of people residing in Sweden making payments on their loans compared to 70.3% of people residing abroad. In 2018, the CSN reported that 13 billion Swedish kronor (SEK) (about US$1.5 billion) was currently owed by persons living abroad. In total, the government estimates that 10% of all student loans will never be repaid. Swedish law allows the state to collect unpaid student debts by garnishing wages, and seizing property. However, not all student loans can be repaid — for example, student loans outstanding at the time of death are not enforceable against the estate and are written off, and loans not repaid because collection was not possible (e.g., when the domicile of the borrower is unknown) are currently born by the state as a credit loss.

The increased interest rate would cover the annual credit loss of SEK2 billion (about US$230 million) that is currently listed in the national budget for 2021 as a cost to the government. As part of its assignment, the CSN will estimate how much more income the state can expect to collect annually from the interest rate increase. In accordance with the proposal, the state plans to collect about SEK2 billion annually following the changes, compared to SEK33 million (about US$3.8 million) as budgeted in 2021.

The repayment of student loans is regulated in Chapter 4 of the Student Support Act (Studestödslagen (SFS 1999:1395)). As stipulated in Section 1 of Chapter 4, the government sets the interest rate on student loans annually. Currently the interest rate calculation is based on the average of the three most recent years’ annual deposit rate (inlåningsränta). The CSN would determine the new way to calculate the interest rate with the goal of raising the total interest to 0.5%, a tenfold increase from 0.05% in 2021. Because student loans are not eligible for the current 30% tax deduction that other loans are eligible for, the new calculation would also include a 30% reduction on the raised amount. While Section 3 of Chapter 4 of the act requires students to start repaying their loans six months after they stop receiving loan payments, individuals may request that repayments be paused because of low income, but the unpaid interest is then added to the loan sum. To offset the immediate cost of the increased interest rate, the government has instructed the CSN to create a way for lenders to choose to repay their loans over a longer period than is currently allowed.

The Swedish Confederation of Professional Associations has criticized the proposal for increasing the cost of education and thus possibly disincentivizing students from pursuing university studies. Citing the OECD Education at a Glance 2021 report, the confederation claims that Sweden is already one of the countries in the world where a university education is the least profitable to the individual. Others also criticize moving the credit risks associated with defaulted borrowers from the state to those student loan borrowers who do repay their loans.

The CSN must deliver its final report by April 2022. The government intends for the new interest rate to enter into force in 2023.

New Report on Children and Data Protection Laws in Ireland

Source: US Global Legal Monitor

The following is a guest post by Clare Feikert-Ahalt, a senior foreign law specialist at the Law Library of Congress covering the United Kingdom and several other jurisdictions. Clare has written numerous posts for In Custodia Legis, including 100 Years of “Poppy Day” in the United Kingdom; Weird Laws, or Urban Legends?FALQs: Brexit Referendum; and The UK’s Legal Response to the London Bombings of 7/7.

The Law Library recently published a report titled Children’s Online Privacy and Data Protection for Ireland. This adds Ireland to the Law Library’s report on this subject that cover 10 jurisdictions: the European Union (EU) and its member states of DenmarkFranceGermanyGreecePortugalSpainSweden, and Romania, and the non-EU member of the United Kingdom (UK).

Title page of the Law Library’s report “Ireland: Data Protection and Children.”

As Ireland is a member of the European Union, it must follow the General Data Protection Regulation (GDPR), which took effect in all EU member states, plus the UK, on May 25, 2018. Ireland implemented the Data Protection Act in 2018 to give effect to certain aspects of the GDPR in its domestic laws. This Act also established the Data Protection Commission (DPC), which is the national independent authority in Ireland that supervises the GDPR and ensures it is implemented.

Children’s personal data is provided with special protection under both the 2018 Act and the GDPR. In December 2020, the DPC published a draft code, titled Fundamentals for a Child-Oriented Approach to Data Processing (known as “the Fundamentals”), under the Data Protection Act. The Fundamentals aim to clarify the principles in the obligations under the GDPR and set “high-level obligations” that organizations must take before processing children’s data, and highlight that the best interests of the child take precedence over any legitimate business interests.

Since the Law Library’s report was published, on November 19, 2021, the DPC published a report into the findings of the public consultation on the Fundamentals. In this report, the DPC concluded “[t]he best interests of the child must ground the actions of all data controllers, and there must be a floor of protection below which no user, and in particular no child user, drops” and that it is satisfied that the broad approach of applying the Fundamentals to services that are likely to be accessed by children is the correct one to take, but stated that it will add text to help clarify this, and some of the other Fundamentals, further.

The DPC stated that it will work to finalize the Fundamentals and publish them. It notes that once the Fundamentals are published in their final form they “will have immediate effect and there will be no lead-in period for compliance.” The DPC has stated that this is because the Fundamentals are not a statutory code, nor are they, in essence, new obligations for organizations, noting:

the GDPR is now more than 3 years into its application. Organisations which process children’s personal data – particularly in the digital sectors where business models are predicated upon the processing of personal data for the provision of services – should throughout that period, in line with their accountability obligations under GDPR, have been constantly keeping their child protective measures under review and revision in order to achieve the higher standards of protection which the GDPR requires in relation to the processing of children’s data.

Thus, once the DPC publishes the Fundamentals in their final form they will enter into effect and the DPC will consider an organization’s compliance with the Fundamentals when assessing whether it has met the obligations of the GDPR.

Subscribe to In Custodia Legis – it’s free! – to receive interesting posts drawn from the Law Library of Congress’s vast collections and our staff’s expertise in U.S., foreign, and international law.

Portugal: Parliament Approves Law to Amend Telework Regime in Labor Code

Source: US Global Legal Monitor

On November 5, 2021, the Assembly of the Republic, the parliament of Portugal, voted to approve a replacement text that alters the country’s telework regime by amending the Labor Code (Law No. 7/2009 of February 12, 2009) and Law No. 98/2009, of September 4, 2009. As of November 19, 2021, the amendments to the Labor Code and Law No. 98/2009 contained in the replacement text had not been published in the Official Gazette of the Republic.

Amendments to the Labor Code

The replacement text amends article 165 of the Labor Code to redefine telework (teletrabalho) as work done by an employee under legal subordination to an employer in a location not determined by the employer and with the employee conducting work through information and communication technologies. (Labor Code art. 165(1).)

Article 166 provides that the implementation of the telework regime is always contingent on a written agreement that can either be part of the initial work contract or be an independent contract. (Art. 166(2).) The telework agreement defines where the workers will perform their duties, their work schedule, their work hours, and any necessary work equipment. (Art. 166(4)(b), (c), (d), (g).) If the employer proposes a telework agreement, the worker’s opposition to the agreement does not constitute cause for dismissal or any sanctions. (Art. 166(6).) The employer can define, through internal published regulations and in observance of the General Regulation of Data Protection, the company’s acceptable activities and conditions for telework. (Art. 166(9).)

The employer is responsible for making available to the employee any equipment and systems necessary for the completion of work. (Art. 168(1).) Also, the employer is responsible for compensating the worker for (1) any costs that the worker can prove are a direct consequence of acquiring the necessary equipment and systems, (2) increases in energy and internet costs due to the use of equipment, and (3) any maintenance costs for the equipment and systems. (Art. 168(2).) The compensation payment for such costs is due immediately. (Art. 168(4).) Because the systems and equipment are provided by the employer, the employer can determine the acceptable uses of the equipment. (Art. 168(6).)

Under article 169, teleworkers have the same rights and duties as other company workers in the same or similar functions. These rights and duties include promotions, duration of work, breaks, paid holidays, health and work insurance, reparation for accidents and illnesses resulting from work, and access to workers’ representative organizations (estruturas representatives dos trabalhadores). (Art. 169(1).) Teleworkers can participate in union, inter-union, and workers’ collective meetings in-person as well as remotely in meetings organized by workers’ representative organizations. (Art. 169(3), (5).) Any violations of article 169 are considered grave offenses. (Art. 169(7).)

The employer must respect the worker’s privacy, schedule, and breaks, as well as provide good physical and psychological work conditions. (Art. 170(1).) Whenever telework is done in the worker’s home, visits by the employer require 24-hour notice and the worker’s agreement. (Art. 170(2).) Visits should relate only to work activities or equipment and should occur only in the worker’s presence during work hours determined in the telework contract. (Art. 170(3).) When visiting the worker’s home, the employer should act in a manner that is commensurate with and proportional to the objectives and reason for the visit. (Art. 170(4).) Any capture or use of images, sound, texts, history (histórico), or other measures that may affect the worker’s right to privacy are prohibited. (Art. 170(5).) Violations of numbers 1, 2, 3, and 4 of article 170 constitute a grave offense, while violations of number 5 constitute a very grave offense. (Art. 170(6)–(7).)

Amendments to article 465 state that workers’ representative organizations have the right to post on internal company portals any communications, information, or other texts related to union activities and workers’ socio-professional interests, as well as distribute these materials through email to a list of teleworkers provided by the employer. (Art. 465(2).)

New Articles Added to the Labor Code

Article 3 of the replacement text adds new articles to the Labor Code. Article 166-A provides that workers have the right to remote work when teleworking is compatible with their performed activities. (Labor Code art. 166-A(1).)

Also, workers with children age three years and younger have the right to telework when the work is compatible with telework or the employer provides the resources for telework. (Art. 166-A(2).) Working parents who have children up to eight years old and who are both eligible for telework may be allowed to work remotely in successive periods of equal duration within a maximum reference period of 12 months. (Art. 166-A(3)(a).) Workers who are single parents or live in households where only one parent has access to telework are also eligible to telework if they have children up to eight years old. (Art. 166-A(3)(b).) Employers cannot oppose employees’ telework requests made under the terms of the abovementioned situations. (Art. 166-A(4).) However, the rights to telework presented in number 3 of this article are not applicable to employees of microenterprises. (Art. 166-A(7).)

In addition, workers who are considered informal or nonprimary caretakers have the right to telework for a maximum of four consecutive or intermittent years when their work is compatible with teleworking or the employer provides resources to enable teleworking. (Art. 166-A(5).) An employer can oppose these workers’ telework requests if conditions at the company or requirements for its functioning are not conducive to teleworking. (Art. 166-A(6).)

Any remote work meetings or projects that have precise timelines or must be worked on with other workers should occur within work hours and be scheduled with 24 hours’ notice. (Art. 169-A(1).)  Teleworking employees are obligated to attend meetings, trainings, or other events that require their physical presence and have been organized with at least 24 hours’ notice. (Art. 169-A(2).) The supervision of work by the employer “should respect the principles of proportionality and transparency,” and forcing workers to be continuously monitored through image or sound during the workday is prohibited. (Art. 169-A(5).) Moreover, to reduce the feeling of isolation among workers, employers should promote in-person contact between workers and their supervisors and with other workers through meetings determined by the telework agreement. If not determined by the telework agreement, in-person meetings should be held at intervals not exceeding two months. (Art. 169-B(1)(c).)

Employers also have the duty to refrain from contacting workers during their rest periods except in extreme situations and are considered to have committed a discriminatory act if they treat any workers less favorably for exercising their right not to be contacted during rest periods. (Art. 199-A(1)–(2).)

Employees also have special duties with regard to the telework regime. (Art. 169-B(2).) They must inform the company of any defects in the functioning of their telework equipment. (Art. 169-B(2)(ca).) They must also follow their employers’ instructions pertaining to the security of work activity information and follow any instructions regarding the personal use of equipment and systems. (Art. 169-B(2)(b)–(c).)

The new law prohibits teleworking for work that involves the use of or contact with dangerous substances or materials, except in certified installations. (Art. 170-A(1).) In addition, the legal reparation regime recognizes that work accidents and illness caused by work apply to telework situations because the location chosen by workers is considered their work location. (Art. 170-A(5).) The oversight of compliance with regulatory teleworking norms, including worker safety and health, is the responsibility of the ministry responsible for labor oversight. (Art. 171(1).)

Prepared by Elizabeth Marin, Law Library intern, under the supervision of Eduardo Soares, Senior Foreign Law Specialist

An Interview with Yunzhou Wang, Foreign Law Intern

Source: US Global Legal Monitor

Today’s interview is with Yunzhou Wang, a foreign law intern working virtually in the Global Legal Research Directorate of the Law Library of Congress under my supervision.

Yunzhou Wang, a foreign law intern at the Law Library of Congress. Photo courtesy of Yunzhou Wang.

Describe your background.

I was born in Huainan, a small city in China. I spent my first 18 years in that city. After I graduated from high school, I went to East China University of Political Science and Law (ECUPL) and chose law as my major.

What is your academic/professional history?

I received the bachelor of laws degree from ECUPL in Shanghai. During my undergraduate study, I discovered my passion for international law and comparative law. In my last year at ECUPL, I wrote a paper with Professor Guan Jianqiang, and the paper was published in the Chinese Review of International Law.

After graduating, I chose to pursue a master of laws degree (LL.M.) at Georgetown University. I am a general studies LL.M. student. I am the vice president of the Georgetown China Law Society.

How would you describe your job to other people?

I am an intern in the Global Legal Research Directorate and assist Laney with requests from the U.S. Congress, executive agencies, federal courts, and public clients on foreign law issues in several jurisdictions. Under Laney’s supervision, I conduct legal research on the legal issues in Mainland China, Hong Kong, Taiwan, Singapore, etc. I also draft articles on recent legal developments in these jurisdictions for the Global Legal Monitor.

Why did you want to work at the Law Library of Congress?

The Library of Congress is the biggest library in the world, and the Global Legal Research Directorate has the responsibility of answering questions for Congress, the government, and the public. Working at the Law Library of Congress is an exciting opportunity to improve my legal research and writing skills. It also helps keep my eyes on new legal developments in China and facilitates my understanding of Chinese law.

What is the most interesting fact you have learned about the Law Library of Congress?

The Library of Congress has the largest collection of books, drawings, photographs, and films in the world. I hope I will have a chance to visit the Law Library of Congress in person!

What’s something most of your co-workers do not know about you?

I am good at playing the traditional Chinese musical instrument, Erhu, and I love to cook Chinese food.

A Civil Body Politic: The Mayflower Compact and 17th-Century Corporations

Source: US Global Legal Monitor

Last year, to mark the 400th anniversary of the Mayflower Compact, I wrote a post on this blog about the Compact’s origins and legacy in Early American history. In that post, I wrote that the Compact served as a place-holder to acknowledge that the colonists were operating outside the region of North America that their patent authorized them to settle. It did not solve the problem of their need for a new patent for their colony. It did, however, represent a best effort at coloring their actions as legal or quasi-legal.

The language of the Compact is at once concise and vague – in its brief 195 words, it does not propose specific laws or a form of government, and it characterizes the collective that the people aboard the Mayflower intended to create with a famous but somewhat opaque phrase: “civil body politic.” In this post, I’d like to talk about the expression “civil body politic” and what it probably meant to the settlers at that time.

At the time of the Mayflower Compact, the phrase “body politic” was routinely used in the law to refer to corporations of all sorts. The category of corporation was both more broadly conceived in the 17th century than the modern word corporation and more transitional. While the latter might generally refer to private for-profit companies that bear a number of traits, including shareholder ownership, professional management, limited liability, and indefinite lifespan, corporations in the 17th century included, for example, hospitals, charities, colleges, some trade guilds, towns, public utilities, and even certain individuals who occupied important posts in public institutions. (Sheppard, pp. 1-5.) Relatively fewer business endeavors benefited from incorporation at that time than now, especially among joint-stock companies. (Seavoy, pp. 46-47.) It was also a period in which the Crown experimented with the new directions in the use of the corporate form. (Guenther, p. 10.)

William Sheppard, an attorney and author of several books in the 17th century, wrote Of Corporations, Fraternities and Guilds (London, 1659), a brief work on the law of corporations. In the introduction, he writes about his subject, “…although art cannot altogether arrive at the perfection of nature; yet it has in this showed a fair adumbration, and given to man the nearest resemblance of his maker, that is, to be in a sort immortal.” Photo by Nathan Dorn.

The word corporation itself is derived from the Latin word corpus, which means body, via the verb corporare, which means to embody. This usage rests on the widespread and longstanding European tradition of using the metaphor of a body to describe human communities. One pervasive idea was that the people in a community acted together in such a way that they became the mutually dependent parts of a single living organism, with, the king, for instance, standing in as the head. This metaphor has roots in antiquity, and can be traced in various forms through medieval Europe and England where it was used for a variety of organizations, but especially the church and the state. (Chroust, pp. 451-452.) Along somewhat different lines, it was repeated by lawyers in Tudor England that the King has two bodies, a natural one, that is mortal and will die, and a “body politic,” an institutional personality representing his sovereignty that can never die. (Axton, p. 212.)

The idea that smaller collective bodies within the kingdom could have and benefit from distinctive traits such as corporate personality and perpetual life already appeared in English sources from the 13th century. (Baker, p. 213.) By the 17th century, the law regularly used the expression “body politic” to make a distinction between natural persons – i.e. even human beings who are not the king – and artificial persons, which were often secular organizations, companies, or associations.

William Sheppard, the first author to write a treatise of any kind on the law of corporations in England, expressed it in his book Of Corporations, Fraternities and Guilds (London, 1659) this way, “our law doth take notice of a body natural, and a body politic.” (Sheppard, p. 2.) A corporation, he explains, is “a body in fiction of law.” The anonymous author of the second treatise on corporations, The Law of corporations: containing the laws and customs of all the corporations and inferior courts of record in England (London, 1702), repeats this formula and expands somewhat on Sheppard’s language: “A corporation or an incorporation is a body framed by policy or fiction of law, and it’s called an incorporation or body incorporate because the persons are made into a body, which endureth in perpetual succession…” (The Law of Corporations, pp. 1-2.)

The anonymous author of The Law of Corporations (London, 1702), the first serious treatise on the law of corporations, remarks in his introduction about William Sheppard’s earlier book on the subject, “I remember not any treatise designedly written on this subject except a little duodecimo by Mr. Shepard (sic), which extends not to the fortieth part of matters relating to corporations.” Photo by Nathan Dorn.

Generally, the creation of a corporation required the state’s authority. Both of the treatises cited above followed the analysis of “the lawful authority of incorporation” that Sir Edward Coke presented in the 1612 Case of Sutton’s Hospital. (Holdsworth, p. 382.) A corporation could only be created in one of four ways, namely a) by the common law (the prime example of this was the king; the British monarch is still today a corporation sole); b) by the authority of parliament; c) by royal charter, and d) by prescription or custom. ((1612) 10 Co. Rep. 1a, 30b.)

The state was willing to extend the privilege of incorporation on the grounds that the companies promote its preferred public policies. (Williston, 105, 110.) For instance, to provide assistance for the needy, it incorporated hospitals and charities; or to grow markets, through the establishments of fairs and trade guilds. At the end of the 16th century, the Crown began experimenting with the use of the corporate form to confer exclusive rights to conduct trade in foreign lands. This led to the creation of the merchant trading companies: the Merchant Venturers (1551), the Muscovy Company (1555), the Levant Company (1581), the Cathay Company (1576) and the East India Company (1600). (Baker, p. 483.)

In the 17th century, the Crown chartered corporations to further its efforts to build colonies in foreign lands. (Osgood, p. 261.) As a result, the language of corporations appears in the charters of early American colonies. To name a few examples, the Charter of New England, issued in 1620, establishes that company as “one body politic and corporate.” The same phrase appears in A Grant of the Province of Maine to Sir Ferdinando Gorges and John Mason in 1622. The Charter of Massachusetts Bay of 1629 also creates that colony as “one body politic and corporate.” Likewise, when Parliament passed the act of incorporation for the Society for the Propagation of the Gospel in New England in 1649, it established it as “one body politic and corporate in law.” The Harvard Charter of 1650 (which was not a royal charter) also establishes “one body politic and corporate in law.” As for Plymouth, part of the long hoped-for solution to the colony’s need for official authorization came in the Charter of the Colony of New Plymouth Granted to William Bradford and his Associates in 1629, which likewise established “one body politic and corporate.”

The Mayflower Compact’s “civil body politic” may have been meant to refer to a body politic that was “civil” as opposed to “ecclesiastical,” which is a distinction that is found in corporations of the time (Kyd, p. 22.) And since some see the Compact as a civil parallel to the church covenants that were an important feature of the practice of the separatist community who settled Plymouth, this meaning is suggestive. Or it may have been meant as a civil corporation as opposed to an eleemosynary, or charitable one, which is another distinction that one encounters. (Kyd, p. 25.) Or it was “civil” in the sense of urban, as a township, which is an obsolete meaning of the word that is attested in the 17th century. Or the word “civil” simply relates to community and citizenship. In any event, lacking the authority of the Crown and the formalities that royal charters or parliamentary acts of incorporation required, the Compact did not create a corporation that was valid in England. It looks in retrospect like a founding of a different sort.

Early works on corporations law in the Law Library’s rare books collection include:

Sheppard, William, -1675? Of corporations, fraternities, and guilds, or, A discourse, wherein the learning of the law touching bodies politique is unfolded, shewing the use and necessity of that invention, the antiquity, various kinds, order and government of the same … London: Printed for H. Twyford, T. Dring, and J. Place, and are to be sold at their shops …, 1659.

The Law of corporations: containing the laws and customs of all the corporations and inferior courts of record in England. Treating of the essentials of, and incidents to, a corporation. Of mayors, bailiffs, serjeants, &. and their executing process… London, Printed by the assigns of R. and E. Atkins for I. Cleeve, 1702.

Kyd, Stewart, -1811. A treatise on the law of corporations. London: Printed for J. Butterworth …, 1793-1794.

Angell, Joseph K. (Joseph Kinnicut), 1794-1857. A treatise on the law of private corporations aggregate, by Joseph K. Angell and Samuel Ames. Boston, Hilliard, Gray, Little & Wilkins, 1832 [c1831].

Secondary Sources:

Axton, Marie. The Influence of Edmund Plowden’s Succession Treatise. Huntington Library Quarterly, Vol. 37, No. 3 (May, 1974), pp. 209-226.

Baker, John H. (John Hamilton). An introduction to English legal history. Fifth edition. Oxford: Oxford University Press, 2019.

Bilder, Mary Sarah. “The Corporate Origins of Judicial Review.” Yale Law Journal 116, no.3 (2006): 502-566.

Bilder, Mary Sarah. “English Settlement and Local Governance.” in The Cambridge History of Law in America. Eds. Michael Grossberg, Christopher Tomlins. New York: Cambridge University Press, 2007-2008. pp. 63-103.

Chroust, Anton-Hermann. The Corporate Idea and the Body Politic in the Middle Ages. The Review of Politics, Vol. 9, No. 4 (Oct., 1947), pp. 423-452.

Guenther, David B. “Of Bodies Politic and Pecuniary: A Brief History of Corporate Purpose,” Michigan Business & Entrepreneurial Law Review, Vol. 9, no. 1 (2020).

Kantorowicz, H. The King’s Two Bodies, A Study in Medieval Political Theology (Princeton: Princeton University Press, 2016 [1957]).

F.W. Maitland, ‘The Crown as Corporation’, in The Collected Papers, ed. H.A.L. Fisher, vol. 3. (Cambridge: Cambridge University Press, 1911).

Osgood, Herbert L. “The Corporation as a Form of Colonial Government.” Political Science Quarterly, Vol. 11, No. 2 (Jun., 1896), pp. 259-277.

Seavoy, Ronald E. The origins of the American business corporation, 1784-1855: broadening the concept of public service during industrialization. (Westport, Conn.: Greenwood Press, 1982).

Williston, Samuel. “History of the Law of Business Corporations Before 1800 I,” Harvard Law Review, 2, No. 3 (Oct. 15, 1888), pp. 105-124.

Cambodia’s Legal Professions

Source: US Global Legal Monitor

The following is a guest post by Pichrotanak Bunthan, a legal research fellow with the Law Library of Congress who is working under the supervision of Sayuri Umeda, a foreign law specialist covering Japan and other jurisdictions in East and Southeast Asia.

In my previous blog post, I described what legal education in Cambodia looks like. As a sequel to that post, the following will explore some common legal professions for LL.B. graduates in Cambodia. In general, they sit for an entrance exam to become either lawyers, magistrates (including both judges and prosecutors), court clerks, or notaries public. Entrance exams for each legal profession are conducted separately and one graduate may sit for more than one legal profession exam.

ECCC Court Room 20 July 2009. Photo by Flickr user Khmer Rouge Tribunal (ECCC), courtesy of Extraordinary Chambers in the Courts of Cambodia. July 20, 2009. Used under creative commons license, https://creativecommons.org/licenses/by/2.0/.

Lawyers

As a general rule, to be admitted to the Bar Association of the Kingdom of Cambodia (BAKC) as a qualified lawyer, an applicant must be a Khmer citizen holding (1) an LL.B. degree issued by an accredited law school, and (2) a Certificate of Lawyer’s Professional Skill, issued by the Center for Lawyers Training and Legal Professional Improvement, also known as the Legal Training Center (LTC). In addition, the applicant must not have been convicted of any misdemeanor or felony, or received any disciplinary sanction, administrative penalty, or dismissal for any act of moral turpitude or act contrary to honor. (Law on the Statutes of Lawyers of 1995 (English translation) art. 31.)

There are two main routes for a law graduate to be admitted to the BAKC: taking the bar exam or direct admission without taking the bar exam.

Bar Exam

An entrance exam to the LTC is referred to as the bar exam in Cambodia. An applicant must have completed an LL.B. before sitting for the exam. There is no fixed cycle for the bar exam schedule. The exam date will be publically announced on a case-by-case basis. Based on the February 2013 exam, it had two components: the essay test and the oral test. The essay component took one full day with three hours in the morning, with a few questions on civil law (both substantive and procedural), and another three hours in the afternoon, with a few questions on criminal law (both substantive and procedural). Those who passed the written test would be shortlisted for an oral test on a later date. During the oral test, an applicant randomly drew one of these topics: constitutional law, commercial law, and labor law, and would have to answer the examiners’ questions on the randomly selected topic.

There is no preparation course provided in Cambodia either by a private company or a law school and thus applicants generally self-study or organize their own study groups to prepare for the bar exam. The bar exam in Cambodia is highly competitive since a quota is set for each exam cycle. For example, the BAKC selected only 50 people out of 720 applicants in the February 2013 exam.

If an applicant passes the bar exam, they must go through academic training for about one year at the LTC and then practical training for another year. (Art. 35.) After completing the training, the applicant may receive the LTC certificate and request the BAKC for admission based on the general requirements above. Admitted lawyers must comply with the Codes of Ethics for Lawyers adopted in 2012, while the BAKC also has its own internal rules.

Direct Admission

There are a few exceptions that allow people to be admitted to the BAKC without taking the bar exam and the LTC training. First, the certificate from the LTC, and thus sitting for the bar exam, is not necessary for Khmer nationals who (1) have received an LL.B. and have been working in the legal or judiciary field (e.g. legal assistant to a lawyer, employee of the legal department of the government) for more than two years; (2) have received an LL.D.; or (3) are registered in another country’s bar. Furthermore, neither the LTC certificate nor the LL.B. is required if the applicant has served as a judge for two years with a law certificate or has served as a judge for five years without any legal education. (Art. 32.) An applicant who is qualified under these exceptions may submit a request to the BAKC for admission. This route, however, is less commonly availed.

Specialized Legal Practice

The admission to the BAKC through either route permits lawyers to practice throughout the country. However, additional certifications are required for acting as agents for their clients before a number of governmental bodies on specialized areas of law, such as trademark law (Prakas No. 045) and corporate law (Prakas No. 258) at the Ministry of Commerce, and tax law at the General Department of Taxation (Prakas No. 455). In contrast, one does not need to be a licensed attorney to get one of these specialized licenses.

Law Firms

As of August 22, 2017, the total number of law firms and offices in Cambodia was 485, with about 80% of them located in Phnom Penh. As of August 2, 2021, Cambodia (about 17 million people) has 1,855 active lawyers registered at the BAKC. Most lawyers remain in the cities, which is one of the reasons that people in rural areas have difficult access to legal services.

Law firms in Cambodia are exempted from the tax registration requirement for commercial firms, and instead must register with the BAKC. Without any tax registration, law firms are not required to report any income or expenses to the tax authorities. A few years ago, there was an attempt to subject law firms to tax registration and obligations like other commercial firms, but such legal requirement has been delayed indefinitely due to controversy.

Magistrates and Other Professions

The requirements to sit for the exams of other legal professions slightly vary from one to another, but they generally have Cambodian nationality, maximum age, noncriminal records, and some legal education (e.g., LL.B.) requirements. (See previous entrance exam announcements for magistracy, notary, and clerkship.) The Royal Academy for Judicial Professions (RAJP) announces the exam dates on a need-based basis. If an applicant passes any of the exams, they need to undertake training at one of the schools under RAJP in the respective profession for about two years. These schools include the Royal School for Magistracy, Royal School for Court Clerks, Royal School for Notary.

Particularly for the magistracy exam, the maximum age requirement is 35 years old (40 if the applicant is a public official), and the minimum education is an LL.B. Like other exams, the applicant must be Cambodian by birth without any criminal record. (Law on the Statutes of Judges and Prosecutors (English translation), art. 19). Generally, the magistracy entrance exam also has essay and oral test components, and only 50 candidates in total are selected annually for both judges and prosecutors. By way of example, the October 2017 exam’s essay component took two full days. Each day had a three-hour essay test in the morning and another in the afternoon, with testing on civil and criminal law (both substantive and procedural). About 620 candidates registered for the exam and only 55 were selected.

All selected candidates have to attend a training course together for about one year, after which they will be randomly appointed as either a judge or a prosecutor in training at a particular court for another year. (Law on the Statues of Judges and Prosecutors, arts. 24 & 83.) In rare cases, the practical training may be extended for one more year based on the candidate’s performance. (Arts. 25 & 84.) After successfully completing the practical training, the candidate will become a fully-appointed junior judge or junior prosecutor, respectively. (Arts. 25 & 84.)

Buddhist Monk with Yellow Umbrella Walking to Cambodian Supreme Court. Photo by Flickr user Amaury Laporte. January 18, 2016. Used under creative commons license, https://creativecommons.org/licenses/by/2.0/.

Women in Law

Female representation in the legal profession remains relatively low. Among all registered lawyers, only 437 are female, making up about 24 percent, while the female population is more than half of the country’s total population. The female representation in the judicial system is lower, with only about 14 percent of all judges being female, according to a 2018 report. The ratio is even smaller in higher courts. There are currently only two female judges in the Supreme Court out of 16 judges and two female judges in the appellate court out of 18 judges.

There are, however, programs intended to improve the number of female legal practitioners in Cambodia. For example, for about 10 years the Raoul Wallenberg Institute (RWI) has been sponsoring female students to enroll in the English Language Based Bachelor of Law program at Royal University of Law and Economics (RULE) with full tuition-fee scholarships. Similarly, Cambodian Legal Education For Women (CLEW) has been supporting young women from rural Cambodia with tuition, dorms, and allowances to study law in English and Khmer at RULE every year since 2010. Some CLEW-sponsored graduates now hold government positions. The Cambodian government also has the National Education for All program, leading to “a decrease in the gender disparity in primary school admission rates.”

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Austria: Government Adopts Immediate Nationwide Lockdown; General COVID-19 Vaccine Mandate to Start February 1, 2022

Source: US Global Legal Monitor

On November 21, 2021, the Austrian government adopted the 5th COVID-19 Emergency Measures Regulation (5. COVID-19-Notmaßnahmenverordnung, 5. COVID-19-NotMV) to prevent the collapse of the health care system in Austria due to the unprecedented rapid increase in COVID-19 cases and the worsening availability of beds in hospital and intensive care units. (5. COVID-19-NotMV § 1; Legal Explanation at 2.) The Main Committee of the National Council (lower house of parliament) approved the regulation the same day. The regulation prohibits people from leaving their home except in enumerated circumstances and makes FFP2 face masks mandatory in most situations. Workplaces where physical contact is unavoidable are subject to the 3G (geimpft, genesen, getestet) rule, meaning they may be entered only by employees and employers who can prove that they are either vaccinated, have recovered from COVID-19, or have had a negative test . (§ 8.) Schools, daycares, and universities remain open subject to special safety rules. (§ 18, para. 1, nos. 1, 2; § 18, para. 2.) The regulation will terminate automatically on December 1, 2021.

The regulation is based on authorizations contained in the COVID-19 Measures Act (COVID-19-Maßnahmengesetz, COVID-19-MG).

In addition, the government announced that starting February 1, 2022, a general COVID-19 vaccine mandate will apply in Austria. Legal experts generally agree that a vaccine mandate would be constitutional. However, the details of such a vaccine mandate, in particular exceptions and enforcement, must still be determined.

Content of the 5th COVID-19 Emergency Measures Regulation

Under the new restrictions, people are prohibited from leaving their home, except to:

  • Avert immediate danger to life, limb, or property.
  • Care for or support vulnerable people or exercise family duties and rights.
  • Meet basic needs of daily life, such as contact with close family, medical appointments, shopping for basic goods, religious practice, and pet care.
  • Fulfill work responsibilities, if necessary.
  • Spend time outdoors alone, with members from the same household, or with close family members for physical recreation and mental recovery.
  • Go to administrative or court hearings that cannot be delayed.
  • Vote.
  • Enter certain customer service areas.
  • Enter certain areas in nursing homes or housing facilities for the disabled for a maximum of two visitors per person a day subject to the 2G rule (vaccinated or recovered) and proof of a negative test.
  • Participate in specified gatherings, such as funerals or protests. (§ 3.)

In addition, FFP2 masks must be worn at all times by people six years and older in indoor public places, on public transportation, in waiting areas for public transportation, in airports, and when carpooling with non-household members. (5. COVID-19-NotMV §§ 4–6.)

Telework is strongly encouraged, if possible. FFP2 masks are mandatory at work if physical contact is unavoidable or if no other protective measures, such as protective partitions, are in place. Workplaces where physical contact is unavoidable are subject to the 3G rule. (§ 8.)

Services that require close contact, such as hair styling, are prohibited. Other services, such as veterinary services, are allowed only if the person using the service is either vaccinated or has recovered from COVID-19 (2G rule). (§ 7.)

The regulation makes various exceptions for pregnant women. (§ 18.)

COVID-19 Vaccination and Infection Numbers in Austria

As of November 21, 2021, 78.87% of the eligible Austrian population had been vaccinated at least once, whereas 74.62% had been fully vaccinated. As of November 22, 2021, there were 176,756 active COVID-19 cases, 11,645 individuals had died, and 879,454 people had recovered.