On October 22, 2024, the U.S. Court of Appeals for the 11^th Circuit set aside judgments against American cruise ship companies for claimed violations of the Helms-Burton Act arising from their use of port facilities in Cuba. That statute provides a private cause of action against anyone who “traffics” in “property which was confiscated by the Cuban Government.” The Court ruled that because the plaintiff-appellee’s confiscated property interest was a 99-year usufructuary concession that would have expired in 2004, the cruise lines’ use of the property in 2016-2019 did not give rise to a claim for trafficking in confiscated property. (Havana Docks Corp. v. Royal Caribbean Cruises, Ltd., No. 23-10151.)

Background

After coming to power in 1959, the Cuban government under Fidel Castro began nationalizing property interests held by American companies. The U.S. government responded with federal legislation, the Cuban Claims Act of 1964, authorizing claims against the seized properties. Many claims were certified under the law, but the U.S. and Cuban governments have not settled these claims. (Decision at 13-14.)

Plaintiff-appellee Havana Docks Corp. held a 99-year concession that granted the company a usufruct in certain public spaces in and around port facilities in Havana. The concession was set to run from 1905 to 2004, at which time the concession would have expired and the property would have reverted to Cuba. (Decision at 11.)

In 1960, the Castro regime forcibly confiscated and took possession of the port facilities without compensation to Havana Docks. The company filed a claim under the Cuban Claims Act. The U.S. Foreign Claims Settlement Commission, which was authorized to gather information for an eventual negotiation on claims of confiscated properties in Cuba, certified Havana Docks’ claim and assessed the loss at over $9 million, before interest. (Decision at 15.)

The Cuban Liberty and Democratic Solidarity (LIBERTAD) Act, more commonly known as the Helms-Burton Act, provides a private cause of action for U.S. nationals against anyone who “traffics” in property confiscated by the Cuban government. In this litigation, Havana Docks claimed they were entitled to damages from the cruise lines because they trafficked in their confiscated property. The district court found that the cruise lines had engaged in such trafficking and awarded a judgment to Havana Docks. The cruise lines appealed.

Discussion and Holding

The court noted that the case raised a difficult issue of first impression. (Decision at 17.) The court said the way to interpret the Helms-Burton Act cause of action was to “view the property interest at issue . . . as if there had been no expropriation and then determine whether the alleged conduct constituted trafficking in that interest.” (Decision at 21.) The court thus framed the question as turning on whether but for the confiscation, Havana Docks would have had a property interest on the port facilities during the cruise lines’ use of them during 2016-2019. (Decision at 23.)

Addressing the nature of Havana Docks’ property interest, the court quoted Thompson on Real Property to define a “usufructuary concession” as “a personal servitude granting the right to use another’s property and take its ‘fruits’ or profits.” (Decision at 24.) This usufructuary concession gave Havana Docks an interest in property owned by the Cuban government that expired in 2004.

Quoting Buzz Lightyear, the court said Congress did not intend in the Helms-Burton Act to convert property interests that were temporally limited into interests in perpetuity to allow trafficking claims to be asserted through “infinity and beyond.” (Decision at 23.) The court noted the property interest would have expired in 2004 regardless of the Cuban Government’s taking of the facilities. (Decision at 23-24.) It observed that while Havana Docks has a certified claim against the Cuban government under the Cuban Claims Act, “the certified claim is not a means for expanding the nature of a limited property interest” for purposes of the cause of action under the Helms-Burton Act. (Decision at 26.)

Conclusion

While the court held that Havana Docks’ 2016-2019 claims do not satisfy the Helms-Burton Act, it noted its ruling does not preclude claims based on activities during 1996-2001. The Court agreed with both parties that the case should be remanded to the district court for further consideration of those claims. (Decision at 29.)

Louis Myers, Law Library of Congress
November 5, 2024

Read more Global Legal Monitor articles.

On August 19, 2024, the Philippines and the United States governments announced they have reached an agreement on allowing a limited number of Afghan nationals to travel to the Philippines and stay there temporarily in order to complete procedures to obtain Special Immigrant Visas (SIVs) and ultimately migrate to the U.S.

Background

Philippine authorities said the U.S. proposed this arrangement to provide SIVs for Afghans and their families who worked for the U.S. government while it conducted military operations in Afghanistan between 2001 and August 2021, when U.S. forces left the country.

Subsequently, the U.S. government launched a program to help certain groups of Afghan nationals to migrate to the United States, including those who worked with U.S. personnel during this period. It is known as “Operation Enduring Welcome”  because the commitment does not have an end date. The program utilizes standard immigrant visas, Afghan SIVs, and the refugee admissions program to grant the new arrivals long-term immigration status.

Key Features of the Agreement

Under the agreement, applicants must be medically screened in Afghanistan, undergo security vetting by Philippine authorities, and obtain appropriate entry visas pursuant to its applicable laws and regulations before arriving in the Philippines.

Thereafter, the Philippines Bureau of Immigration has the authority to deny entry to any applicant in cases where applicable immigration examinations conducted at arrival so require.

Applicants will be authorized to stay in the Philippines for up to 59 days and will reside temporarily at a facility dedicated to Afghan relocation efforts.

The U.S. government has committed to ensuring that applicants have adequate educational and social support during their stay in this facility, in collaboration with the International Organization for Migration, which will serve as the facility manager.

The U.S. government will cover living expenses of the Afghans while in the Philippines, including housing, food, safety, transportation, and medical costs.

Status of the Agreement

According to the Philippine News Agency, an online news service of the Philippine government, the agreement must be ratified by Philippines President Ferdinand Marcos Jr. before it becomes effective. As of November 1, 2024, no information could be found on whether ratification had occured.

Gustavo Guerra, Law Library of Congress
November 4, 2024

Read more Global Legal Monitor articles.

On November 1, 2024, the revised Emergency Response Law of the People’s Republic of China took effect. The law was originally enacted in 2007 and revised by the Standing Committee of the National People’s Congress on June 28, 2024.

The revision to the Emergency Response Law was prompted by new challenges that have arisen in recent years in China’s emergency management, especially during the COVID-19 pandemic. According to an explanation made in 2021 by China’s then-Minister of Justice regarding the revision, these challenges include inefficiencies in the reporting and dissemination of information, unclear protections for safeguarding the legitimate rights of individuals and organizations, and gaps in the emergency support system with respect to the provision of essential resources. The updated law aims to address these issues and strengthen the overall management and response mechanisms for future emergencies.

Information Reporting and Dissemination Mechanisms

The 2024 revision of the Emergency Response Law strengthens the management of emergency information. Unlike the 2007 law, which required prompt release of emergency decisions (2007 Law art. 10), the new law creates a comprehensive national system to ensure timely, accurate information dissemination, preventing misinformation that could threaten social stability. It prohibits fabricating or spreading false information and requires the government to issue clarifications when such misinformation is detected. (Art. 7.) It also enforces government accountability, requiring immediate verification of emergency reports and swift referrals if when verification must occur outside an agency’s jurisdiction (art. 60), while prohibiting delays, falsification, or interference in reporting, including directing or organizing others to do so (art. 61).

The new law regulates media conduct by establishing a structured approach to news reporting. The government will “guide and support” media outlets in providing “timely, accurate, objective, and impartial” coverage, while media organizations are required to run public service campaigns to educate the public on emergency laws, prevention, response, and self-rescue techniques. (Art. 8.) Additionally, the law introduces a platform for release of early warning information through various channels, including broadcast, television, print, online platforms, and telecommunications providers, all free of charge. (Art. 65.)

Safeguards for Personal Rights

The new law requires emergency measures to match the threat’s nature and severity, and where multiple options are available, to prioritize those that best protect individuals, organizations, and the environment with minimal harm, adjusting them as conditions evolve for accuracy and effectiveness. (Art. 10.) Additionally, it prioritizes the protection of vulnerable groups, including minors, the elderly, persons with disabilities, pregnant and nursing women, and those in urgent need of medical care (art. 11), ensuring their rights and needs are safeguarded during emergencies.

The new law introduces several provisions on personal data protection, addressing concerns over the excessive use of health codes during the pandemic. Government may request necessary information for emergency response, but only within legal limits, ensuring confidentiality. Authorities must also safeguard citizens’ communication freedom and privacy of correspondence. (Art. 83.) Entities involved in emergency efforts must follow legal procedures when accessing personal data and ensure its security. These entities are prohibited from illegally collecting, using, disclosing, or selling such information. (Art. 84.) Personal data collected for emergencies can only be used for that specific purpose and must be destroyed afterward, unless legally required for retention. In such cases, authorities must ensure legality, necessity, and data security. (Art. 85.)

Management and Allocation of Funds and Resources

The new law introduces measures to improve the management and allocation of emergency funds and resources, aiming to enhance transparency and prevent misuse. It strengthens financing mechanisms by requiring local governments to include emergency response expenditures in their annual budgets and manage these funds efficiently. (Art. 44.) It emphasizes financial oversight during emergencies and prohibits unauthorized withholding, misappropriation, or private use of emergency resources. (Art. 54.) It also increases transparency in handling donations, with organizations required to publicly disclose how funds are received, used, and managed, subject to public oversight. (Art. 52.) Additionally, it mandates auditing and supervision of emergency funds and materials to ensure legality, necessity, and compliance with regulations (art. 93), providing an extra layer of accountability.

Prepared by Jingjing Gao, Law Library Intern, under the supervision of Laney Zhang, Foreign Law Specialist

November 1, 2024

Read more Global Legal Monitor articles.

On August 9, 2024, the National Committee for Setting the Minimum Wage (the Committee) issued Notification No. 1/2024, which amends the minimum wage rate for workers. Notification No.1/2024 granted an additional daily allowance of Myanmar kyat (MMK) 1000 (US$0.48), in addition to setting a new minimum wage rate of MMK 6,800 (US$3.24) for an eight-hour workday, effective August 1, 2024. The notification exempts small and family-owned businesses with fewer than ten workers.

Background

The  Minimum Wage Law 2013 (2013 MWL) established the National Committee for Setting the Minimum Wage, which is made up of representatives from government, employers, and labor. (2013 MWL, Sec. 2(H).) The committee determines the minimum wage following negotiations with representatives from various sectors. (Sec. 10 (D).)

The 2013 MWL provides that the minimum wage rate shall be reviewed at least every two years. (Sec. 5(H.) When determining the minimum wage, the Committee must consider various factors including the needs of workers and their families, existing salaries, living costs, employment opportunities, the economy, health hazards, and other relevant facts as approved by the Ministry of Labor, Employment, and Social Security and the Union Government. (Sec. 7.)

In August 2015, the Committee issued Notification 2/2015, which announced a general minimum wage of 3,600 MMK (US$1.72) for an eight-hour workday. That notification exempted small enterprises and family-owned and self-managed enterprises with 15 or fewer employees.

In May 2018, the Committee issued Notification 2/2018, which increased the minimum wage to MMK 4,800 (US$2.29) for an eight-hour workday. Small and family-owned self-managed enterprises with 10 or fewer employees were exempted.

After 5 years without any changes, in October 2023, the Committee issued Notification No. 2/2023. Notification No.2/2023 introduced an additional daily allowance of MMK 1,000 that was added to the minimum daily wage of MMK 4,800 for an eight-hour workday. This adjustment was not applicable to businesses with 10 or fewer workers.

Notification 1/2024 stipulates that effective August 1, 2024, workers will receive an additional allowance of K1,000 in addition to the K1,000 allowance granted by Notification No. 2/2023, applicable on working days, public holidays, and paid leave. 

Prepared by CH Seng Myaw, Foreign Law Intern, under the supervision of Sayuri Umeda, Foreign Law Specialist

Law Library of Congress, October 31, 2024

Read more Global Legal Monitor articles.

On October 4, 2024, the Court of Justice of the European Union (CJEU)  ruled that aspects of the Fédération Internationale de Football Association’s (FIFA’s) Regulations on the Status and Transfer of Players (RSTP) are contrary to European Union (EU) law, particularly in relation to the free movement of workers and competition law. (Fédération Internationale de Football Association (FIFA) v. Diarra (C-650/22).)

Background

The ruling echoes concerns previously highlighted in the 1995 Bosman case (C-415/93) regarding the compatibility of soccer’s regulatory frameworks with EU law. That was the first case in which the CJEU ruled that professional soccer associations in the EU must comply with European law and respect players’ rights as employees. The practice of requiring transfer payments for a player even after the end of their contract with the former club, as well as restrictions on the number of foreign players from other EU countries in certain leagues, were abolished following the ruling.

Case Overview

The current case arose following a contractual dispute between Lassana Diarra, a French soccer player, and the Russian soccer club Lokomotiv Moscow. After Diarra unilaterally terminated his contract with the club, he sought to transfer to another club in Belgium. However, FIFA’s RSTP presented substantial legal barriers to this transfer, in particular because they imposed liabilities on the new club in cases of unresolved disputes with the former employer. Diarra challenged these provisions in a Belgian court, arguing that they restricted his ability to move freely and secure new employment, thereby infringing upon his rights under article 45 of the Treaty on the Functioning of the European Union (TFEU). He further contended that FIFA’s regulations violated article 101 of the TFEU, which prohibits agreements that restrict competition. The Court of Appeals in Mons, Belgium, referred the case to the CJEU, requesting a preliminary ruling on the compatibility of the FIFA regulations with EU law.

Key Legal Findings

The court ruled that the current transfer system under FIFA’s RSTP violates both the right to free movement of workers under article 45 and the prohibition of competition-restricting agreements under article 101. While the CJEU acknowledged that FIFA, as a regulatory body, has a legitimate interest in maintaining stability within soccer competitions and ensuring contractual stability, it emphasized that any such regulatory measures must adhere to the principles of proportionality and transparency. (Decision, paras. 76-85.) It held that FIFA’s transfer regulations, as applied in Diarra’s case, created substantial barriers to the free movement of workers guaranteed under article 45. (Paras. 86–114.) Measured against the legitimate aim of maintaining the integrity of soccer competitions, it found the provisions in question to be disproportionate. (Paras. 100, 113.) Specifically, the court determined that the rules governing the unilateral termination of contracts and the corresponding compensation mechanisms disproportionately favored clubs by imposing significant financial risks on new employers, thereby deterring clubs from signing players involved in contractual disputes. (Paras. 107-110.)

Furthermore, the court criticized the lack of legal certainty in the regulatory framework, particularly regarding the definition of terms such as “just cause” for contract termination. (Paras. 105, 106.) The indeterminate nature of these terms, the court ruled, allows for arbitrary and inconsistent application, further restricting the free movement of players within the EU labor market.

The judgment also addressed the compatibility of FIFA’s transfer regulations with EU competition law under article 101 of the TFEU. (Paras. 115-158.) Article 101 provides that agreements or decisions that may affect trade between EU member states and have as their object or effect the prevention, restriction, or distortion of competition within the internal market are prohibited. The court found that the transfer system operated as a “restriction of competition by object” by creating disincentives for clubs to engage in the hiring of players with unresolved disputes, thus functioning as a form of market partitioning. (Para. 148.) By reducing the pool of potential employers for such players, the regulations restricted the competitive dynamics of the labor market in soccer, in violation of article 101 para. 1.

In general, the court criticized the current system for being overly complex and unpredictable. It stressed that rules governing the movement of players must not impose burdens that exceed what is necessary to achieve legitimate regulatory objectives. (Para. 95.)

Similar Developments in U.S. Sports Law

In 2021, the U.S. Supreme Court addressed the rules of a sport’s governing body when it issued its ruling in National Collegiate Athletic Association (NCAA) v. Alston. The court held that the NCAA’s restrictions on education-related benefits for student-athletes violated antitrust laws, emphasizing that the NCAA cannot limit the financial aid schools can provide to athletes for academic-related expenses.

Prepared by Maximilian Spitzley, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, October 30, 2024

Read more Global Legal Monitor articles.

On October 2, 2024, the French Court of Cassation issued two rulings identifying criteria for the recognition of foreign gestational surrogacy judgments. The decisions provide greater legal certainty for families formed through international surrogacy.

In France, gestational surrogacy (gestation pour autrui, GPA) was banned by Law No. 94-653 of July 29, 1994, on Respect for the Human Body. That law introduced a new article 16-7 into the Civil Code stating that “any agreement concerning procreation or gestation for the benefit of another person is null and void.” The French Bioethics Act of 2021 and the debates that accompanied it did not call this prohibition into question.

Despite this policy against surrogacy in France’s domestic law, the question of recognition under French law of foreign judgments concerning children born abroad through GPA has evolved in recent years.

In two rulings handed down on October 2, 2024, n° 22-20.8831 (Case 1) and n° 23-50.002 (Case 2), the Court of Cassation ruled on the exequatur procedure for foreign judgments establishing the filiation of a child born of GPA. The purpose of exequatur is to make a foreign decision enforceable in France.

In both cases, male couples living in France had travelled abroad (to Canada in Case 1 and to California in Case 2) to arrange a GPA. In each jurisdiction, a court decision declared the two men to be the legal fathers of the children. The couples then applied to the French courts for the exequatur of these judgments.

Case 1

In Case 1, the couple had asked for the Canadian decision to be recognized by France, so that the child could obtain a French civil status certificate recognizing them as the parents. The Court of Appeal refused exequatur, finding that the Canadian judgment was not sufficiently reasoned and was therefore contrary to French international public order. The couple appealed to the Court of Cassation. The court addressed the question of what control a French judge should exercise when asked to exequatur a foreign court decision establishing the filiation of a child born through GPA abroad, and what degree of reasoning is expected from the foreign judgment.

The Court of Cassation stated in its decision that to be recognized in France, and thus enable the child to obtain a French civil status record, a foreign judgment establishing filiation based on a GPA contract must

• • have been handed down by a competent judge,
  • not have been obtained by fraud, and
  • comply with French public order in international matters.

In addition, the court listed the following elements that must be included for a foreign court ruling on a GPA contract to be recognized in France:

• • Clear Identification of Parties: The foreign judgment must clearly identify the status of all individuals involved in the surrogacy arrangement.
  • Consent Verification: There must be evidence that all parties, particularly the surrogate mother, provided informed consent to the agreement, including its conditions and effects.
  • Parental Rights Waiver: The decision should explicitly state the consent of relevant parties to waive potential parental rights.
  • Best Interests of the Child: The foreign court must demonstrate that it has considered the best interests of the child, in accordance with Article 3 § 1 of the 1989 UN Convention on the Rights of the Child.
  • Respect for Private Life: The judgment should reflect consideration of the rights of all involved parties to respect for their private life, as guaranteed by Article 8 of the European Convention on Human Rights.

In this case, the Court of Cassation found that the Court of Appeal was correct to find the Canadian judgment deficient, because it did not specify the status of the persons involved in the GPA and did not include their consent to waive their parental rights. It agreed that the judgment was contrary to French international public order. It therefore dismissed the appeal.

Case 2

Case 2 involved a California judgment that declared the intended parents of a child born through surrogacy in California to be the child’s legal parents. California law provides for two types of procedures as means to establish a parent-child relationship: surrogacy or adoption. The Paris Court of Appeal determined that a judgment that established parental rights through surrogacy and that had been granted exequatur by a court of the first instance in France produced the effects of a full adoption for purposes of French law, even though the California adoption procedure was not used.

The Court of Cassation ruled that when a foreign judgment establishing the filiation of a child born from surrogacy is granted exequatur, this filiation is recognized in France and produces the legal effects attached to it according to the foreign law in question. In other words, when exequatur is granted, France must recognize the filiation while respecting the specific nature of the foreign law regarding filiation. However, since the California judgment that was granted exequatur was not based on an adoption procedure, the Court of Cassation overturned the Paris Court of Appeal’s decision that the foreign ruling would produce the effects of a full adoption in France.

Putting the two Court of Cassation rulings together, if a foreign judgment establishing filiation reflects the guarantees listed in Case 1, the filiation must be recognized in France, respecting the specific nature of filiation under the foreign law, as indicated in Case 2. The decisions thus provide a path for families formed through international surrogacy to establish parent-child filiation recognized under French law.

Louis Gilbert, Law Library of Congress
October 29, 2024

Read more Global Legal Monitor articles.

On August 20, 2024, Jordan’s Cabinet approved proposed amendments to Law No. 8 of 1996 on the Labor Code and referred them to the Legislation and Opinion Bureau. The new amendments would provide protection to pregnant women in the workplace and regulate work permits of foreign nationals, the renewal of fixed term labor contracts, and the dismissal of workers.

The Legislation and Opinion Bureau is responsible for evaluating the proposed amendments, putting them into draft legislation, and ensuring that they are consistent with the Jordanian constitution. The Minister of Labor explained that once the Bureau studies the new amendments and puts them into a draft law, it will send the draft law to the Cabinet for review. After the Cabinet gives its approval, it will refer the draft law to the House of Representatives and the Senate for consideration.

Content of the Proposed Amendments

The proposed amendments would encourage women to join the workforce by increasing the limit of maternity leave from 10 weeks to 12 weeks. The amendments would also protect the jobs of pregnant women by prohibiting private and public employers from terminating them.

Regarding foreign employees, the amendments would require that foreign nationals, including those who obtained a license to practice a certain profession in Jordan, obtain a work permit before they can seek employment in the country.

The amendments would also regulate the employer-employee relationship under fixed-term labor contracts. The current law provides that if a fixed-term employment contract is renewed after its term has expired, it is treated as an open-ended labor contract. (Law No. 8 of 1996, art. 15 (3).) The amendments would cancel this provision and require that fixed-term contracts be renewed with a specified end period.

Additionally, the Minister of Labor has stated that the amendments would mandate the issuance of a new labor regulation regarding the circumstances under which the dismissal of a worker is considered arbitrary, and mandating benefits to which a worker would be entitled in the event of arbitrary dismissal.

Lastly, the proposed amendments would add a new provision regulating the authority of private employers to terminate labor contracts. They would authorize private employers to terminate no more than 15% of their workforce without advance approval of the Ministry of Labor. The private employer would be obligated to notify the Ministry of Labor of such terminations. For terminations above that threshold, employers would need prior approval from the Ministry of Labor.

Reactions to the Proposed Amendments

The head of the General Federation of Jordanian Trade Unions, Khaled Al-Fanatseh, said the proposed amendments to the Labor Code are positive, but that any proposed changes weakening the rules governing dismissal of workers would infringe upon workers’ rights, threaten their interests, and jeopardize the stability of the business environment.

George Sadek, Law Library of Congress
October 28, 2024

Read more Global Legal Monitor articles.

On September 30, 2024, the European Artificial Intelligence Office (AI Office) held a plenary meeting with nearly 1000 participants to kick off the process of creating a Code of Practice for general-purpose Artificial Intelligence (GPAI).

The European Commission established the AI Office on May 28, 2024, to “enabl[e] the future development, deployment and use of AI in a way that fosters societal and economic benefits and innovation, while mitigating risks.”

The European Union’s (EU’s) AI Act authorizes the AI Office to “encourage and facilitate the drawing up of codes of practice at Union level.” (A.I. Act art. 56.) Codes of practice should identify risk assessment and mitigation measures and serve as a compliance tool for AI providers to meet their legal obligations. (Recitals 116, 117.) The Codes of practice must be finalized by May 2, 2025. (Art. 56, para. 9.)

The consultation meeting followed a July 30, 2024, Call for Expression of Interest by the AI Office. The Commission received around 430 submissions. The plenary consisted of four working groups led by chairs and vice-chairs from diverse backgrounds in computer science, AI governance, and law.

The plenary meeting was the first such meeting in an iterative drafting process to ensure that the Code of Practice on GPAI aligns with the regulations of the AI Act. Key areas of focus include establishing clear guidelines for transparency in the operation and outputs of GPAI and addressing copyright considerations related to the content these models generate. Additionally, a taxonomy is being developed to categorize systemic risks associated with AI technologies, alongside measures for risk assessment and mitigation to ensure ethical concerns are addressed and the technology remains trustworthy.

The AI Act will be generally applicable starting August 2, 2026. (Art. 113.) However, specific provisions, including those on high-risk AI, GPAI, governance, and penalties, will come into force August 2, 2025. (Art. 113(b).)

Definition of General-Purpose Artificial Intelligence

The AI Act describes a “general-purpose AI model” as an AI system that is trained on extensive data using a self-supervised method. This type of model is versatile and can perform many different tasks, regardless of how it’s sold or used in other systems or applications. (Art. 3, paras. 1, 12.) The Commission can decide if a general-purpose AI model poses a systemic risk based on specific criteria, such as the quality and amount of training data, how many users it has, its level of autonomy, and its scalability. (Art. 6.)

Models that are used for the sole purpose of research, development, or testing before they are sold do not fall under this definition and are not subject to the AI Act’s rules.

Code of Practice

The Code of Practice is a tool to bridge the interim period between the time the obligations for GPAI model providers enter into force and the eventual adoption of harmonized European GPAI model standards for compliance with the AI Act. (Art. 1, para. 2.) The interim period lasts from February 2025 to August 2, 2027. (Recital 179, art. 113.) It will be informed by international standards, such as the Hiroshima Process Code of Conduct.

The AI Office and AI Office Board will review and assess the proposals made by the plenary, with the Commission potentially approving it for EU-wide application. (Art. 6, paras. 5, 6, art. 97, art. 98.) They will use the plenary’s results to develop a template and guidance, setting the framework and minimum details required for summaries about the data used in model training.

General Obligations

Article 56 of the AI Act reinforces that the Code of Practice will provide a transitional compliance framework. While it is not legally binding, GPAI model providers that comply with its provisions will be presumed to conform with their obligations specified in articles 53 and 55 AI Act until the official standards are enacted.

These obligations include providing technical documentation to the AI Office and national authorities; sharing relevant information with downstream providers integrating their models into AI systems, such as capabilities and limitations; disclosing summaries of the training data used; and implementing policies that adhere to existing EU copyright law. (Recital 101; arts. 53, 55.)

For GPAI models classified as posing systemic risks, there are additional requirements. These include conducting advanced model evaluations, performing risk assessments and mitigation strategies, reporting serious incidents along with corrective actions, and ensuring robust cybersecurity protection. (Recitals 66, 71, 155; arts. 55, 57.)

Providers who do not comply with the Code of Practice will need to demonstrate their compliance to the Commission through alternative means. (Art. 53, para. 4, art. 55 para. 2.)

Prepared by Ivana Hristova, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, October 25, 2024

Read more Global Legal Monitor articles.

On October 16, 2024, the Swiss government decided to adopt an ordinance permitting courts to conduct civil proceedings through video and telephone conferencing.

The Federal Council reviewed the results of the consultation on the “Ordinance on the Use of Electronic Means for Audio and Video Transmission in Civil Proceedings” (Verordnung über den Einsatz elektronischer Mittel zur Ton- und Bildübertragung in Zivilverfahren, VEMZ) and determined it should go into effect January 1, 2025. The ordinance is part of a comprehensive revision of the regulations governing civil proceedings in Switzerland, and it specifies the technical requirements and data security and privacy standards that must be adhered to when using video and telephone conferencing in civil matters.

Background

On January 1, 2025, a revised Swiss Code of Civil Procedure (Zivilprozessordnung, ZPO) will come into effect. As part of this revision, the Federal Council is responsible for establishing the technical standards required for the use of electronic means for audio and video transmission in civil proceedings. (ZPO, arts. 141a, 141b (new).)  

The publication of a draft of the VEMZ was followed by an extensive consultation period (Vernehmlassungsverfahren), with participation from the Swiss cantons (states), political parties, and other interested organizations. While most participants generally favored the draft ordinance, the Federal Council was asked to strengthen the draft with respect to data security and privacy protection. Since civil proceedings often involve sensitive data, participants thought it important to ensure that unauthorized persons cannot observe or record the transmission of data during electronic proceedings.

Content of the Ordinance

The ordinance establishes that courts may use video or telephone conferencing for all parts of a civil proceeding, including expert testimony, party interrogations, or the submission of evidence. The VEMZ details the infrastructure that courts and participants must have to conduct or participate in a video or telephone conference. (Art. 2.) For instance, the software utilized must enable the court and participants to securely share and present documents with one another. It also defines measures that courts may take to ensure orderly proceedings during video conferences, such as ensuring that the microphones of public attendees remain muted.

To guarantee sufficient privacy and data security, the ordinance outlines the requirements for the transmission of audio and video, as well as how data must be handled during and after the transmission. It mandates that systems used for these purposes must be configured to meet these security standards. (Art. 3 para. 1.) Additionally, the Federal Council has restricted the selection of service providers for audio and video transmission systems or servers involved in these processes. The servers used and the service providers must be located, domiciled, or headquartered in Switzerland or a member state of the European Union. (Art. 3 para. 2.)

The court must ensure the required privacy of the proceedings and prevent unauthorized third parties from gaining access to the conferences or following the proceedings. (Art. 5.) Audio and video recordings may only be made by the court or by third parties specifically authorized by the court, who must adhere to stringent conditions, including prohibitions on using the data for their own purposes, sharing it with anyone other than the court, and destroying the recordings once the court confirms receipt. (Art. 10.)

Related Developments

Switzerland’s new regulations align with similar developments in other European countries. Since the COVID-19 pandemic, the use of video conferencing in civil proceedings has gained widespread acceptance. While the use of video conferencing has been legally permissible in Germany since 2012, a recent legislative proposal by the Federal Ministry of Justice seeks to expand its potential applications.

Prepared by Maximilian Spitzley, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, October 24, 2024

Read more Global Legal Monitor articles.

On October 6, 2024, The Ministry of Finance in the United Arab Emirates announced that the Council of Ministers approved an amendment to the executive regulation of Federal Decree- Law No. 8 of 2017 on Value-Added Tax (VAT). The Minister of Finance said the purpose of the amendment is to minimize misunderstandings and incorrect applications of the law.

The amendment specifies that various financial activities are exempt from VAT, including investment fund management services, virtual assets investments, and in-kind donations issued by government entities to charitable organizations for values up to Dh5 million ($1.36 million) over a 12-month period.

Decree-Law No. 8 of 2017 

Decree-Law No. 8 of 2017 entered into force January 1, 2018. It imposes a 5% VAT on transactions involving goods and services other than those specifically excluded from the tax.

There are two categories of businesses relieved of the 5% VAT—those that are zero-rated and those that are exempted. Zero-rated businesses are required to register for VAT, but the payments are returned at the end of the year. Exempted businesses do not pay VAT and thus are not required to register.

Decree-Law No. 8 of 2017 provides that businesses engaged in the following activities are zero-rated: 1) export of goods and services outside Gulf countries; 2) transfer of passengers through UAE airports; 3) import of materials to erect buildings that are specifically designed to be used by charitable organizations; 4) provision of educational services and goods for nurseries and for preschool, elementary education, and higher educational institutions owned or funded by the Federal or local government; and 5) supplying preventive and basic healthcare services. (Art. 45.)

The law identifies exempted activities to include 1) financial services, 2) sale and lease transactions involving residential buildings, 3) the sale of vacant plots of land, and 4) domestic passenger transport services. (Art. 46.)

George Sadek, Law Library of Congress
October 23, 2024

Read more Global Legal Monitor articles.

On September 16, 2024, the Turkish Competition Authority (TCA) published its draft Guidelines on Competition Law Violations in Labor Markets (draft Guidelines) for public comment. The comment period ended September 27, 2024.

The draft Guidelines provide guidance on the application of articles 4 through 7 of the Law on the Protection of Competition (LPC) to employment-related agreements and business practices that might restrict competition in labor markets.

Application of LPC Article 4: Anti-Competitive Coordinated Behavior in Labor Markets

Article 4 of the LPC prohibits agreements and concerted practices between businesses, as well as decisions or practices of business associations, that are intended to or likely will prevent, restrict, or distort competition. The draft Guidelines state that, as a rule, wage-fixing agreements (where employers agree to limit employee salaries) and no-poaching agreements (in which competing employers agree not to hire each other’s employees) will be considered by the TCA to violate article 4. 

The draft Guidelines detail the approach of the TCA to employment-related information sharing between employers. Information sharing for the purposes of restricting competition in labor markets will be considered to violate article 4 regardless of its actual effect. Sharing between employers of non-public information on the labor market that is not aggregated, is current or forward looking, and is presented in a way that makes it possible to determine the source of the data or the individual content of the data may be considered to have competition-restricting effect.

However, the draft Guidelines provide that employment-related “ancillary restraints” will not be prohibited under article 4. Ancillary restraints are restrictions directly relevant to a legitimate agreement that are necessary and proportionate to the agreement’s objectives, whose intent or effect is not to restrict competition. The draft gives an overview of how restrictions may qualify as “directly relevant,” “necessary,” and “proportionate” such that they could be considered a permissible ancillary restraint.

Application of LPC Article 5: Exceptions to Article 4 Prohibitions

Article 5 of the LPC provides that agreements, concerted practices, and decisions of business associations will be exempt from the prohibitions of article 4 if improvements in the production or distribution of goods or the provision of services are achieved, the consumer benefits therefrom, competition is not eliminated in a significant part of the relevant market, and competition is not restricted more than is necessary. The draft Guidelines emphasize, however, that wage-fixing agreements, no-poach agreements, and information-sharing between businesses with the intent to restrict competition will, as a rule, not be exempted under article 5.

Application of LPC Article 6: Abuse of Dominant Position

Article 6 of the LPC prohibits a business from abusing its dominant position in a market for goods or services. Regarding the application of article 6 to employment-related conduct of businesses, the draft Guidelines explain that abuse of a dominant position in the context of employment can take two forms. First, a business that is dominant in a labor market may engage in conduct that restricts labor mobility. Second, the exclusionary conduct of a business that is dominant in a goods or services market may have adverse effects on the relevant labor market.

Application of LPC Article 7: Anti-Competitive Mergers and Acquisitions

Article 7 of the LPC prohibits mergers and acquisitions that would create a dominant position, or strengthen an existing dominant position, and significantly lessen effective competition in the relevant market. The draft Guidelines explain that in determining whether a merger or acquisition would significantly lessen effective competition in labor markets, the TCA will assess criteria such as the shares of the transaction parties in the relevant labor market, the level of concentration of the market, the closeness of the qualifications of the employees employed by the transaction parties, the barriers to entry into the relevant product market, the organization of labor suppliers in the relevant labor market, the costs of changing workplaces, the possibilities of the competitors of the transaction parties to increase capacity utilization or make new investments, potential competitive pressure, whether the transaction increases the possibilities of cooperation between competitors operating in the relevant labor market, and whether the transaction carries the possibility of being a “killer acquisition” that wipes out future competition.

Non-Compete Agreements

The draft Guidelines do not discuss the treatment of non-compete agreements under the LPC other than noting that “provisions that prevent or make it difficult for employees to provide services to other employers through legal instruments, such as non-compete agreements, also restrict employee mobility.” In Turkish law, non-compete agreements are specifically allowed under Articles 444-447 of the Turkish Code of Obligations, which subject their enforceability to certain limits on their substance and temporal and geographic scope, and empower courts to limit the enforcement of oppressive non-competes on the basis of equity.

Prepared by Zeynep Timocin Cantekin, Legal Research Fellow, under the supervision of Hanibal Goitom, Chief, Foreign, Comparative, and International Law Division I

Law Library of Congress, October 22, 2024

Read more Global Legal Monitor articles.

On October 7, 2024, the Legal Venue Strengthening Act (Justizstandort-Stärkungsgesetz) was signed into law. It amends the Courts Constitution Act (Gerichtsverfassungsgesetz, GVG) and the Code of Civil Procedure (Zivilprozessordnung, ZPO). The act establishes commercial courts and permits the use of English as a court language in some civil law proceedings. The act was published in the Federal Law Gazette October 10, and will enter into force April 1, 2025.

Background

The government’s proposed legislation introduced in October 2023 remained largely unchanged during the legislative process. The government’s legislative proposal sought to address a decrease in new cases filed with district and regional courts. The decrease was partly attributed to a lack of modern procedural options for handling major commercial disputes involving companies from foreign countries and a limited capacity to handle cases in foreign languages. (Explanatory memorandum, at 1.) The government’s draft legislation proposed establishing commercial courts and chambers specializing in high-value commercial disputes and authorized to conduct proceedings in English.

Main Features of the Legal Venue Strengthening Act

The Legal Venue Strengthening Act authorizes state governments to create one or more chambers (called “senates”) at higher regional courts and designate them as “commercial courts.” The state governments can also designate existing chambers at regional courts as “commercial chambers.” While German remains the standard court language in civil law cases, proceedings in front of the commercial courts or chambers may be conducted in English. (GVG, §§ 184, 184a, para. 1 (new).)

Value Threshold for Commercial Courts Lowered to 500,000 Euros

While the original proposal set the value threshold for access to these courts at 1 million euros (about US$1.1 million), the final act lowers it to 500,000 euros. (GVG §119b, para. 1, sentence 1 (new).) This change aims to secure the commercial courts’ jurisdiction for an adequate number of cases. The Federal Court of Justice (Bundesgerichtshof, BGH) is established as the court of appeals for cases from the commercial tribunals. A suggestion to forego the value threshold entirely was rejected, reasoning that this might lead to an excess of cases reaching the Federal Court of Justice. (Recommendation for Resolution, at 24.)

The final act also allows commercial courts to rule on disputes between companies and members of their management or supervisory board. (GVG, § 119b, para. 1, no. 3 (new).) Certain proceedings, such as corporate law proceedings with an erga omnes effect, meaning having legal effect on third parties, are excluded from the commercial courts’ jurisdiction. (§ 119b, para. 1, sentence 4 (new); Recommendation for resolution, at 26.)

Procedural Aspects

Procedural regulations that were previously only envisioned for proceedings in front of the commercial courts are now also applicable to those in front of commercial chambers. This mainly concerns the early planning of proceedings during an organizational meeting and the keeping of a verbatim transcript. (ZPO, §§ 612, 613.)

English as a Court Language

Proceedings in front of the commercial courts and chambers can be conducted in English if the parties mutually agree or the defendant does not object. (GVG, § 184a, paras. 1, 3 (new).) In front of the Federal Court of Justice, however, the chamber must agree to allow proceedings to be conducted in English. (GVG, § 184b, para. 1, no. 3 (new).) A suggestion to include a choice to hold proceedings in English in all instances was rejected, citing serious concerns raised by law practitioners. (Amendment Request, at 3; Recommendation for Resolution, at 24.)

Prepared by Lena Bleckmann, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, October 21, 2024

Read more Global Legal Monitor articles.

On September 13, 2024, the Standing Committee of China’s National People’s Congress (NPCSC) adopted the Decision on Gradually Raising the Statutory Retirement Ages (Decision) (English translation available here). Over a 15-year period beginning January 1, 2025, the retirement age for men in China will be raised from 60 to 63; for women, it will rise from 50 to 55 for blue-collar workers and from 55 to 58 for white-collar employees. (Decision art. 1.)

The main text of the Decision contains only five articles, including one approving the implementing measures formulated by the State Council and allowing the State Council to “supplement and further specify” the measures according to actual needs. (Art. 4.) The State Council Measures on Gradually Raising the Statutory Retirement Ages (Measures), comprising nine articles and four annexes, were approved by the NPCSC and released as part of the Decision.

Effective January 1, 2025, the Decision will repeal two State Council documents on retirement ages issued in June 1978, which were preapproved in principle by the NPCSC in May 1978:

• • Interim Measures on Placing Old, Weak, Sick, and Disabled Cadres; and
  • Interim Measures on Workers’ Retirement and Resignations. (Decision art. 5.)

Early and Delayed Retirement

The Measures provide for limited flexibilities for early retirement and delayed retirement. People who have reached the former retirement age may choose to retire up to three years before reaching the new retirement age, provided their contribution period to receive the basic pension has been met. For those who desire to retire after the new retirement age, the delayed retirement must be agreed by the employer and the delay period cannot exceed three years. (Measures art. 3.)

The Measures also introduce flexible early retirement policies for workers engaged in special types of work, such as those working in labor-intensive roles or extreme environments. According to the currently effective Interim Measures on Workers’ Retirement and Resignations, the retirement age for men in these types of work is 55, while for women it is 45. The new Measures do not prescribe a different set of retirement ages for those workers. Rather, the Measures state that they “may apply for early retirement if they meet the requirements.” (Measures art. 8.)

Increase in Minimum Pension Contribution Period

The required contribution period for employees to receive the basic pension will also be gradually increased from 15 years to 20 years, beginning January 1, 2030. The period will increase six months every year. (Measures art. 2.) Thus the minimum period will remain 15 years until 2029, increase to 15 ½ years in 2030, 16 years in 2031, and ultimately reach 20 years in 2039. (Annex 4. Table on the Increase in Minimum Contribution Period.)

An employee who has reached the new retirement age but has not satisfied the minimum contribution period may extend their contributions or make a lump-sum payment to satisfy the minimum contribution period. (Measures art. 2.)

Background

According to the preamble, the Decision was made to implement the Party Central Committee’s plans to gradually raise the statutory retirement ages, to adapt to the new situation of the country’s aging population, and to make full use of human resources. (Decision Preamble.)

The preamble notes the Decision was made in accordance with the Constitution of the People’s Republic of China, article 44 of which provides that “[t]he state shall, in accordance with the provisions of law, implement a retirement system for employees of enterprises, public institutions, and state organs. The livelihood of retirees shall be ensured by the state and society.”

Laney Zhang, Law Library of Congress
October 18, 2024

Read more Global Legal Monitor articles.

On May 16, 2024, the Dutch Data Protection Authority (DPA) (Autoriteit Persoonsgegevens, AP) fined Clearview AI Inc. 30.5 million euros (approximately US$33.5 million) for violating the European Union’s (EU’s) General Data Protection Regulation (GDPR), in particular by processing personal, biometric data without a proper legal basis. The DPA also issued four enforcement orders that effectively require the company to cease its current operations within the EU.

Clearview, a New York-based firm, provides artificial intelligence (AI)-powered facial recognition technology built on a vast database of images collected from individuals around the world.

Background and Applicable Law

The GDPR, which came into effect on May 25, 2018, applies directly in all EU member states and regulates the processing of personal data. It requires data controllers to adhere to key principles, including establishing a legitimate legal basis for processing personal data. (GDPR, Arts. 5, 6.) “Data processing” encompasses any action taken on personal data, such as collection, recording, structuring, and storage. (Art. 4, para. 2.) The GDPR applies even if the data controller is based outside the EU as long as personal data of individuals within the EU is being processed, especially when the processing includes monitoring their behavior within the EU. (Art. 3, para. 2.)

Under the GDPR, personal data must be processed lawfully. One possible legal basis is demonstrating a legitimate interest in processing the data. However, such interests may be overridden by the interests or fundamental rights and freedoms of the data subject. (Art. 6, para. 1(f).) The Dutch DPA, as the competent national supervisory body, is empowered to impose administrative fines and orders against data controllers when GDPR violations are identified. (Art. 58, paras. 1, 2.)

Clearview’s Business Model

Clearview offers services that use facial recognition technology, meaning an algorithm capable of precisely analyzing facial features in an image, enabling it to recognize the same individual across other images. (DPA Decision, Para. 6.) The company employs an advanced algorithm based on machine learning, which converts a face into a unique code, known as an “embedding” or “vector.” By comparing these vectors, the algorithm can identify and match other images featuring the same individual. (Para. 7.) Clearview has compiled a database of more than 30 billion photos from publicly accessible sources such as social media, websites, news, mugshots, and U.S. public databases on convicted individuals. (Para. 8.) Each photo in the database is associated with corresponding metadata which supports the identification of the person depicted. (Para. 11.) One of the key services offered by Clearview is the “Clearview for law-enforcement and public defenders” service. Once the User provides a “probe image” of the subject, the system matches the image to its database and helps the user to identify the subject. (Paras. 13-19.)

Decision

The DPA concluded that Clearview, through its “Clearview for law-enforcement and public defenders” service, processes personal data of individuals within the Netherlands without a legal basis. The processed data includes biometric data — a category specially protected under the GDPR. (Art. 9, para. 1.) The Dutch DPA emphasized that the processing of personal data is not incidental to Clearview’s service but central to its operation. Clearview systematically processes large-scale personal data for facial recognition, but its business interests do not qualify as legitimate interest for data processing under the GDPR. (Art. 6, para. 1 (f).). (Para. 91.)

The DPA identified three additional violations: failure to meet transparency obligations (art. 12, paras. 1, 14), failure to respond to two access requests (art. 12, paras. 3, 15), and failure to facilitate the exercise of access rights (art. 12, paras. 2, 15). Assessing the severity of these violations, the DPA highlighted the impact on a significant number of data subjects in the Netherlands, including minors, who are entitled to heightened protection. (Para. 201.) It considered it particularly serious that Clearview obstructed individuals from exercising their access rights and failed to provide all required information under article 14 of the GDPR.

Furthermore, the DPA expressed concern that Clearview knowingly continued its conduct despite sanctions imposed by other EU supervisory authorities, indicating deliberate intent behind the violations. (Para. 205.) At the time of the decision, Clearview had not ceased the unlawful processing activities, prompting the DPA to issue four compliance orders, each subject to penalties, aimed at halting the identified violations. (Paras. 223-236.)

Related Developments

 In Germany, the governing parties in parliament have proposed a new law that stands in contrast to the decision of the Dutch DPA. Following the successful conclusion of a decades long search for a domestic terrorist, which was initiated by a group of journalists using an AI tool similar to Clearview’s, the proposed law would allow the German federal police to access public databases similar to the one created by Clearview. (Art. 1 of the Draft Law to Improve the Fight Against Terrorism.) This proposal has faced criticism from legal scholars, who argue that the combination of mass data collection, data evaluation, database merging, and the use of AI constitutes a breach of both the German Constitution and EU law.

Prepared by Maximilian Spitzley, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, October 17, 2024

Read more Global Legal Monitor articles.

On August 23, 2024, the Norwegian government submitted a proposal (Prop. 117L 2023-24) to Parliament presenting amendments to the Abortion Act, including extending the limit on abortions upon request from 12 weeks to 18. On October 8, 2024, the Parliament heard public comments as part of public consultations (høring) on the proposal.

The proposal would align Norway’s time limits with those of neighboring countries. In May 2024, a political agreement was reached in Denmark to extend the right to abortion on request to 18 weeks from the current 12 weeks. In Sweden, abortion on request has long been available until week 18. (1 § Swedish Abortion Act (Abortlagen (SFS 1974:595).)

Background

Abortions are made available through Norway’s national insurance program and are free for women residing in Norway, and for those outside Norway if they have membership in the Norwegian national insurance scheme or if they are covered by a reciprocal agreement with another country.     

The Abortion Act provides that society must provide sexual education, family planning services, and other measures to minimize the incidence of abortions. (1 § Abortion Act.) The Norwegian government’s measures to reduce the number of unwanted pregnancies include providing “information about the body [and] sexuality, easy access to contraception, non-prescription emergency contraception, and the right for public health nurses and midwives to prescribe hormonal contraception to teenagers.”

Government statistics indicate that in 2023, a total of 12,814 abortions were carried out in Norway, of which 83.7 percent were conducted before week nine and 95.7 percent were conducted at the request of the pregnant woman. Typically, abortions carried out prior to week 10 are performed as “home abortions” (heimabort) where the woman ingests medicine to cause the abortion. 

Under the current version of the Abortion Act, a pregnancy may be terminated at the request of the pregnant woman up to the 12^th week of gestation. (2 § 2 para.) After week 12, a pregnancy can only be terminated following consultation with the woman by a review board made up of two doctors. (7 §.)   

If the review board decides not to approve the abortion, it must inform the woman that the decision will be reviewed by a central appeals board unless she withdraws the request. The central abortion review board is made up five members, at least two of whom must be physicians and one who is a lawyer. (8 §.)

Reduction abortions, meaning abortions of one or more fetuses in a multiple pregnancy, may be performed following the review of the abortion review board, whose decision is appealable to the central abortion review board. (2a, 7, 8 §§.) Prior to 2019, reduction abortions were carried out upon request without the decision of an abortion review board, similar to other abortions, up to week 12.

Abortions are prohibited after 22 weeks, at which time the fetus is presumed to be viable, although if the fetus is nonviable, or there is “an imminent threat to the woman’s life or health” (10 §), abortion is permitted.

Norway keeps an Abortion Registry over performed abortions and all abortions must be overseen by a doctor. (3 §.) The law provides that consideration must be given to health personnel who, for reasons of conscience, do not wish to assist with abortions. (14 §.)

A government study (p. 97) states that the percentage of requests for abortions after the 12^th week that were approved have increased since free abortion was introduced in 1978. Around 74% of applications for abortion after week 12 were approved in 1979, whereas during the last 10 years, 95% of requests for abortion after week 12 have been granted. 

Proposed Amendments

Under the proposed amendments, pregnant women would have the right to a self-determined abortion up until the 18^th week of pregnancy. After the 18^th week, permission from an abortion review board would be necessary. The board would be required to grant permission if (a) the pregnancy, birth, or care of the child entails a risk to the pregnant woman’s physical or mental health; (b) the pregnancy is a result of rape, incest or other sexual offenses; (c) the fetus likely has a serious condition or will die during the pregnancy or shortly after birth; or (d) medical conditions of the fetus or of the pregnant woman, the pregnant woman’s life situation, or a combination of these make the pregnancy, birth, the child’s upbringing, or future care of the child particularly demanding. The board would be required to “give considerable weight to the pregnant woman’s perception of the situation.” After the 22^nd week of pregnancy, an abortion could be performed only if the fetus will die during the pregnancy or shortly after birth (3 § Proposed Abortion Act), and in case a pregnancy leads to acute and severe danger to the pregnant woman’s life or health, it can be interrupted at any point. (5 §.)

The proposed law would provide that aborting one or more fetuses in a multiple pregnancy may also be performed at request up until week 18. (4 §.) After the end of the 18^th week of pregnancy, fetal reduction would require permission from an abortion board, for reasons like those listed for abortion after 18 weeks.

The proposed law would revise the organizational requirements and procedures of the abortion review boards. (10-13 §§.) Automatic review of denials of abortion requests would continue to be heard before the abortion appeals board. (18-21 §§.)  

Health personnel would retain a right to refuse to perform or assist with abortions under a violation of conscience clause. (24 §.)

Legislative Procedure

Before the government bill is voted on in Parliament, it will be reviewed by the Standing Committee on Health and Care Services, which may call experts, decide whether to recommend the adoption of the bill, or present an amended version to Parliament. A preliminary date for the first reading of the bill in Parliament is set for December 3, 2024.

Elin Hofverberg, Law Library of Congress
October 16, 2024

Read more Global Legal Monitor articles.

King Salman bin Abdulaziz Al Saud has issued Royal Decree No. M/25 of 23/1/1446 Hijri (July 29, 2024), promulgating a law granting new powers to the Oversight and Anti-Corruption Authority (the Authority).

The Authority investigates crimes of corruption such as bribery, abuse of power, and embezzlement of public funds. (Art. 2.) It is supervised directly by the King and is headquartered in the capital, Riyadh. (Art. 3.)

Functions of the Authority

The Authority has the power to receive reports about crimes of corruption and bribery. (Art. 4 (2).) It investigates incidents of corruption and refers corruption cases to the appropriate criminal court. (Art. 4 (3).) Employees of the Authority have the power to arrest persons suspected of committing crimes of corruption. (Art. 4 (4).) The Authority may also coordinate with other government bodies to recover the funds and proceeds of crimes of corruption. (Art. 4(5).)

The Authority is also empowered to establish policies and procedures relating to anti-corruption efforts in the kingdom and to conduct public awareness campaigns about crimes of corruption, their penalties, and methods to report such crimes. (Art. 4 (9), (10).) The Authority has its own witness protection program to conceal and protect the identities of whistleblowers. (Art. 4 (7).)

One of the Authority’s most important functions is to ensure the implementation of the kingdom’s international obligations on combating corruption. (Art. 4 (11).) Saudi Arabia ratified the United Nations Convention Against Corruption in 2013.

Departments 

The law provides that the Authority shall have five departments: Integrity Protection and Transparency, Anti-Corruption, Administrative Oversight, Investigation and Prosecution, and International Cooperation. (Art. 10.)

Power to Investigate Officials’ Sudden Enrichment 

The law grants the Authority the right to investigate instances where the wealth of a government official increases to an extent disproportionate to his income or resources. This power to investigate covers the government official’s personal bank accounts and sources of income as well as financial information on his wife, children, and first-degree relatives. In such investigations, the burden falls on the official to verify the increase in wealth was obtained legitimately. (Art. 19.) 

Escape of Suspects Abroad

If a suspect of a corruption crime leaves the country, the Authority will coordinate with other government bodies such as the Ministry of Justice to recover the proceeds of the crime, including enforcement of judgments within the Kingdom or externally in accordance with international agreements. (Art. 20.)

Dismissal of Suspects

If an investigation of the Authority leads to a strong suspicion that a public official has committed a crime of corruption, the director of the Authority, after consultation with the head of the agency where the official works, may suggest the suspect be terminated from his position by means of a royal decree. (Art. 21.)

Financial Settlements

Lastly, the law provides that the Authority shall prepare rules setting forth specific classifications and procedures governing financial settlements with those who have committed crimes of corruption. The rules shall be promulgated by a royal decree. (Art. 22.)

George Sadek, Law Library of Congress
October 15, 2024

Read more Global Legal Monitor articles.

On April 26, 2024, the Standing Committee of the 14th National People’s Congress (NPC) passed the Tariff Law of the People’s Republic of China (Tariff Law), which will take effect on December 1, 2024. It comprises seven chapters and 72 articles, covering General Provisions, Tariff Categories and Rates, Taxable Amounts, Tax Incentives and Special Cases, Collection and Management, Legal Liability, and Supplementary Provisions. The law includes a new Import and Export Tariff Schedule, which will take effect on the same day.

Before the enactment of the Tariff Law, China’s customs duties were levied based on the Regulations of the People’s Republic of China on Import and Export Duties (Regulations). According to the explanation by the Legislative Affairs Commission of the Standing Committee of the NPC, the Tariff Law was introduced in response to changes in both domestic and international circumstances, and was formulated after summarizing the experiences gained from implementing the Regulations. The Regulations will be repealed the day the Tariff Law takes effect. (Tariff Law, art. 72.)

Retaining and Updating Provisions on Retaliatory Tariffs

The Tariff Law retains the provisions on retaliatory tariffs from the previous Regulations, empowering China to impose retaliatory tariffs when a foreign country or region violates relevant trade agreements by adopting restrictive measures such as prohibitions, increased tariffs, or other actions. (Tariff Law, art. 18, para. 1; Regulations, art. 14, para. 1.)

The Tariff Law introduces two notable updates. First, it includes countermeasures for violations of most-favored-nation treatment or tariff preferences by other parties, allowing China to take corresponding measures based on the principle of reciprocity. (Art. 17.) Second, it alters the procedure for retaliatory tariffs—under the previous Regulations, the Tariff Policy Commission determined the specifics of retaliatory tariffs, while under the new law the Commission will submit recommendations for approval by the State Council before implementation. (Arts. 17 & 18, para. 2; Regulations, art. 14, para. 2.)

Elevating Technical Tariff Standards to Legal Norms

The two basic elements of tariffs are taxable items and tariff rates. Taxable items represent the scope and subjects of taxation that are identified through classification codes and names. Tariff rates reflect the degree of taxation on the items. The classification rules for goods connect these two elements, specifying how taxable items correspond to applicable rates.

The Tariff Law introduces a dedicated chapter on “Taxable Items and Tariff Rates,” outlining the rules for tariff items and the classification of goods. (Art. 9.) This ensures that the core elements of tariffs are concretely defined.

The Tariff Law also introduces rules on determining the origin of goods, to align China’s tariff practices with international standards. Goods wholly obtained in one country or region are considered to originate from there, while those produced across multiple locations are considered to originate from where the last substantial transformation occurred. In cases where international treaties or agreements provide different rules, those provisions will prevail. (Art. 11.)

Enhanced Administration of Cross-Border E-Commerce

Regarding cross-border e-commerce, the Tariff Law defines entities obligated to serve as tax withholding agents to include platform operators, logistics companies, tariffs declaration enterprises, and entities and individuals engaged in retail imports. (Art. 3, para. 2.) With the rapid development of cross-border e-commerce in recent years, previous regulatory gaps have hindered industry growth. This provision identifying withholding agents provides a legal basis for taxation of cross-border e-commerce by defining the withholding obligations of all participating entities.

Additionally, the Tariff Law stipulates relevant penalties, clarifying the compliance obligations and legal responsibilities of entities other than taxpayers, such as tax withholding agents. Notably, tax withholding agents may be subject to fines ranging from 50% to three times the amount of unpaid tariffs in cases where tariffs are underpaid. (Art. 64.)

Prepared by Jingjing Gao, Law Library Intern, under the supervision of Laney Zhang, Foreign Law Specialist

October 11, 2024

Read more Global Legal Monitor articles.

On September 12, 2024, the Swedish Council on Legislation (Lagrådet) stated it did not object to Parliament considering a government proposal to expand access to DNA and biometric databases, including genealogy databases, as an investigative tool for certain serious crimes.  

The Council on Legislation reviews draft bills the government wishes to submit to Parliament for consistency with the Constitution and general legal principles. On July 4, 2024, the Swedish government requested the council review its proposal for expanded access of police to DNA and biometrics databases as an investigative tool for certain serious crimes.

Under the proposal, the government asks the legislature to approve wider use of DNA, fingerprints, facial images, and similar biometric information in criminal investigations. The government requests amendments establishing that

• • Biometric information shall be permissible to collect, register, and use during investigation of crimes to a greater extent,
  • The police current registry of DNA-profiles, fingerprints, and description [of the suspect] shall be replaced by new biometric registries,
  • During the investigation of certain serious criminal activity, biometric comparisons of facial pictures and finger prints of suspects may be done against the Migration Agency’s registries with fingerprints and photos
  • DNA based genealogy shall under certain conditions be allowed to be used during investigations of murder and aggravated rapes.

Background

The police have successfully and with legal authorization used biometric databases to investigate crimes. For example, one 24-year-old cold case involving the rape of a child was solved by the police finding a person in its databases whose DNA partially matched the DNA left at the crime scene. The police DNA-tested relatives of this person, one of whom was identified as the perpetrator and was convicted of the crime. This use of the police’s own databases is specifically authorized by law. (5 ch. 1 § Act on Processing of Personal Information Under the Crime Data Act (SFS 2018: 1693) (in Swedish).)

In 2020, forensic genealogy was used by the Swedish Police to solve a 16-year-old murder cold case and convict the perpetrator of murder. In that case, the use of genealogy as an investigatory tool was part of a pilot case study. While the police authority found the pilot successful, the use of the genealogy databases was criticized and assumed to be unlawful by the Swedish Authority for Privacy Protection.

A government investigation was opened in 2021 to determine if new legislation was needed to enable the police to use DNA genealogy resources to solve criminal cases. 

Proposed Legislation

The government’s proposal would amend current law to allow DNA from a suspect to be matched against information found in genealogical databases. The proposal would add a chapter to the Act on Processing of Personal Information Under the Crime Data Act dealing exclusively with such processing. The proposed chapter would read as follows:

The amendment, if approved by Parliament, would enter into force July 1, 2025.

Elin Hofverberg, Law Library of Congress
October 10, 2024

Read more Global Legal Monitor articles.

On August 3, 2024, new legislation designed to close gaps in international criminal liability, strengthen victims’ rights, and improve the impact of international criminal law proceedings and judgments entered into force.

The Law on the Further Development of International Law reflects an effort to modernize Germany’s legal framework to better meet international standards and obligations, in particular by implementing rules to cover certain new weapons and crimes like sexual assault, sexual slavery, and forced abortion. Victims’ rights are improved by including crimes against humanity and war crimes against individuals in the list of offenses that allow victims to join the prosecution as private accessory prosecutors. The new law also provides for recordings of trials and access to translations for media representatives if they do not speak German proficiently.

Background

The legislation aligns Germany’s legal framework with recent amendments to the Rome Statute of the International Criminal Court (ICC), adopted at the Sixteenth Assembly of States Parties meeting on December 14, 2017. It is a reaction to the latest developments in international convictions for crimes against humanity, such as Germany’s conviction of Syrian officials. (Explanatory Memorandum, at 1, 2.)

Key Provisions

The law substantially amends Germany’s Code of Crimes Against International Law (Völkerstrafgesetzbuch, VStGB). The definition of war crimes in section 12 is expanded to include the use of weapons primarily injuring by fragments non-detectable by X-rays and permanently blinding laser weapons. The law updates provisions on crimes against humanity (§ 7) and war crimes against individuals (§ 8) to encompass sexual offenses, such as sexual assault, sexual slavery, and forced abortions. A new provision addresses where an imprisoned person becomes pregnant because of coercion. (§ 8, para. 1, no. 4.) The law uses the term “person” rather than “woman” to ensure that violations are covered regardless of the victim’s gender or age.

The new legislation allows victims to join the prosecution as private accessory prosecutors with access to legal representation and psychosocial support if they are affected by crimes defined in VStGB sections 6 through 8 and 10 through 12 (genocide, crimes against humanity, and certain war crimes). (Code of Criminal Procedure, §§ 395, 395a, 397b, 406g.)

To improve transparency and historical documentation, the law permits audio and video recordings in cases of significant historical importance. Media representatives will be allowed to use interpreters during court proceedings if they do not speak German proficiently. (Court Constitution Act (Gerichtsverfassungsgesetz, GVG), § 169, para. 2, § 185, para. 4.)

Finally, the law extends the retention and review periods for data related to international crimes under section 77 of the Federal Criminal Police Office Act (Bundeskriminalamtgesetz, BKAG). Section 77 addresses the timeframes for reviewing and deleting personal data associated with criminal activities. It outlines the conditions under which personal data can be collected, processed and retained, ensuring that such actions are necessary, proportionate and legally justified. The amendment extends the review periods for storage and segregation for data on international crimes from ten years to 15 years for adults and from five years to ten years for juveniles. This change is intended to help prevent and prosecute offenses under sections 6 to 13 of the VStGB, including genocide, crimes against humanity, and war crimes.

Prepared by Ivana Hristova, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist

Law Library of Congress, October 9, 2024

Read more Global Legal Monitor articles.