Page 3 - NYSBA Annual Meeting

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MONDAY, JANUARY 27, 2014
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New York and the U.N.: A Unique Connection
New York Assesses

Costs of New Energy
NYSBA to become respected as budget that enabled meetings
Technologies
a thoughtful and constructive participant in the development of of UNCITRAL to continue to be held in New York as well as in
Glenn G. Fox
UN priorities in the development of international legal norms and Vienna and (with the assistance of the NYSBA International Sec-
procedures across a wide variety tion Brazil Chapter) to encourage
Chair
of public and private concerns. It also gives NYSBA a better per- Brazil’s accession to the Vienna Convention on the International
International Section
spective from which to deploy its Sale of Goods (CISG). NYSBA,
resources at the federal level in promoting U.S. adherence to sig- by formal vote of the NYSBA Executive Committee, on the
Kevin Anthony Reilly
niicant international conventions and treaties, and at the federal recommendation of the NYSBA International Section, has now
Chair
Albert Bloomsbury
and state level in promoting legis- formally endorsed U.S. ratiica-
Environmental Law Section
Co-Chair
lation that complements and sup- ports important international val- tion of the Law of the Sea Conven- tion (UNCLOS)—one of the most
Committee on International ues such as environmental safety and preservation, respect for free- important and enduring public law conventions of the past cen-
Contract and Commercial Law
dom of international communi- tury—and the Hague Convention T
the economic beneits of mod- his article introduces some
cation and exchange, elimination of human traficking, promotion on Choice of Courts—one of the newest and promising treaties ject of the Environmental Law ern extraction technologies, the environmental risks and potential topics that will be the sub-
New York state and New York other international bodies that of international commerce, and in the area of private interna- Section’s program on Friday of costs are becoming more appar-
City have the privilege of serving as the hosts of the United work with the United Nations is a prominent feature of the legal many, many others.
Already, NYSBA—and its tional law. Finally, the section gave a ringing and much noted this week.
It is neither a novel nor a con- ent as time passes. The important task is to engage the public in a
Nations. In 2009, the International Section adopted as one of its key landscape as we move further into the 21st century. With mem- International Section in particu- lar—has achieved notable suc- endorsement to the goals of the High Level Meeting of the 67th troversial observation that the generation, transmission, and discussion of the environmental costs imposed by fracking and
missions monitoring the develop- bers located in many countries cess. NYSBA has built a working UN General Assembly on pro- utilization of energy are among other extraction methods, delect
ment of international law at the United Nations. The International around the globe and chapters and representatives in over 60 relationship with the UNCITRAL Secretariat and sends delegates motion of the worldwide rule of law, which can be accessed at the more important concerns of our increasingly electronic, many of the political arguments tactically asserted to distract that
Section sees this, in fact, not just countries, the International Sec- to most meetings of the UNCIT- the United Nations Rule of Law interconnected and mobile world discussion, and to seek public
as a mission for the section but for the entire New York State Bar tion is in a unique position to help NYSBA and the New York RAL membership and Working Groups; the Secretary of UNCIT- website at www.unrol.org.
To become a part of this grow- today. That observation applies not only to major industrial coun- input in how to avoid or miti- gate the costs. Although many
Association because the New York bar is not just a local or state bar make positive contributions towards this end.
RAL was a keynote speaker at the concluding plenary of the ing effort and role of NYSBA in the development of international law tries, but in an increasing degree to developing economies and also people in the Northeast may be inattentive to the scarcity of
bar but an international bar, with With the prompting and for- NYSBA International Section’s at the UN system, we urge all prac- for societies that until recently potable water, that certainly is
over 18,000 lawyers admitted to the practice of law in New York mal encouragement of the Inter- national Section and the coop- “Global Law Week” in May of last year. The International Sec- titioners to become irst a mem- ber of NYSBA itself, but also of were essentially off the grid in a metaphorical sense but also a concern in more arid parts of the country, and the evidence is
who live and practice law outside eration of NYSBA’s leadership tion will hold a joint session with the NYSBA International Section. economically. In the aggregate, increasingly mounting that water
the borders of the United States.
Due to the globalization of since 2009, the New York State Bar Association is itself becom- the UNCITRAL Secretariat as part of the section’s 2014 Annual Sea- Join us as we prepare for future opportunities to promote the the world’s energy use is off the charts, and that trend will likely shortages in the face of rising populations and unregulated land
commerce, banking and many aspects of individual as well as ing an oficial participant in many functions of the UN system as a sonal Meeting, which takes places next October in Vienna, the site of rule of law in the ields of global security, human rights, trade, continue. To the extent that energy use correlates with the use will pose dramatic and even tragic challenges in many parts
corporate life, the traditional legal non-governmental observer. UNCITRAL headquarters.
development and environmental emissions of greenhouse gases, of the world over the next few
framework based on national and local laws is too fragmented to NYSBA is now a recognized NGO before the United Nations Com- The International Section has provided technical comments to matters.
the consequences for global climate change are increasingly decades. Although the causes, including climate change, are
deal with the complexity of legal mission on International Trade the UNCITRAL Expert Group for Glenn G. Fox is a partner at Baker & hard to ignore, but my focus here varied, contamination of ground
issues among private actors as well as state actors across inter- Law (UNCITRAL) and the United Nations Department of Public the Micro-, Small- and Medium Enterprises (MSME) Working McKenzie. Albert Bloomsbury is prin- cipal of the Law Office of Albert L. is different. It also is increasingly apparent that a nation’s energy water resources will exacerbate the coming crises.
national borders. Harmonization of legal norms under the aus- Information (DPI). Oficial NGO status facilitates the monitoring Group. The International Section joined in successful efforts to pre- Bloomsbury. Michael W. Galligan, a partner at Phillips Nizer, assisted in needs and utilization cannot be separated from the numerous lay- However, one needn’t look to China or the African Sahel to illus-
pices of the United Nations and
of the UN process and enables
serve funds in the United Nations
the preparation of this article.
ers of its economics, its ability to trate the risks of water scarcity.
deliver goods and services to its society, and in many respects its In our own country the Dakotas have been riding the oil and gas
national security. That was true boom to unparalleled prosper-
in many respects during the 19th century, when coal was king, and ity, but local residents, ranchers included, also know that leaking Supporting the Independence of the Judiciary
into the 20th century as petro- leum rose in prominence. We are oil and gas wells and pipelines may critically threaten the
now at the threshold of a new era depleted ice age aquifers, a cost
when technology is fostering new modes of energy generation, but that ultimately cannot be borne. And in the Northeast, that leak- Moreover, it is very dificult and and the relationships among the
also enabling the increasingly efi- cient application of old methods age is being found in neighboring Pennsylvania (see “Fracking and perhaps improper for a judge to respond in the court of public three branches of government. Further, the press’ stridency does
of harnessing nature itself—wind, Tainted Drinking Water,” Scientiic Gregory K. Arenson
opinion. That is where the orga- a disservice to the community it
water and air—yet fossil fuels persist as major components of American, September 2013, p. 21), which rushed to cash in on the nized bar must step in.
As Alexander Hamilton wrote serves by undermining the sys- tem that enables it to perform
the energy mix.
modern day bonanza promised Chair
Commercial and Federal Litigation in “The Federalist Papers,” the its function as a check on the
There was a brief period when national security and environ- by hydrofracking. Once contami- nated, drinking water resources Section
judiciary is the weakest branch of our government. The executive excesses of government.
So the section is pleased to
mental policies coincided to a substantial degree, in that the become, to all practical purposes, useless, and the consequences controls the guns, and the legis- lature controls the money. The present its Fuld Award to Judge Scheindlin and to publicly sup-
acquisition of oil from unstable likely are irreversible. This is not The Commercial and Federal ence of the United States leading judiciary can only dispense judg- port the cause of judicial inde-
regions of the world elevated some of the hidden costs to to say that technological advanc- es cannot solve these dilemmas, Litigation Section is proud to present its Stanley H. Fuld Award to the promulgation of the 2006 amendments to the Federal Rules ments. Those judgments should be unclouded and unbiased. It is pendence to enable judges to make hard decisions without
real costs at the gas pump, in and the economic promise of to U.S. District Judge Shira A. of Civil Procedure bringing e-dis- one of the reasons federal judges fear or favor.
heating bills, and even in mili- tary expenditures, engendering what seems to be almost an ener- gy windfall when viewed against Scheindlin at its annual luncheon on January 29. The award is pre- covery explicitly and construc- tively within their purview for the have been granted lifetime tenure with no diminution in compensa- •••••••••••••••••••••••••••••
renewed public and commercial interest in renewable energy. the backdrop of prior decades is not necessary inimical to environ- sented to a member of the legal profession who has signiicantly irst time; and coauthoring the casebook, “Electronic Discovery tion. And, it is one of the reasons members of the executive or leg- 1. Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003); Zubulake v. UBS
However, that moment seems mental protection, but the nature contributed to the practice and and Digital Evidence.” This record islative branches should refrain Warburg, 230 F.R.D. 290 (S.D.N.Y. 2003); Zubulake v. UBS Warburg, 216 F.R.D. 280
to be passing with the domes- tic production of fossil fuels by of the risks and the threats to public health and safety warrant development of commercial law and litigation in New York. Judge makes her a deserving recipient of the Fuld Award.
from ad hominem attacks on judges or from attacking judi- (S.D.N.Y. 2003); Zubulake v. UBS Warburg, 220 F.R.D. 212 (S.D.N.Y. 2003); Zubulake
extraction methods that reach caution.
Scheindlin’s contributions to the Bestowing the Fuld Award on cial pronouncements in public v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004).
deposits that previously could not be economically justiied. It New York has been taking a prudent approach, excessively so law of e-discovery include her groundbreaking Zubulake,1 sub- Judge Scheindlin this year also reaffirms a core value of our statements designed to inlame passions of the populace. Dis- 2. Pension Comm. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456 (S.D.N.Y. 2010).
is hard to ignore the economic benefits of hydrofracking and argues the industry, so that state policy has not yet been formulat- sequent Pension Committee,2 and recent Sekisui3 decisions; service profession—the independence of the judiciary. In the last six course involving disagreements with a judge’s analysis of a legal 3. Sekisui Am. v. Hart, 945 F. Supp. 2d 494 (S.D.N.Y. 2013).
the extraction of shale oil as ed on whether, and how, to allow on the Advisory Committee on months, she has been attacked issue or the outcome of a case
well as some environmental benefit as the mining and the fracking. Municipalities, exercis- ing traditional land use powers, Civil Rules of the Standing Com- mittee on Rules of Practice and by the media and, more seriously, by public oficials for her deci- are of course appropriate. But going further undermines the Gregory K. Arenson is a partner at
combustion of coal diminishes. are stepping into the breach. The Procedure of the Judicial Confer-
sions in the stop-and-frisk cases.
people’s trust in government
Kaplan Fox & Kilsheimer.
Energy costs for homeowners and businesses are sliding down Environmental Law Section’s pro- gram this week consists in part of
at a time when our economy is beginning to resurface; we are a moot court, argued by counsel for the different sides in what may
poised to become a signiicant become landmark land use law in The Economic Upheaval Still Reverberates
energy exporter, which certainly is more beneicial than export- a case soon to be argued before the Court of Appeals. The advo-
ing our wealth to problematic cates will be closely examined by
parts of the world in exchange for oil; and our foreign policy, a panel of “judges” selected for their expertise but also with a Crowdfunding in Public Offer- own account. It is perceived to
correspondingly, is increasingly less constrained.
view towards balancing different perspectives. The issue in dispute ings. With the economy in a tailspin, Congress enacted the create greater short-term risks to a bank’s capital than lending
One may wonder why I seem involves preemption—whether Jumpstart Our Business Start- and other traditional banking
to be saluting the drive towards increased domestic production of New York statutory law will preempt local land use controls Jay Hack
ups (JOBS) Act to facilitate rais- ing capital for new and emerg- activities. Dodd-Frank amends the Bank Holding Company Act
fossil fuels in an article addressed to environmental law. I am not. over extractive activities such as hydrofracking. The presentation Chair
ing businesses. Traditionally, companies had to raise capi- to prohibit banks, bank holding companies and their afiliates
These simply are facts that in the section’s program should Business Law Section
tal either in a private offering from engaging in proprietary
cannot be ignored, and which the public will ind persuasive. be valuable for environmental, property, municipal and indus- without a broad solicitation or in a public offering registered trading or investing in a hedge fund or private equity fund.
However, there are additional try attorneys, but also for any- The fallout from the eco- to repay most dwelling-secured with the SEC after extensive SEC There are many exceptions
facts that must be persuasively, and accurately, communicated one interested in this important intersection of environmental and nomic collapse of the last decade continues to reverber- loans before the loan is made. Gone are the days of NINJA review. That choice no longer exists. Private placements to to the prohibition, including trading in government securi-
to the public to drive the point home that there are always costs, land use law. Of course, once oil or gas are extracted, it must be ate through the business law community. The Dodd-Frank loans—no income, no job, no assets. The CFPB has created a accredited investors may now include a “general solicitation” ties and trading for bona ide hedging against risks that a
and the environmental costs aris- transported. As it happens, much Wall Street Reform and Con- safe harbor for QMs which con- to ind purchasers, with adver- banking institution has in its
ing from the extraction as well as the combustion of fossil fuels are of the product from the American West will pass through New York, sumer Protection Act and the JOBS Act created a signiicant sumers are deemed to be able to repay. QMs are loans with tisements in public media, so long as there is enhanced portfolio. There is some evi- dence that banks lost high
real and measurable. This is not by pipeline, train or truck, and change in laws applicable to points and fees not more than 3 due diligence to assure that level experts in advance of the
an article in strident opposition to fossil fuels; it is unrealistic to ofloaded to shipping down the Hudson River for likely export many different businesses. Reg- ulatory proposals followed and percent (higher for loans under $100K); no risky features such all purchasers are accredited investors. The SEC has also pro- prohibition, which was effec- tive this month, as some of the
expect that oil and gas will sud- denly disappear as a signiicant through the metropolitan area. The risks arising during this tran- are continuing. The substantive committees of the Business Law as negative amortization; terms of not more than 30 years; and posed detailed regulations to allow “crowdfunding” of small best traders sought positions at irms not subject to the rule.
component of our national energy sit are many, and here New York’s Section have held frequent ses- are either eligible for purchase capital raises of up to $1,000,000 However, creative transaction
policy, technological improve- ments may enhance the safety Department of Environmental Conservation has proposed reg- sions on these issues to prepare practitioners for implementa- by a government-sponsored entity such as Fannie Mae or per year, with purchases to be made through Internet portals, structuring by bankers and their lawyers still leaves some
record of extraction, and as noted ulations, which, also, will be the tion. Here is a (very brief!) sum- made to a borrower with a but without an SEC registration. lexibility.
the shift to natural gas can help offset, even if only modestly, the focus of the section’s program. I propose that attending the pro- mary of a few signiicant new rules. We invite you to join our verified debt to income ratio of not more than 43 percent. Anyone is permitted to invest in a crowdfunding offering, includ- The Business Law Section has substantive committees focus-
present emissions of greenhouse gases.
gram will be time well spent.
committees and learn more.
The CFPB and Qualified Residential mortgage loans don’t have to be QMs. It’s just a ing my 91-year-old mother.
The Federal Reser ve and ing on Securities, Corporations, Banking, Bankruptcy, Technol-
However, people tend to Kevin Anthony Reilly is principal appel- Mor tgage Loans (QMs). As a safe harbor. But most, if not all, the Volcker Rule. Perhaps the ogy, Franchising, Derivatives,
understand that costs, if prop- erly identiied and understood, late court attorney for the Appellate Division, First Department and an direct result of the collapse of the residential housing market, major lenders seem poised to offer only QMs because the due most controversial of all is the Volcker Rule, named for former Insurance Regulation and Public Utilities. Whatever your prac-
should be managed and reduced. adjunct professor of law at St. John’s Congress created the Bureau of diligence to make other loans is Federal Reserve Chairman Paul tice area, one or more of these
While one need not strain to see
Law School.
Consumer Financial Protection. The CFPB has authority over too great. The federal banking agencies have also said offering Volcker. Commentators argued that “proprietary trading” committees is likely to help you navigate through the complexi-
most consumer inancial regu- lation. Dodd-Frank requires that only QMs does not automati- cally constitute discriminatory by banks was a contributor to the 489 bank failures from ties of the legal process, and we urge you to join us.
DID YOU BORROW THIS?
creditors must make a reason- lending.
2008 through 2013. Proprietary
able, good faith determination that a consumer must be able
The SEC, General Solicita- tion in Private Offerings and
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trading is short-term trading in securities by banks for their
Jay Hack is a partner in the firm of Gallet Dreyer & Berkey.