Minneapolis – dwkcommentaries

Court: Trump’s Illegal Consent Procedure for Refugee Resettlement

As discussed in a prior post, on September 28, 2019, President Trump issued an executive order requiring written consents by states and local governments for the federal government’s resettlement of refugees, and other posts have discussed the issuance to date of such consents by at least 40 states.[1]

On January 15, however, the U.S. District Court for the District of Maryland preliminarily ruled that this executive order was invalid and ordered that its enforcement be temporarily halted.[2]

The Court’s Opinion

The court’s opinion on this issue occurred in a civil lawsuit for preliminary and final injunctive relief against this executive order that was brought by three nonprofit refugee resettlement agencies—HIJAS, Inc., Church World Service, Inc. and Lutheran Immigration and Refugee Service [3]—and in the court’s justification for its granting their motion for a preliminary injunction barring enforcement of this executive order while the case proceeds to final judgment.

The court concluded that the well-established principles for preliminary injunction had been established: (1) “the plaintiffs are likely to succeed on the merits;” (2) “they will suffer irreparable harm that is neither remote nor speculative, but actual and imminent if the injunction is not granted;” (3) “the balance of equities favor their position;” and (4) “the relief they seek is in the public interest.” (Memorandum Opinion at 16.) The key issues for the current legitimate public attention to this case are the court’s opinion on the merits and the public interest.

After a careful analysis, the court concluded that the executive order’s “grant of veto power [to state and local governments] over the resettlement of refugees within their borders ”is arbitrary and capricious . . . as well as inherently susceptible to hidden bias” and is “unlawful” based upon “statutory text and structure, purpose, legislative purpose, judicial holdings, executive practice, the existence of a serious constitutional concern over federal preemption, and numerous arbitrary and capricious administrative deficiencies.” (Memorandum Opinion at 17-27.)

The court also concluded that a preliminary injunction against the President’s executive order was in the public interest by “keeping ‘the President from slipping the boundaries of statutory policy and acting based on irrelevant policy preferences,’. . . having governmental agencies abide by federal laws that govern their existence and operations, . . . [and preventing] States and Local Governments [from having] the power to veto where refugees may be resettled –in the face of clear statutory text and structure, purpose, Congressional intent, executive practice, judicial holdings, and Constitutional doctrine to the contrary.” (Memorandum Opinion at 30-31.)

Conclusion

The Federal Government has a right to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit, but has not expressed any intent to do so. In the meantime, officials in the U.S. State Department, state and local governments, the resettlement agencies and refugees themselves are confused about what to do next.

This case arbitrarily was assigned by the District Court’s Clerk to Senior District Judge Peter J. Messitte, who on August 6, 1993, was nominated by President Bill Clinton and on October 18, 1993, confirmed by the U.S. Senate; on September 1, 2008, he assumed senior status. Judge Messitte is a graduate the University of Chicago Law School, where he was a classmate of this blogger. His undergraduate degree is from Amherst College.[4]

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[1] See Latest U.S. Struggle Over Refugees, dwkcommentaries.com (Dec. 11, 2019); posts to dwkcommentaries.com. relating to refugee resettlement.

[2] Memorandum Opinion, HIJAS, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020); Order, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020); Marimow & Sacchetti, Federal judge temporarily halts Trump administration policy allowing local governments to block refugees, Wash. Post (Jan. 15, 2020); Assoc. Press, Judge Halts Trump’s Order Allowing States to Block Refugees, N.Y. Times (Jan. 15, 2020).

[3] The three plaintiff resettlement agencies are members of nine designated “’Resettlement Agencies’ that enter into annual agreements with the Federal Government to provide services to these refugees under the current [U.S.] resettlement program.” (Memorandum Opinion at 1.) The plaintiffs were supported by amici briefs from 12 states, including Minnesota; from the U.S. Conference of Mayors along with 11 mayors and cities, including Minneapolis; and various faith-based organizations with hundreds of affiliates throughout the U.S. (Id. at 2 (n.2).)

The amici brief for the states asserted the following arguments: (I) The Executive Order Violates the Refugee Act and Interferes with the States’ Sovereign Interests;” (II) “The Refugee Resettlement Consent Process Harms the States’ Refugee Communities;” (III) “The Refugee Resettlement Consent Process Burdens the Staters’ Resources;” (A) Amici States Have Created Highly Effective Refugee Resettlement Systems;” (B) “The Executive Order’s Consent Process Burdens State Refugee Resettlement Programs.” (Brief of the States of California, et al. As Amici Curiae in Support of Plaintiffs’ Motion for Preliminary Injunction, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Dec. 13, 2019).)

[4] Peter Jo Messitte, Wikipedia; U.S. Dist. Ct., Dist, Md, Peter J. Messitte.

Minnesota Counties’ Actions on Refugee Resettlement

Of Minnesota’s 87 counties, 23 already have issued consents to future refugee resettlements while another 8 have indicated they will be considering the issue in the near future and only one has refused to so consent. There is little word from the other 56 counties in the state although there is no legal requirement for them to take a position on the issue since not voting is deemed to be a negative vote and although the state’s refugee resettlement agencies has not been soliciting those counties that have had little prior experience with such resettlements.

Here is a review of the 31 that so far have indicated some position on the issue of refugee resettlement.[1]

Counties Saying “Yes”

Blue Earth County. [2] On December 17 the board of south-central Blue Earth County (population 64,000 with its county seat in Mankato, population 39,300, and home of Minnesota State University Mankato) joined the consenting list. It did so unanimously with almost no discussion. One of the commissioners afterward said, “We’ve always accepted refugees. This is nothing new.”

Brown County.[3] In late December, County commissioners unanimously voted to consent to resettlement. Its virtually all white population of 25,890 live immediately west of the just mentioned Blue Earth County and the later mentioned Nicollet County. Its county seat is New Ulm.

Clay County.[4] On December 17, County commissioners unanimously voted to resettlement. With a population of nearly 59,000 people, it abuts North Dakota with a county seat in Moorhead (population 38,000) and is home for four institutions of higher learning.

Cook County.[4a] On January 14, the County Board unanimously voted to accept more refugees. Its Chair, Myron Bursheim, said, “I see this as a symbolic thing. My intention is to be welcoming.”

Commissioner Dave Mills said he’d never received more email feedback on an issue in the North Shore county, all in support. “I see the issue from a practical and principled standpoint. I don’t think it’s going to directly affect our finances or operation. Out of principle, this is what our community values.” Commissioner Virginia Storlie added, “We would do the best we can with folks who need help.”

Cook is the northeastern tip of the state, colloquially called “the Arrowhead,” pointing at Canada on the beautiful North Shore of Lake Superior. Its population is 5,393 (White 85.0%; African American 1.0%; Native American 8.5%; Asian 0.9%; Latino 2.5%; other 2.1%), and the county seat is charming Grand Marais.

Dakota County.[5] An approval of consent on January 7 came from the board of Dakota County, which has a population of 425,423 (77.7% white; 7.0% African-American; Latino 7.4%; Asian 5.2%; Native American 0.6%; and other 2.1%) in the south-eastern corner of the Twin Cities metro area with its county seat in Hastings.

Goodhue County.[6] On January 7, the Goodhue County Committee of the Whole, by a vote of 3-2, approved consenting to refugee resettlement. Although there was no time for public comment, there were many attendees, causing the meeting to be moved to the larger space of the courtroom. On the western banks of the Mississippi River, it has a population of 46,304 (White 91.8%; Latino 3.5%; Native American 1.5%, African-American 1.4%; Asian 0.7%; other 1.1% with its county seat in Red Wing.

Hennepin County.[7] On January 7, Hennepin with the city of Minneapolis is the state’s most populous county at 1.252 million (White 68.6%; African-American 13.6%; Asian 7.5%; Latino 7.0%; Native American 1.1%; Other 2.2%)in the central part of the state, by action of its County Board, approved consenting. Here are highlights of the “Whereas” paragraphs of its consent letter:

“Minnesota’s reputation for a strong economy and commitment to the social safety net has resulted in successful refugee resettlement since the 1800s.”
“Minnesota’s robust network of non-governmental resettlement agencies works with the federal government to resettle refugees, including resettlement in Hennepin County.”
“1,345 refugees have been resettled in Hennepin County over the last five years.”
“The breadth of countries and regions of origin resettling in Minnesota continues to expand and includes Afghanistan, Bhutan, Burma, Democratic Republic of Congo, Eastern Europe, El Salvador, Eritrea, Ethiopia, Iran, Iraq, Laos, Russia, Somalia, Tanzania, and Vietnam.”
“The success of refugee resettlement in Hennepin County has helped affirm the county’s status as an urban center of international importance.”

Kandiyohi County. As noted in a prior post, on December 3, 2019, Kandiyohi County in western Minnesota was the first to consider this issue when it voted, 3-2 to consent to refugee resettlement.

Mower County.[8] In early January, the County commissioners unanimously voted to authorize consent. In the southeastern part of the state bordering Iowa, its county seat is Austin, famous as the headquarters for Hormel Foods. Its population is 40,011.

Murray County.[9] On January 7, the county commissioners authorized consent. Located in the southwest corner of the state with its county seat in Slayton, it has a population of 8,725 (93.8% white, 3.6% Latino. 1.1% Asian and 1.5% other.

Nicollet County.[10] This county is just north of the previously mentioned Blue Earth County and on the same date (December 17), also consented with a County Board vote of 4-1. One of the affirmative votes came from Commissioner Terry Morrow, who said all refugees that arrive are thoroughly vetted by the federal government, confirming they are fleeing war, genocide or severe poverty while Commissioner Jack Kolars called refugees “‘new Americans,’ who follow in the footsteps of past groups of refugees and immigrants who often faced discrimination and persecution when they arrived and went on to be productive citizens. And he said current newcomers are working in the area in large dairy farms, shingling roofs and in food-processing plants. ‘In many cases they’re doing work others won’t do.’”

Nicollet County has a population of 34,200 (92.3% white; 3.7% African-American; 0.5% Native Americans and 3.5% other), and its county seat of St. Peter is the former capital of the state and the home of Gustavus Adolphus College.

Nobles County.[11] On January 7, the county commissioners authorized consent. Located in the southwest corner of the state and bordering Iowa and South Dakota, this county has a population of 21,900 (white 58.2%, Latino, 28.4%, Asian, 7.1%, , Other 0.1%)/African-American, 5.4%. Its county seat is Worthington, which recently has received a lot of attention due to its unusual ethnic diversity, as discussed on this blog.

Olmsted County.[12] On December 6, the County’s Administrative Committee unanimously approved a consent to resettlement. The County Board chair, Jim Bier said, “It’s stuff we are doing already.” A county official stated 30 new refugees already had been settled in the county in 2019 while an official for Catholic Charities of Southern Minnesota said that in 2018, 26 individual refugees came to Olmsted County from other countries. The county in the southeastern part of the state has a population of 144,200 (white, 85.6%; Asian, 5.4%; African-American, 4.8%’ and Latino, 4.2%. Its county seat is Rochester, which is famous for the Mayo Clinic.

Otter Tail County.[13] On December 16, the Commissioners voted to consent to resettlement. It is located in the west central part of the state on the continental divide with a population of 58,300 (white 97.1%; Latino, 1.7%; and other 1.2%; the county seat is Fergus Falls.

Pipestone County.[14] On January 7, this county joined others in consenting to resettlement. The county seat has the same name and the county’s population is 9,600 (white 96.7%; African-American 1.5%; Latino 0.7%; Native American 0.5%; other 0.6%. It borders South Dakota in the southwestern part of Minnesota.

Pope County.[15] On January 7, the County’s Board of Commissioners unanimously approved to consenting to resettle refugees. “While all board members agreed that they would be surprised if they were asked to host refugees, all of them were more than willing to approve an affirmative letter saying the county would accept refugees. ‘We should be ready to help,’ said Commissioner Larry Lindor.” After the item passed, Chair Gordy Wagner told his fellow board members, “I am proud of you all. Thank you.”

Located in the west-central part of the state with Glenwood as its county seat, Pope County’s population is 11,097 (White 95.9%; African-American 0.5%; Native American 0.4%; Asian 0.6%; Latino 1.5%; Other 1.1%).

Ramsey County.[15a] On January 14, the County’s Board unanimously approved consenting to refugee resettlement. The Board Chair, Toni Carter, said, “We recognize that refugees and foreign-born residents are an important part of Ramsey County. It’s important we honor and respect all who are among us.” Similar words came from Commissioner Trista MatasCastillo: “For me this is a celebration of our good work and the good work of our refugee communities. We have all benefited from having refugees in our community.” Another Commissioner, Victoria Reinhardt, said that, aside from Native Americans, nearly all Americans can trace their roots to immigration. “I am glad this country welcomed my German and Irish ancestors. That is what makes this place rich.”

The county, which includes the state’s capitol in St. Paul, accepted 4,215 refugees from 2015 to 2019. In the past year, the county accepted 71% of all refugees who initially settled in Minnesota. Moreover, avout 16% of its overall population of 508,639 is foreign-born.The composition of itsl population is White 61.4%; African American 12.6%; Native American 1.0%; Asian 15.3%; Latino 7.6%; Other 2.1%..

Rice County.[16] In early January, the County’s commissioners voted to authorize consent. Located in the southeastern part of the state with a county seat in Faribault, it has a population of 66,523 (White 89.0%; African-American 5.4%; Asian 2.1%; Native American 0.4%; Other 5.1%).

Sherburne County.[17] In December, the Commissioners for this County voted to issue consent. Located only – miles northwest of Minneapolis in the central part of the state, it has a population of 96,036 (white 90.9%; African-American 2.9%; Latino 2.9%; Asian 1.3%; Native American 0.6%; other 1.4%). The county seat is Elk River.

Steele County.[18] A consent letter was authorized by the County Board. Located in the southeastern part of the state, just south of Rice County, its county seat is Owatonna. Its population is 36,887 (White 90.9%; African-American 2.9%; Latino 2.7%; Asian 1.3%; Native American 0.6%; Other 1.6%.

Washington County. [18a] On January 14, the County’s Board unanimously approved consenting to resettlement at its meeting in the county seat of Stillwater. This county sits on the west bank of the St. Croix River across from the State of Wisconsin and east of Ramsey County and the City of St. Paul. Its population is 236,114 (White 82.2%; African American 4.9%; Native American 0.5%; Asian 6.2%; Latino 4.3%; other 1.9%).

Watonwan County.[19] On January 7, the County Board, apparently unanimously, approved a letter of consent to refugee resettlement. This county is located in the south central part of the state and south of the previously mentioned Brown County and west of Blue Earth County, and its county seat is St. James. Its population is 10,980 (White 71.0%; African-American 1.3%; Native American 1.3%; Asian 1.2%; Latino 25.2%).

Future Consideration by Other Counties

Lyon County.[20] On January 7, the Lyon County Board, after discussion, voted to postpone the vote on the merits.

Stearns County.[21] On January 7, the Board of Stearns County, with its county seat of St. Cloud, 66 miles northwest of Minneapolis. But their vote was to postpone consideration of the merits.

Commissioner Steve Notch said he still had too many unanswered questions and wanted to hear from the public and other experts. He lamented equating humanitarian concerns with economic ones. Commissioner Joe Perske, on the other hand, said it was “imperative” that the county decide the issue immediately. “The question I hear today is, are we a welcoming community or not?”

It should also be noted that St. Cloud, the county seat and largest city in the country, over the last several years has had major controversies over the large number of Somali refugees and immigrants who have resettled there.

St. Louis County.[22] Also voting to postpone consideration of the merits on January 7 was the Board of St. Louis County, population 200,200 (white, 94.9%; Native American 2.0%; Black, 0.9%; and Other, 2.2%) in the northeastern part of the state with its county seat in Duluth (population 85,900 on the southwest tip of Lake Superior).

After a heated debate for 1.5 hours with a standing-room only crowd, the county board voted, 4-3, to postpone a vote on the merits until May 26.

The majority commissioners on that vote represented people on the Iron Range and more rural areas who said they wanted more time to consider the implications of allowing such resettlement while the minority represented Duluth and other cities in the county. The minority on that vote included religious and social justice leaders, local Northland politicians, former sponsors of refugees, and one Northland refugee whose family was from Serbia and who had lived his early life in an Austrian refugee camp.

Another commissioner representing the city of Hibbing (population 16,400) said refugees were still welcome in the county. “We closed no doors.”

Five Other Counties.[23] Becker, Dodge, Ramsey, Scott and Winona counties are expected to consider the resettlement issue in the near future.

County Saying “No”

Beltrami County.[24] So far this is the only county to reject such resettlements. It occurred on January 7, when the County Board In the north-central part of the state voted 3-2 to refuse to provide its consent. This county has a population of 44,442 (2010 census), 76.9 % of whom are white, 20.4% Native American, 0.4% black and 2.3% other. Its county seat is Bemidji (population 12,431).

One of the speakers favoring consent was a member of the Red Lake Nation, who said, “If you’re not a Native American from this area, we all have origin stories. I think most of the people here today are re-settlers. It just seems un-American to me to say that “You’re not welcome.” [25]

This vote was largely symbolic: This county has not resettled refugees for years and is not being targeted by refugee agencies for resettlement anytime soon. In addition, its low population and far northern location make it an unlikely destination. In any event, its rejection of resettlement received national news attention and may have motivated some of the previously mentioned 19 counties to say “Yes.”

Subsequently, a Bemidji business owner/operator and the daughter of World War II refugees, Monika Schneider, lamented the bad publicity the county has received. She said, “We should be so lucky to have a few young, energetic [refugee] families choosing to rebuild their futures in our tundra-adjacent paradise.” She concluded, “Bemidji is loaded with beautiful, loving, open-minded people of all backgrounds. I relocated here from a big city and there is no place I’d rather be. We who live, work and raise our families here are kind, generous, creative, hardworking, dedicated and resourceful people, committed to supporting our community in many lovely ways. We all value our sense of place and our great outdoors. Our downtown is vibrant and growing. We’re eager to offer our expertise for your enjoyment. As this story evolves, the entrepreneurs of Bemidji are here at work, ready to welcome and serve you, whoever you are.” [26]

Conclusion

Although there is no requirement for any county to consider this issue, we will wait to see whether any of the other 59 counties in Minnesota take any action in this regard.

A broader analysis of this situation was provided in a Washington Post article.[27]

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[1] The most comprehensive analysis of the positions on this issue of the Minnesota counties are by Greta Kaul: As Minnesota counties vote on accepting refugees, here are the counties where refugees have actually moved in the last decade, MINNPOST (Jan. 9, 2020) and by Ferguson, Minnesota County votes ‘No’ to refugees as more than a dozen others say ‘Welcome,’ Brainerd Dispatch (Jan. 8, 2020) Thanks to these journalists for their contributions. Population data (July 1, 2018 estimates) for the counties is available on the U.S. Census Bureau’s “Quick Facts” website; any corrections to the ethnic percentages would be greatly appreciated.

[2] Krohn, Blue Earth, Nicollet counties vote to continue accepting refugees, Mankato Free Press (Dec.17, 2019).

[3] Ferguson, Minnesota County votes ‘No’ to refugees as more than a dozen others say ‘Welcome,’ Brainerd Dispatch (Jan. 8, 2020).

[4] See n.3.

[4a] Slater, Cook County opens door with refugee consent, Duluth News Tribune (Jan. 14, 2020); Slater, North Shore county gives unanimous consent to future refugee resettlement, TwinCities Pioneer Press (Jan. 14, 2020).

[5] See n.3.

[6] Fergus, Goodhue County approves refugee resettlement, RiverTowns.net (Jan. 7, 2020);

[7] Hennepin County Board Minutes (Jan.7, 2020); Hennepin County, Letter of Consent for Refugee Resettlement (Jan. 7, 2020).

[8] See n.3.

[9] See n.3..

[10] See n.3.

[11] See n.3.

[12] Petersen, Olmsted County will remain open to refugees, Post Bulletin (Dec. 7, 2019)

[13] See n.3.

[14] See n.3.

[15] Rapp, County to accept refugees if asked, Pope County Tribune (Jan. 13, 2019)

[15a] Vezner, Ramsey County votes to accept more refugees. It already accepts most in MN, TwinCities Pioneer Press (Jan. 14, 2020).

[16] See n.3.

[17] See n.3.

[18] See n.3.

[18a] Washington County votes to continue accepting refugees, RiverTowns.net (Jan. 14, 2020).

[19] Anaya, Watonwan County provides consent to federal government for refugee resettlement, St. James Plaindealer (Jan. 10, 2010); Watonwan County Board, Agenda (Jan. 7, 2019).

[20] See n.3.

[21] Rao, Minnesota counties continue to weigh refugee resettlement, StarTribune (Jan. 7, 2020); Rao & Galioto, Minnesota county votes against allowing refugee resettlement, StarTribune (Jan. 7, 2020).

[22] See n. 21; Slater, St. Louis County delays refugee resettlement vote to May, Duluth Tribune (Jan. 7, 2020).

[23] See n.3.

[24] Liedke, UPDATED: Beltrami County votes no to accepting refugees, Bemidji Pioneer (Jan. 7, 2020); Assoc. Press, Northern Minnesota County Bans Refugee Resettlement, N.Y. Times (Jan. 7, 2020); What people are saying about Beltrami County’s vote to refuse refugees, StarTribune (Jan. 8, 2020); Rao, Minnesota’s Beltrami County votes against allowing refugee resettlement, StarTribune (Jan. 8. 2020); Kelly, What people are saying about Beltrami County’s vote to refuse refugees, StarTribune (Jan. 8, 2020); Some residents say refugees would just make Beltrami County’s struggles worse, StarTribune (Jan. 11, 2020).

[25] Apparently Appomattox County in Virginia also has voted against such resettlement. See Rao, Minnesota’s Beltrami County votes against allowing refugee resettlement, StarTribune (Jan. 8. 2020).

[26] Schneider, Reflections from a Beltrami County businessperson, StarTribune (Jan. 15, 2020).

[27] Sacchetti & Morrison, North Dakota county accepted refugees, but the debate is far from over, Wash. Post (Jan. 8, 2020).

Another Update on States’ Consents to Refugees Resettlement

President Trump on September 24, 2019, issued Executive Order 13888, entitled “Enhancing State and Local Involvement in Refugee Resettlement” that required state and local governments to submit to the Department of State written consents for resettlement of refugees as a precondition for such resettlements.[1]

The deadline for providing those consents, however, has been confusing in the primary and secondary sources. But it now appears that the key date is January 21, 2020, which is the deadline for local refugee resettlement agencies to submit applications for funding of those efforts by the State Department’s Bureau of Population Refugees and Migrations (PRM) and that such funding applicants must submit to PRM such “consent letters from state and local officials on a rolling basis both before and after submission of their proposals.” (Emphasis added.) Thus, there is no explicit deadline for submitting the consents.[2]

List of Consenting State & Local Governments

PRM now is publishing on its website a list of state and local governments that have submitted letters of consent, copies of most of which are hyperlinked to the list.[3] However, there is no “as of” date for the PRM’s list which will be updated from time to time. In any event, here is the latest PRM list consolidated with lists from other sources identifying 34 states (15 Republican governors and 19 Democrat Governors) that have consented.[4]

State	PRM	Other Sources	Local Entities	PRM	Other Sources
Arizona (Rep. Gov.)	X	X	Phoenix (City), Tucson (City) Maricopa (County), Pima (County)		X
Arkansas (Rep. Gov.)		X
Colorado (Dem. Gov.)	X
Connecticut (Dem. Gov.)	X	X	New Haven (City)	X
Delaware (Dem. Gov.)	X	X
Illinois (Dem. Gov.)	X	X	DuPage County, Chicago (City)	X	X
Indiana (Rep. Gov.)		X
Iowa (Rep. Gov.)	X
Kansas (Dem. Gov.)	X	X
Louisiana (Dem. Gov.)		X
Maine (Dem. Gov.)	X
Massachusetts (Rep. Gov.)	X	X	Easthampton (City)	X
			Holyoke (City)	X
			Northampton (City)	X
			Salem (City)	X
			West Springfield (City)	X
Michigan (Dem. Gov.)	X	X
Minnesota (Dem. Gov.)	X	X	Minneapolis (City)		X
Montana (Dem. Gov.)	X	X
Nebraska (Rep. Gov.)		X
New Hampshire (Rep. Gov.)	X
New Jersey (Dem. Gov.)	X	X
New Mexico (Dem. Gov.)	X	X
North Carolina (Dem. Gov.)	X	X	Durham County	X
North Dakota (Rep. Gov.)	X	X	Burleigh County		X
Ohio (Rep. Gov.)		X
Oklahoma (Rep. Gov.)
Oregon (Dem. Giov.)	X	X
Pennsylvania (Dem. Gov.)	X	X
Rhode Island (Dem. Gov.)	X
South Dakota (Rep. Gov.)		X
Tennessee (Rep. Gov.)		X
Texas (Rep. Gov.)	X[i]		Bexar County	X
Utah (Rep. Gov.)	X	X
Vermont (Rep. Gov.)		X
Virginia (Dem. Gov.)	X	X	Alexandria (City)	X
			Richmond (City)	X
			Roanoke (City)	X
Washington (Dem. Gov.)	X	X
West Virginia (Rep. Gov.)		X
Wisconsin (Dem. Gov.)		X

Finally no state so far has affirmatively rejected such resettlements although there is no requirement to do so. Rejection is implicit if there is no affirmative consent.

Conclusion

Many of the current letters of consent contain inspiring words about welcoming refugees that will be discussed in a subsequent post while another post will cover religious justifications for welcoming refugees.

Now we wait to learn what the other 16 states (11 Republican (Alabama, Alaska, Florida, Georgia, Idaho, Maryland, Mississippi, Missouri, South Carolina, Texas and Wyoming) and 5 Democrat (California, Hawaii, Kentucky, Nevada and New York ) will do.

It should be noted, however, that the official website of New York’s Democrat Governor Andrew Cuomo on September 17, issued a statement criticizing the Trump Administration’s new lower cap on refugee admissions and saying, “We believe that our diversity is our greatest strength, and we are proud to be home to refugees across the state who are breathing new life into their communities as members of the family of New York. While President Trump undermines the values that built this state and this nation, New York will always welcome immigrants and refugees with open arms.”[6]

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[1] See these posts to dwkcommentaries.com: U.S. Sets 18,000 Quota for New Refugee Admissions to U.S. for Fiscal 2020 (Nov. 4, 2019; U.S. Senators Oppose U.S.Reduction in Refugee Admissions for Fiscal 2020 (Nov. 11, 2019);Latest U.S. Struggle Over Refugees (Dec. 11, 2019); Minnesota and Minneapolis Say “Yes” to Refugees (Dec. 14, 2019); Updates on States’ Consents to Refugee Resettlement (Dec. 16, 2019); https://dwkcommentaries.com/2019/12/16/update-on-states-consents-to-refugee-resettlement/ Tennessee Consents to Refugees Resettlement (Dec. 20, 2019).

[2] State Dep’t, Bureau of Population, Refugees, and Migration (PRM), FY 2020 Notice of Funding Opportunity for Reception and Placement Program, Funding Opportunity Number: SFOP0006252 (Nov. 6, 2019) FY2020 R&P FINAL NOFO.

[3] State Dep’t, State and Local Consents Under Executive Order 13888.

[4] See prior posts listed in footnote 1. See also Assoc. Press, Oklahoma governor give consent for refugee resettlement, koco.com (Dec. 22, 2019); Assoc. Press, GOP Governors Grapple With Whether to Accept Refugees or Not, N.Y. Times (Dec. 23, 2019); Assoc. Press, 15 GOP Govs Request Refugee Resettlement in Their States, NEWSMAX (Dec. 26, 2019); CBSChicago, Mayor Lightfoot Issues Letter To U.S. State Department Authorizing Refugee Resettlement in Chicago (Dec. 24, 2019); Assoc. Press, John Bel Edwards to Trump: Louisiana will keep taking refugees, Advocate (Dec. 23, 2019); Carson, Evers says Wisconsin is open to refugee resettlement in response to presidential order requiring states, counties to consent, Milwaukee Sentinel (Dec. 18, 2019); Stoddard, Gov. Pete Ricketts says he’ll consent to refugees continuing to resettle in Nebraska, Omaha-World Herald (Dec. 19, 2019).

[5] It appears that Texas is on the PRM list only because Bexar County has submitted a consent. On December 26, 2019, a Texas newspaper reported that Texas Governor Greg Abbott has not submitted such a consent letter and that his spokesman “did not return multiple calls, texts, and emails seeking comment.” On the other hand, “Mayors and county leaders of all Texas’ biggest cities —including Houston, San Antonio, Dallas and Austin — sent letters opting in,” but those consents are effective only if the state consents. (Kriel, Trump give states power to admit refugees. As other GOP governors sign on, Abbott is silent, Houston Chronicle (Dec. 26, 2019).)

[6] Statement from Governor Andrew M. Cuomo on the Trump Administration’s New Refugee Cap (Sept. 17, 2019).

How Does Jesus See Love?

This was the question addressed in Rev. Tim Hart-Andersen’s November 10, 2019, sermon at Minneapolis’ Westminster Presbyterian Church and in his reflections on his gathering four days earlier with 15 other U.S. and Cuban clergy and lay leaders on a rooftop in Havana.[1]

As previously noted in this blog, Westminster has had partnerships with the Presbyterian-Reformed Church of Cuba for nearly 19 years,[2] and the purpose of the recent gathering in Havana was to meet with the leaders of the Seminario de Evangelico de Teologia (SET) and learn about their vision for establishing a facility in Havana to supplement the offerings at its main facilities in the city of Matanzas on the north coast of the island east of Havana.[3]

According to Rev. Hart-Andersen, “It’s an exciting time for the church in Cuba, full of possibility. There’s a great awakening of spiritual hunger on the island as it emerges from decades of atheism and isolation. With its unique circumstances, Cuba offers the Church a living laboratory for spreading the faith.”

“Younger Cubans have virtually no experience of Christianity. They were raised in a system that rejected religion. As a result, for our Presbyterian sisters and brothers and other Christians on the island, it’s if they were starting the church all over.”

“Differing versions of the faith are rushing in to try to fill the void. Some cling to a traditional, conservative Roman Catholicism. Others mix African-traditions with Christianity. Some proclaim an imported, privatized, prosperity gospel designed to meet individual need. And others – including our Seminary partners – pursue a gospel that seeks justice and works to transform individuals and systems.”

“We have our own competing versions of Christianity . . . [in the U.S.] There’s little consensus among us in our land about what it means to be faithful. In our country today, religion is as divided as politics – and sometimes it can be hard to tell the difference between the two.”

“Whether in Cuba or . . . [the U.S.], those seeking to live as God’s people are struggling with how to do that in our time. The old ways are not working; we need a refresher course in following Jesus. What do we do?”

The response to this question for us [in the U.S.] and for the church in Cuba comes from Jesus when He answered the question, “What is the greatest commandment?” Jesus’ answer: “‘You shall love the Lord your God with all your heart, and with all your soul, and with all your mind.’ This is the greatest and first commandment. And a second is like it: ‘You shall love your neighbor as yourself.’ On these two commandments hang all the law and the prophets.”[4]

“How does Jesus see love? It has more than one dimension, and it moves in multiple directions. It starts with each individual human being, created in the image of God, each one of us a living expression of the love of God – and then moves outward, in visible ways to those near us and into our communities, and in invisible ways, to God who joins us in loving the world. It’s a trinity of love: God, neighbor, self. In choosing to follow Jesus, you and I wrestle with finding the right balance among the three – and oftentimes we find ourselves tilting in the direction of self. And we get into trouble when we do that.”

These thoughts occurred to Rev. Hart-Andersen as he and the others on a Havana rooftop sang this hymn:

“Open our eyes, Lord. Help us to see your face.

Open our eyes, Lord. Help us to see.

Open our ears, Lord. Help us to hear your voice.

Open our ears, Lord. Help us to hear.”

Said Rev. Hart-Andersen, “We looked out at the city [of Havana] and saw its many-hued people, beginning to meet the challenges of another day in a difficult time and place. Help us to see.” We heard “the sounds of children and babies crying and car horns honking, laughter and shouts rose from the streets below to accompany our song. Help us to hear.”

“Our rooftop singing [of this song] placed the worship of God right where worship should be: in the midst of the world. We were no longer hidden and quiet behind walls. It was love of God meets love of neighbor.”

“The practice of Christianity requires a context as close to the real world as possible, and that was the real world. Love needs someone to love. A “neighbor” is not theoretical. We can’t love by staying inside these walls [of our church in Minneapolis or Havana]. . . . Loving our neighbor requires that we encounter our neighbor.”

From the Havana rooftop, “we looked into a city teeming with life, yet impoverished materially and spiritually. And as we looked, we caught a glimpse of the makings of the Beloved Community—people working together, hoping for a better future, refusing to be overwhelmed by their circumstance, wanting to be loved by one another.”

“That’s how Jesus sees love—as a community of people reconciled to God and reconciled to one another, eager to worship and ready to serve.” (Emphasis in original.)

State Department’s Contrary Opinion of Cuban Religious Freedom[5]

This sermon also implicitly contradicts the U.S. State Department’s December 20^th addition of Cuba to the Department’s Special Watch List of countries engaging in or tolerating “severe violations of religious freedom” while not meeting all of the criteria for the worse status of Countries of Particular Concern.

The Department did not provide any purported factual basis for this action regarding Cuba even though only six months earlier, on June 21, 2019, the Department’s latest annual report on this subject for every country in the world had harsh, and unjustified, criticism of Cuba, but did not designate the island as a member of the “Special Watch List” or as a “Country of Particular Concern.’ [6]

Conclusion

Jesus’ reminder that we all are commanded to love God with all our heart, soul and mind and our neighbor as ourself should remind us that each of us and everyone else (and every country) often fail to meet these obligations and, therefore, need forgiveness. We need to be humble.

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[1] Westminster Presbyterian Church, Rev. Tim Hart-Andersen, Sermon: How Does Jesus See Love? (Nov. 10, 2019).

[2] As its website says, SET is an ecumenical seminary that “was founded on October 1, 1946,” and that now “is governed by a Board of Directors, with representative, legislative, consultative and executive functions; composed of ten members of the Cuban founding Churches: Episcopal Church of Cuba (4), Presbyterian-Reformed in Cuba (4); and by a representative of the Fraternity of Baptist Churches of Cuba (1) and of the Los Amigos Church “Quakers” (1).” SET works “in the academic, ecumenical, ethical, moral and spiritual formation of those who feel called by God to exercise the ordained ministry, and other ministries in the Church, as well as in the training of the faithful who wish to serve in the work of the Lord through the broadest universal ministry of International believers, through regular and special courses, in permanent residence or through meetings, among others. We are also engaged in the development of an ethical, theological and biblical culture and, for this purpose, we are open to people who do not intend to enter the Christian ministry in any of its forms.”

[3] Minneapolis’ Westminster Presbyterian Church’s Connections with Cuba, dwkcommentareis.com (Jan.13, 2015); Minneapolis’ Westminster Presbyterian Church Celebrates U.S.-Cuba Reconciliation, (Jan. 4, 2015) dwkcommentaries. com (Jan. 4, 2015).

[4] Matthew 22: 34-40; Mark 12: 28-31; Luke 10: 25-28. This answer from Jesus quoted from the Hebrew Bible that would have been well known to the individuals asking this question: Deuteronomy 6:5 and Leviticus 19:18.

[5] State Dep’t, Press Statement: United States Takes Action Against Violators of Religious Freedom (Dec. 20, 2019).

[6] See State Dep’t, 2018 Report on International Religious Freedom (June 21, 2019); U.S. State Department Unfairly Criticizes Cuban Religious Freedom, dwkcommentaries.com (July 18, 2019); U.S. State Department’s Positive Assessment of Cuban Religious Freedom, dwkcommentaries.com (Aug. 19, 2017).

Wall Street Law Firm Increases Attorneys’ Compensation

On June 6, the law firm of Cravath, Swaine & Moore, the crème de la crème of Wall Street law firms, announced that it was increasing the salary for new attorneys just out of law school to $180,000 and for eighth-year associate attorneys to $315,000. (At the end of the eighth year an associate attorney is either chosen to be a partner or asked to leave the firm.) Such employees also may obtain annual bonuses. The average compensation for the firm’s partners, on the other hand, was $3.56 million.[1]

Cravath, according to a profile from Chambers & Partners, has offices in New York City and London with a total of 90 partners and 426 associate attorneys. The firm’s website says it hires “only the top students from the nation’s finest law schools, we train our associates through a rigorous rotation of practices, we elevate partners exclusively from within and we compensate partners in a lockstep system throughout their careers.”

I react to this news from at least three perspectives.

First, as I explained in an earlier post, immediately after law school graduation in 1966 I joined Cravath as an associate attorney with an annual salary of $9,000 ($66,941 in 2016 Dollars). In 1968 the firm jumped the starting salary to $15,000 ($104,657 in 2016 Dollars) with similar boosts to the salaries of more senior associates. I left Cravath and New York City in 1970 even though being a Wall Street lawyer was challenging and exciting as was living in the city with a wife and two young sons. I value those years, but did not want to remain another four years to compete for a chance to become a Cravath partner with all the sacrifices of time, energy and stress that would require and with all the income and prestige that it would entail. Instead I chose to move to Minneapolis to practice law with Faegre & Benson (n/k/a Faegre Baker Daniels), about which I also have written.

Second, the Cravath move to a starting salary of $180,000 is clearly an outlier in the overall U.S. legal job market. While observers speculate that other prominent Wall Street law firms probably will match this increase, law firms in other U.S. cities and business corporations, in my opinion, will not do so, and clearly governments and nonprofit organizations with lawyers will not be able to do so.

Third, this increase in compensation comes after widespread weaknesses in the demand for lawyers in the U.S. Indeed, in recent years the openings for new attorneys have shriveled. Many recent law school graduates, often with large student-debt loads, have been unable to find law-related jobs. Some recent law graduates have sued their law schools with claims they had been scammed. Law school enrollments have been declining. I hope the Cravath increase is a sign that there may be increasing opportunities for new lawyers, but I am not holding my breath.

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[1] Olson, Law Firm Salaries Jump for the First Time in Nearly a Decade, N.Y. Times (June 6, 2016); Randazzo, Law Firm Cravath Raising Starting Salaries to $180,000, W.S.J. (June 6, 2016); Lat, Breaking: NY To $180K!!! Cravath Raises Associate Base Salaries!!!, Above the Law (June 6, 2016).

U.S. Congressional Meetings in Havana

A prior post reported about the planned meetings in Havana of a delegation of congressional Democrats led by Senator Patrick Leahy. Now we have news of what happened on their three-day trip.

Here is a photo of the delegation in Havana (left to right): Representative Chris Van Hollen, Senator Sheldon Whitehouse, Senator Debbie Stabenow, Representative Peter Welch and Senator Patrick Leahy. (Senator Richard Durbin is the other member of the delegation.)

On Saturday, January 17^th, they “met with officials from Cuba’s Culture Ministry in order to discuss possible Cuban participation in the Smithsonian Institution’s Folklife Festival, a summer celebration of traditional art and culture on Washington’s National Mall.

On Sunday, January 18^th, they met with more than a dozen dissidents including critics of the 18-month-old secret negotiations that led to last month’s announcement. All but two of them expressed support for the opening.

One of these two, Antonio Rodiles, said it “was a friendly meeting, they heard the different positions, but the senators are very much in favor of Obama’s measures and want to hear that we agree.” Rodiles, however, criticized the Obama administration for failing to win enough guarantees of reform from the Cuban government. “I said the process [of negotiating the U.S.-Cuba accords] took place without transparency or taking the full range of opinions into account.”

Another dissident, Elizardo Sanchez, head of the Cuban Human Rights and National Reconciliation Commission, a Cuban non-governmental organization tracking political detentions, said that the Cubans at the meeting “had delivered a list of 24 long-term prisoners whom they wanted to see released in addition to the 53 on the Obama administration’s list.”

On Monday, January 19^th, the U.S. delegation met “for several hours with Foreign Minister Bruno Rodriguez Parrilla, who told the legislators that Cuba welcomed President Obama’s loosening of the U.S. trade embargo, which would permit more travel to Cuba and economic links including exports of telecommunications equipment and wholesale goods for use by the country’s small private sector.” According to Leahy, Rodriguez is “open to every issue from trade to communications. He talked about the travel back and forth, medical issues. Name an issue, he’s involved.” (To the right is a photo of this meeting.)

Also participating in this meeting were Josefina Vidal Ferreiro, the Director General of the North American Division of Cuba’s Foreign Ministry, and Cuba’ chief diplomat at the Cuban Interests Section in Washington, José Ramón Cabañas, the latter of whom visited Minneapolis’ Westminster Presbyterian Church last October.

The U.S. legislators also had hoped to meet with Cuban President Raúl Castro, but that did not happen apparently because the Americans had met with Cuban dissidents on Sunday.

World Premier of Palestinian Christian Hymns at Minneapolis’ Westminster Presbyterian Church

WPCext2 — Westminster Presbyterian Church, Minneapolis

On May 6, 2012, two Palestinian Christian hymns had their world premiers during the Sunday morning worship service at Minneapolis’ Westminster Presbyterian Church. Both were commissioned by two Westminster members to celebrate the church’s partnership with Evangelical Lutheran Christmas Church of Bethlehem, Palestine.

The music for these hymns was written by Palestinian musicians Marwan Abado, Naser Musa and Georges Lammam. They along with three others (Antoine Lammam, Miles Jay and Tim O’Keefe) constitute the Georges Lammam Ensemble who were present and played and sung the hymns and other Middle Eastern music during the service. The lyrics for both were written by Rev. Dr. Mitri Raheb, the Pastor of the Christmas Church.

The first hymn, Ahar (We Are Free), had three verses and refrain that were a Christian response to the realities of the contemporary Middle East. The hymn’s lyrics in Arabic were on the cover of the church bulletin for the service shown at the right. The verses were sung in Arabic by the Ensemble to their own accompaniment on Middle Eastern instruments. The refrain was sung in English by the congregation:

“We’re free, unbound from slavery.
We’re free, in our humanity.
As dark as it may seem, we’ll work toward the dream until we see the beam, the light of liberty.
We’re free. We’re free. We’re free.”

The lyrics for the other hymn, Ghanu Lil Hayat (A Hymn for Life) had a message of resurrection to be sung in the Easter season. Its two verses were sung in Arabic by the Palestinian musicians with their own accompaniment, and the congregation repeated the first verse in Arabic:

Lai sa ho wa ha hou naa ha hou naa
Kuf fu a’n nii bu kaa caa ma naa buu ha y aat

Raheb@WPC — Rev. Raheb (Northenscold photo)

Rev. Raheb delivered the sermon, “A Village Tour,” based on this passage from the Gospel of Mark (1: 35-39):

“In the morning, while it was still very dark, [Jesus] got up and went out to a deserted place, and there he prayed. And Simon and his companions hunted for him. When they found [Jesus], they said to him, ‘Everyone is searching for you.’ He answered, ‘Let us go on to the neighboring towns, so that I may proclaim the message there also; for that is what I came out to do.’ And he went throughout Galilee, proclaiming the message in their synagogues and casting out demons.”

This passage, Raheb said, was a short summary of Jesus’ political program. In the context of His having been born, raised and lived under Roman occupation and having been oppressed day and night, He was faced with the question, how can His people be liberated?

To answer this question, Raheb continued, Jesus chose not to go to Rome, the capitol of the occupying power, to demand that the people be liberated. Nor did He have any desire to be a king or religious leader or the founder of a political party. Jesus had a different concept of liberation. Instead He chose to go on a village tour to preach, teach and heal the people who were marginalized, who were not in control of their lives. Jesus told them that their liberation starts in the mind and in the heart and that they–the outsiders– were being called to be His ambassadors for the Kingdom of God. We are free!

The service was attended by a local Islamic imam and was live-streamed to the Internet and watched by members of Christmas Church in Bethlehem and by Christians in Europe. It is now archived and can be watched by anyone. It was the concluding event in Westminster’s Palestinian Arts Festival.

In my opinion, this worship service was one of the most meaningful in Westminster’s recent history. It fully integrated the mission of our global partnerships with our worship service. It emphasized that God speaks and acts in different ways, in different times and in different places. We in the United States do not have a monopoly on understanding God and Jesus. The Bible was not written in English in 21st century U.S.A. We can gain additional perspectives on God and Jesus from symbolically standing in the shoes of our brothers and sisters in different places and circumstances. Jesus lived and worked in an era of occupation.

International Commercial Dispute Resolution

As previously noted, I have a strong professional preference for mediation and arbitration as methods for resolving disputes between manufacturers and distributors or dealers.[1] This assumes that the parties have tried and failed to resolve their disputes through direct negotiation, which is the least expensive and least time-consuming method and which enhances the possibility of amiable future relationships.

The reasons for preferring negotiation, mediation and arbitration hold as well for commercial disputes between entities in different countries.

Mediation (or conciliation as it is called in the international arena) where a neutral third-party assists the disputants in trying to settle their disputes is the first option after negotiation. This was my preferred dispute resolution method because it empowered the parties themselves to settle their disputes, because it opened the way for creative solutions that were not possible in court or in arbitration and because it was the least expensive option.[2]

Only if mediation (or conciliation) failed, would such a contractual provision call for submitting the dispute to arbitration under one of several general sets of arbitration rules where the arbitrator resolves the dispute. Arbitration was preferred to court litigation because the former eliminated the expensive pre-trial discovery and other processes of the court and because the parties participated in selecting the arbitrator who was seen as a safer decider than an unknown judge or jury. On the other hand, the costs of international arbitration are significant, especially with three arbitrators from different countries and international travel.[3]

Moreover, there are additional reasons why arbitration is a preferred method for international commercial dispute resolution. First, there is fear of prejudice against the foreigner by a court or jury of another country. But such fear is less with an arbitrator or arbitrators that the sides help to choose. Second, there is a multilateral treaty that makes arbitration awards (the final decision in an arbitration) easier to enforce in other countries.[4] In contrast, it is more difficult to enforce one country’s courts’ final judgments in other countries. This is very important. For example, an arbitration award or a court judgment might hold the defending corporation (the respondent or defendant) liable to the complaining corporation (claimant or plaintiff) for $1 million for breach of contract, and most of the respondent or defendant’s assets might be in a different country than where the arbitration or litigation took place.

At Faegre & Benson, I frequently drafted dispute resolution provisions for international contracts prepared by other lawyers in the firm. In addition, I was counsel for two foreign companies in international arbitration proceedings under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL).[5] Each of these cases illustrated interesting facets of such proceedings.

Turkish distributor vs. U.S. (Minnesota) manufacturer.

In the first case, I represented the Turkish terminated distributor of medical devices that were manufactured by a Minnesota company. Their written agreement, written by Minnesota lawyers, called for Minnesota law as the governing law and arbitration in Minnesota under the UNCITRAL Arbitration Rules with three arbitrators and with English as the language of the arbitration.

Under Article 5 of the UNCITRAL Rules there are three arbitrators unless the parties agree to have only one arbitrator. When there are three arbitrators, the claimant (here, the Turkish company) selects the first arbitrator; the respondent (here, the Minnesota company) picks the second; and then these two arbitrators select the third and presiding arbitrator. Although the first two arbitrators are selected by the two parties, the arbitrators are to be independent, not representatives or advocates for the parties that selected them.

My Turkish client and I thus had to go first in selecting an arbitrator. My ideal candidate was a Minnesota lawyer from Turkey who was bilingual in English and Turkish and who knew Turkish business customs and circumstances, but not surprisingly I could not find such a person. I then called the Turkish consulate in Chicago and Embassy in Washington, D.C. for recommendations for such an arbitrator. I eventually found a U.S. (and Turkish) lawyer in New York City who was born in Turkey, who was bilingual and who knew its business customs and circumstances, and the Turkish company appointed him as arbitrator. The Minnesota company then appointed a professor from a Minnesota law school as the second arbitrator. The two of them then appointed a retired chief justice of the Minnesota Supreme Court as the third and presiding arbitrator.

The hearings were held in a conference room of the Minneapolis office of the presiding arbitrator in the IDS Tower and lasted several days. The Minnesota company was represented by its in-house lawyer and two lawyers from its outside law firm while I was by myself for the Turkish company. (This was a role reversal for me.) The atmosphere was tense in the conference room. The husband of the couple who owned the Turkish company had been an arbitrator in his own country where things were handled much differently, and yet he enjoyed the battle in the Minneapolis conference room. His wife who was also involved in the business and was a witness, however, was appalled by the hostile questioning of the other side’s lawyer.

Several weeks after the hearing, I received in the mail the two-page award of the arbitrators requiring the manufacturer to pay a sum of money to the Turkish company. Thereafter the money was paid, and the case was over. My client and I were very pleased.

Under Article 32(3) of the UNCITRAL Arbitration Rules, the arbitrators are required to provide a statement of the reasons for their award unless the parties waive this requirement. In this case, the requirement was waived because a relatively small amount money was claimed and because both sides wanted to avoid the expense of paying for the time of the arbitrators to prepare such a statement of reasons.

U.S. (Minnesota) Buyer vs. Asian manufacturer

In the second case, I was counsel for an Asian manufacturer responding to an arbitration claim for over $26 million for breach of contract and other alleged wrongs. The contract at issue had been prepared by a non-lawyer employee of a Minneapolis foreign-trade consulting firm. It had what I regarded as a very inartful arbitration provision. It called for arbitration under the rules of “the United Nations Uniform Commercial Codes,” which do not exist. Nor did it specify where the arbitration should be held or the number of arbitrators or the language of the arbitration.

The Minnesota company first suggested there be only one arbitrator and that a specified retired Minnesota state trial court judge be that sole arbitrator. Although I had experience before that individual when he was a judge and had full confidence in his ability to be a fair arbitrator in this case, my Asian client did not want to have the case decided by one person from Minnesota. Therefore, I told opposing counsel that we did not agree to only one arbitrator.

Nothing more was heard from opposing counsel, and I thought the case had died on the vine. I was greatly surprised, therefore, when I received a letter from the Permanent Court of Arbitration at The Hague, Netherlands. The letter said that under Article 7 (2)(b) of the UNCITRAL Arbitration Rules, it was the designating authority for appointment of arbitrators when a party defaults in so doing and that the Asian company had defaulted in appointing the second arbitrator. In response, I recited the above history and stated that the Minnesota company had never appointed the first arbitrator and that, therefore, the Asian company had not defaulted. An official at the Permanent Court said I should tell that to the person it was designating as the appointing authority, a barrister in Melbourne, Australia. I reiterated my argument to the barrister to no avail when he appointed the head of an Asian international arbitration center and a former attorney general of that country as the second arbitrator.

Thereafter, these two arbitrators appointed a Danish lawyer from Copenhagen with extensive experience in international commercial arbitration as the third and presiding arbitrator.

On behalf of the Asian company, I filed a motion to dismiss the arbitration as it had never agreed to arbitration under the UNCITRAL Arbitration Rules, and the panel set a hearing in Minneapolis on this motion. Several weeks before the hearing, I was startled to receive a letter announcing the resignation of the second arbitrator (the Asian lawyer). My Asian co-counsel and I then immediately appointed a Queen’s Counsel barrister from London as the second arbitrator. (Later I found out that the Asian arbitrator had resigned because his fellow arbitrators refused to authorize him to fly first class (at substantial expense) to Minneapolis for the hearing.)

The hearing on the dismissal motion was held in Minneapolis, and the panel denied the motion. They did so even though their decision recognized that the “United Nations Uniform Commercial Codes” did not exist and under a strict interpretation, the arbitration clause had no effect. Nevertheless, the order concluded that the clause must be understood as referring to the UNCITRAL Arbitration Rules.

At the same time we also had a dispute as to the venue (or “seat”) of the arbitration due to the inartful arbitration clause’s not specifying such; my side argued for Hong Kong; the other side, London; and the arbitrators decided on London. The arbitrators also decided that the language of the arbitration would be English, which was not specified in the clause, but all agreed to English.)

In U.S. trials and arbitrations, witnesses are cross-examined on inconsistencies, real or apparent, between their testimony at the trial or hearing and prior testimony or statements. However, in this arbitration, the panel told the attorneys it was “not necessary during examination or cross-examination of witnesses for them to examine the witnesses on matters already in the written materials.” This was a surprise for me and a problem in preparing good cross-examination questions.

In the Fall of 1997, the hearings on the merits (or the trial) were held in three different cities. Minneapolis was first for the testimony of certain witnesses. I then flew to the Asian city where my client was located for hearings for the testimony of other witnesses. I then returned to Minneapolis for a brief stay, and then it was on to London.

London was the city for closing arguments. They were held in a conference room of an arbitration center in “legal London,” on the Strand near the Law Courts and the Inns of Court. The attorneys for the Minnesota company went first. Then my Asian co-counsel and I made our arguments.

I prepared for the closing arguments in Faegre & Benson’s London office, which is just several blocks from St. Paul’s Cathedral. Working on a Sunday morning, I could hear the pealing of the Cathedral’s bells and wished that I were in the church, rather than in the office.

Approximately four months later I received the 27-page Award that dismissed all of Claimant’s claims and all of my client’s counterclaims. One of the key points was the conclusion that the Claimant’s predecessor-in-interest and assignor had waived all claims for breach of contract and that its conduct did not fall within the wording of a non-waiver clause in the contract.

Thereafter Claimant submitted a motion for correction and interpretation of that key point, which my client resisted. On the basis of the papers the panel decided, 2 to 1, that there was no need for any interpretation or correction of the Award. At last, the case was over.

Not surprisingly this was not an inexpensive arbitration. In addition to the fees and expenses of each side’s attorneys, the bill of the three arbitrators for their fees and expenses was $302,000 to be split equally by the two parties.

[1] Post: Resolving Disputes between Manufacturers and Distributors/Dealers (Aug. 9, 2011).

[2] One example of rules for this method of dispute resolution is the UNCITRAL Conciliation Rules, which cover all aspects of the conciliation process, providing a model conciliation clause, defining when conciliation is deemed to have commenced and terminated and addressing procedural aspects relating to the appointment and role of conciliators and the general conduct of proceedings. The Rules also address issues such as confidentiality, admissibility of evidence in other proceedings and limits to the right of parties to undertake judicial or arbitral proceedings while the conciliation is in progress. (UNCITRAL, 1980–UNCITRAL Conciliation Rules, http://www.uncitral.org.)

[3] Post: Resolving Disputes between Manufacturers and Distributors/Dealers (Aug. 9, 2011).

[4] The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (also called “the New York Convention” or treaty) now has 146 of the 192 U.N. member states as parties, including China, Korea, Japan, India, Indonesia and other major trading partners of the U.S. The treaty requires courts of contracting States to give effect to an agreement to arbitrate when seized of an action in a matter covered by an arbitration agreement and also to recognize and enforce arbitration awards made in other States, subject to specific limited exceptions. (UNCITRAL, 1958–Convention on the Recognition and Enforcement of Foreign Arbitral Awards, http://www.uncitral.org.)

[5] The UNCITRAL Arbitration Rules cover all aspects of the arbitral process, providing a model arbitration clause, setting out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedings and establishing rules in relation to the form, effect and interpretation of the award. (UNCITRAL, 1976–UNCITRAL Arbitration Rules, http://www.uncitral.org.)