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If you have listened to local radio in recent years, (certainly those stations geared to a more mature audience), you were hard pressed to miss commercials from a “large” insurance broker touting his ability to obtain “affordable” life insurance coverage for persons, notwithstanding whether you had various chronic health conditions, took medications, or were otherwise not in the best of shape. Recently, that same insurance broker has been running a new series of commercials clearly geared to divorced or divorcing spouses, who may be in the position of having to secure life insurance coverage for the benefit of their ex, maybe even more than one. In addition to making me chuckle, these commercials made me think about the issue of life insurance and divorce. In this blog post I will briefly discuss this issue as well as some real life considerations regarding same.
It was generally recognized that support obligations, be they alimony or child support, would end upon the happening of certain sets of circumstances, including the death of the payor. Our Federal tax laws mandated that payments had to end upon death if they were to qualify as alimony. Even our state statutes, N.J.S.A. 2A:34-25, provided that alimony shall terminate upon the death of the payor spouse. However, over the last 50 years or so, the courts of this state, grappling with the financial impact a payor’s death would have upon a former spouse or children who were still dependent upon that support, have gradually expanded the extent some sort of “security”, including the maintaining of life insurance, would be authorized, if not required, to address same.
The New Jersey Supreme Court in Grotsky v. Grotsky, 58 N.J. 354 (1971), chose to liberally interpret and apply the “reasonable security for the due observance” of alimony and child support orders language of N.J.S.A. 2A:34-23, to allow courts to require a payor parent to maintain life insurance on his life to secure the “due fulfillment of the [child] support ordered during their minority”. These sentiments were carried forward in regards to alimony in a case of Meerwarth v. Meerwarth, 128 N.J. Super. 285 (Ch. Div. 1974), aff’d 137 N.J. Super. 66 (App. Div. 1975), aff’d 71 N.J. 541 (1976). In that case, the former wife sought permission to obtain at her expense a life insurance policy on her ex-husband’s life and require his cooperation regarding same. The trial court denied this request, concluding that his right to privacy in not submitting himself to a physical examination outweighed any equitable basis or need for this insurance given the ex-wife’s favorable financial position. While both the Appellate Division and the Supreme Court affirmed this decision, the Supreme Court noted that under appropriate circumstances and for good cause, a court could order a divorced husband to cooperate in obtaining insurance on his life for the financial protection of his former wife and his children, citing to the “reasonable security” provision of N.J.S.A. 2A:34-23 for this authority. Finally, in the case of Davis v. Davis, 184 N.J. Super. 430 (App. Div. 1982), The Appellate Division affirmed an order of the trial court which required the payor to obtain life insurance on his life [or create a trust fund] for the benefit of his former spouse to “provide some measure of security… for the payment of alimony in the event of [payor’s] death”, noting that equity cried out for some relief given the formal wife’s precarious financial position, lack of equitable distribution, ill health, inability to work, etc.
Clearly a court’s authority to require the maintenance of life insurance is discretionary, but as a practical matter virtually all divorce cases in which there is alimony and/or child support obligation, whether by decree or agreement, include some sort of life insurance requirement or other means to “secure” that support in the event of a payor’s death. Should they? One of the underlying purposes of support orders is to allow the family to maintain, to the extent reasonable, the marital lifestyle after a divorce, and also to minimize a divorce’s impact upon the family, children in particular. What if for health, financial or philosophic reasons the family did not have life insurance or maintained a modest level? What if they have elected to secure their future needs by accumulating savings, investments or other assets, rather than insurance? If the breadwinner died during the marriage, the family would have to make due going forward having chosen to be “self-insured” so to speak as being their marital life style. What if unlike Davis and like the spouse in Meerwarth, there was an equitable distribution of those accumulated assets in the divorce? Clearly while the court’s authority to require the maintaining of life insurance or other means to secure support is unquestioned, it is respectfully submitted that each case, each set of circumstances, is different, and that such obligations should not be mechanistically or routinely imposed.
This gets me back to the commercials mentioned earlier. Whether a person qualifies for life insurance, and if so, the cost of same, is largely a product of the insured’s age, health, and other factors. If you already have insurance policies in place, whether personally or through employment, these are of lesser concern. However, what if this isn’t the case, and you are being required to obtain life insurance or to obtain an increased level of that coverage in a divorce matter; whether for the benefit of your spouse, children or both? The older you are and the more health problems you may have could render you uninsurable, or make the premiums so cost-prohibitive that their payment would be near to impossible. What happens then? N.J.S.A. 2A:34-23 authorizes courts to create “trusts or other security devices”, as an aspect of reasonable security, although the statutory language would seem to limit same to the assurance for the payment of reasonably foreseeable medical and educational expenses. However our courts have clearly expanded the scope of the remedies it could employ to provide this reasonable security. As noted earlier, the court in Davis had afforded the payor spouse the option of establishing a trust fund in lieu of obtaining life insurance. In Jacobitti v. Jacobitti, 135 N.J. 575 (1994), the New Jersey Supreme Court, after interpreting the various statutory provisions, affirmed the establishment and use of trusts to secure support after the death of the payor. Courts have also imposed constructive trusts on other assets or benefits (Sedarous v. Sedarous, 285 N.J. Super. 316 (App. Div. 1995)), or have even required a payor to designate his former spouse as a survivor to his pension benefits. White v. White, 284 N.J. Super. 300 (Ch. Div. 1994), aff’d 309 N.J. Super. 139 (App. Div. 1996). If a payor spouse had failed to maintain the life insurance or an otherwise directed security at the time of his or her death, the deceased spouse’s estate may be subject to liability to the former spouse for the amount he/she had failed to maintain. Flicker vs. Chenitz, 55 N.J. Super. 273 (App. Div. 1959); Maquiling v. Maquiling Estate, 211 N.J. Super. 69 (Law Div. 1986); Della Terza v. Estate of Della Terza, 276 N.J. Super. 46 (App. Div. 1994).
Again, the court’s authority to require the maintenance of life insurance or the establishment of other means to secure an alimony or child support obligation is well established at this juncture. However, it is an issue which has complexities, not only as to its application in a given case, but in determining the nature, level and extent of same. Along with other financial professionals, let the attorneys at James P. Yudes, P.C. help navigate you through this process.

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Bureaucratic procedures for Europeans moving to another EU country for study or work are being cut, following a vote by Euro-MPs Thursday endorsing a deal previously struck by Parliament and Council.
Currently, citizens moving to or living in another EU country must obtain a stamp to prove that their public documents (such as a birth, marriage or death certificate) are authentic.
Under the new regulation, this stamp and the bureaucratic procedures linked to it will no longer be required when presenting public documents issued in one EU country to the authorities of another EU country.
To avoid the need for translation, new multilingual EU forms are to be attached to the documents.
More than 14 million EU citizens live in an EU Member State other than their home country. To marry, to declare the birth of a child or to prove a clean criminal record, they need to go through breaucratic procedures which can be tedious.
The MEPs' vote takes "a first step towards reducing these bureaucratic hurdles, by abolishing the costly and burdensome 'apostille' requirement and introducing multilingual standard forms", says Parliament's rapporteur Mady Delvaux MEP.
The new rules would do away with administrative formalities such as the “legalization” or “apostille” certification of “public” documents such as those proving civil status, parenthood or nationality. MEPs and the Council had agreed to extend the rules’ scope to include documents proving the capacity to marry or to enter into a registered partnership. Documents certifying the absence of a criminal record would also be accepted in other EU member states without further legalization procedures.
The rules would also cover documents that citizens living in another member state must produce if they wish to vote and/or stand as candidate in European or municipal elections in the member state where they reside.
To avoid the need for translation, new multilingual EU forms are to be attached to the documents. These concern: birth, being alive, death, marriage (including capacity to marry and marital status), registered partnership (including capacity to enter into a registered partnership and registered partnership status), domicile and/or residence, and absence of a criminal record.
The regulation deals only with the authenticity of public documents, so Member States will continue to apply their national rules concerning the recognition of the content and effects of a public document issued in another Union country.
The regulation will soon be published in the EU Official Journal and be brought into effect gradually, so as to apply in full from 2019.
The Council of Bars and Law Societies of Europe (CCBE) represents the bars and law societies of 32 member countries and 13 further associate and observer countries, and through them more than 1 million European lawyers.
1) Scope of application According to Art. 1, the Convention shall apply to the recognition and enforcement of judgments relating to civil or commercial matters. According to the CCBE, the exclusion of revenue and customs is appropriate, as well as the exclusion of administrative matters.
The word “other” used in the English version in the expression “other administrative matters” should be deleted. As stated in its previous position paper, the CCBE considers that the inclusion / exclusion of certain decisions is an appropriate approach1 : • “Provisional and protective measures”: At the present stage, such measures do not fall under the judgment definition contained in Art. 3 para. 1 of the draft („An interim measure of protection is not a judgment”): only judgments as such shall be recognized and executed (see Art. 1). The CCBE would welcome the inclusion of provisional decisions in the scope of application of the convention, provided certain conditions are fulfilled: provisional measures should only be included if the defendant has been summoned to appear and had an effective possibility to defend his rights. Furthermore, in order to ensure sufficient protection, the provisional measures to be included may be listed exhaustively. As an example, we would welcome the inclusion of: - the seizure of moveable assets - the freezing of bank accounts 1 Reference is made to the “Report on the Second Meeting of the Working Group on the Judgments Project” of February 2014 (http://www.hcch.net/upload/hidden/2013/jdgm2014report.pdf), p. 1 2 • “Default judgments” shall be subject to specific provisions (Art. 4 para. 2, Art. 11 para. 1 lit. b), but on the principle they are subject to the provisions of the proposed Convention, as they are not expressly excluded (Art. 1 f.). • “Judicial settlements” shall be an equivalent to judgments under specific conditions (Art. 9). This categorisation is in line with the CCBE position paper.
2) Exclusions from scope The CCBE welcomes the removal of consumers’ contracts and employments contracts from the exclusions. The CCBE notices that the exclusions are not strictly the same as in the Convention on choice of courts agreements from 30 June 2005 but agrees with the differences in the scope of application arising therefrom. The addition of Art. 2.4 (exclusion of “agreements to refer a dispute to binding determination by a person or body other than a court”) is welcomed, as well as the exclusion relating to arbitration and related proceedings.
3) Definitions For the judgments definition, see 1). The addition of persons against whom counterclaims have been brought into the “defendant” definition is welcomed by the CCBE.
4) General provisions The CCBE suggests that the English text for “produit ses effets” in Art. 4.3 (“has effect”) is replaced by “is effective”.
5) Bases for recognition and enforcement The new draft gives a very different approach from the previous text on this issue: whereas most conditions to be fulfilled for recognition were previously foreseen as additional grounds for refusal in Art. 5.3 (“jurisdictional filters”), they are now drafted as basic conditions for recognition and enforcement in Art. 5.1. The CCBE welcomes this approach as it seems simpler and allows a better understanding of these provisions. This new approach maintains a kind of indirect jurisdictional rules into the proposed Convention, which the CCBE had recommended. The CCBE is also pleased to note that some of its recommendations in this respect have generally been followed. It nevertheless wishes to make the following additional remarks: 1. a) The habitual residence of the party against whom recognition or enforcement is sought might be the most usual case and is to be welcomed. So does the addition of a)ii) about the case where the person against whom recognition or enforcement is sought is its successor. The CCBE recommends adding the term “legal” before “successor”. b) Where the person against whom recognition (or enforcement) is sought was the claimant in the initial proceedings, enforcement will in most cases be sought for the counterclaim. This is in line with the addition of counterclaims into Art. 3. However, this addition must not lead to the recognition of judgments based solely on claimant’s jurisdiction. The CCBE does not see such danger with the current wording but asks that special attention is given to this provision in case of re-drafting. c) No comments. 3 d) Where consumers or employees are concerned, judgments where the defendant expressly consented to the jurisdiction of the court of origin may only be included if it is ensured that the defendant has been instructed about the consequences of such consent. The CCBE considers that Art. 5.2.a) is not sufficient for a proper protection of consumers and employees. e) Contractual obligations: the CCBE believes that the current wording may give rise to multiple difficulties, quite well known within in the EU under Art. 5.1. of the Brussels Regulation (EU 44/2001, now replaced by Art. 7.1 of EU 1215/2012). The determination of the “place of performance” of the obligation ruled upon by the judgment “under the parties’ agreement or under the law applicable to the contract” (which is still to be determined by the judge of the State where recognition is sought as per his own rules of International Private law) may be a difficult issue, giving rise to satellite litigation. So does the question whether “the defendant’s activities in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”. Given that there is no Supreme Court ruling on such matters, Courts of Contracting States may reach different interpretations of such wording. The CCBE suggests simplifying this provision. At the very least, in relation to the agreement on the place of performance, reverting to the previous drafting of Art. 5.3 f) may be a solution: [This agreement should derive from the provisions of the contract.] For the most common contracts as sales and services contracts, the solution set forth in Art. 7.1 of the Brussels I bis Regulation may be a source of inspiration. [“For the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: — in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, — in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”]. Besides, the CCBE agrees with the deletion of the exception regarding obligations consisting in the payment of money previously included at the end of Art. 5.3 f (“This shall not apply if the contractual obligation consists of a payment of money, unless such payment constituted the main obligation of the contract”).
6) Exclusive bases The provisions of Art. 6 a) for patent, designs, trademarks and similar rights are welcomed by the CCBE. In Art. 6 b), regarding tenancies of immovable property, the CCBE doubts whether the recognition of only such judgments rendered in the state of location of the property make sense – independently from the minimum period of 6 months, which is also questionable. In cases where the initial tenant of the immovable property moved to another state, there is no reason why a claim should not be brought in his new state of residence and the judgment should not be recognised and enforced in other contracting states. This is even more important as the effect of Art. 6 is reinforced by the new Art. 15.
7) Grounds for refusal The CCBE had expressed the wish that all grounds for refusal contained in Art. 9 of The Hague Convention on Choice of Courts Agreements concluded on 30.06.2005 shall be taken over in the proposed Convention. Art. 7.1 of the proposed Convention contains a list of such refusal grounds, reflecting the criteria expressed by the CCBE. However, all grounds for refusal give only a possibility, not a duty to refuse recognition or enforcement. For the sake of security and foreseeability, the CCBE would suggest making most of the refusal grounds mandatory. 4 Under Art. 7.1.d), the CCBE would suggest adding “unless the agreement was null and void under the law of the State of the chosen court” in order to be in line with Art. 9 lit. a of the Convention on Choice of courts agreements. The additions made in Art. 7.2 regarding pending proceedings before courts of the requested State are to be welcomed on the principle, but the current wording makes its application quite uneasy. The CCBE suggests a simplification. Regarding “punitive damages” and „exemplary damages“ addressed under Art. 9, the CCBE had suggested to add an additional ground for refusal. This has been done under Art. 8 para. 1, which foresees a special ground for refusal if the damages attributed to a party do not compensate a real loss suffered by the party. Para. 2 states: “The court addressed shall take into account whether and to what extent the damages awarded by the court of origin serve to cover costs and expenses relating to the proceedings.”). This might allow the recognition of decisions awarding damages higher than the actual harm suffered, when the surplus is meant to indemnify the party for the costs of the process. The CCBE points out that the indeterminate character of the exception may allow misuse and the reintroduction of some kind of punitive damages. The text should therefore be more restrictive.
8) Preliminary questions Art. 8 provides for answers to two kinds of questions: - How to deal with rulings on preliminary questions on matters excluded under Article 2 (1) or on matters for which Article 6 provides for exclusive jurisdiction, if the court is not the one referred to in Art. 6; then the “ruling on that question” shall not be recognized or enforced under the Convention. - How to deal with judgments which were “based on a ruling” on matters excluded under Art. 2 (1) or on a matter referred to in Art. 6 if the court is another than the one referred to in Art. 6; the recognition or enforcement “may be refused”. For the sake of clarity, the CCBE would suggest that the refusal ground mentioned in Art. 8 (2) is inserted into Art. 6. The issues of preliminary questions addressed under Art. 8 (1) should remain ruled in a separate provision. However, the CCBE observes that in some cases, depending on the structure of decisions in some Contracting States, there might be difficulties to decide whether the issue at stake was ruled as a “preliminary question” or whether the judgment was “based on a ruling” on such matters (whereby “rulings” are not defined in the Convention draft). Given the fact that both cases are ruled in a different way, there should be a definition helping to distinguish them.
9) Documents to be produced Art. 11 enumerates the documents necessary in order to obtain recognition or enforcement. One of them is the certified translation of the decision, which is welcomed by the CCBE. 10) Equivalent effects The CCBE also wishes to express its support for the addition of a possibility to adapt the relief provided by the judgment when this relief is not available in the requested State.
From Monday, 22 February, Consular Services, including the public office issuing authentications and legalisation of documents, will operate from Knockmaun House.
On 3 December 2015, the Ministry of Foreign Affairs of Bahrain issued its first e-Apostille as part of the electronic Apostille Program (e-APP) under the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention). Bahrain had already put in place a Category 2 e-Register in 2014.
The Permanent Bureau would like to congratulate the Government of Bahrain on these excellent initiatives. To date, there are over 200 Competent Authorities in 25 States operating one or both of components of the e-APP, demonstrating the ever-increasing support for the program.
The law in Ireland on anti-money laundering (AML) and the countering of the financing of terrorism (CFT) is governed by The Criminal Justice (Money Laundering and Terrorist Financing) Act 2010, as amended by Part 2 of the Criminal Justice Act 2013 (“the Act”). The Act transposes European Union Law on AML and CFT (the Third Money Laundering Directive (2005/60/EC) and its Implementing Directive (2006/70/EC)) into Irish Law.
The law on AML and CFT reflects, both at the European and Irish level, the recommendations made by the Financial Action Task Force (“FATF”), which is a specialist international organisation that concentrates on the international fight against money laundering and terrorist financing. Ireland has been a member of FATF since 1991.
The Central Bank of Ireland (the “Central Bank”) is the competent authority in Ireland for the monitoring and supervision of financial and credit institutions’ compliance with their obligations under the Act. The Central Bank is empowered to take measures that are reasonably necessary to ensure that credit and financial institutions comply with the provisions of the Act.
Defines broadly the offence of money laundering.
Defines designated persons and beneficial owners that come under the provisions of the Act.
Provides for Directions, Orders and Authorisations relating to investigations.
Sets out customer due diligence, reporting, internal policies and procedures, training and record keeping requirements of designated persons.
Provides for monitoring of designated persons.
Designated persons should adopt a risk based approach when carrying out its obligations under the Act.
Ireland is subject to monitoring by FATF of its international obligations concerning AML and CFT through mutual evaluation reviews. The next review of Ireland’s compliance with the FATF Recommendations is due to take place in 2016.
When it comes to closing on a mortgage, nothing is final until the notary public says so. Charged with officially affirming the transaction’s legitimacy, notaries apply their legal stamp of approval after verifying the borrower’s identity and willingness to enter into the loan.
By necessity, notarization has always been a face-to-face process. And even as mortgage lending moves online, enabling borrowers to shop and apply for loans via the Internet, as well as upload documents and apply their signatures, the signing of the final documents requiring notarization still makes it necessary for the borrower to be in the same room with the notary.
Unless, that is, the notary is in Virginia. As of 2012, Virginia became the first state to allow certified notaries to use technology to notarize documents remotely, with the signers being anywhere in the world. Signers must appear before the notary by means of a live, two-way video conference, and the notary must keep a recording of the meeting.
“It’s one of those things where the time has come,” said John B. Harris, the senior vice president for product management at Signix, an electronic signature service based in Chattanooga, Tenn., that offers remote notarization. “The notary profession is due for that injection of technology,” he said.
Mr. Harris maintains that remote e-notarization actually strengthens security because it uses third-party databases to verify the identity of the borrower. After providing the last four digits of their Social Securitynumbers and their dates of birth, the borrowers must correctly answer questions affirming personal specifics like previous addresses or vehicles they owned.
The National Association of Secretaries of States, the office that generally oversees notaries at the state level, has embraced e-notarizations where the notary applies an electronic seal to digital documents. But citing the importance of the notary’s role in fraud prevention, the organization’s standards for e-notarization still require that signer and notary be in the same room.
Bob Rice, a founder and the chief executive of World Wide Notary, an e-notarization technology provider based in Vernon, Tex., shares the concern about identity theft. A notary who meets with a signer in a Web conference cannot, for example, touch or scrutinize a driver’s license to see if it is authentic, he said.
“So I wouldn’t be perfectly sure you are who you say you are, or that you aren’t signing under duress,” he said.
Also, Mr. Rice added, much of the country doesn’t have access to the high-speed Internet required for remote notarizations. World Wide Notary supplies technology that enables a notary to download closing documents onto a secure laptop before meeting with a borrower in an out-of-the-way location, sign everything electronically while off line, and then upload the documents upon their return to the office.
But Rick Triola, the president and chief executive of NotaryCam, a global online notarization platform, said more states are gradually considering allowing remote notarizations as more officials see that technology gives notaries better tools to securely identify people.
So far, he said, NotaryCam has done legally binding transactions in all 50 states and in 64 countries.
Today, members of the European Parliament adopted new rules to help fight money laundering and terrorist financing in the EU, one of the key actions in the European Security Agenda presented last month (see IP/15/4865).
Věra Jourová, the EU's Commissioner for Justice, Consumers and Gender Equality, welcomed the vote in Parliament which marked the final adoption of the anti-money laundering package: “Serious and organised crime is driven by profit - tracing the illicit proceeds of crime back to the criminal networks is essential both to detect, prosecute and dismantle those networks and to seize and confiscate their criminal wealth. The new anti-money laundering rules adopted today will help us follow the money and crack down on money laundering and terrorist financing."
ensuring full traceability of funds transfers within, to and from the European Union.
The Commission will supplement this legislation by working on a supranational assessment of risks. Both texts fully take into account the 2012 Recommendations of the Financial Action Task Force (FATF) (see MEMO/12/246), the international standard-setter in the field, and go further on a number of issues to promote the highest standards for anti-money laundering and to counter terrorism financing.
Work must now begin to ensure this framework, which focuses on greater effectiveness and improved transparency, is quickly and effectively put in place. The Commission will work with Member States to speed up the process of implementation of the new Anti-Money Laundering requirements.
The package received the agreement of Ministers in the Council in June 2014 (STATEMENT/14/197). In December 2014, the Parliament and Council reached political agreement on the rules (see news), which was formally endorsed by the Council in February 2015 (see STATEMENT). The Parliament and the Council have adopted the final text.
Following the recent terrorist attacks in Copenhagen, Paris and Brussels, the Council and the Commission agreed to take decisive action against terrorist financing. To enhance the efficiency of the new anti-money laundering rules, the two institutions call for further efforts towards speeding up national implementation of those rules, strengthening cooperation on terrorist financing between the Member States' Financial Intelligence Units, and addressing terrorist financing risks via the EU supranational risk assessment. It is also of utmost importance that coordinated action at international, European and national level to tackle terrorist financing is as effective as possible. The Commission will be examining further actions on countering terrorist financing in the context of implementing the recently adopted European Security Agenda.
The publication of the package in the Official Journal of the EU is due for around June-July 2015. A process to guide Member States in implementing the Directive into national law will be put in place over the coming months (the implementation period is two years).

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On Friday, December, 4th, the German parliament consented – under the impression of the egregious terrorist attacks in Paris on November, 13th – upon a constitutionally required request of the German government to a deployment of soldiers of the German Federal Army within the fight against ISIS (BT Drs. 18/6866). The government referred to a potpourri of provisions to justify this deployment from the perspective of international and supranational law: It invoked collective self-defense in conjunction with Security Council resolutions 2170 (2014), 2199 (2015) as well as 2249 (2015) besides Art. 42 VII TEU. Much has been written on the persuasiveness of this line of argument (see e.g. blogs by Anne Peters. Jasper Finke, Carolyn Moser or Sophia Müller and Chris Gutmann). The multitude of justifications introduced indicates that each of them stands on shaky grounds.
What, however, also deserves a closer look is the German government’s position on the significance of international law which became apparent during the questions session following up on the debate: Being asked about the prerequisites of Art. 51 UNC and its scope with regard to “armed attacks” by non-state actors the German Minister of Foreign Affairs Frank-Walter Steinmeier contended: “We are not in a seminar here but in a parliament […]. I think, after eight attacks in total, this not the hour to explain to the French people that they do not need to feel attacked, after 130 dead people, which were solely caused on November, 13th of this year” (see Plenarprotokoll 18/142, column 13879; free translation by the author). He was seconded by a representative of the Christian Democratic Party who called upon the parliament to leave aside “seminar-like differentiated lines of argument” (translation of author) with regard to self-defense for the sake of solidarity with France (column 13891).
To put these propositions in a nutshell: France feels that it has been attacked and this is sufficient for invoking self-defense. In any case it does not matter what international law precisely says. Both of these suggestions are more than dubious.
First of all, a mere “feeling” of being attacked does not trigger Art. 51 UNC. The notion of “armed attack” is a legal term with a specific – although not undisputed – content. Art. 51 UNC legitimizes the neutralization of an ongoing attack serving the preservation of the integrity of the attacked state. Being an extraordinary “emergency” measure it gives the allegedly attacked state the “upper hand” in the beginning: The invocation of self-defense is a subjective decision of the targeted state in the first place which flows from the competence of the Security Council to intervene afterwards (Art. 51 1st sent. UNC). But: A state’s decision to resort to force is subject to retrospective evaluations and the state bears the burden of proof for the prerequisites of Art. 51 UNC. Referring to a “feeling” of being attacked will not suffice here.
Secondly, I submit that both the legislative as well as the executive are ‑ contrary to Steinmeier’s contention ‑ constitutionally obliged to take into account what international law as it stands says. Neither the legislative nor the executive have a constitutional prerogative or margin of appreciation in determining the content of the right to self-defense which constitutes both international treaty law as well as customary law.
According to Art. 20 III Basic Law the executive is bound by “law” and “justice”. The term “law” encompasses legal acts in the formal sense including transformed international treaties. Customary international law as part of the German legal order via Art. 25 Basic Law fits (at least) into the category of “justice”. Art. 20 III, together with Art. 25 as well as the parliamentary statutes transforming international treaties (Art. 59 II 1 Basic Law) bind the government to international law qua constitutione. However, the FCC appears to have relativized this principle within its Hess decision (2 BvR 419/80, Decision of 16th December 1980). Here the it stressed that no body with obligatory jurisdiction existed on the international plane (para. 43). Hence – it went on – the legal position of states regarding the interpretation of international law had to be given more weight. The Court emphasized the importance to speak with one voice as a state on the international plane. In its view this very aspect requires courts to be very reluctant to reject the executive’s interpretation of international law – as long as it is not arbitrary. The Administrative Court of Cologne has recently confirmed this position within a judgment on the case of Jaber vs. Germany (3 K 5625/14; judgment of 27th May 2015). Here the Court had to rule on the question whether Germany violated the constitution by allowing the military base Ramstein to be used as a relay station in the course of drone attacks conducted by the USA in Yemen. The court stressed that it only had the competence to examine the tenability and non-arbitariness of the government’s legal position on the international legality of targeted killings (cf. para. 84 et seq.). Such a limitation of judicial review appears to be highly problematic: It is true that international law is volatile and not easy to capture with the binary code of legal/illegal since these opposite categories tend to blur. However, to limit judicial review on questions of international law to a test of mere non-arbitrariness of the government’s position conflicts with both the obligation of the executive to obey constitutionally binding international law (Art. 20 III Basic Law) as well as the authority of the FCC to determine what the content of customary international law is. Art. 19 IV Basic Law which guarantees access to the judiciary for individuals in cases rights’ violations likewise raises severe doubts in this context. It is true that the Basic Law grants the executive a rather broad freedom of action in the realm of foreign policy, cf. Art. 32 I Basic Law. However, this only means that the federal government has a prerogative to decide on foreign action within the limits of constitutionally incorporated international law but its prerogative does not concern the determination of the limits of international law.
Steinmeier on the contrary conveys the dangerous message that neither the executive nor the parliament are constitutionally bound by the “black letter” of international law but rather what they consider to be politically opportune and necessary. It is one thing, however, to state the government’s interpretation of certain international norms – contentious as it may be – thereby contributing to the norm-generative discourse on international law. It is something completely different to argue that political decision-making could ignore the generally acknowledged reading of international law. What else are “seminar-like lines of argument” than an emanation of the rule of law?
SUGGESTED CITATION Starski, Paulina: “We are not in a Seminar”: Some Thoughts on the Legislative’s and Executive’s Prerogative in Determining International Law, VerfBlog, 2015/12/11, https://verfassungsblog.de/we-are-not-in-a-seminar-some-thoughts-on-the-legislatives-and-executives-prerogative-in-determining-international-law/.
SUGGESTED CITATION Starski, Paulina: “We are not in a Seminar”: Some Thoughts on the Legislative’s and Executive’s Prerogative in Determining International Law, VerfBlog, 2015/12/11, https://verfassungsblog.de/?p=18526.

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Bhushan B, Guleria R, Misra A, Luthra K, Vikram NK.TNF-alpha gene polymorphism and TNF-alpha levels in obese Asian Indians with obstructive sleep apnea. Respir Med. 2009;103(3):386-92.
Gupta R, Misra A, Vikram NK, Kondal D, Gupta SS, Agrawal A, Pandey RM. Younger age of escalation of cardiovascular risk factors in Asian Indian subjects. BMC Cardiovasc Disord. 2009;9:28.
Bajaj S, Nigam P, Luthra A, Pandey RM, Kondal D, Bhatt SP, Wasir JS, Misra A. A case-control study on insulin resistance, metabolic co-variates & prediction score in non-alcoholic fatty liver disease. Indian J Med Res. 2009;129(3):285-92.
Pandey RM, Madhavan M, Misra A, Kalaivani M, Vikram NK, Dhingra V. Centiles of anthropometric measures of adiposity for 14- to 18-year-old urban Asian Indian adolescents. Metab Syndr Relat Disord. 2009;7(2):133-41.
Banerjee D, Vikram N, Mishra P, Bhatt R, Prakash S, Misra A.Correlation of a [13C]glucose breath test with surrogate markers of insulin resistance in urban and rural Asian Indians. Metab Syndr Relat Disord. 2009;7(3):215-9.
Chadha DS, Gupta N, Goel K, Pandey RM, Kondal D, Ganjoo RK, Misra A. Impact of obesity on the left ventricular functions and morphology of healthy Asian Indians. Metab Syndr Relat Disord. 2009;7(2):151-8.
Agarwal SK, Misra A, Aggarwal P, Bardia A, Goel R, Vikram NK, Wasir JS, Hussain N, Ramachandran K, Pandey RM.Waist circumference measurement by site, posture, respiratory phase, and meal time: implications for methodology. Obesity (Silver Spring). 2009;17(5):1056-61. 2009.
Misra A, Khurana L, Isharwal S, Bhardwaj S. South Asian diets and insulin resistance. Br J Nutr. 2009;101(4):465-73.
Bhushan B, Guleria R, Misra A, Pandey RM, Luthra K, Vikram NK. Obstructive sleep apnoea correlates with C-reactive protein in obese Asian Indians. Nutr Metab Cardiovasc Dis. 2009;19(3):184-9. Epub 2008 Sep 20.
Goel R, Misra A, Kondal D, Pandey RM, Vikram NK, Wasir JS, Dhingra V, Luthra K. Identification of insulin resistance in Asian Indian adolescents: classification and regression tree (CART) and logistic regression based classification rules. Clin Endocrinol (Oxf). 2009;70(5):717-24.
Sinha S, Misra A, Rathi M, Kumar V, Pandey RM, Luthra K, Jagannathan NR. Proton magnetic resonance spectroscopy and biochemical investigation of type 2 diabetes mellitus in Asian Indians: observation of high muscle lipids and C-reactive protein levels. Magn Reson Imaging. 2009;27(1):94-100.
Sharma R, Sinha S, Danishad KA, Vikram NK, Gupta A, Ahuja V, Jagannathan NR, Pandey RM, Misra A. Investigation of hepatic gluconeogenesis pathway in non-diabetic Asian Indians with non-alcoholic fatty liver disease using in vivo ((31)P) phosphorus magnetic resonance spectroscopy. Atherosclerosis. 2009;203(1):291-7.
Misra A. Coronary Risk in Autoimmune Rheumatological Diseases: An Unfolding Saga. Indian J Rheumatology, 9, 2008.
Misra A, Khurana L. Obesity and diabetes in developing countries. J Clin Endocrinol Metab 2008;93(11 Suppl 1):S9-30.
Misra A, Allapan NK, Vikram NK, Goel K, Gupta N, Mittal K, Bhatt S, Luthra K. Effect of progressive resistance exercise training protocol on insulin sensitivity, glycemia, lipids and body composition in Asian Indians with type 2 diabetes. Diabetes Care. 2008;31(7):1282-7.
Sharma R, Misra A. Comparison of short insulin tolerance test with HOMA in Asian Indians with non-Alcoholic fatty liver disease. Diabetes Research and Clinical Practice, 2008;82(1):e9-12.
Luthra A, Misra A. Erectile dysfunction Diabetes & Met Syndr: Research & Reviews, 7, 2008.
Kumar U, Bhatt SP, Misra A. Unusual associations of pachydermoperiostosis: A case report. Indian J Med Sci. 2008;62(2):65-8.
Luthra A, Nigam P, Misra A. Metabolic correlates of non-alcoholic fatty liver disease and management issues: A perspective for Asian Indians. Diabetes & Met Syndr: Research & Reviews, 2007; 1 (4): 279-285.
Meena K. Misra A, Pandey RM, Luthra K. Association of CETP Taq 1B polymorphism and CETP activity with HDL-cholesterol in healthy normolipidemic Northern Asian Indians. Diabetes & Met Syndr: Research & Reviews, 2007: 1 (4), 239-244.
Misra A, Khurana L, Vikram NK, Goel A, Wasir JS. Metabolic Syndrome in Children: Current Issues and South Asian Perspective. Nutrition, 2007;23(11-12):895-910.
Misra A, Khurana L. Salt and hypertension: walking a tight path. J Association Physicians India, 2007: 55:401-3.
Banerjee D, Misra A. Does using ethnic specific criteria improve the usefulness of the term metabolic syndrome? Controversies and suggestions. Int J Obesity, 2007;31(9):1340-9.
Ray A, Beishuizen ED, Huisman MV, Tamsma JT, Misra A. Vascular phenotype and subclinical inflammation in diabetic Asian Indians without overt cardiovascular disease in Netherlands. Diab Res Clin Pract, 2007;76(3):390-6.
Vikram NK, Misra A, Pandey RM, Dwivedi M, Luthra K, Dhingra V, Talwar KK. Dichotomous relationships of sub-clinical inflammation and insulin resistance to anthropometric and metabolic covariates in young Asian Indian males. Indian Journal of Medical Research 2006;124(6):677-82.
Vikram, NK, Misra A, Pandey, RM, Luthra, KL, Wasir, JS, Dhingra, V. Heterogeneous phenotypes of insulin resistance and its implications for defining metabolic syndrome in Asian Indian adolescents. Atherosclerosis 2006; 186(1):193-9.
Misra A, Vikram NK, Gupta R, Pandey RM, Wasir JS, Gupta VP. Waist circumference cutoff points and action levels for Asian Indians for identification of abdominal obesity. Int J Obes (Lond). 2006 ;30(1):106-11.
Vikram NK, Tandon N, Misra A, Srivastava MC, Pandey RM, Mithal A, Sharma S, Ajmani A, Madhu SV, Batra CM, Gupta. N. Correlates of Type 2 diabetes mellitus in children adolescent and young adults in North India: a multiple collaborative case-control study. Diabetic Medicine 2006;23(3):293-8.
Misra A, Vikram NK, Sharma R, Basit A. High prevalence of obesity and associated risk factors in urban children in India and Pakistan highlights immediate need to initiate primary prevention program for diabetes and coronary heart disease in schools. Diabetes Res Clin Pract. 2006;71(1):101-2.
Madhavan M, Pandey RM, Misra A, Vikram NK, Dhingra V, Luthra K, Wasir JS. Centile values for serum lipids and blood pressure for Asian Indian adolescents. Lipids in Health and Disease 2005;4:20.
Misra A, Vikram NK, Gupta R, Pandey RM, Wasir JS. Waist circumference cut-off points and action levels for Asian Indians for identification of abdominal obesity. Int J Obesity 2005; 27: 1-6.
Sinha S, Rathi M, Misra A, Kumar V, Kumar M, Jagannathan NR, Pandey RM, Dwivedi M, Luthra K. Subclinical inflammation and soleus muscle intramyocellular lipids in healthy Asian Indian males. Clin Endocrinol, 2005; 63: 350-355.
Misra A, Wasir JS, Vikram NK. Waist circumference criteria for the diagnosis of abdominal obesity are not applicable uniformly to all population and ethnic groups. Nutrition, 2005; 21(9): 969-76.
Misra A, Wasir JS, Vikram NK, Sadikot SM. Metabolic Syndrome in Asian Indians: Current issues in definition and risk correlation. Met Syndr & Relat Disord, 2005; 3(2): 137-139.
Kadhiravan T, Wig N, Kapil SK, Renuka K, Misra A. Clinical outcomes in typhoid fever: adverse impact of infection with nalidixic acid-resistant Salmonella typhi. BMC Infect Dis 2005; 5(1): 37.
Misra A, Wasir JS, Vikram NK. Action and research are needed for evaluation of optimal definitions of anthropometric parameters and metabolic syndrome for Asians. Diabetes Research and Clinical Practice 2005; 68(2): 178-9.
Misra A, Wasir JS, Vikram NK. Carbohydrates diets, postprandial hyperlipidaemia, abdominal obesity and Asian Indians: a recipe for atherogenic disaster. Indian J Med Res 2005; 12(1): 5-8.
Misra A, Wasir JS, Pandey RM. An evaluation of candidate definitions of the metabolic syndrome in adult Asian Indians. Diabetes Care 2005; 28(2): 398-403.
Misra A, Vikram NK, Arya S, Pandey RM, Dhingra V, Chatterjee A, Dwivedi M, Sharma R, Luthra K, Guleria R, Talwar KK. High prevalence of insulin resistance in post-pubertal Asian Indian children is associated with adverse truncal body fat patterning, abdominal adiposity and excess body fat. Int J Obesity & Relat Metab Disord, 2004, 28(10):1217-26.
Sinha S, Misra A, Kumar V, Jagannathan NR, Bal CS, Pandey RM. Magnetic resonance spectroscopy and single photon emission computed tomography study of brain in young hyperlipidemic Asian Indians in North India. Clin Endocrinol 2004; 61(2):182-9.
Misra A, Peethambaram A, Garg A. Acquired partial lipodystrophy: Clinical description, body fat distribution, metabolic derangements, and autoimmune abnormalities of 35 cases and review of literature. Medicine (Baltimore) 2004; 83(1): 18-34.
Sinha S, Guleria R, Misra A, Pandey RM, Pande JN, Yadav R, Tiwari S. Pulmonary function and respiratory muscle strength in northern Indian Asian patients with type 2 diabetes mellitus: relationship to anthropometry and microvascular complications. Indian J Med Res 2004; 119: 66-71.
Misra A, Luthra K, Vikram NK. Dyslipidemia in Asian Indians: determinants and significance. J Assoc Physicians India 2004; 52: 137-142.
Misra A, Kumar S, Vikram NK, Kumar A. The role of lipids in the development of diabetic microvascular complications: implications for therapy (Review). Am J Cardiovasc Drugs, 2003; 3(5): 325-338.
Misra A, Pandey RM, Sinha S, Sridhar V, and Dudeja V. Receiver operating characteristics curve analysis of body fat & body mass index in dyslipidemia Asian Indians. Ind J Med Res, 2003; 117: 170-179.
Misra A. Revisions of cutoffs of body mass index to define overweight and obesity are needed for the Asian-ethnic groups. Int J Obes Relat Metab Disord, 2003; 27: 1294-1296.
Vikram NK, Misra A, Dwivedi M, Pandey RM, Luthra K, Sharma R, Chatterjee A, Dhingra V, Jailkhani BL. Correlations of C-reactive protein levels with anthropometry, body fat and lipids in healthy urban adolescents and young adults in northern India. Atherosclerosis, 2003; 168: 305-313.
Vikram NK, Misra A. Non-obese (BMI<25 kg/m2) Asian Indians with ‘normal’ waist circumference have high cardiovascular risk. Nutrition, 2003;19(6):503-509.
Kumar P, Luthra K, Dwivedi M, Bahl VK, Pandey RM, Misra A. Apolipoprotein E gene polymorphism in patients with premature myocardial infarction: A case-control study in the Northern Asian Indians. Ann Clin Biochem, 2003:40(4):382-387.
Bijukumar G, Vigneshwaran N, Karmakar N, Anand S, Misra A. Evaluation of autofluorescent property of Hb-AGE as a long-term glycemic index of diabetes mellitus. Diabetes, 2003; 52:1041-1046.
Misra A, Garg A. Clinical features and metabolic derangements in acquired generalized lipodystrophy: case reports and review of the literature. Medicine (Baltimore) 2003; 82(2): 129-46.
Vigneshwaran N, Bijukumar G, Karmakar N, Anand S, Misra A. Fluorescence and biochemical characterization of glycated hemoglobin. Macromol Symp, 2003; 193: 119-127.
Misra A, Sinha S, Kumar M, Jagannathan NR, Pandey RM. Proton magnetic resonance spectroscopy study of soleus muscle in non-obese healthy and type 2 diabetic Asian Northern Indian males: High intramyocellular lipid content correlates with excess body fat and abdominal obesity. Diabetic Medicine, 2003; 20:361-367.
Vikram NK, Misra A, Pandey RM, Dudeja V, Sinha S, Ramadevi J, Kumar A, Chaudhary D. Anthropometry and body composition in northern Asian Indian patients with type 2 diabetes: Receiver Operating Characteristics (ROC) Curve analysis of body mass index with percentage body fat as standard. Diab Nutr Metab, 2003; 16: 32-40.
Misra A, Vikram NK. Clinical and pathophysiological consequences of abdominal adiposity and abdominal adipose tissue depots (Review). Nutrition, 2003;19(5):457-66.
Guleria R, Agarwal SR, Sinha S, Pande JN, Misra A. Role of pleural fluid cholesterol in differentiating transudative from exudative pleural effusion. Natl Med J Ind, 2003; 16(2):64-9.
Sethi A, Misra A, Pandey RM, Luthra K, J. Rama Devi, Sharma R, Khanna N, Dwivedi M. Soluble inter-cellular adhesion molecule-1 in urban Asian north Indian population: relationship with anthropometric and metabolic covariates. Disease Markers, 2002:18:111-120.
Misra A, Athiko D, Sharma R, Pandey RM, Khanna N. Non-obese hyperlipidemic Asian northern Indians males have adverse anthropometric profile. Nutr Metab Cardiovasc Dis, 2002; 12(4): 178-83.
Sen K, Misra A, Kumar A, Pandey RM. Simvastatin retards progression of diabetic retinopathy in type 2 diabetic patients with hyperlipidemia. Diab Res Clin Pract, 2002; 56(1): 1-11.
Luthra K, Bharghav B, Chabbra S, Das N, Misra A, Agarwal DP, Pandey RM, Srivastava LM. Apolipoprotein E polymorphisms in Northern Indian patients with coronary heart disease: phenotype distribution and relation to serum lipids and lipoproteins. Mol Cell Biochem, 2002; 232(1-2): 97-102.
Misra A, Chaudhary D, Vikram NK, Mittal V, Rama Devi J, Pandey RM, Khanna N, Sharma R, Peshin S. Insulin resistance and clustering of atherogenic risk factors in women belonging to low socio-economic strata in urban slums of North India. Diabetes Res Clin Pract, 2002; 56(1): 73-5.
Misra A, Pandey RM, Rama J, Sharma R, Vikram NK, Khanna N. High prevalence of obesity, dyslipidemia, and diabetes in urban slum population in northern India. Int J Obes Rel Metab Disord, 2001; 25 (11): 1722-29.
Misra A, Sharma R, Pandey RM, Khanna N. Adverse profile of dietary nutrients, anthropometry and lipids in urban slum dwellers of northern India. Eur J Clin Nutr, 2001; 55: 1-8.
Dudeja V, Misra A, Pandey RM, Devina G, Kumar G, Vikram NK. Body mass index does not accurately predict overweight in Asian Indians in Northern India. Br J Nutr, 2001; 86(1): 105-12.
Misra A, Arora A, Mondal S, Pandey RM, Jailkhani B, Peshin S, Chaudhury D, Saluja T, Singh P, Chandra S, Luthra K, Vikram NK. Relationships between plasma leptin and anthropometric and metabolic covariates in lean and obese diabetic and hyperlipidemic Asian Northern Indian Subjects. Diab Nutr Metab, 2001; 14(1): 18-26.
Sarkar R, Misra A, Saxena R, Pandey RM, Chaudhury D. Plasma plasminogen activator inhibitor-1 activity in normoglycemic hypertriglyceridemic North Asian Indian Subjects. Ind Heart J, 2001; 53: 61-65.
Misra A, Nishanth S, Pasha ST, Pandey RM, Sethi P, Rawat DS. Relationship of XbaI and EcoRI polymorphisms of apolipoprotein-B gene to dyslipidemia and obesity in Asian Indians in northern India. Ind Heart J, 2001; 53: 177-183.
Misra A. Risk factors for atherosclerosis in young individuals. (Review). J Cardiovasc Risk, 2000; 7(3): 215-29.
Misra A, Shukla P, Reddy KS, Lall SB, Peshin SS, Pandey RM. Serum insulin levels in non-obese, non-diabetic Asian Indians with acute coronary and non-coronary events. Ind Heart J, 2000; 52(3): 280-4.
Misra A. Atherosclerosis in Indians and lipoprotein(a). (Review). J Assoc Physicians India, 1999; 47(3): 313-317.
Misra A, Mittal V, Jain S, Bajaj JS. Correlation of acetylator phenotype with peripheral, autonomic and central neuropathy in NIDDM patients. Eur J Clin Pharmacol, 1999; 55(6): 419-424.
Luthra K, Misra A, Srivastava LM. Lipoprotein(a): Biology and role in atherosclerotic vascular diseases. (Review). Curr Science, 1999; 76(12): 1553-1560.
Misra A, Reddy B, Reddy KS, Mohan A, Bajaj JS. Clustering of impaired glucose tolerance, hyperinsulinemia and dyslipidemia in young North Indian patients with coronary artery disease. Ind Heart J, 1999; 51(3): 275-280.
Misra A, Kathpalia R, Roy NK, Lall SB, Peshin S. Hyperinsulinemia in non-obese, non-diabetic subjects with isolated systolic hypertension. Ind Heart J, 1998; 50: 49-54.
Misra A. Insulin resistance syndrome: current perspective and its relevance in Indians. (Review). Ind Heart J, 1998; 50(4): 385-395.
Misra A, Cherukapalli CR, Reddy KS, Mohan A, Bajaj JS. Hyperinsulinemia and dyslipidemia in non-obese normotensive children of hypertensive patients in Northern India. Blood Pressure, 1998; 8: 1-5.
Dey J, Misra A, Desai NG. Cognitive function in younger non-insulin dependent diabetic patients. Diabetes Care, 1997; 20(1): 32-35.
Misra A, Garg A, Abate N, Peshock RM, Stray-Gundersen J, Grundy SM. Subcutaneous anterior and posterior abdominal adipose tissue mass and its relation to insulin sensitivity. Obes Res, 1997; 5: 93-99.
Misra A, Garg A. Obesity, leptin and its receptor. (Review). J Invest Med, 1996; 44: 540-48.
Misra A. Insulin treatment in non-insulin dependent diabetes mellitus. (Review). Natl Med J Ind, 1995; 8(3): 169-177.
Misra A, Gupta P, Sharma R. Haematopoietic Grouwth Factors (HGFs, Biomodulators) in cytopenias: Clinical Perspective. J Basic & Applied Biomedicine 1994; 2(1): 57-66.
Bajaj JS, Misra A, Rajalaxmi M, Madan R. Environmental release of chemicals and reproductive ecology. Environmental Health Perspectives, 1993; 101 (Supp. 2): 125-130.
Kochupillai V, Gupta P, Misra A. A phase II trial of cyclophosphamide, doxorubicin and cisplatin in advanced breast cancer. Am J Clin Oncol 1992; 15(5): 388-91.
Daniel S, Misra A, Karak PK, Mukhopadyay S, and Sharma S. Giant throacobadominal lymphangioma with features of lymphangiomyoma. Chest 1992; 102: 1909-1911.
Gupta P, Bijlani L, Rath GK, Misra A, Mishra MC, Shukla NK, Kriplani A, Kapur BM. Neoadjuvant chemotherapy with cyclophosphamide, doxorubicin and 5-fluorouracil (CAF) or cyclophosphamide, methotrexate and 5-fluorouracil (CMF) in 69 cases of locally advanced (stage IIIb) breast cancer. Jpn J Surg 1991; 21(6): 637-42.
Misra A, Kapoor BML, Rath GK. Primary breast lymphoma. J Surg Oncol 1991; 47: 265-270.
Misra A, Bhaskar Reddy R. Newer antibodies: Beta-Lactams and flouroquinolones. (Review). Natl Med J Ind 1991; 4: 173-182.
Singh RR, Malaviya AN, Kapoor SK, Pati H, Jain P, Misra A. Pure red cell aplasia with rheumatoid arthritis: a case report and review of literature. J Assoc Physicians India1990; 38: 233-235.
Sharma S, Singhal S, De S, Chander S, Rath GK. Misra A, Khosla A. Primary gastric lymphoma: a prospective analysis of 12 cases and review of literature. J Surg Oncol 1990; 43: 231-238.
Misra A, Gupta M, Bhargava M. Hairy cell leukemia. Ind J Cancer 1990; 27: 11-16.
Misra A, Kochupillai V. COMLA (Cyclophosphamide, Vincristine, Methotrexate with Leucovorin rescue, and Ara-C) sequential chemotherapy regimen for treatment on Non-Hodgkin’s lymphoma: a preliminary experience. Ind J Haemat 1990; 8: 61-64.
Malhotra OP, Misra A, Kapoor SK, Gupta M. Angioimmunoblastic lymphadenopathy: report of two cases. Ind J Haemat 1989; 7: 31-33.
Misra A, Dash SC, Deka RC, Malhotra KK. Vestibular functions in conservatively treated chronic renal failure. J Assoc Physicians India1989; 37: 189-191.
Saluja S, Singh RR, Misra A, Gairola AK, Prasad K, Ahuja GK, Malaviya AN. Bilateral recurrent laryngeal nerve palsy in systemic lupus erythematosus. Clin Exp Rheumatol 1989; 7(1): 81-83.
Gupta P, Misra A, Kochupillai V. Myelodysplastic syndrome: An unusual presentation and partial response to non-cytotoxic combination therapy. Ind J Haemat 1988; 6: 213-215.
Singh RR, Prasad K, Kumar A, Misra A, Padmakumar K, Malaviya AN. Cerebellar ataxia in systemic lupus erythematosus. Ann Rheumatic Dis 1988; 47: 954-956.
Kumar L, Gupta P, Agarwal S, Misra A, Kochupillai V. Low-dose cytosar in myelodysplastic syndrome and acute myeloid leukemia. Natl Med J Ind 1988; 1: 229-232.
Singh RR, Misra A, Arora A, Malaviya AN. Inflammatory polyarthritis as a presenting feature of acute leukemia in an adult. J Assoc Physicians India1988; 36: 175-76.
Tiwari SC, Shahni S, Misra A, Singh RR, Malhotra KK. Ultrasound guided kidney biopsy. J Assoc Physicians India1988; 36: 327-328.
Misra A, Kapoor S, Malhotra OP, Singh RR. Relapsing polychondritis with high anticollagen II antibody titres. J Assoc Physicians India1987; 35: 452.
Misra A, Singh RR, Malaviya AN, Gupta SD, Nath I. Medium vessel vasculitis of cutaneous type. J Assoc Physicians India1987; 25: 599-600.
Kapoor SK, Malhotra OP, Misra A, Sherpa NT. Portal hypertension: An unusual presentation of polycystic disease of kidney and liver. J Assoc Physicians India1987; 135: 851-852.
Malhotra OP, Kapoor SK, Misra A, Arora A. Neuroleptic malignant syndrome. J Assoc Physicians India1987; 35: 794-95.
Misra A, Singh RR, Kumar A Malaviya AN. A fatal case of acute polymyositis with persistent myoglobinuria and progressive renal failure. J Assoc Physicians India1987; 36:153-54.

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G.R. No. 180069, March 05, 2014 - PHILIPPINE COMMERCIAL INTERNATIONAL BANK (NOW BDO UNIBANK, INC.), Petitioner, v. ARTURO P. FRANCO, SUBSTITUTED BY HIS HEIRS, NAMELY: MAURICIA P. FRANCO, FLORIBEL P. FRANCO, AND ALEXANDER P. FRANCO,1 Respondents.
PHILIPPINE COMMERCIAL INTERNATIONAL BANK (NOW BDO UNIBANK, INC.), Petitioner, v. ARTURO P. FRANCO, SUBSTITUTED BY HIS HEIRS, NAMELY: MAURICIA P. FRANCO, FLORIBEL P. FRANCO, AND ALEXANDER P. FRANCO,1Respondents.
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the July 31, 2007 Decision2 and October 4, 2007 Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 82340, which affirmed the October 21, 2003 Decision4 of the Makati City Regional Trial Court (RTC), Branch 61.
This is an action for damages filed [on September 5, 2000] by plaintiff Arturo P. Franco against Philippine Commercial International Bank (PCIB), now known as Equitable-PCIBank, and Equitable Banking Corp.
094846 (Exh. “B”) Dec. 8, 1986 Jan. 7, 1987 P100,000.00 8.75% p.a.
135928 (Exh. “C”) Jan. 19, 1987 Feb. 18, 1987 P850,594.54 7.75% p.a.
205007 (Exh. “D”) May 13, 1987 June 15, 1987 P500,000.00 8.50% p.a.
205146 (Exh. “E”) July 15, 1987 Aug 14, 1987 P502,958.90 9.25% p.a.
that despite demands, defendants refused and still refuses to return to plaintiff the trust amounts, plus the stipulated interest[;] that in all of the trust transactions that defendant PCIB had entered into with the plaintiff, defendant PCIB represented to plaintiff that[,] in making the trust investment, plaintiff was actually providing for his future since the money invested was going to be managed and administered by their PCIB-Trust Services Group and will be commingled, pooled and automatically rolled- over for better investment return; that believing the representation of the bank, the plaintiff invested his lifetime savings in the hope that the defendant bank will actually provide for their future by reinvesting and rolling-over their investment automatically, without any need for the plaintiff to take any further action; that on the few occasions that plaintiff had visited the defendant bank to request for a status on his investments, bank officers would normally pull out his (sic) ledger card and show plaintiff the updated amount due him; that sometime in 1995, plaintiff discovered that one of his children had leukemia and[,] in the ensuing hospitalization and treatment, plaintiff spent a lot of money; that because his funds were already exhausted, plaintiff then turned to his Trust Indenture Certificates and started inquiring as to how he could liquidate the trust; that in the beginning, defendant bank constantly asked for time to look for his records, at one time [on June 18, 1998], promising to have an answer before July 15, 1998, then writing plaintiff on May 18, 2000 saying that the bank [had] coordinated with their Branch and Trust Department but that it might take [some time] to retrieve their records; [and] that to plaintiff’s surprise, on June 22, 2000, he received a letter signed by defendant’s counsel, Curato Divina & Partners, in effect denying plaintiff’s request for payment by stating that due to the conversion of all outstanding PCIBank trust indenture accounts into common trust certificates, all such PCIBank trust indenture certificates have been rendered “null and void.” Plaintiff prays for the payment of the amounts under the Trust Indenture Certificates, plus interest, moral and exemplary damages and attorney’s fees.
In their Answer, defendants admit the issuance by defendant PCIB of the Trust Indenture Certificates subject matter of the complaint, but deny the allegation that the investments subject of the Trust Indenture Certificates are automatically rolled-over as such certificates have their own fixed term and maturity date, and that the present action had already prescribed.
Whether or not the cause of action as exerted (sic) by the defendant has already prescribed.
Plaintiff presented as its witness plaintiff Arturo P. Franco himself [who] testified, among others[:] that he is the proprietor of Fair Marketing Freight Services[,] which is the investor named in Trust Indenture Certificate 094846; that[,] in 1986, he decided to save up for his retirement and to invest his hard earned money; that he was then 51 years old and his choice was to deposit his funds with defendant PCIB which later on merged with defendant Equitable Banking Corp. and is now known as Equitable PCIBank; that he chose defendant PCIB for the latter’s representation that by making such investment, he was actually providing for his future since his investment would be commingled, pooled and automatically rolled-over for better investment return and which will provide for his needs upon retirement, without need for him to take any further action; that he was a loyal client of the defendants from 1986 up to 1997; that he entered into a trust agreement with defendant PCIB for which the latter issued subject Trust Indenture Certificates ([TICs], for brevity); that sometime in 1997, when he was then 62 years old, he [tried] to encash the trust indenture certificates only to be given a run-around by the defendants; that sometime in 1995, his son, Arthur, was diagnosed to be afflicted with leukemia and eventually died on October 24, 1997; that because of his son’s illness, he was forced to go to defendants and try to encash his trust indenture certificates but was denied by defendant bank; that in a letter dated June 22, 2000, defendants, through their counsel, informed plaintiff that the subject [TICs] are “null and void”; that when he received the letter of June 22, 2000, he was at first speechless and totally defeated and at a loss; that he and his wife begun to experience sleepless nights, became anxious because their hope to secure their life in their old age had fallen apart[;] that instead of just enjoying a secured life with his wife and enjoying his grandchildren and spending more time with the Lord, he was now in debt and burdened with the fact that his lifetime savings just disappeared before his very eyes without a trace; [and] that plaintiff was constrained to file this case and [spend] P22,117.80 in filing fees, to engage the services of counsel for the amount of P50,000.00 with appearance fee of P3,000.00 per hearing, and that he suffered moral damages in the amount of P200,000.00.
The foregoing facts were not rebutted by defendants. The court finds the witness and his testimony credible as the witness testified in a simple and straightforward manner. Upon admission of plaintiff’s exhibits, plaintiff rested his case.
The defendants presented Cecilia P. Soriano and Antonio M. Fortuno as their witnesses.
Cecilia P. Soriano, Operations Officer of defendant Equitable-PCIBank, testified that she came to know plaintiff in 1987 when she was assigned at PCIB Gil Puyat Branch; that plaintiff was one of the bank’s valued clients[;] and that plaintiff secured the [TICs] subject matter of the complaint. On cross-examination, the witness admitted that she has seen only the photocopies of plaintiff’s [TICs]; that she had no direct dealing with plaintiff regarding the [TICs] and she had no idea what happened to plaintiff’s [TICs] after their respective maturity dates; [and] that valued clients of the bank were given special privileges, such as allowing these clients to withdraw or encash [TICs] or investments over the phone[,] but she did not receive any call from plaintiff withdrawing or encashing the plaintiff’s [TICs].
The testimony of their next witness, Antonio Martin S. Fortuno, was offered to prove, among others, that [TICs] expired upon maturity and after which, they were automatically rolled-over.
Antonio Martin S. Fortuno, Operations Officer of defendant Equitable-PCIBank, testified that he is familiar with the Trust Indenture Certificates issued by defendant bank; that when a client would like to secure a Trust Indenture Certificate from the bank, they would ask the client, among others, to sign [roll-over] agreement/rules and regulations; that when a client would like to withdraw his proceeds from the certificate upon maturity, they follow the following steps: (1) they retrieve the old certificates from client, (2) they have [the] client sign on the back portion of the certificate, (3) they prepare mode of payment - MC or credit to other accounts, and (4) they file the paid certificate to paid/roll-over file; that if the holder of a certificate does not withdraw the placement upon maturity, they replace the old certificate with a new one; that if the client is at the branch, the old certificate is replaced with a new certificate, have the client sign at the register copy, then stamp the old certificate as Old Certificate-Stamp rolled-over/replaced; that if the client is not at the branch, they replace the old certificate with a new certificate and stamped with rolled-over; that certificates have fixed maturity dates; that interest rates stated in the certificates vary as they go either up or down depending on the prevailing bank rates as provided by the Trust Department; that[,] in 1992[,] all existing Trust Indenture Certificates were converted into Common Trust Funds; [and] that he is not aware of any Trust Indenture Certificate belonging to plaintiff which were converted into Common Trust Funds in 1992.
On cross-examination, the witness admitted that he is familiar with Trust Indenture Certificates; that Trust Indenture Certificates have been converted into Common Trust Funds; that the change is only in name because they have the same features and that the only difference is that Common Trust Funds are classified into several product types depending on the limit of the amount of investment; that there is nothing in the certificate that says it has a roll-over feature; that, however, if the certificate expires and the client does not claim or withdraw his funds or surrender the certificate, they roll-over the funds of the client; that if a guest comes with the original Trust Indenture Certificate without any stamp as being taken or cancelled, the bank should verify with the outstanding copy because the bank should have an outstanding copy of that Trust Indenture Certificate; that he is not aware that the Trust Indenture Certificates of the plaintiff were verified with their records; and that he does not know whether plaintiff’s Trust Indenture Certificates were actually paid out by the bank to plaintiff.
P22,117.80 as reimbursement for filing fees.
The case against Equitable Banking Corporation is dismissed for insufficiency of evidence.
Considering that the four TICs have not been replaced or cancelled, the RTC held that the relationship of express trust between petitioner Bank and respondent still subsists at the time the latter demanded the withdrawal of his funds under them. While the TICs contain a maturity date, the court opined that the same refers only to the gross income expectation or the applicable interest rate because the funds are automatically rolled-over with varying interest rates depending on the prevailing interest rates as determined by petitioner’s Trust Department. With respect, however, to the interest rate applicable after the stipulated maturity dates, the court deemed it fair and reasonable to impose the legal rate of interest for want of evidence on the prevailing rate at the time of roll-over. Finally, the court found that petitioner Bank is in bad faith in its dealings with respondent when it unilaterally declared - despite claiming that respondent was one of its valued clients - the TICs as null and void by reason of their conversion to Common Trust Funds in 1991. The absence of good faith was made more manifest when Fortuno testified that the trust indenture certificate and common trust fund have the same features and the only difference is in the name and classification of the amount of investment.
On appeal, the CA affirmed the RTC ruling. According to the appellate court, Soriano could not have possibly known if respondent indeed withdrew any or all of his participation in the subject TICS, because by her very own admission during the cross-examination, she did not have any direct dealing with him with respect to the TICs at the time they matured or even thereafter. Likewise, petitioner Bank failed to adduce any documentary evidence to establish the alleged fact that the four TICs were already paid or cancelled, or that respondent’s participation therein was already withdrawn. Further, respondent’s testimony that he gave verbal instructions to petitioner Bank to roll-over his investment upon their maturity was bolstered by Fortuno’s admission in open court that it has been petitioner Bank’s practice to roll-over investments which remain unclaimed after their maturity even without instruction from their owners. With all these findings, the CA concluded that the claim of respondent is not yet barred by prescription, since the maturity dates of the four TICs did not terminate the express trust created between the parties.
A motion for reconsideration was filed by petitioner, but the CA acted unfavorably; hence, this petition.
Upon perusal of the entire case records, the Court finds no reversible error committed by the CA in sustaining the RTC Decision. Considering the evidence at hand, both courts have applied the law in accordance with the facts of the case.
A quick point, however, on the issue of alleged payment by petitioner Bank on the subject trust certificate indentures.
In this case, respondent’s possession of the original copies of the subject TICs strongly supports his claim that petitioner Bank’s obligation to return the principal plus interest of the money placement has not been extinguished. The TICs in the hands of respondent is a proof of indebtedness and a prima facie evidence that they have not been paid. Petitioner Bank could have easily presented documentary evidence to dispute the claim, but it did not. In its omission, it may be reasonably deduced that no evidence to that effect really exist. Worse, the testimonies of petitioner Bank’s own witnesses, reinforce, rather than belie, respondent’s allegations of non-payment.
WHEREFORE, premises considered, the instant Petition is DENIED. The July 31, 2007 Decision and October 4, 2007 Resolution of the Court of Appeals in CA-G.R. CV No. 82340, which affirmed the October 21, 2003 Decision of the Makati City Regional Trial Court, Branch 61, are AFFIRMED.
1 Respondent Arturo P. Franco died on July 23, 2008. However, his son, Alexander P. Franco, also passed away on September 5, 2012 (Rollo, pp. 212, 242).
2 Penned by Associate Justice Myrna Dimaranan Vidal, with Associate Justices Jose L. Sabio, Jr. and Jose C. Reyes, Jr. concurring; rollo, pp. 48-68.
4 Penned by Judge (now CA Justice) Romeo F. Barza; id. at 70-74.
5 See pp. 2-5 of the CA Decision and pp. 6-10 of the Petition; rollo, pp. 15-19; 49-52.
8Agner v. BPI Family Savings Bank, Inc., G.R. No. 182963, June 3, 2013, 697 SCRA 89, 96.
9Halley v. Printwell, Inc., G.R. No. 157549, May 30, 2011, 649 SCRA 116, 136.
10Tai Tong Chuache & Co. v. Insurance Commission, G.R. No. L-55397, February 29, 1988, 158 SCRA 366, 373.
11 Bank of the Philippine Islands v. Spouses Royeca, 581 Phil. 188, 197 (2008).

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Acquisition of property; damages; petition of condemnee.
If any condemner shall have taken or damaged property for public use without instituting condemnation proceedings, the condemnee, in addition to any other available remedy, may file a petition with the county judge of the county where the property or some part thereof is situated to have the damages ascertained and determined.
Laws 1951, c. 101, § 5, p. 453.
Under section 76-726(2), the court encompassed in the expression "the court having jurisdiction of a proceeding instituted by a condemnee under" this section includes the district court to which an appeal is taken under section 76-715. The provision in section 76-726(2) allowing an award of attorney fees when "(a) the court renders a judgment in favor of the condemnee or (b) a settlement is effected" authorizes the district court as well as the county court to award attorney fees upon the happening of either (a) or (b). Armstrong v. County of Dixon, 282 Neb. 623, 808 N.W.2d 37 (2011).
For purposes of valuation, the date of the taking is deemed to be the date the condemner files its petition in condemnation in the county court, or the date wherein the condemner exercises dominion over, or appropriates an interest in, a person's private property for public use, whichever occurs first. Rose v. City of Lincoln, 234 Neb. 67, 449 N.W.2d 522 (1989).
Section 76-701 et seq., R.R.S.1943, provides no specific statute of limitations; therefore the ten-year period in section 25-202, R.R.S.1943, applies in inverse condemnation proceedings. Krambeck v. City of Gretna, 198 Neb. 608, 254 N.W.2d 691 (1977).
Where public building commission damaged and interfered with use of private sewer connections joining city sewers, held owners entitled to sue in tort or inverse condemnation. City of Omaha v. Matthews, 197 Neb. 323, 248 N.W.2d 761 (1977).
The provision which permits a petition to condemn to be filed in the county court of the county where some part of the property is situated has reference to a tract some part of which lies in both counties. Grace Land & Cattle Co. v. Tri-State G. & T. Assn., Inc., 191 Neb. 663, 217 N.W.2d 184 (1974).
Party seeking damages for interference with leasehold rights was precluded from bringing action by acceptance of compensation allowed by Legislature. State v. Nickel Grain Co., Inc., 182 Neb. 191, 153 N.W.2d 727 (1967).
Right of owner of lot abutting on city street to institute proceedings for recovery of consequential damages raised but not decided. Hillerege v. City of Scottsbluff, 164 Neb. 560, 83 N.W.2d 76 (1957).

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§ 70.19 - Requirements for making a request.
§ 70.20 - Responsibility for responding to requests.
§ 70.21 - Responses to requests.
§ 70.22 - Appeals from denial of requests.
§ 70.23 - Action on appeals.
§ 70.24 - Form and content of action on appeals.
§ 70.25 - Time limits and order in which requests and appeals must be processed.
§ 70.26 - Confidential commercial information.
§ 70.27 - Preservation of records.