Americans celebrate its presidents in February on Presidents Day, combining the birthdays of George Washington and Abraham Lincoln, two of its greatest leaders. For Illinois, and Vermilion County in particular, Lincoln’s actual birth date of Feb. 12 holds special meaning due to his long association with the community.
As the Vermilion County Museum’s Don Richter outlined in his Jan. 28 column in the Commercial-News, Lincoln practiced law in Danville from 1841 until elected president and headed to Washington, D.C., in 1860.
He and Ward Hill Lamon, who later went with Lincoln to the White House as his unofficial body guard, had a law office in Danville at 6 N. Vermilion St.
Lincoln argued as many as 200 cases in the county courthouse, which stood at the site of today’s Vermilion County Courthouse.
Many of those cases were heard by Judge David Davis, who also later helped Lincoln gain the Republican nomination for president and, eventually, the president’s job.
Signs of Lincoln’s connection with Danville can be found around the city through markers placed by the local Daughters of the American Revolution chapter, the Vermilion County Museum and other Lincoln heritage groups. There’s also a mural on the rail bridge that spans Fairchild Street just east of Danville High School visible to westbound motorists.
The museum plans a full-blown birthday party 1:30-4 p.m. on Sunday, Feb. 12, at the museum complex, 116 N. Gilbert St. Both the Museum Center and the Fithian House will be open for tours. Parking is available nearby.
When in Danville, Lincoln often stayed in the house of Dr. William H. Fithian. The two served in the Illinois Legislature together, both when the capital was in Vandalia and after it had moved to Springfield.
The house contains furnishings from the time period when the Fithians welcomed Lincoln as their guest.
There’s a story that Lincoln once spoke in 1858 to a crowd from a balcony on the south side when he was running for the U.S. Senate seat eventually won by Stephen Douglas.
In what has become a tradition, the museum invited area students to create birthday cards honoring Lincoln’s special day. Those cards will be on display during the open house, with winners announced at 3 p.m.
Visitors also will be able to enjoy a piece of birthday cake in honor of the 16th president’s 214th birthday.
For information on the day’s events, contact the museum at 217-442-2922.
The day offers residents a perfect opportunity to learn more about how Abraham Lincoln and Vermilion County are connected — and there will be cake!
The Marysville City Council on Tuesday night took another major step in the redevelopment of its B Street property that has more or less laid dormant for a number of years, in part due to past council and city decisions.
The 5-acre property, located between 12th and 14th streets in Marysville, has been identified as a prime location by officials for development because of its proximity to Bryant Field and the fact it is along one of the major corridors of the city.
SAIPAN — Marianas Consultancy Services and its sole member, Alfred Yue, are claiming ownership of funds seized in 2019 from two Bank of Saipan accounts totaling $310,276.26.
Represented by attorney Mark Hanson, Marianas Consultancy Services, or MCS, and Yue filed a verified claim in federal court Tuesday.
Hanson said MCS is the beneficial owner of the bank accounts from which the property was seized and the beneficial owner of all the property seized from those two bank accounts.
“As the sole member of MCS, Alfred Yue also has a vested property interest in some or all of the seized property as the beneficial owner/distributee of the profits and earnings of MCS and for payment or reimbursement for expenses, taxes and other MCS obligations to Alfred Yue,” Hanson added.
In January, District Court for the Northern Mariana Islands Magistrate Judge Heather Kennedy issued the arrest warrant following a complaint from the U.S. attorney’s office for the districts of Guam and the NMI, which sought to forfeit funds seized from two Bank of Saipan accounts in 2019 for wire fraud and money laundering totaling $310,276.26.
The complaint was a civil forfeiture action and did not provide names of any defendants but refers to two bank accounts of “MCS” at Bank of Saipan.
According to the complaint, $271,087.88 was seized from “MCS account 1,” and $39,188.38 was seized from “MCS account 2.”
A resident of the CNMI, “A.Y.” is the sole owner and operator of MCS, the complaint added.
The seized funds are currently in the custody of the U.S. Department of the Treasury.
The complaint arises out of an FBI and IRS investigation of a suspected conspiracy by foreign entities and entities and individuals in the CNMI to commit wire fraud and money laundering.
“The suspected conspiracy involved the transfer of funds, including by international wire transfer, for the purpose of promoting two schemes to defraud: first, to promote the misrepresentation of material facts to, and the concealment of material information from CNMI regulatory authorities, in violation of Title 18, United States Code, Section 1343; and second, to illegally influence government officials in exchange for preferential treatment, thereby depriving the citizens of the CNMI of their intangible right to honest services of those CNMI government officials, in violation of Title 18, United States Code, Sections 1343 and 1346,” the complaint stated.
The suspected conspiracy involved a third scheme: “to evade the payment of the proper amount of income taxes owed to the CNMI government, in violation of Title 18, United States Code, Section 1343.”
According to the complaint, the “conspirators used international wire transfers made with the intent to promote the carrying on of any one or more of these wire fraud schemes, each of which constituted specified unlawful activity.”
“The wire transfers therefore constituted acts of international promotional money laundering,” the complaint added.
A.Y. incorporated MCS for the stated purpose of “banking and financial services, real estate development, and business management,” the complaint added.
On Nov. 7, 2019, the FBI executed search warrants at the Office of the Governor, casino investor Imperial Pacific International and the office of Alfred Yue of Marianas Consultancy Services LLC, among other offices. Marianas Consultancy Services LLC was a consultant of IPI.
Late last year, the United States Court of Appeals for the Fourth Circuit held in Blenheim Capital Holdings Limited. v. Lockheed Martin Corporation that South Korea’s procurement of F-35 fighter jets and a military satellite did not qualify as a “commercial activity” within the meaning of the Foreign Sovereign Immunities Act (“FSIA” or “Act”). The court ruled that the transaction—which was conducted under a highly regulated U.S. government procurement program—was not a commercial activity because private parties could not have participated in the program. Prior to Blenheim, it was widely accepted that a foreign sovereign’s procurement of goods and services—including military equipment—satisfied the commercial activity exception because a private actor could also purchase goods and services. In a break with this well-established body of case law, the Fourth Circuit held that where goods are purchased through a government procurement program not available to private actors, the commercial activity exception may not be satisfied.
Background
The FSIA provides the exclusive basis for obtaining jurisdiction against foreign sovereigns in U.S. courts. Foreign states are presumptively immune from jurisdiction unless one of the exceptions enumerated in the FSIA applies. The most commonly invoked exception is the “commercial activity” exception, 28 U.S.C. § 1605(a)(2), which abrogates sovereign immunity for claims based on a foreign state’s commercial (as opposed to sovereign) activity carried on in the United States by the foreign state, or for an act performed in the United States in connection with a commercial activity elsewhere, or, lastly, for an act outside the territory of the United States in connection with a commercial activity elsewhere that causes a direct effect in the United States. Many cases involving this exception turn on whether the sovereign defendant’s activity can be classified as “commercial.” The key question, as framed by the U.S. Supreme Court, is whether the “nature” of the activity is commercial—that is, “whether the particular actions that the foreign state performs (whatever the motive behind them) are the type of actions by which a private party engages in trade and traffic or commerce.” Republic of Argentina v. Weltover, 504 U.S. 607, 614 (1992).
The question of what constitutes “commercial activity” is particularly complex in cases involving government procurement contracts. In Weltover, the Supreme Court held that a contract to buy “army boots or even bullets” is a commercial activity “because private companies can similarly use sales contracts to acquire goods.” Following this lead, courts of appeals have generally treated government procurement contracts as “commercial.” The Fifth and Eighth Circuits, for example, have held that contracting to sell parts for fighter jets is commercial activity within the meaning of the FSIA, and the Eleventh Circuit ruled that contracting to import weapons and explosives also satisfied the FSIA test. In one recent case from the U.S. District Court for the District of Columbia, the court held that Hungary’s purchase of military equipment—including airplanes—from U.S. suppliers was a commercial activity within the meaning of the FSIA. Blenheim turns away from this line of precedent.
The dispute in Blenheim grew out of Lockheed Martin’s sale of fighter jets (F-35s) and a military satellite to South Korea. In 2011, South Korea began shopping for fighter aircraft, and eventually settled on purchasing Lockheed’s F-35 fighter jets. Because the transaction involved highly sensitive military equipment designed for the U.S. military, it needed to be structured as a “Foreign Military Sale” (“FMS”), subject to the approval and supervision of the U.S. Department of Defense. Regulations require that the U.S. government manage all aspects of an FMS transaction, including receipt and disbursement of payments to the foreign sovereign purchasing the military hardware. Here, the deal was structured to enable Lockheed to sell the planes to South Korea, with the U.S. Department of Defense acting as an intermediary. To sweeten the deal, Lockheed agreed to arrange an “offset transaction”—procuring for Korea a heavily discounted piece of military hardware—that would partially offset South Korea’s procurement expenditures. Lockheed engaged Blenheim—a broker specializing in such offset transactions—to facilitate the transaction. Under the resulting agreement, South Korea was to receive not only forty Lockheed fighter jets, but also a military satellite, manufactured by Airbus. The transaction was allegedly structured by Blenheim so that South Korea would make a discounted payment for the military satellite, and Blenheim would use this payment to finance the purchase of three satellites—two of which would be retained by Blenheim, and leased to cover the costs of satellite acquisition.
The deal fell apart in 2016, when Lockheed allegedly cut Blenheim out of the deal and proceeded with the transaction with Airbus and South Korea without Blenheim’s involvement. Blenheim sued in the U.S. District Court for the Eastern District of Virginia, alleging tortious interference, conspiracy, unjust enrichment, and antitrust claims. Blenheim alleged that South Korea was not immune from suit, because it engaged in a “commercial activity” under the FSIA by purchasing fighter jets and a military satellite. The district court disagreed, concluding that the commercial activity exception did not apply and that South Korea was therefore immune from suit.
Fourth Circuit Decision
The Fourth Circuit (Niemeyer, Gregory, Thacker, JJ.) unanimously affirmed.
Deviating from established precedent, the court narrowed its analysis to the Supreme Court’s observation in Republic of Argentina v. Weltover that the commercial activity exception does not apply to activities “peculiar to sovereigns.” The court noted that the foreign procurement of Lockheed’s fighter jets could be done only with the approval and supervision of the U.S. government and that the transaction was structured such that the U.S. government was itself an intermediary, collecting payments and disbursing them to the parties. Moreover, the court held, because the transaction furthered “mutual military cooperation between countries,” it was “clear” that a private party could not have made such a purchase. Given these factors, the Fourth Circuit concluded, the “South Korea did not act in the manner of a private party.”
The court did not engage with the contrary decisions of the Fifth and Eighth Circuits holding that the purchase of fighter jet parts is a commercial activity. Instead, the court focused on distinguishing the recent decision by the U.S. District Court for the District of Columbia in Simon v. Republic of Hungary, 443 F. Supp. 3d 88 (D.D.C. 2020), which had concluded that military procurement under the FMS program was commercial because “the ‘type of action’[the sovereign] engaged in” was “the purchasing of goods,” and “[m]aking purchases through [FMS] . . . is merely a means of executing the purchase but does not alter the type of action.” The Fourth Circuit rejected this analysis, concluding that Simon “gave scant attention to the manner in which Foreign Military Sales transactions are structured and regulated” and “the offset transaction in this case was not the type of activity in which a private party could have participated.” The key point for the Fourth Circuit was the heavy degree to which FMS transactions are regulated and supervised by the U.S. government, and the inability of private parties to purchase fighter jets and military satellites—points on which Simon didn’t focus.
Conclusion
The Fourth Circuit’s decision is a sharp turn away from the conventional analysis of whether procuring military equipment is a “commercial activity” under the FSIA. Courts have generally considered military procurement to be a commercial activity, and with good reason: allowing sovereigns to breach their contracts with impunity undermines the purpose of the FSIA, which was designed, in part, to facilitate sovereign commercial activity while providing an avenue for a sovereign’s counterparty to protect its rights.
While it is worth noting that in Blenheim the plaintiff was a foreign broker seeking to use the FSIA to assert otherwise jurisdictionally questionable claims and a result may have been different had the plaintiff been a U.S. arms manufacturer, the Fourth Circuit decision nevertheless creates risk for the U.S. defense contractors—at least until the Supreme Court reconsiders the issue. In the interim, the defense contractors may want to insist that sovereign counterparties agree to explicitly waive sovereign immunity in their contracts, but such a solution will not be feasible in all cases. Regardless, this issue is likely to be a source of future litigation, and given that the court’s decision creates a circuit split, the issue may have to be resolved by the U.S. Supreme Court.
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Roberts, Natalie and Stuart L. to Quillin, Morris B. and Janet E., 16704 Y St., $445,000.
Kortus, Christopher A. and Kendra L. to Bossom, Jenny L. and Hackwell, Jenny L., 6301 S. 197th Circle, $490,000.
Backes, Samantha and Waters, Samantha to Wilson, Price A. and Rademacher, Taylor M., 6356 S. 137th St., $210,000.
Polacek, Casey L. and Lorenzen-Polacek, Beka A. to Miller, Anthony R., 12107 Allan Drive, $227,000.
Gonzalez, Cesar to Excellence Home Renovation LLC, 14215 Karl St., $190,000.
Dynamic Properties LLC to Trent, Kenneth, 12745 Southdale Drive, $240,000.
Whalen, Carol to JLD Laird LLC, 15118 Madison St., $185,000.
Ethen, Emma and Loyd, Emma to Rivera, Amber and Schulz, Jacob Russell, 15429 W St., $280,000.
Ladenburger, Scott to CFI LLC, 14724 Weir St., $142,000.
Venteicher, Myong to Anderson, Jacob D., 4969 S. 149th Court, $305,000.
Lundvall, Donald II and Stephanie to Bothwell, Allen and Darline, 12662 N St., $215,000.
1224 Trust and Kerns, Stephen M., trustee, to Reluctant Property Management LLC, 7219 N. 126th Ave., $55,000.
Vinton22 LLC to Lawson, Kirsti A., 12760 Mormon St., $475,000.
Celebrity Homes Inc. to Mossburg, Robert W., 11052 Reynolds St., $390,652.
Landmark Performance Corp. to William J. Thoreen Revocable Trust and Thoreen, William J., trustee, 12819 Mormon St., $738,528.
2511 S. 140th Street Carwash Re LLC to Twain Gl XXXIV LLC, 2511 S. 140th St., $3,681,838.
Lewis, Katie Jean and Paden, Katie Jean to Wheelock, Danyelle S. and Vickers, James H., 12689 B St., $232,000.
Marlowe, Charles C. to BCL Properties Inc., 10822 Poppleton Ave., $225,000.
Axsom, Jimmie R. to Archstone Real Estate LLC, 1729 S. 155th Ave., $275,000.
Htoo, Htoo and Soe, Say Wai to Bouquet, Sheena Lyn and Young, James Melvin, 5209 Ida St., $259,000.
Perrigo, Scott A. to Queen, Teresa A. and Steven P., 15507 Mason Circle, $240,000.
O’Brien, Anne Marie to Newton, Brian and Valerie, 12821 Jackson St., $385,000.
Pavel, Eileen C. to Berry, James and Emily, 12840 Burt Court, $230,000.
Johnson, Timothy J. and Natasha to Muzney, Travis and Katherine, 623 N. 150th St., $290,000.
Furley, Alexander J. to Rehn, Matthew and Holzworth, Sydney, 11205 Farnam St., $246,000.
Red Ladder LLC to Cancilla, Steven, 15516 Burt St., $275,500.
Liu, Guangdong and Zhao, Ruomeng to Latta, Todd E. and Janet L., 12717 Larimore Ave., $190,000.
Beard Bros Building C. LLC to Onserud, Guy H. and Dianne M., 5113 N. 134th Ave., $260,000.
Davis, Jeffery A. and Angie M. to Backes, Daniel and Samantha, 2640 N. 130th St., $265,000.
Helenmari L. Merritt-Genore Trust and Merritt-Genore, Helenmari L., trustee, to Poskochil, Jared J. and Nina L., 13436 Erskine St., $370,000.
Schuett, Brenda J. to Molnar Investments 401K Trust and Molnar, Steve, trustee, 2704 N. 141st Ave., $145,000.
Stephenson, Joann M. to Branscombe, Robert, 12621 Yates St., $255,000.
Goscha, Hannah and Huerta, Natalie to Sariscsany, Laurel Colleen and Huster, Joseph Anthony, 4206 N. 129th Avenue Circle, $210,000.
Best Price Homebuyers LLC to Andersen, Ashlynn and Jase, 6346 N. 112th Circle, $242,500.
Homemade Holdings LLC to 10X Life LLC, 12954 Corby St., $195,000.
Luck, Steven C. and Laura A. to Grace Home Solutions LLC, 13005 Crown Point Ave., $137,000.
Klesitz Realty LLC to Housespan LLC, 1019 Parkway Drive, $162,000.
Red Ladder LLC to Timm, Donald J. and Beverly D., 1401 Englewood Drive, $143,000.
Habitat for Humanity of Sarpy Company Inc. to Yoele, Julia Nabatali, 2207 Greensboro Ave., $172,000.
Brulinski, Ryan Letts and Victoria L. to Simply Better Solution LLC, 1112 Colorado St., $95,000.
Simply Better Solution LLC to Stoneco Real Estate LLC, 1112 Colorado St., $115,000.
Ideal Designs Remodeling & Constr Dba and Ideal Designs Custom Homes LLC to Nielsen, Scott Michael and Julie Lynn, 11410 S. 189th St., $924,000.
Celebrity Homes Inc. to Jones, Brandon M. and Moore, Jasmuynd K., 11762 S. 113th Ave., $401,000.
Horizon Realty Inc. to Stover, Justin R., 11021 Hardwood Drive, $380,000.
Ray, Derek John to Etherton, Jarrod B. and Emily E. R., 2916 Parkside Drive, $285,000.
Smith, William H. and Vinita L. to Smith, Dustin A., 14910 Chateau St., $210,000.
Stroede, Jonathan E., per rep, and Michael J. Stroede Estate to Ausherman, Michael, 3719 Gayle Ave., $200,000.
Dynamic Properties LLC to Navas, Mirna E. and Julio E., 16601 Clay St., $118,000.
Spadaro, Mark A., trustee, to Pelletier, Joel and Lanpher Pelletier, Tina, 11526 S. 39th St., $195,000.
Carroll, Dianne, successor trustee, and Joseph J. Cascio Sr. Revocable Trust to Alff, Scott and Austin, 4410 Maass Road, $1,750,000.
La Vista Senior Housing LLC to Cedarhurst of La Vista Real Estate LLC, 8140 S. 97th Plz, $31,175,000.
Moon, Nicole and David to Sullivan, Mark J. and Rademacker, Rebecca Jean, 7411 S. 93rd St., $395,000.
Beardsley, Jeffrey R. and Alison M. to Baeman, Yong Rae I. and Marcelline N., 8922 Park View Blvd., $220,000.
Kaiser Investment Properties LLC to Kudlacz, Alex, 7511 Joseph Ave., $255,000.
Anderson, Melvin G. and Charleen R. to Mahoney, Jena Nichole and Andrew Shane, 2132 Franklin Drive, $295,000.
Manning, Nicole to Rudolph, Rita L. and Sorensen, Ronnie and Daniel, 5201 Platteview Road, $370,000.
MDC Pflug Partners LLC to Reinig Properties LLC, 16528 & 16534 Riviera Drive, $400,000.
Freeman, Erica A. to Aung, Myo Myint and Kyaw, Khin Yupar, 16146 Virginia St., $350,000.
TTKM Holdings LLC Dba and Milford Select to Beardsley, Jeffrey R. and Alison M., 16517 Timberlane Drive, $429,000.
Ewin, Cody and Bobbi Lynn to Osher, Matthew, 13513 Grissom St., $241,000.
D.R. Horton Nebraska LLC to Garcia, Roberto and Mariah J., 6421 Peters Pkwy, $403,000.
Charleston Homes LLC to House, Josiah L. and Jenna M., 6421 Peters Pkwy, $433,000.
Shepherd, Kristin J., per rep, and Robert J. Shepherd Jr. Estate to Triton Properties LLC, 4930 Robin Drive, $220,000.
Few will have any idea and even fewer yet will remember that Canada’s first spaceport was actually located in Churchill, Manitoba. First developed as a research range launching sounding rockets by the Canadian military, the site would transfer hands between the United States and Canada until it eventually fell under the ownership and control of Akjuit Aerospace Inc. – our first Canadian commercial launch provider. Near the eve of its eventual closure in May 1998, Akjuit launched a Black Brandt 9 sounding rocket for the Canadian Space Agency – officially the first, and at that time the only, fully commercial spaceport in the world.
Eventually, however, like many things ahead of their time, Akjuit Aerospace was shuttered. For a variety of reasons, the commercial launch market hadn’t then developed as anticipated and the economics simply weren’t sustainable. Now, the range sits decommissioned and designated a national historic site.
For more than 25 years, Canada has gone without any new space launch service entrants, driving capital, jobs, knowledge and technology development south of the border – mimicking the fate of many of our resource exports.
That is until the establishment of Maritime Launch Services (“MLS”) in 2016. It too, arguably, then ahead of its time, MLS now stands perfectly timed and ideally positioned following the most recent announcement by the federal government to capitalize on a robust and growing (in orders of magnitude) global New Space economy; a chorus of investment interest and support in Canada; precipitously declining launch cost economics; and seemingly limitless interest in, and announcement of, new satellite constellations. Partnering with Montreal-based Reaction Dynamics, a crown jewel of Canada’s growing space tech ecosystem, the parties appear positioned to enable a full stack of Canadian content in our commercial launch capabilities.
On January 20, 2023, the Government of Canada officially announced its support for the modernization of the existing regulatory framework, safety standards and licensing conditions for commercial space launch. In short, the federal government will unify existing regulations, oversight and review, and develop a defined path for commercial launch, setting the stage for Canada becoming a launching state.
Collaborative, Phased Approach
The modernization of Canada’s regulatory approach to commercial launch will be introduced in a phased approach.
In the following three-year interim period, the federal government will enable commercial space launch activities that are demonstrated to be safe, secure and environmentally sustainable under existing legislation and regulations, on a case-by-case basis.
During the interim period, the federal government will collaborate with various departments and agencies to develop the regulatory framework and establish an interdepartmental review process to ensure launches are considered and approved in a manner consistent with domestic legislation, international treaties and conventions, and national security and foreign policy interests.
The federal government’s welcome announcement represents a significant policy shift with far-reaching socio-economic benefits that will eventually weave through the fabric of Canadian society. Whether one is a proponent or not of the development of the space industry in Canada, there is no debating the impact of the federal government’s stance to officially supporting commercial space launch and the resulting opportunities this will bring.
With this policy shift, we can reasonably expect that the federal government will support financially and otherwise the development of the full value chain of commercial launch services and products.
We can also expect new companies and service providers to be encouraged to expand and grow their service offerings supporting launch and adjacent services; we can expect new space technology companies to grow in Canada, being encouraged by the domestic expansion of space launch services and the corresponding retention of technical expertise; and we can expect an influx of capital into earlier stage space technology companies as smart Canadian investment firms begin to understand and try to realize upon these growth opportunities.
This decade will no doubt usher in transformative developments to the Canadian space economy. Those entering at this nascent stage will reap the benefits of their early adoption, interest and investment.
Notice to Canada… the New Space economy is finally upon us – let’s make it count.
Iowa State University Extension and Outreach Bremer County will host a Commercial Ag Weed, Insect, and Plant Disease Management Continuing Instruction Course (CIC) for commercial pesticide applicators Wednesday, February 8, 2023. The program, provided by the ISU Extension and Outreach Pesticide Safety Education Program (PSEP), is available at office locations across Iowa.
The local attendance site is Bremer County Extnesion Office. Preregistration may be required. Walk-ins are not guaranteed admission. The course runs from 9:00 to 11:30 a.m. The registration fee is $45. To register or to obtain additional information about the CIC, the ISU Extension and Outreach Bremer County office at 319-882-4275.
GREENSBORO, Ga. – The No. 1 Real Estate Company in the Lake Oconee area, Coldwell Banker Lake Oconee Realty/Lake Country, continues to add elite talent with the addition of Bill Weghorst to its roster of more than 65 Realtors. He will join forces with his wife and current top-selling Coldwell Banker Lake Oconee agent, Joan Weghorst, to produce a sales team focused on selling luxury residential property in Georgia’s Lake Country.
Bill comes to Coldwell Banker after an illustrious career in commercial real estate spanning 30 years. Beginning as Director of Marketing, Bill’s keen negotiating skills, business acumen, and client-focused approach helped him quickly rise through the ranks to become the President of two elite commercial real estate firms in Atlanta. As a resident of Reynolds since 2007, Bill now wants to focus on helping others discover the “good life” of Lake Oconee by teaming up with his wife and fellow agent, Joan Weghorst.
Since joining Coldwell Banker Lake Oconee six years ago, Joan has risen to become a consistent top producing agent and lifetime member of the million-dollar producing club. As a certified Global Luxury Specialist and a resident of Reynolds for 15 years, Joan’s depth of knowledge of the local area and luxury market has led her to repeatedly be nominated for local Realtor of Year. To date, Joan and Bill have collectively negotiated the sales of over $1 billion of real estate.
When asked about joining Coldwell Banker Lake Oconee, Bill stated that “the opportunity to bring my passion for real estate home to Lake Oconee is a dream come true. At the end of the day, this business is about people, and what motivates me day in and day out is the opportunity to help others achieve their real estate goals. At this stage in my career, I cannot wait to help people discover what I have known for years: that Lake Oconee is a special community to call home. Add the fact that I have the privilege of working with my tremendously successful wife on this new venture, and I really could not ask for more.”
“I am thrilled to team up with Bill on this new venture” added Joan. “We fell in love with the beauty, hospitality, and relaxed lifestyle of Reynolds and the Lake Oconee area 15 years ago, and we have both dreamed of teaming up one day to show others what this area has to offer. I believe our extensive experience navigating all aspects of real estate sales and management make us not only an excellent and complimentary team but a tremendous resource to luxury buyers and sellers alike.”
“We are very excited to welcome Bill to the family,” added Coldwell Banker Lake Oconee Realty/Lake Country President and COO, Jim Willis. “His unmatched experience in negotiating complex real estate transactions and delivering elite service to clients coupled with Joan’s understanding of local residential market and attention to detail make this team a force to be reckoned with in the coming years. In the high-stakes world of luxury real-estate sales, I can safely say that the sky is the limit for the new Weghorst team.”
Proposed 2022 amendments to the Uniform Commercial Code (“UCC”) are being introduced in state legislatures all across the land—providing the first major update to the Uniform Commercial Code in thirteen years.
The proposed UCC amendments address emerging technologies and update commercial transaction rules on virtual currencies, artificial intelligence and other technologies.
Most notably, the proposed amendments add a new Article 12 to the UCC titled, “Controllable Electronic Records.”
The proposed UCC amendments are lengthy—91 pages without comments.
My purpose here is to show the extraordinarily thorough, open and intensive process used by the Uniform Law Commission to develop the proposed amendments.
UCC History
The UCC was initially proposed, back in the 1940s, as a collaborative effort by the Uniform Law Commission and the American Law Institute. Since then, all fifty states have adopted some version of this Code.
The UCC’s provisions deal with subjects like sales and leases of personal property, banking processes, and secured transactions—all of which are essential to the free-flow of commerce throughout these United States.
Assuring the UCC’s continued vitality in a changing economy is one of the goals of the Uniform Law Commission and the American Law Institute—and is a driving motivation behind the proposed UCC amendments.
Open and Collaborative Effort
The proposed UCC amendments are the result of an open and collaborative effort between the Uniform Law Commission and the American Law Institute, with input from the American Bar Association and a host of other interested organizations and individuals.
Uniform Law Commission
–Commission History
Established in 1892, the Uniform Law Commission exists to provide states with non-partisan, well-conceived and well-drafted legislation where uniformity among states is advisable.
The Commission’s function has been described as providing laws that are “boring but necessary” to help a state and its citizens function well.
Nebraska (my home state), for example, has enacted around 125 of the Commission’s uniform acts.
–Usual Drafting Process
The Uniform Law Commission, composed of commissioners from every state, drafts all its uniform acts through a slow, careful and transparent process.
The Commission’s usual process begins with appointment of a drafting committee, which holds meetings that are open to any and all interested observers. The drafting committee:
- invites all major stakeholders to participate in the drafting process;
- produces multiple iterations of the proposed act, all of which are posted for review and comments; and
- holds two readings to the entire body of commissioners for final approval.
–Process for Preparing UCC Amendments
The Commission’s Drafting Committee for the proposed UCC amendments followed the usual drafting process. Except, the UCC Drafting Committee went far beyond that usual process—it became a drafting committee on steroids.
The Commission’s Drafting Committee met many times, and one of its subcommittees met every week for ten months.
A huge number of people were involved in the process. More than 300 representatives of a vast array of stakeholders helped evaluate the many, many issues involved and helped prepare the proposed amendments. These representatives:
- included self-described UCC geeks, technology nerds, crypto aficionados, law professors, bankers and attorneys; and
- spoke on behalf of a highly-diverse group of stakeholders—ranging from large banks to small vendors and from crypto currency organizations to old-school businesses.
At the last two annual meetings of the Uniform Law Commission, each section of the proposed UCC amendments was read—all 91 pages, line-by-line—and open discussion and debate by the commissioners occurred on each section.
The final version of the proposed UCC amendments was approved by the Uniform Law Commission at its Annual Meeting in July of 2022.
American Law Institute
Additionally, the proposed UCC amendments are the result of a collaborative effort with the American Law Institute.
The American Law Institute is an organization similar to the Uniform Law Commission—but with a different focus. The American Law Institute is famous for its Restatements of the common law (e.g., on contracts, torts and trusts) that are frequently cited as authoritative by state and federal judges throughout the land.
The proposed UCC amendments were formally approved by the American Law Institute in May of 2022.
Video Interview
For further information on the process of developing the proposed UCC amendments, see this linked video interview with Edwin Smith, Chair of the Uniform Law Commission’s Drafting Committee that produced the proposed UCC amendments.
Conclusion
The levels of care and stakeholder involvements in preparing the proposed UCC amendments were extraordinary.
Accordingly, wide acceptance of the proposed UCC amendments by legislatures throughout the the land is both warranted and expected!
On 15 December 2022, Federal Law No.3 of 2022 Regulating Commercial Agencies (the New Commercial Agency Law), was published in the UAE Federal Gazette, repealing and replacing UAE Federal Law No.18 of 1981 Regulating Commercial Agencies (the Old Commercial Agency Law). The New Commercial Agency Law comes into force on 15 June 2023.
The New Commercial Agency Law introduces significant and, for principals, welcome reforms to the commercial agencies regime under the Old Commercial Agency Law. The New Commercial Agency Law adopts a more balanced approach between principal and agent. How the UAE courts will apply the reforms introduced by the New Commercial Agency Law remains to be seen, after having applied the prior regime for over 40 years.
We highlight in this article some of the key changes being introduced by the New Commercial Agency Law, which, in summary, are as follows:
- the type of companies which can act as a registered commercial agent has been expanded;
- the reasons for which a principal can terminate a registered commercial agency agreement have been expanded in certain circumstances; and
- parties can agree to resolve agency disputes through arbitration, an option which was not permissible under the Old Commercial Agency Law.
Types of Agents
The New Commercial Agency Law reinforces the position that only UAE nationals (or companies wholly owned by them) can act as commercial agents (as was the case under the Old Commercial Agency Law). The New Commercial Agency Law also allows for public joint-stock companies with at least 51% UAE National shareholding to act as a commercial agent. This reflects recent legislative developments brought about pursuant to Federal Law No.11 of 2022, which amended certain provisions of the Old Commercial Agency Law.
In addition, the New Commercial Agency Law provides that the Cabinet (based on the recommendation of the Minister of Economy), may allow a foreign principal (not owned in whole or part by a UAE national) to sell its own products directly in the UAE without an agent, provided that there is no agent already appointed in the UAE and the principal has not had any agreement previously registered within the UAE. It will be interesting to see how this aspect of the New Commercial Agency Law develops in practice.
Termination
Under the Old Commercial Agency Law, a principal was unable to terminate or refuse the renewal of a registered commercial agency agreement unless it had a “material reason” to do so, and the bar to satisfy this request set by the judiciary was high. Article 9 of the New Commercial Agency Law provides that a registered commercial agency agreement can be terminated in any of the five following ways:
- upon the expiry of the agreement, unless the term is renewed by the parties. Unless agreed otherwise, notice of at least one year or one half of a contract’s term (whichever is less), needs to be provided to terminate;
- by the will of either the principal or agent based on the terms and conditions agreed in the registered commercial agency agreement (i.e. exercising contractually agreed termination rights). Unless agreed otherwise, notice of at least one year or one half of a contract’s term (whichever is less) needs to be provided to terminate;
- by the mutual agreement of the parties to terminate a registered agreement before the end of its term;
- by Court order; or
- pursuant to any other provision of the New Commercial Agency Law.
The New Commercial Agency Law does not refer to the requirement of a “material reason” to terminate, expands termination rights and provides broader grounds on which lawful termination may occur.
The New Commercial Agency Law contains some restrictions on the circumstances in which its termination provisions apply, in respect of which we comment further below.
Claim for compensation
Whilst the Old Commercial Agency Law permitted either party to claim compensation for any damages suffered as a result of termination, Article 11 of the New Commercial Agency Law takes these principles further and provides that:
- if the parties agree not to renew a fixed term agreement, then unless there is an agreement to the contrary, the agent is entitled to claim compensation for any damages suffered as a result of the expiry of the agreement; and
- if the agreement is terminated by either party in accordance with the termination rights contained within the agreement, either party can claim compensation from the other for any damage suffered. In addition, the agent is entitled to claim compensation if it can prove that its activities have contributed to the success of the principal in the territory and that the termination is depriving the agent from profiting from the success it has helped the principal achieve.
Arbitration
Under the Old Commercial Agency Law, the Commercial Agencies Committee (the Committee) had exclusive jurisdiction to determine any disputes between the parties in the first instance, with the right of any appeal being referred to the UAE Courts.
While the New Commercial Agency Law provides that the Committee is still responsible for hearing disputes between the parties in the first instance (including providing a procedure for determining disputes where one party terminates in accordance with the terms and conditions of the agreement that is challenged by the other), it allows parties to arbitrate a dispute after the Committee’s decision.
It is envisaged that all disputes are to be referred to the Committee, in the first instance, but that the parties are free to then arbitrate the matter if not satisfied with the decision raised by the Committee. In such circumstances, the Committee’s decision will not be binding on the parties or the arbitrator(s).
This is a significant step forward by the law makers by providing parties with more freedom to have their disputes resolved by their preferred dispute resolution forum, rather than being limited to following the procedures set out by the law and having any alternative dispute resolution mechanism agreed in a contract ignored.
In addition, the New Commercial Agencies Law introduces the ability for a principal to seek permission to continue to import its goods which are subject to its registered commercial agency agreement in the case of a dispute between the principal and agent, on a temporary basis (for example, until the dispute is resolved).
Impact on Existing Agencies
Registered commercial agencies which existed before the issuance of the New Commercial Agency Law will not be subject to the new termination rights introduced by the New Commercial Agency Law for a period of two years from the date on which the New Commercial Agency Law comes into force.
The revised termination provisions in the New Commercial Agency Law will not apply to commercial agency agreements:
- which have been registered with the same commercial agent for more than 10 years, or
- under which the agent has invested more than AED 100,000,000, for a period of 10 years from the date on which the New Commercial Agency Law comes into force. The way in which the commercial agent’s investment will be calculated is yet to be confirmed by the Ministry of Economy.
Conclusion
The New Commercial Agency Law contains a number of provisions which will provide welcome relief to foreign principals, albeit that many principals will not be able to take advantage of those provisions (especially in the context of termination) for some time. The new legislation provides more of an even keel for contracting between principal and agent than was the case under the Old Commercial Agency Law, albeit that robust protections in favour of the agent continue to apply.