Amicus Curiae Brief — American Ins. Assn. v. Garamendi

ia Supreme Court, | is. |

FILED

(I | FEB 24 2003

1) | Y) |

Nos. 0 ain, 02-733 | OFFICE OF THs CLERK |

IN THE

Supreme Court of the Hnited States

AMERICAN INSURANCE ASSOCIATION, ef ai.,

Petitioners,

V.

JOHN GARAMENDI, IN HIS CAPACITY AS COMMISSIONER

OF INSURANCE FOR THE STATE OF CALIFORNIA,

Respondent.

GERLING GLOBAL REINSURANCE CORP., ef al.,

Petitioners,

Vv.

JOHN GARAMENDI, IN HIS CAPACITY AS COMMISSIONER

OF INSURANCE FOR THE STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF GOVERNMENT OF SWITZERLAND AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

STEPHAN E. BECKER

Counsel of Record

JONATHAN W. GANNON

SHAW PITTMAN LLP

2300 N Street, N.W.

Washington, D.C. 20037

(202) 663-8000

Counsel for Amicus Curiae

Government of Switzerland

Baimar Legal Publishing Services, Falls Church, VA (703) 289-9000 vv

~

A.

TABLE OF CONTENTS

The HVIRA Is Inconsistent With a Pre-

Existing Settlement Agreement Between Swiss

Industry, Class Action Plaintiffs, and the

World Jewish Restitution Organization That Is

Supported by the Swiss and United States

The HVIRA Conflicts With a Joint

Endorsement of the International Commission

on Holocaust Era Insurance Claims by the

Swiss and United States Governments

The HVIRA Would Require Swiss Companies

to Violate Swiss Law

The Ninth Circuit’s Decision Conflicts with

Holdings of this Court and the U.S. Courts of

Appeals for the First and Eleventh Circuits

CONCLUSION

ii

TABLE OF AUTHORITIES

Cases Page

In re: Holocaust Victims Assets Litigation, 96 Civ. 4849,

2000 Dist. LEXIS 15644 (E.D.N.Y. Aug. 9, 2000)............. 4

Gerling Global Reins. Corp. v. Gallagher, 267 F.3d

ve Tt) le 2 ) 4,10

National Foreign Trade Council v. Natsios, 181 F.3d 38

(Ist Cir. 1999), aff'd on other grounds sub nom.,

Crosby v. National Foreign Trade Council, 120 S. Ct.

p72) Ty || | Ee 10

Zschernig v. Miller, 389 U.S. 429 (1968).....ccceseeeeeeeeeennees 10

Statutes and Rules

California Holocaust Victim Insurance Relief Act

of 1999 Cal. Ins. Code §§13800-13807 (2001)......... passim

Article 273, Swiss Pemal Code ..+..ccs.ccvcconcesssveeconvssosssssssscensovess 8

Miscellaneous

Restatement (Third) of the Foreign Relations Law

of the United States (1987) § 403 ................ccecceseseeeeeeeeeeeeees 8

EEE

Nos. 02-722, 02-733

—_—

IN THE

Supreme Court of the United States

AMERICAN INSURANCE ASSOCIATION, ef ai..

Petitioners,

Vv.

JOHN GARAMENDI, IN HIS CAPACITY AS COMMISSIONER

OF INSURANCE FOR THE STATE OF CALIFORNIA,

Respondent.

GERLING GLOBAL REINSURANCE CORP., et al.,

Petitioners,

Vv.

JOHN GARAMENDI, IN HIS CAPACITY AS COMMISSIONER

OF INSURANCE FOR THE STATE OF CALIFORNIA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF GOVERNMENT OF SWITZERLAND

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

Pursuant to Rule 37 of the Rules of this Court, the

Government of Switzerland respectfully submits this brief as

%

amicus curiae to urge reversal of the judgment below.

Petitioners and respondent consented to the filing of this brief.

INTEREST OF THE AMICUS CURIAE

Arising simultaneously with major reevaluations by

many countries of the conduct of their governments,

industries, and general populations during the World War II

era, the issue of payments by corporations to resolve

outstanding World War II era claims has become prominent

in recent years. The role of civil lawsuits in the United States

courts in this process has itself been highly controversial.

Switzerland was the first country to deal in a

comprehensive manner with the issue of corporate payments

to resolve World War II era claims. On August 9, 2000, the

U.S. District Court for the Eastern District of New York

formally approved a settlement agreement among Swiss

companies, class action plaintiffs, and the World Jewish

Restitution Organization. The settlement agreement, which

includes payment to the plaintiffs of $1.25 billion, by its terms

provides for complete legal and material resolution of

Holocaust-related issues for all of Switzerland, with the

exception of three Swiss insurance companies. Meanwhile,

the Government of Switzerland has endorsed the work of the

International Commission on Holocaust Era Insurance

Claims, an international organization formed to address

unpaid insurance claims.

The Government of Switzerland has grave concerns that

the decision of the U.S. Court of Appeals for the Ninth

Circuit, by encouraging the State of California and other

States to pursue their own unilateral agendas, may undermine

the extensive efforts that have been made by Swiss industry,

' Counsel for the Government of Switzerland prepared this brief in its

entirety, and no person or entity other than the Government of Switzerland

and its counsel made a monetary contribution to its preparation or

—_

3

major Jewish organizations, and the Swiss and United States

governments to achieve a comprehensive resolution of a

difficult and complex international issue. In addition, the

Government of Switzerland has a vital interest in the

preservation of the integrity of the laws and legal system of

Switzerland, and believes that the decision of the Ninth

Circuit must be reversed to prevent the California statute from

requiring the production of confidential information from

Switzerland in a manner inconsistent with Swiss law and

sovereignty.

Accordingly, the Government of Switzerland submits

this bref to explain its views on why the California statute, if

applied, would interfere with Swiss-United States relations.

SUMMARY OF ARGUMENT

The Holocaust Victim Insurance Relief Act of 1999

(“HVIRA”), Cal. Ins. Code §§13900-13807, is a California

statute that would impose onerous reporting burdens on

foreign companies, including Swiss companies, relating to

records of World War II era transactions that took place over

fifty years ago in foreign countries with persons who were not

United States citizens or present in the United States at the

time of those transactions. The purpose of the statute is to

facilitate the initiation of civil lawsuits in California against

foreign companies.

On February 7, 2001, the U.S. Court of Appeals for the

Ninth Circuit reversed the holdings of the U.S. District Court

for the Eastern District of California and held that the HVIRA

is consistent with the Foreign Commerce Clause and does not

infringe upon the foreign affairs power of the Executive

Branch. On remand, the district court issued a permanent

injunction enjoining enforcement of the HRIVA on the

grounds that mandating license suspension for non-

performance of impossible tasks deprived the petitioners of a

protected property interest without due process of law. On

July 15, 2002, the Ninth Circuit again reversed the district

court, distinguished the decision of the U.S. Court of Appeals

ee

. 5

for the Eleventh Circuit with respect to a similar statute in resolution of Holocaust-related issues for al

Gerling Global Reins. Corp. v. Gallagher, and upheld the with the express exception of three eee scrmecae

HRIVA against the petitioners’ constitutional claims.

Contrary to the Ninth Circuit’s holdings, the HVIRA, if

applied, will have a significant effect on the foreign relations

of the United States with Switzerland. The HVIRA is

The Swiss and United States Governments have formed

a Joint Economic Commission (“JEC”), comprised of senior

representatives of the two governments. In a Joint Statement

issued through the JEC on January 29, 2000, the Swiss and

inconsistent with the August 9, 2000 settlement of class action United States Governments reaffirmed their determination to

claims against Swiss interests in the United States District maintain open markets and to promote bilateral market access

Court for the Eastern District of New York, as well as with a for trade, finance and investment, including the insurance

joint Swiss-United States undertaking on Holocaust-related industry. With regard to Holocaust-related matters, the JEC

claims. In addition, by requiring Swiss companies to provide commended Switzerland’s ongoing efforts and specifically:

confidential information from Switzerland, the HVIRA would

compel the violation of Swiss sovereignty and Swiss privacy welcom[ed] the settlement that was achieved in In

laws. Finally, the Ninth Circuit's decision conflicts with Re Holocaust Victim Assets Litigation . . . which . . .

rulings of this Court and the U.S. Courts of Appeals for the when approved will be recognized by all interested

parties as complete legal and material resolution of

First and Eleventh Circuits. | Hol it tan air Gn of te habe

Based on these factors, this Court should reverse the economy . . . and for the Swiss government

Ninth Circuit’s decision and hold that the HRIVA is ER 2384-85. ;

unconstitutional. .

The application of the HVIRA to Swiss companies (other

ooenen , than the three specifically exempted from or ee

A. The HVIRA Is Inconsistent With a Pre-Existing would interfere with the settlement agreement's release of the

Settlement Agreement Between Swiss Industry, Class Swiss economy and would be inconsistent with the policies of

Action Plaintiffs, and the World Jewish Restitution the Swiss and United States Governments supporting that

Organization That Is Supported by the Swiss and sctiement.

United States Governments

On August 9, 2000, the U.S. District Court for the

Eastern District of New York formally approved a settlement

agreement among Swiss companies, class action plaintiffs,

and the World Jewish Restitution Organization regarding

World War II era claims in the case Jn re: Holocaust Victims

Assets Litigation, 96 Civ. 4849, 2000 U.S. Dist. Lexis 15644 ;

(E.D.N.Y. Aug. 9, 2000). The settlement agreement, which The three exempted insurers are Basler Lebensversicherungs-

includes payment to the class action plaintiffs of $1.25 billion, Lenni Sut Lebenaversichenengs-Geeetiecta, end Wintertoar

by its terms provides for complete legal and material :

tt Citations to “ER” refer to the Excerpts of Record in the preliminary

injunction appeal to the Ninth Circuit.

6

B. The HVIRA Conflicts With a Joint Endorsement of

the International Commission on Holocaust Era

Insurance Claims by the Swiss and United States

Governments

The JEC’s January 29, 2000 Joint Statement specifically

addressed the issue of insurance claims by stating that the two

governments:

further welcom[ed] the ongoing constructive

discussions in the framework of the International

Commission on Holocaust Era Insurance Claims pie

on unpaid policies of European insurance

companies dating from [the World War II] period,

as an appropriate forum for resolving Holocaust

related issues for those three Swiss insurance

companies not [released] by the Swiss settlement.

ER 2385.

In the Action Plan annexed to the Joint Statement, the

United States Government pledged to “call on State insurance

Commissioners and State legislative bodies to refrain from

taking unwarranted investigative initiatives oF from

threatening or actually using sanctions against Swiss

insurers.” ER 2390.

The JEC Joint Statement and the associated United

States Government assurances are of great importance to

Switzerland and Swiss industry, and accordingly the

Government of Switzerland has expressed concern to the

United States Government and the United States courts about

the HVIRA on a number of occasions. For example, on April

6, 2000, the Government of Switzerland presented to the

United States Government an Aide-Mémoire expressing its

opinion that state laws such as the HVIRA would violate

Swiss sovereignty and international law. App., infra, A- 1.

On June 2, 2000, the Government of Switzerland sent its

views on the HVIRA directly to the district court. ER 2375.

On August 9, 2000, the Government of Switzerland presented

7

a diplomatic note to the United States Government regarding

this case, in which it requested that the United States

Government submit a brief as amicus curiae to the Ninth

Circuit re-affirming the view that State legislative bodies

should refrain from threatening or imposing sanctions against

Swiss insurers. App., infra, B-1. The Government of

Switzerland later submitted a brief as amicus curiae to the

Ninth Circuit in support of the Petitioners’ request for a

rehearing en banc before the case was remanded to the district

court, and submitted a brief as amicus curiae supporting the

granting of the petition for certiorari in this appeal.

The Government of Switzerland is particularly

concerned that actions taken by the State of California under

the HVIRA will jeopardize the work of the International

Commission on Holocaust Era Insurance Claims, which was

formed to address issues of unpaid World War II era

insurance claims. In the view of the Government of

Switzerland, that commission is the most effective and

expeditious vehicle for resolving unreceived and as yet

unsettled insurance claims from the World War II era that are

not already covered by the settlement agreement discussed

above.

Finally, the Government of Switzerland notes that the

JEC is a continuing initiative, and that since the January 29,

2000 Joint Statement the JEC has engaged in a number of

discussions and joint projects on other topics. For example,

the JEC has promoted bilateral cooperative efforts on industry

biosafety measures to safeguard laboratories and pathogens

from terrorist access, and has spearheaded efforts to combat

international economic crime, including the blocking of

terrorist financing and the freezing of terrorist assets. The

JEC also provides a forum for the discussion of bilateral trade

issues. See Agenda for January 25, 2003 JEC Plenary

Session, App., infra, C-1. To the extent that the United States

Government is unable to implement the joint

recommendations of the JEC — such as with respect to the

issues involved with the HVIRA — the Government of

8

Switzerland is concerned that the credibility and effectiveness

of the JEC may be undermined.

C. The HVIRA Would Require Swiss Companies to

Violate Swiss Law

California lacks jurisdiction, as that concept is

commonly understood in international law, to regulate foreign

companies with respect to transactions that took place in

foreign countries with persons who were not United States

citizens or present in the United States at the time of those

transactions.’ In the absence of a genuine connection between

the issues involved and United States jurisdiction, the

enforcement of the HVIRA against insurance companies

headquartered in Switzerland would violate international law

and Swiss sovereignty. Furthermore, such enforcement

would result in conflicting requirements imposed on the

companies concerned to the extent that compliance with the

California legislation would require a violation of the

applicable Swiss privacy laws, resulting in interference with

the Swiss legal system.

In the view of the Government of Switzerland, the

HVIRA bears no genuine relation to the regulation of the

provision of insurance services in California, but rather is

designed to demonstrate that the state of California

disapproves of the international cooperative actions taken to

facilitate resolution of Holocaust era claims. Especially under

* See, e.g., Restatement (Third) of the Foreign Relations Law of the

United States (1987) § 403 (“[A] state may not exercise jurisdiction to

prescribe law with respect to a person or activity having connections with

another state when the exercise of such jurisdiction is unreasonable.”).

> For example, Article 273 of the Swiss Penal Code prohibits persons

in Switzerland from releasing to foreign governments confidential

business information relating to third parties, unless certain procedures are

followed within Switzerland that ensure that the rights of third parties are

appropriately protected. The California statute does not allow for the

application of this Swiss law.

9

these circumstances, the HVIRA’s extraterritorial reach

cannot be justified.

D. The Ninth Circuit’s Decision Conflicts with Holdings

of this Court and the U.S. Courts of Appeals for the

First and Eleventh Circuits

The Ninth Circuit’s decision is inconsistent with

holdings of this Court and other Courts of Appeals on the

Commerce Clause, the foreign affairs powers of the Executive

Branch and the requirements of due process.

In its initial ruling, the Ninth Circuit made the following

comment on the January 29, 2000 Joint Statement of the JEC:

But even if we were to assume that a conflict exists

between the Holocaust Act and the Swiss-US Joint

Statement with regard to seeking information from

Swiss insurers, Congress’ action controls in this

instance.... [A]s noted, the Swiss-US Joint

Statement is not a treaty, and preemption is not an

issue here. Plaintiffs’ argument that a “policy

interest” found in an executive branch “Joint

Statement” creating an Economic Commission

trumps Congress’ express constitutional authority to

regulate foreign commerce is incorrect.

Petition for Certiorari App. 54a-55a (footnotes omitted).

There is no dispute that Congress has the authority to

regulate foreign commerce, but Congress has not enacted any

statute that preempts or otherwise restricts the ability of the

Executive Branch to engage in negotiations with Switzerland

or other foreign countries regarding resolution of Holocaust-

related claims. The interpretation by the Ninth Circuit

appears to suggest that, absent the implementation of a formal

treaty, the Executive Branch lacks any foreign affairs power

worthy of respect by the courts. Such a restrictive

interpretation of the foreign affairs authority of the Executive

Branch, if allowed to stand, would have significant

10

consequences for the ability of the federal government to

interact with foreign nations.

Although the Ninth Circuit recognized that the Supreme

Court’s decision in Zschernig v. Miller, 389 U.S. 429 (1968),

held that a state may not intrude on the federal government's

foreign affairs power, it declined to apply that decision. The

Ninth Circuit’s ruling also is inconsistent with the recent

holding of the U.S. Court of Appeals for the First Circuit on

the foreign affairs power in National Foreign Trade Council

v. Natsios, 181 F.3d 38, 49-59 (1st Cir. 1999), aff'd on other

grounds sub nom., Crosby v. National Foreign Trade

Council, 120 S. Ct. 2228 (2000).

Finally, the Ninth Circuit’s ruling conflicts with the

Eleventh Circuit’s decision in Gerling Global Reins. Corp. v.

Gallagher, 267 F.3d 1228 (11th Cir. 2001), which invalidated

Florida’s Holocaust Victims Insurance Act. Like the HRIVA,

the Florida statute imposed reporting requirements on the

Florida affiliates of European insurers that issued policies

during the Holocaust to facilitate civil lawsuits for World War

II era claims. The Eleventh Circuit held that the Florida

statute violated due process limits on Florida’s legislative

jurisdiction. Notwithstanding the Ninth Circuit’s attempt to

distinguish Gallagher, the facts and issues presented in these

two cases were virtually identical. The Government of

Switzerland believes that the reasoning of the Eleventh

Circuit in Gallagher is persuasive and is equally applicable to

the HVIRA.

~ —_———_—— —

1]

CONCLUSION

For the foregoing reasons, the Court should reverse the

Ninth Circuit’s decision and hold that the HRIVA is

unconstitutional.

Respectfully submitted,

STEPHAN E. BECKER

Counsel of Record

: JONATHAN W. GANNON

SHAW PITTMAN LLP

2300 N Street, N.W.

Washington, D.C. 20037

(202) 663-8000

Counsel for Amicus Curiae

Government of Switzerland

February 24, 2003

APPENDICES

a — it mt a mmm

Ce a eee -

A-|

APPENDIX A

AIDE MEMOIRE

Several US States - inter alia Florida, California and

Washington State - have enacted special legislation in the

context of unrecovered insurance policies dating from the

World War II period. These pieces of legislation require

insurance companies doing business in the States concerned

to provide comprehensive information on individual insurance

policies under the threat of severe penalties, including the

suspension of the companies’ business license. Considering

the clearly extraterritorial scope of these laws, their

enforcement against insurance companies headquartered in

Switzerland can be considered a violation of international law

and Swiss sovereignty, which is liable to result in conflicting

requirements imposed on the companies concerned to the

extent that full compliance with the special State legislation

would most likely imply a violation of applicable Swiss penal

and data protection laws.

The Swiss Government is concerned about this situation

and the renewed threat of sanctions and administrative

harassment in a number of US States against European

insurance companies, including Swiss companies. It considers

that such threats or the actual use of sanctions, on the basis of

potentially discriminatory and otherwise legally contestable

State legislations, is in contradiction with the spirit of

cooperation that the Swiss and US governments have

reaffirmed at Davos and could strain the bilateral relations

between Switzerland and the United States. Moreover, such

threats or sanctions are completely unjustified as well as

counter-productive in the light of the Swiss Settlement

Agreement as well as the cooperative attitude of the Swiss

_——

-~ - -

APPENDIX B

oH

EMBASSY OF SWITZERLAND

The Embassy of Switzerland presents its compliments to

the United States Department of State and has the honor of

requesting its assistance in relation to the case of Winterthur

International America Insurance Company, et al. v. Chuck

Quackenbush, Insurance Commissioner for the State of

California (Case No. CIV. S-00-779 [JFM]), in which the

California Holocaust Victim Insurance Relief Act (the

“California HVIRA”) is being challenged by several insurers

that do business in the State of California.

The California HVIRA purports to impose obligations on

Swiss and other foreign companies “related” to U.S.

companies, notwithstanding the fact that those companies are

not engaged in business in California or indeed in the United

States. It is the understanding of the Government of

Switzerland that if the related Swiss companies do not comply

with the directives of the California Insurance Commissioner

under the HVIRA, their U.S. affiliated companies could be

sanctioned and lose their licenses to conduct business in

California.

Because of the extraterritorial scope of this legislation

and the absence of a genuine connection between the issues

involved and U.S. jurisdiction, its enforcement against

insurance companies headquartered in Switzerland would

violate international law and Swiss sovereignty. Furthermore,

such enforcement would result in the imposition of conflicting

requirements on the companies concerned to the extent that

compliance with the California legislation would require a

violation of the applicable Swiss penal and data protection

B-2

laws. The Government of Switzerland is concerned about

potential attempts to interfere with the Swiss legal system.

The Government of Switzerland is also concerned that

enforcement of this legislation would interfere with the Class

Action Settlement Agreement reached in In Re Holocaust

Victim Assets Litigation (“Swiss Settlement”). The Swiss

Settlement by its terms provides for complete legal and

material resolution of Holocaust-related issues for all of

Switzerland, with the exception of three Swiss insurers which

are involved in separate lawsuits. The California HVIRA

conflicts with the Swiss Settlement’s release of all other

Swiss insurance companies and therefore is inconsistent with

United States and Swiss government policies supporting the

Settlement.

e tiie, © om ian. Se

HVIRA have been specifically addressed in the framework ry)

oe hin Rae ene eS ee

our governments. A Joint Statement issued on the occasion

of the inaugural meeting of the JEC specifically “welcomfed!

the settlement that was achieved in In Re Holocaust Victim

Assets Litigation . . . which . . . , when approved will be

recognized by all interested parties as complete legal and

material resolution of Holocaust related issues for all of the

Swiss economy [including the banking, insurance and

manufacturing sectors] . . . and for the Swiss government.

The JEC “further welcomfed] the ongoing constructive

discussions in the framework of the International Commission

on Holocaust Era Insurance Claims (“Eagleburger

Commission”) on unpaid policies of European insurance

companies dating from [the World War II] period, as an

appropriate forum for resolving Holocaust related issues for

those three Swiss insurance companies not [released] by the

Swiss settlement.” The JEC stated that it would “address

issues related to potentially disruptive and counterproductive

effects of investigative initiatives or the threat or actual use of

sanctions on a sub-federal level against insurers, including

B-3

those that are part of the Swiss settlement or that are

participants in the Eagleburger Commission.”

In the Action Plan annexed to the Joint Statement, the

U.S. Government pledged to “call on the U.S. State insurance

Commissioners and State legislative bodies to refrain from

taking unwarranted investigative initiatives or from

threatening or actually using sanctions against Swiss

insurers.”

The Government of Switzerland has on several recent

occasions expressed concern to the U.S. Government about

State actions related to Holocaust insurance issues. Most

recently, on April 6, 2000, the Government of Switzerland

presented to the U.S. Government an Aide-Mémoire

requesting prompt attention to this issue and expressing

concern that such laws as the California HVIRA violate Swiss

sovereignty and international law and may cause involved

Swiss insurance companies to violate Swiss laws. The

Government of Switzerland further objected to laws such as

the California HVIRA on the grounds that they are potentially

discriminatory against Swiss financial industries and a

potential cause of strain on relations between the two

countries. The Aide-Mémoire pointed out that laws such as

the California HVIRA are counter-productive in light of the

efforts and cooperative attitude of Swiss insurance companies

in this matter.

Consistent with our understanding of the Department of

State’s policy of encouraging foreign governments to

communicate directly with the United States Courts, the

Government of Switzerland attempted to submit its views on

this matter in a letter dated June 2, 2000 to the federal district

court in which the case is being heard. The Embassy of

Switzerland has learned, however, that on July 31, 2000, the

court stated that it would not accept submission of the letter

for procedural reasons. The Embassy therefore requests that

the Department of State forward a copy of this note to the

court on its behalf.

B-4

The Government of Switzerland is informed that a

liminary decision of the district court imposing 4

eer injunction against enforcement of the California

HVIRA is currently pending before the Court of Appeals for

the Ninth Circuit. The Government of Switzerland hereby

requests that the United States Government make a submssion

to the Court of Appeals, re-affirming the position of the Joint

Economic Commission that the International Commission on

. Holocaust Era Insurance Claims is the appropriate forum for

resolving remaining pertinent issues and that State authorities

should refrain from taking unwarranted investigative

initiatives or from threatening or imposing sanctions against

Swiss insurers that would be liable to cause serious,

irreparable damage to the companies concerned.

The Embassy of Switzerland avails — = r~

opportunity to thank the United States Department of State for

se cooperation and 10 senew the assurances of its highset

consideration.

Washington, D.C., August 9, 2000

United States Department of State

Washington, D.C.

C-]

JEC PLENARY SESSION

SATURDAY - JANUARY 25, 2003 - DAVOS

A. During Secretary Thompson’s Participation

1. Bioterrorism Cooperation: Completing U.S.-

Swiss industry initiative for promoting worldwide

industry “biosafety” measures to safeguard labs and

pathogens from terrorist access;

(ENCOURAGING CONTINUED ENGAGEMENT

OF US. AND SWISS PHARMACEUTICAL

INDUSTRIES TO COMPLETE A BIOSAFETY

CODE TO FIGHT BIOTERRORIST ACCESS TO

LABS)

2. FDA-Swissmedic Regulatory Cooperation:

Cooperation between U.S FDA and Swissmedic in

Steps Toward a Mutual Recognition Agreement for

Pharmaceutical and Medical Device Products:

(CURRENT STATE OF PLAY BETWEEN FDA

AND SWISSMEDIC ON THEIR WORKPLAN.

POLITICAL LEVEL SUPPORT FOR CURRENT

PACE?)

1. Blocking Terrorist Financing / Freezing

errorist Assets: Improving bilateral communication:

projects for capacity building in developing financial

centers;

(REPORT ON U.S.-SWISS COOPERATION TO

DATE / WHAT’S NEXT IN FIGHT AGAINST

TERRORIST FINANCING? POSSIBLE JOINT

EFFORTS TOWARDS CAPACITY BUILDING FOR

C-2

BETTER FINANCIAL CE! 1&8 DUE DILIGENCE;

SUPPORT FOR FATF PROCLSS)

2. US Security Measures, including Container

Security Initiative (CSI) and Impact on Int’! trade:

(CONSULTATIONS ON THE EFFECTS OF U.S.

SECURITY MEASURES ON SWISS COMPANIES;

IDENTIFICATION OF MEASURES THAT COULD

INFLUENCE BILATERAL TRADE)

. Im of Corporate Oversight Measures:

Sentai on Sarbanes-Oxley and Auditing

Reforms’ International Impact; a aia

TATIONS ON THE EFFEC S.

NaPOnD MEASURES ON SWISS COMPANIES

AND INT’L FIRMS BASED IN SWITZERLAND.

DISCUSSION OF GOVERNMENT SCOPE FOR

STRENGTHENING LEGAL OR SELF-

REGULATORY STRUCTURES TO ENSURE

BETTER CORPORATE GOVERNANCE.)

D. Cooperative Development Efforts _in _ Southeast

Europe and Central Asia

1. Southeast Europe Economic Stability: Report

on progress in creating structures conducive to private

investment;

(ASSESSMENT OF PROGRESS FOR STABILITY

PACT AND OTHER ASSISTANCE EFFORTS BY

BOTH SIDES)

| RI

a

C-3

2. World Summit on Sustainable Development-

WSSD: Follow Up: Joint Development Outreach to

Central Asia: Trade Capacity Building;

(LAUNCHING U.S.-SWISS PARTNERSHIP AS

FOLLOW UP TO WSSD)

1. Holocaust Assets: Resolution of Insurance

Claims;

(UPDATE ON CURRENT PROGRESS THROUGH

EAGLEBURGER COMMISSION)

2. WTO/Trade Issues: Cooperation at Doha; including

TRIPS issue for pharmaceuticals; steel

(REPORT ON OUR DOHA PRIORITIES AND

FOLLOW UP)

3. Trade in Livestock Products: Resolving

Disputes over U.S. beef entry to Swiss market and

Swiss dried beef access to U.S.

(REPORT ON CURRENT DIALOGUE (ROAD

MAP) TOWARDS RESOLVING IMPORT OF

DRIED BEEF TO U.S. AND IMPORT OF USS.

BEEF TO SWITZERLAND)

4. Thomas Bill: Potential impact on foreign direct

investment

5. Telecommunication: Provisioning of Leased

Lines and Unbundling the Last Mile

C-4

(SWISS UPDATES ON TELECOM POLICY

REFORMS)

F. _ Export Controls

1. Non-proliferation and Export Controls:

Progress in strengthening Wassenaar, the CWC, and

other instruments.

(EXCHANGE OF VIEWS ON ISSUES THAT NEED

TO BE ADDRESSED TO IMPROVE

COORDINATION OF REGIMES CONTROLLING

EXPORTS OF ARMS AND - DUAL-USE

TECHNOLOGIES)

G. Science and Technology Cooperation

1. Science and Technology Framework

Agreement (STFA): Promoting synergy between

research and industry;

(MERITS OF A POSSIBLE U.S.-SWISS S&T

FRAMEWORK AGREEMENT)