Digital Commons Network^™

The Cotton And Sugar Subsidies Decisions: Wto's Dispute Settlement System Rebalances The Agreement On Agriculture, Stephen J. Powell, Andrew Schmitz

UF Law Faculty Publications

As far back as David Ricardo's shattering insight as to comparative advantage in 1817, agriculture has enjoyed special favor in trade. The unique place of farming was so well established by the time the 1947 General Agreement on Tariffs and Trade ("GATT") was negotiated that GATT's tight disciplines on government interference with free trade not only exempted government protections to growers, but in fact were drafted to be fully consistent with the agricultural policies of the major signatories. While it would be an exaggeration to argue that GATT' s first half century was without impact on agricultural benefits, the sector …

Meaning, Ambiguity And Legitimacy: Judicial (Re-)Construction Of Nafta Chapter 11, Ari Afilalo

Northwestern Journal of International Law & Business

Chapter 11 of the North American Free Trade Agreement (NAFTA) benignly named the "Investment Chapter," is a theater for some of the most advanced issues of 21st century international law and adjudication. The Chapter gives private parties the right to challenge national policies that burden their ability to do business freely. It empowers arbitral tribunals to assess damages against the governments of NAFTA parties. The adjudicators, as this Article illustrates, render opinions with a constitutional flavor in that they assess the validity of domestic norms against larger principles of international economic law. In a drastic move away from classical century …

A Dual Catastrophe Of Protectionism, Sungjoon Cho

Northwestern Journal of International Law & Business

Suppose that a consortium of wealthy and powerful local industries, acting through lawmakers captured by these industries, managed to pass a statute, damaging to the larger public welfare, purely for a protectionist purpose. Suppose further that this statute victimizes exports from a small, poor country such as Vietnam, to a large, rich country such as the United States, because these imported products are cheaper and thus pose a competitive threat to rival domestic industries. Suppose also that courts in the importing country can do little to stop this chain of events. Rational individuals might find these events objectionable, if not …

General Exclusion Orders Under Section 337, Gary M. Hnath

Northwestern Journal of International Law & Business

Your company, Widgets Unlimited, imports foreign-made widgets into the United States. One day, you're informed that U.S. Customs & Border Protection (Customs) has detained your goods and is determining whether they infringe a patent owned by The American Widget Corporation, based on an exclusion order issued by the International Trade Commission (ITC) after a recent ITC investigation, titled Certain Widgets with Extra Shiny Surfaces. Since you were never a party to any proceeding at the ITC, and indeed, you never even knew American Widget had patents on its widgets, you conclude that there must be some mistake and wait for …

Convergence: Challenges, Controversies And Collaboration, David Van Zandt

Northwestern Journal of International Law & Business

In this Symposium issue, the Northwestern Journal of International Law and Business has brought together seven outstanding commentators on the possibilities, complexities and controversies of convergence.

Buyers' Remedies In General And Buyers' Performance-Oriented Remedies (25th Anniversary Of The United Nations Convention On Contracts For The International Sale Of Goods), Harry Flechtner

Articles

This paper focuses on Articles 45, 46 and 28 of the CISG - provisions that, despite their importance in the substantive scheme of the Convention, have not generated a great deal of case law or controversy. Article 45, the lead provision of Section III ("Remedies for Breach of Contract by the seller") of Part III, Chapter II of the CISG, provides an overview or catalogue of an aggrieved buyer's remedies (Article 45(1)), along with a rule that coordinates buyers' remedies (Article 45(2)) and a rule of general applicability for all of the buyers' remedies (Article 45(3)). Article 46 provides for …

Nominating Manfred Forberich: The Worst Cisg Decision In 25 Years?, Harry Flechtner, Joseph Lookofsky

Articles

The co-authors propose awarding a Razzie' award for the worst decision on the United Nations Convention on Contracts for the International Sale of Goods ("CISG") to the U.S. (federal) district court decision in Raw Materials Inc. v. Manfred Forberich GmbH. We argue the Razzie is deserved because of the decision's bald-faced violation of the interpretational methodology required (as a matter of U.S. treaty obligations) in approaching the CISG - specifically, its use of U.S. domestic law as a guide to interpreting the Convention, in clear violation of the requirement in CISG Article 7(1) that the treaty be interpreted from an …

Symposium: International Legal Dimensions Of Art And Cultural Property, Jeffrey Schoenblum

Vanderbilt Law School Faculty Publications

The market for art and cultural property is international. Demand is intense and not particularly local in terms of consumer preference. 2 Supply responds to this intense international demand. Like most anything else, art finds its way to whomever is prepared to pay for it. Regulation affects how it arrives at its ultimate destination, but generally does not prevent it from getting there. Apart from this international market, legal and policy aspects of art and cultural property have a distinctly international flavor due to historical circumstance. Since many works over time have been removed from their source by way of …

The "Comity" Of Empagran: The Supreme Court Decides That Foreign Competition Regulation Limits American Antitrust Jurisdiction Over International Cartels, Sam Halabi

Articles, Chapters in Books and Other Contributions to Scholarly Works

In 2004, the U.S. Supreme Court determined that the amorphous doctrine of "comity between nations" limited the reach of U.S. antitrust laws where an international cartel had a direct, substantial and foreseeable effect on U.S. commerce (as the statute provided) but where damages were suffered in foreign markets only. The Article challenges the reasoning of the majority, arguing that so limiting the reach of the antitrust laws is not only inconsistent with the statute's intent, but ultimately removes an important source of cartel deterrent.

International Environmental Law: 2005 Annual Report, Vail T. Thorne, Lakshman Guruswamy, Kevin L. Doran

Publications

No abstract provided.

Book Review, Lakshman D. Guruswamy

Publications

No abstract provided.

Traditional Paradisms For The Causes Of War Applied To The International Trading System: Nation-State Institutions In A World Of Market-States, Antonio F. Perez

Scholarly Articles

The first object of this paper, therefore, is to consider in very general terms the intellectual history of the study of the relation between trade and peace, using two key texts from the beginning and the end of the Cold War - first, Kenneth Waltz's "Man, the State, and War: A Theoretical Analysis" 3; and, second, Philip Bobbitt's "The Shield of Achilles: War, Peace, and the Course of History.

The second part of this paper will argue that Waltz's normative commitments are revealed in the order of his presentation and Bobbitt's normative commitments are revealed in the ostensibly descriptive thesis …

The Promotion Of Free-Trade Areas Viewed In Terms Of Most-Favored-Nation Treatment And "Imperial Preference", Sydney M. Cone Iii

Michigan Journal of International Law

This Article will first examine the relevant WTO provisions that permit free-trade agreements as exceptions to MFN treatment. It will then situate current U.S. policy in the context of the history and purpose of those provisions. Next, the discussion of history and purpose will take up a key debate in the original GATT negotiations, in which the United States championed MFN treatment, while European countries, in particular, Great Britain, sought to retain preferential trading arrangements-arrangements once associated with the rubric of "imperial preference." Against this background, the article will explore the question of whether current U.S. policy represents a reversion …

Staying Within The Negotiated Framework: Abiding By The Non-Discrimination Clause In Trips Article 27, Kevin J. Nowak

Michigan Journal of International Law

This Note argues that the Panel in Canada-Generic Medicines correctly decided that the non-discrimination clause in Article 27 applies to the exceptions of Articles 30 and 31. Because Article 27 is the guiding force of Section 5, any exceptions to the rights granted under Section 5 must comply with the requirements set forth in Article 27. Although extreme applications of the non-discrimination clause could be limiting upon some exceptions, Articles 30 and 31 were not placed into TRIPs as complete escape clauses from the framework of Section 5. Additionally, the application of the non-discrimination clause to Articles 30 and 31 …

Balancing Judicial Economy, State Opportunism, And Due Process Concerns In The Wto, Ana Frischtak

Michigan Journal of International Law

This Note will focus on an aspect of the dispute settlement proceeding that has not been officially proposed for reform: the withdrawal of and amendments to measures being challenged by a complaining Member during the course of the proceedings. This aspect raises issues of judicial economy, state opportunism, and due process. In particular, this practice, where the respondent country to a dispute withdraws or amends the measure being challenged during the course of proceedings, threatens to undermine the legitimacy of the dispute settlement system as a fair and transparent adjudicating body.

Supporting Sustained Economic Development, Steven Radelet

Michigan Journal of International Law

There is no magic formula for sustained economic development in poor countries. Strategies that succeed in one country may not be appropriate in another. Yet there are several broad similarities across the countries that have been most successful in achieving development over the past forty years. This Article takes a very broad overview of economic development in low-income countries over this period and makes three basic points.

A Cosmopolitan View Of Transnational Bottom-Up Lawmaking: The Case Of Export Credit Insurance, Janet K. Levit

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

European Union Legal Materials: An Infrequent User's Guide, Duncan E. Alford

Faculty Publications

No abstract provided.

The Wto, Export Subsidies, And Tax Competition, Reuven S. Avi-Yonah

Book Chapters

From its beginnings late in the 19th century, the modem state has been financed primarily by progressive income taxation. The income tax differs from other forms of taxation (such as consumption or social security taxes) in that in theory it includes income from capital in the tax base, even if it is saved and not consumed. Because the rich save more than the poor, a tax that includes income from capital in its base is more progressive (taxes the rich more heavily) than a tax that excludes income from capital (e.g., a consumption tax or a payroll tax). However, the …

The Free Trade Agreement Paradox, Meredith Kolsky Lewis

Journal Articles

No abstract provided.

Environmental Trade Measures, The Shrimp-Turtle Rulings, And The Ordinary Meaning Of The Text Of The Gatt, Howard F. Chang

All Faculty Scholarship

No abstract provided.

Past, Present, And Future Of Antitrust Enforcement At The Federal Trade Commission, Robert Pitofsky

Georgetown Law Faculty Publications and Other Works

The period from 1970 to the present - roughly a third of a century - has witnessed profound changes in the quality of regulation at the Federal Trade Commission and a remarkable convergence of antitrust enforcement policy between left and right, and between primarily legal as opposed to primarily economic approaches. With respect to substantive law, areas of intellectual debate and uncertainty remain, but viewpoint differences that existed between the 1960s and the 1980s are today vastly reduced. In the 1960s, emphasis was on populist values, hostility to "Bigness," protection of competitors (especially small business) as opposed to the competitive …

The Trust And Distrust Of Intellectual Property Rights, Peter K. Yu

Faculty Scholarship

In the past, intellectual property issues were considered complex, obscure, and highly technical; they were only of interest and concern to intellectual property attorneys, legal scholars, technology developers, and rightsholders. Thanks to the Internet and new communications technologies, however, intellectual property has now begun to play a more significant role in society.

In December 2003, the first phase of the World Summit on the Information Society (WSIS) was held in Geneva. While the conference affirmed the importance of intellectual property rights and free access to information and knowledge, the resulting Declaration of Principles and Plan of Action fail to address …

The Political Economy Of International Sales Law, Clayton P. Gillette, Robert E. Scott

Faculty Scholarship

The United Nations Convention on Contracts for the International Sale of Goods, or CISG, has been adopted by more than 60 countries in an effort to harmonize the law that applies to international sales contracts. In this paper, we argue that the effort to create uniform international sales law (ISL) fails to supply contracting parties with the default terms they prefer, thus violating the normative criterion that justifies the law-making process for commercial actors in the first instance. Our argument rests on three claims. First, we contend that the process by which uniform ISL is drafted will dictate the form …

Let's Stick Together (And Break With The Past): The Use Of Economic Analysis In Wto Dispute Litigation, Petros C. Mavroidis

Faculty Scholarship

The treatment of a number of issues that are being routinely discussed in WTO dispute settlement practice could benefit substantially, were economists to be institutionally implicated in the process. As things stand, the participation of economists in dispute settlement proceedings is infrequent and erratic: for all practical purposes, it depends on the discretion of WTO adjudicating bodies. There is indirect evidence that recourse to such expertise has been made, albeit on very few occasions. Institutional reforms are necessary; otherwise, it seems unlikely that the existing picture will change in the near future. A look into ongoing negotiations on the DSU …

Come Together? Producer Welfare, Consumer Welfare, And Wto Rules, Petros C. Mavroidis

Faculty Scholarship

This chapter explains why the dynamic of World Trade Organization (WTO) negotiations tends to lead to the progressive liberalization of market-access barriers promoting consumer welfare. As all agreements tend to be ‘incomplete’, it is a legitimate task of WTO judges to clarify progressively the WTO requirements of nondiscriminatory treatment of like goods and of like services. The additional requirements, in the WTO Agreements on Technical Barriers to Trade and on Sanitary and Phytosanitary Standards, to base restrictive measures on the ‘necessity principle’ and on ‘scientific evidence’, offer useful ‘double checks’ for judicial identification of protectionist measures. While the WTO rules …

Towards A New Core International Copyright Norm: The Reverse Three-Step Test, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This paper argues that international copyright treaties, such as the WTO TRIPS Agreement, should no longer be developed as sets of minimum standards with a standardized exception filter, namely the three-step test, but rather include a normative standard for the copyright rights themselves. In seeking harmony between rights and exceptions, and in light of copyright haphazard evolution (by simply adding new rights when a new way of using protected content was invented), a single new core norm is proposed: the reverse three-step test.

The Sutherland Report And Dispute Settlement, Mark L. Movsesian

Faculty Publications

Ten years after the organization's founding, an air of disappointment surrounds the WTO. The great promise of a global trade regime, dedicated to the principle of comparative advantage, seems to have stalled. The Doha Development Round, launched in 2001 in an attempt to redeem the disastrous Seattle Ministerial Conference of 1999, has been stymied by familiar disputes between North and South, mostly with respect to agricultural issues, but with respect to nonagricultural market access and services as well. Frustrated by impasses at the WTO, members have increasingly bypassed the organization in favor of discrete "preferential trade agreements", or PTAs, that …

Regional Economic Arrangements And The Rule Of Law In The Americas: The Human Rights Face Of Free Trade Agreements, Stephen Powell

Stephen Joseph Powell

In past studies, we explored the more visible and controversial linkages between international trade law and non-trade issues that span a broad range of vital interests we may collectively describe as human rights law. We have addressed the widespread criticism that international trade rules are insensitive to basic human rights and that globalization has done little with its enormous power to preserve exhaustible natural resources and otherwise promote sustainable development, to alleviate the gap between rich and poor, to encourage states to grant their citizens basic human rights contained in U.N. treaties, to resolve the often conflicting policies underlying essential …

Winners And Losers In The Globalization Of Legal Services: Situating The Market For Foreign Lawyers, Carole Silver

Carole Silver

No abstract provided.