Digital Commons Network^™

Defrosting Regulatory Chill, Guillermo J. Garcia Sanchez

Faculty Scholarship

In Homer’s Odyssey, King Odysseus asked his men to tie him to the mast of his ship with the hope that he would not jump into the sea after listening to the Sirens. The Odyssey’s hero made a pact to bind himself in the future. He knew that the temptation would be impossible to resist without restraints. Similarly, the creators and advocates of international investment agreements believe that providing rights to foreign investors through international treaties will chill State policies that would harm the interests of investors in the future. The “rope” to tie the State is the threat of …

Pushing A Square Pin Into A Round Hole? Intellectual Property Challenges To A Sustainable And Circular Economy, And What To Do About It, Irene Calboli

Faculty Scholarship

It is old news that the world is facing growing environmental problems related to industrial manufacturing and waste management. Finally, consumers are demanding change due to the increasing threat of climate change, and industries are being forced to adapt. Repairing, reselling, upcycling, and recycling existing products are key activities to promote sustainability and a circular economy, but current intellectual property (IP) rules may stand in the way when these activities are not conducted by, or with the consent of IP owners. This opinion argues that IP cannot be used to prevent a greener and more sustainable economy. Instead, it needs …

The Impact Of Foreign Investors' Challenges To Domestic Regulations, Mark Maffett, Mario Milone, Weijia Rao

Faculty Scholarship

We examine how foreign investors’ ability to challenge allegedly harmful host-country regulations before an international arbitral tribunal through investor-state dispute settlement (ISDS) affects regulatory policy-making and the value of foreign direct investment. Consistent with widespread deterrent effects on costly domestic regulation, following an ISDS challenge of an industry-level regulation, the equity values of firms in the industry affected by the challenged regulation increase significantly (by approximately 84 basis points in our baseline specification). Domestic firms without ready access to ISDS also experience higher equity values, suggesting that our results are not driven by expectations of future awards of damages. The …

War & Ip, Peter K. Yu

Faculty Scholarship

On February 24, 2022, war broke out between Russia and Ukraine, sparking concerns among government leaders, intergovernmental bodies and the public at large. A month later, the Russian government issued Decree 299, which reduced to zero the royalty rate for national security-based compulsory licenses to intellectual property rights held by individuals or entities originating from the United States or other "unfriendly" nations. Meanwhile, the United States and other members of the international community imposed sanctions on Russia, raising questions about whether those sanctions would prevent U.S. companies and individuals from engaging with Russian intellectual property agencies. Many multinational corporations also …

English Company Law: Legal Architecture For A Global Law Market, Andrew P. Morriss, Charlotte Ku

Faculty Scholarship

English-architecture company law describes the distinct and diverse group of company or corporate law used in more than 60 jurisdictions worldwide. English-architecture company law provides a robust platform for innovation and development due to its permissive structure, opportunity for choice of law in an entity’s internal governance, and scalability permitting variation for small and large entities. It is the dominant form among International Financial Centers (IFCs), many of which have legal systems with a British connection. This body of law responds to competition and maintains dynamism by engaging its practice community through “learning by doing” and “frictioneering.” An architecture approach …

Everybody Wants To Rule The World: Central Bank Digital Currencies In The Era Of Decoupling The World’S Two Largest Economies, James M. Cooper

Faculty Scholarship

Some 130 central banks around the world are experimenting with various levels of a central bank digital currency (“CBDC”), a digitized form of a sovereign-backed, national currency that is a liability of that country’s central bank. Unlike fiat currency, CBDCs are trackable and potentially subject to interference and even freezing by government authorities. CBDCs will affect citizens’ control over commerce, payments, and savings, and impact their privacy rights. The Chinese government has piloted, refined, and rolled out its own CBDC called the Digital Currency/Electronic Payment initiative (“DC/EP”), also known as the digital yuan or e-CNY. The Chinese government is far …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Consumption Governance: The Role Of Production And Consumption In International Economic Law, Timothy Meyer

Faculty Scholarship

Over the last decade, international economic conflict has increased dramatically. To name only a few examples, the European Union banned the import of products from deforested land and is poised to impose duties on carbon-intensive imports; the United States banned Chinese imports made with forced labor; and countries the world over threatened to impose digital services taxes on U.S. corporations, leading to a new multilateral agreement on apportioning income tax revenue among countries.

This Article argues that these conflicts represent a shift in norms governing the authority to tax and regulate international commerce. Different fields within international economic law describe …

Special Challenges In Execution Of Arbitral Awards In Public Private Partnerships, Srividhya Ragavan, Niraj Kumar Seth

Faculty Scholarship

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolve commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

Historic Tensions Involving International Intellectual Property Protection Of Medical Technology With Disastrous Public Health Consequences, Srividhya Ragavan, Swaraj Paul Barooah

Faculty Scholarship

Historic tensions have pervaded the alliance of intellectual property's ill-fated accord with trade. The intersections of the alliance have impacted access to medical technologies resulting in plaguing public health with disastrous consequences in select parts of the globe, the first of which was perhaps most notably seen during the HIV-AIDS crisis at the turn of the century. At this time, WTO’s sacrosanct norms from the accord between trade and intellectual property rights essentially force African countries to choose between international trade sanctions, and saving thousands of lives by allowing exceptions to patent rights. While much has been written about global …

Vaccine Development, The China Dilemma, And International Regulatory Challenges, Peter K. Yu

Faculty Scholarship

This article examines the role played by China in the development of international regulatory standards at the intersection of intellectual prop- erty, international trade, and public health. It begins by briefly discussing the role China has played in the global health arena during the COVID-19 pandemic. The article then highlights the difficulty in determining how best to engage with the country in the development of new international regula- tory standards. It shows that the preferred method of engagement will likely depend on one’s perspective on China’s potential contributions and hin- drances: a perspective that focuses on global competition—in the economic, …

Two Decades Of Trips In China, Peter K. Yu

Faculty Scholarship

This chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the …

Fishing And Fisheries Under International Water Law: A Dialogue Between Professor Gabriel Eckstein And Professor Paul Stanton Kibel, Gabriel Eckstein, Paul Stanton Kibel

Faculty Scholarship

On April 10 and 11, 2023, the Center on Urban Environmental Law (CUEL) at Golden Gate University School of Law hosted a two-day webinar on International Law Aspects of Fisheries and Hydropower in Europe. To open the webinar, Professor Gabriel Eckstein (of Texas A&M University School of Law) and Professor Paul Stanton Kibel (of Golden Gate University School of Law) participated in a keynote dialogue titled Fishing and Fisheries under International Water Law. What follows is a transcription of this dialogue between Professor Eckstein and Professor Kibel.

Three Megatrends In The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

Since the establishment of the Paris and Berne Conventions, the international intellectual property regime has encountered two world wars, struggled with several global pandemics, welcomed dozens of newly independent nations and interacted with a wide variety of technologies and innovative practices. Although this regime progressed only slowly for the larger part of its first century, it saw major transformation in the past four decades, including the adoption of the WTO TRIPS Agreement.

Written in commemoration of the centennial of the American Branch of the International Law Association, this article identifies three megatrends to illuminate the magnitude and ramifications of such …

Deferring Intellectual Property Rights In Pandemic Times, Peter K. Yu

Faculty Scholarship

This Article examines an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than 30 provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by recounting the proposal's strengths and weaknesses. The Article then identifies the challenges surrounding the negotiation and implementation of the proposed waiver. It shows why these two sets of challenges were neither separate nor sequential, but deeply entangled at the time of the international negotiations.

To respond to these challenges and the negotiation …

Noneconomic Objectives, Global Value Chains And International Cooperation, Bernard M. Hoekman, Petros C. Mavroidis, Douglas R. Nelson

Faculty Scholarship

Systemic conflicts increasingly affect the global value chains (GVCs) underpinning globalization by creating policy uncertainty and politicizing trade and investment decisions. Unilateral policies to attain competitiveness and noneconomic objectives (NEOs), including national security, create incentives for international cooperation to attenuate policy spillovers. Recent initiatives seeking to do so are organized around supply chain governance and need not be anchored in trade agreements. Whether such cooperation is feasible and can be designed to be effective in realizing NEOs is unclear. Plurilateral GVC-centered cooperation offers a potential path for states to pursue NEOs and reduce policy uncertainty for international business. Research offers …

China In The Wto Twenty Years On: How To Mend A Broken Relationship?, Petros C. Mavroidis, André Sapir

Faculty Scholarship

China’s participation in the World Trade Organization (WTO) has been a rollercoaster of milestones and frictions. China has emerged as a leading trading nation, which has contributed to the expansion of world trade. Some of its trading partners, however, and most vocally the United States, complain that China has reached its new status by eluding its WTO commitments. Under President Trump, the United States reacted strongly against China, almost bringing the WTO(but not China!) to its knees. These actions have been criticized in different ways: Some underline their unilateral character (and the ensuing legal issues they raise), whereas others focus …

In The Name Of Energy Sovereignty, Guillermo J. Garcia Sanchez

Faculty Scholarship

Throughout history, the phrase "In the name of the King" justified actions that trumped the rights of citizens in order to safeguard the interests of the Crown. Today, in the name of energy sovereignty, states deploy the government apparatus to access oil and gas in other parts of the world, build pipelines on private lands, subsidize renewable energy, and nationalize their oil and power industries. States justify each of these actions by noting that they create a sense of energy independence, ensure security, or achieve other social and economic goals. Energy, however, cannot be trapped in one "realm." Its nature …

Legal Perspectives On The Streaming Industry: The United States, Irene Calboli

Faculty Scholarship

In the past decade, streaming has become one of the most popular formats of “consuming” entertainment and other content—from music to videos, and concerts, sports, conferences, and other events. In the United States, the majority of consumers subscribe to one or more streaming services today. Popular streaming services include famous platforms such as Spotify, Netflix, Apple Music, or Apple TV, Pandora, YouTube, and more. Beside subscription-based services, several of these platforms offer “freemium,” or ad-paid version of their services, which allow users to access content with advertisements for free. As elaborated in several industry reports and other publications, the rise …

Fashion In The Times Of War: The Recent Exodus Of Luxury Brands From Russia And What It Means For Trademark Law, Irene Calboli, Vera Sevastianova

Faculty Scholarship

In February 2022, Russia infamously invaded Ukraine, starting an unprovoked war. As a result, many foreign companies left their Russia-based operations, including most luxury fashion houses. In these remarks, we elaborate on the possible issues that these companies may face regarding the enforcement of their IP rights in Russia, particularly trademark rights, following their departure resulting from the sanctions imposed by Western countries.

At the time of writing, perhaps the most pressing issue is whether luxury fashion houses risk losing their trademark rights in Russia due to their decision to suspend their operations, even though temporarily. An additional issue facing …

(Un)Stable Bits, Cree Jones, Weijia Rao

Faculty Scholarship

In November 2018, after more than a year of negotiations by representatives from Canada, Mexico, and the United States, the United States Mexico-Canada Agreement (USMCA) was signed by leaders from the three member states, replacing the North American Free Trade Agreement (NAFTA). The Trump Administration viewed the successful renegotiation of NAFTA as one of its signature achievements and argued that the USMCA “solves the many deficiencies and mistakes in NAFTA.” One of the key revisions in the USMCA was the partial removal of investor-state dispute settlement (ISDS), the primary mechanism that had been used to enforce the investor protections guaranteed …

The Truth About Design Patents, Sarah Burstein, Saurabh Vishnubhakat

Faculty Scholarship

Design patents are hot. Scholars and policymakers are increasingly focusing on this once-niche area of law. However, many of the empirical studies in this area—including old ones that still get cited—were methodologically questionable from the start, have become outdated, or both. In this Article, we make two sets of contributions to this important and underdeveloped literature. First, we review the empirical studies of design patents thus far, including those that pre- and post-date the creation of the U.S. Court of Appeals for the Federal Circuit, and we update the findings of those studies. Second, we consider a set of institutional …

The U.S.-China Forced Technology Transfer Dispute, Peter K. Yu

Faculty Scholarship

The past few years have seen not only a trade war between China and the United States involving tariffs on close to $750 billion worth of goods, but also multiple complaints filed by both countries before the WTO Dispute Settlement Body. A key driver behind these ongoing tensions and conflicts concerns the challenges confronting U.S. technology companies—both online and offline. Although the inadequate protection and enforcement of intellectual property rights in China has been the subject of a perennial debate since the mid-1980s, the recent concerns have raised new issues that have been lumped together under the umbrella of "forced …

Transplanting Anti-Suit Injunctions, Peter K. Yu, Jorge L. Contreras, Yu Yang

Faculty Scholarship

When adjudicating high-value cases involving the licensing of patents covering industry standards such as Wi-Fi and 5G (standards-essential patents or SEPs), courts around the world have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). In response, courts in other jurisdictions have begun to issue anti-anti-suit injunctions, or even anti-anti-anti suit injunctions, to prevent parties from hindering the proceedings in those courts. Most of these activities have been limited to the United States and Europe, but in 2020 China emerged as a powerful new source of ASIs in global SEP litigation. The …

The Long And Winding Road To Effective Copyright Protection In China, Peter K. Yu

Faculty Scholarship

In November 2020, China adopted the Third Amendment to the Copyright Law, providing a major overhaul of its copyright regime. This Amendment entered into effect on June 1, 2021. The last time the regime was completely revamped was in October 2001, when the Copyright Law was amended two months before China joined the World Trade Organization. While U.S. policymakers and industry groups have had mixed reactions to the recent Amendment, the new law presents an opportunity to take stock of the progress China has made in the copyright reform process. This Article begins by mapping the long and winding road …

The Second Transformation Of The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

This chapter focuses on the structural changes that international investment norms have posed to the international intellectual property regime. It begins by documenting the regime’s first transformation by the adoption of the TRIPS Agreement and the marriage of intellectual property and trade through the World Trade Organization. The chapter then explores the regime’s potential second transformation when bilateral, regional, and plurilateral agreements and new investor-state disputes have caused international investment norms to intrude into the intellectual property domain. It continues to identify three sets of problems that have emerged from such intrusion. The chapter concludes by proposing three solutions to …

Bizarre Love Triangle: The Trilateral Responses To Tame The United States-Mexico Border, James M. Cooper

Faculty Scholarship

This article explores the role that multilateral agreements among Canada, Mexico, and the United States, and bilateral agreements between the United States and Mexico, have played along the border. Part I of this article explores the Washington Consensus and the culture of accumulation, plunder, and extractivism that it has engendered. Part II delves into various economic integration pacts that are part of the Washington Consensus starting with the NAFTA, then the Security and Prosperity Partnership (SPP), and finally, the United States-Mexico-Canada Agreement. It concludes that neither agreement make the border safer, nor make its working people more prosperous.

Consensus Decision-Making And Legislative Inertia At The Wto: Can International Law Help?, Americo B. Zampetti, Patrick Low, Petros C. Mavroidis

Faculty Scholarship

The recent emergence of Joint Statement Initiatives (JSIs) – that is, negotiating initiatives among a subset of the World Trade Organization (WTO) membership – has reignited the debate over law-making in the WTO. As things stand, the WTO operates on the basis of a widespread expectation that consensus needs to be achieved for any decision to be taken. Agreements that produce rights and obligations only among a subset of the membership (‘plurilaterals’, or Annex 4 agreements) are also subject to the consensus rule and thus remain exceptional. Are JSIs the first move towards redressing the current equilibrium in favour of …

Third Amendment To The Chinese Copyright Law, Peter K. Yu

Faculty Scholarship

Since July 2011, China has actively explored ways to upgrade its copyright law. Although the law was already amended the year before, only two changes were made at that time. The last time Chinese copyright law undertook a major overhaul was more than two decades ago, two months before the country became the 143rd member of the WTO in December 2001.

On November 11, 2020, the Standing Committee of the National People's Congress of China finally approved the Third Amendment to the Chinese Copyright Law. Covering a wide range of issues from eligibility to ownership and from enforcement to anti-circumvention …

Same As It Ever Was : The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Faculty Scholarship

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, …