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Human Rights Provisions In Free Trade Agreements: Do The Ends Justify The Means?, Meredith Kolsky Lewis
Human Rights Provisions In Free Trade Agreements: Do The Ends Justify The Means?, Meredith Kolsky Lewis
Journal Articles
Numerous Free Trade Agreements (FTAs) contain provisions imposing human rights-related obligations, particularly in the case of agreements between the European Union and a developing country (often a former colony). Such obligations often consist of hortatory “best endeavors” language rather than legally binding provisions. Even the small number of provisions that are binding are very rarely enforced. Furthermore, even if an FTA features human rights-related provisions, it may contain other terms that have negative implications for human rights. Thus, including human rights provisions in FTAs will not necessarily result in better human rights outcomes. There are additional reasons to be cautious …
Dissent As Dialectic: Horizontal And Vertical Disagreement In Wto Dispute Settlement, Meredith Kolsky Lewis
Dissent As Dialectic: Horizontal And Vertical Disagreement In Wto Dispute Settlement, Meredith Kolsky Lewis
Journal Articles
This article examines the phenomena of dissent within WTO dispute settlement panels and within Appellate Body divisions ("horizontal disagreement") and the failure of certain WTO dispute settlement panels to follow previous rulings of the Appellate Body ("vertical disagreement"). With respect to horizontal disagreement, the article responds to a recent critique of my earlier piece on the subject (The Lack of Dissent in WTO Dispute Settlement, 9 J. INT’L ECON. L. 895 (2006)). With respect to vertical disagreement, the article examines whether there are textual or normative reasons why panels should not disagree with the Appellate Body. It argues that the …
The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer
The Foreign Trade Antitrust Improvements Act: Do We Really Want To Return To American Banana?, Joseph P. Bauer
Journal Articles
The extra-territorial reach of the antitrust laws is subject to multiple constraints, including the Commerce Clause of the constitution, the text of the antitrust statutes, and a variety of policy considerations. At the beginning of the twentieth century, in the American Banana case, the Supreme Court severely limited the application of the antitrust laws to anti-competitive behavior beyond our shores. The next eighty years saw an expansion of their extra-territorial reach, by including within their coverage a range of foreign conduct which had domestic effects. However, confusion among the lower courts as to the extent of this coverage, as well …
Transparency In International Commercial Arbitration, Catherine A. Rogers
Transparency In International Commercial Arbitration, Catherine A. Rogers
Journal Articles
Scholars have long been making the case for expanding transparency in the international commercial arbitration system, but recently these proposals have taken on a greater sense of urgency and an apparent willingness to forcibly impose transparency reforms on unwilling parties. These new transparency advocates exhort the general public's stakehold in many issues being arbitrated, which they contend necessitates transparency reforms, including compulsory publication of international commercial arbitration awards.
In this symposium essay, I begin by developing a definition of transparency in the adjucatory setting, and conceptually distinguishing from other concepts, like "public access" and "disclosure," which are often improperly treated …
Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell
Using Trade To Enforce International Environmental Law: Implications For United States Law, Mary Ellen O'Connell
Journal Articles
The United States has enviable domestic environmental protection laws. However, good domestic environmental protection raises two concerns: effectiveness and competitiveness. In response to these two problems of environmental protection—effectiveness and competitiveness—members of Congress introduced over thirty bills in 1990 to amend U.S. trade laws. The bills were designed to either press other states to adopt environmental protection standards similar to the United States own or to at least minimize the competitive disadvantage for U.S. business inherent in U.S. regulations. The bills took one of two approaches: either they aimed at restricting access to U.S. markets for those states failing to …
Per Se Illegality Of Concerted Refusals To Deal: A Rule Ripe For Reexamination, Joseph P. Bauer
Per Se Illegality Of Concerted Refusals To Deal: A Rule Ripe For Reexamination, Joseph P. Bauer
Journal Articles
Section 1 of the Sherman Act proscribes [e]very contract, combination . . . or conspiracy, in restraint of trade. Early Supreme Court cases interpreting this provision held that it required a determination by the trier of fact of the reasonableness of the challenged conduct in each case — an approach which came to be known as the rule of reason. In subsequent cases, however, the Court has held that certain conduct is unreasonable per se. That is, once a court has determined that such conduct has taken place, it is foreclosed from undertaking an inquiry into the reasonableness of that …