Law Commons^™

A Private And Efficient Approach To Us-China Trade: Bringing A Non-Violation Case In The Wto, Daniel C.K. Chow, Ian M. Sheldon

Vanderbilt Journal of Transnational Law

When Joe Biden defeated Donald Trump to become president of the United States in 2020, many observers hoped that Biden would reset the troubled US-China trade relationship. The Trump administration had abandoned the rules-based approach to international trade of the World Trade Organization (WTO) and adopted a power-based approach instead. Using a power-based approach, the United States imposed or threatened sanctions if China did not dismantle its state-led economy and terminate the use of industrial subsidies to support its domestic industries. The United States also crippled the dispute settlement system of the WTO so that nations could not challenge US …

Tariffs And Threats In Us Trade Policy: Debunking The Myth Of "Global Reset", Julien Chaisse, Debashis Chakraborty

Vanderbilt Journal of Transnational Law

In June 2020, the United States pushed for a "reset"of tariffs at the World Trade Organization (WTO). This move was heralded as necessary for the United States to level the uneven playing field caused by "high bound tariff rates." Ordinarily, the United States perceives trade remedies as a defensive measure. However, in this context, the United States seems to be preemptively acting against any misapplied, anti-dumping duties that it may face. For this reason, a global reset of tariffs will likely find support. It can be counterproductive for the new US administration to pursue such a strategy. If realized, it …

Extending Trade Law Precedent, Jeffrey Kucik, Sergio Puig

Vanderbilt Journal of Transnational Law

Precedent is celebrated as a fundamental feature of dense legal systems as it creates predictability, builds coherence, and enhances the authority of courts and tribunals. But, in international adjudication, precedent can also affect interstate cooperation and ultimately the legitimacy of international organizations. Wary of clashing with state interests, most international dispute settlement systems are designed so that rulings do not set obligatory precedent.

This Article describes the role of precedent in the Appellate Body (AB) of the World Trade Organization (WTO) to explain how precedent can affect compliance with the decisions of international courts and tribunals (ICs). This Article makes …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Vanderbilt Journal of Transnational Law

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …

Data Imperialism: The Gdpr's Disastrous Impact On Africa's E-Commerce Markets, Cara Mannion

Vanderbilt Journal of Transnational Law

The European Union (EU) recently passed the General Data Protection Regulation--a sweeping regulatory framework that sets a new global standard for the collection, storage, and use of personal data. To ensure far-reaching compliance with the GDPR, the EU has adopted a strict take-it-or-leave-it approach--countries that wish to engage with digital users in the EU must either comply with the GDPR's expansive data obligations or risk losing access to the world's largest trading block.

This presents significant obstacles for several African nations. Notably, no African country currently has domestic laws that comply with the GDPR. Even if they did, several African …

Diversity Of Shareholder Stewardship In Asia: Faux Convergence, Gen Goto, Alan K. Koh, Dan W. Puchniak

Vanderbilt Journal of Transnational Law

Since the UK adopted the world's first stewardship code in 2010, stewardship codes have proliferated across Asia. Given the UK Code's prominence, it is tempting to assume that every other stewardship code performs the same function as the UK Code. This assumption belies the truth: all these codes--regardless of whether they have in fact drawn inspiration from the UK Code--have taken different trajectories due to each adopting its jurisdiction's distinctive institutional and legal context.

Using empirical evidence and in-depth case studies of stewardship in Japan and Singapore, this Article reveals how any reception of United Kingdom-style stewardship concepts is only …

Traditional Knowledge In Taiwan: A Call For Greater Participation Of Indigenous Peoples In The Global Intellectual Property Marketplace, James M. Cooper

Vanderbilt Journal of Transnational Law

This Article explores the plight of the Aborigines of Taiwan and the legal protections that exist for their Traditional Knowledge. While Taiwan continues to face international isolation with a diminished number of states recognizing the Republic of China as the seat of China, the island's government has taken limited steps to recognize language, cultural, and economic rights of its Indigenous peoples. International law has not been helpful in protecting Traditional Knowledge, but Taiwan could use its vast economic resources and positive track record in protecting some of these rights to further its goals of international recognition. This Article details the …

Reciprocity In China-Us Judgments Recognition, William S. Dodge, Wenliang Zhang

Vanderbilt Journal of Transnational Law

The conventional wisdom is that China and the United States do not recognize each other's court judgments. But this is changing. A US court first recognized a Chinese judgment in 2009, and a Chinese court first reciprocated in 2017. This Article provides an overview of the enforcement of US judgments in China and Chinese judgments in the United States, noting the similarities and differences in the two countries' systems. In China, rules for the enforcement of foreign judgments are established at the national level and require reciprocity. In the United States, rules for the enforcement of foreign judgments are established …

The "Poison Pill" In The Usmca: The Erosion Of Wto Principles And Its Implications Under A Us-China Trade War, Gil Lan

Vanderbilt Journal of Transnational Law

The United States, Canada, and Mexico have ratified a multilateral trade agreement (the "USMCA") that contains a highly unusual provision. This provision (referred to as the 'Poison Pill") is intended to deter the signatories from entering into a free trade agreement (FTA) with any "non-market country." The Poison Pill was introduced by the United States in the wake of the US-China trade war and was most likely directed at deterring Canada from entering into an FTA with China.

This Article argues that the Poison Pill is functionally an expulsion clause (as opposed to a withdrawal clause) which violates the USMCA …

Fintech And International Financial Regulation, Yesha Yadav

Vanderbilt Journal of Transnational Law

This Article shows that Fintech exacerbates the difficulties of standard setting in international financial regulation. Earlier work introduced the "Innovation Trilemma" (the Trilemma). When seeking to balance the goals of achieving market integrity and innovation through clear and simple rulemaking, regulators can--at best--achieve only two out of these three objectives. Fintech's unique characteristics--a reliance on automation and artificial intelligence, novel types of big data, as well as the use of disintermediating financial supply chains comprising a mix of traditional firms as well as technology specialists and newcomers--complicates the application of the Trilemma. Rulemaking struggles to achieve needed clarity where innovative …

International Investment Law And Noneconomic Issues, Barnali Choudhury

Vanderbilt Journal of Transnational Law

Arbitral tribunals have misconstrued the purpose of international investment agreements (IIAs) by failing to factor in the development aspect of these agreements into their analysis. IIAs were constituted to protect foreign investment in order to promote economic development. However, arbitral tribunals have tended to focus mainly on the investor protection elements of IIAs, leading to impingements on human rights and the environment and leaving IIAs as a threat to sustainable development.

Drawing from all publicly available investment awards, a review of these awards found fifty-six awards in which human rights and environmental issues were implicated in investment disputes. The review …

Unintended Consequences For Reversing Rapprochement: Is The Us Government Liable For A Loss Of Us Property In Cuba?, David Kolansky

Vanderbilt Journal of Transnational Law

In 2014, the United States announced a historic reopening of ties with Cuba. This effort at rapprochement included restoring diplomatic relations and easing regulatory restrictions to facilitate greater business, trade, travel, and communication between the two nations. However, the US government's decision in 2017 to reverse course and reinstate the economic embargo against Cuba could result in significant legal and financial consequences for both US claimants who hold property in Cuba and the US government. One issue that arises is whether US corporations and individuals, who invested in property in Cuba following the Obama-era easing of restrictions, have a constitutional …

Algorithmic Speech And Freedom Of Expression, Alan Sears

Vanderbilt Journal of Transnational Law

Algorithms have become increasingly common, and with this development, so have algorithms that approximate human speech. This has introduced new issues with which courts and legislators will have to grapple. Courts in the United States have found that search engine results are a form of speech that is protected by the Constitution, and cases in Europe concerning liability for autocomplete suggestions have led to varied results. Beyond these instances, insight into how courts handle algorithmic speech are few and far between.

By focusing on three categories of algorithmic speech, defined as curated production, interactive/responsive production, and semi-autonomous production, this Article …

Interpretative Challenges Of 28 U.S.C. § 1782 In The Aftermath Of Intel Corp. V. Advanced Micro Devices, Inc., Gabriela B. Clark

Vanderbilt Journal of Transnational Law

The rise of globalization and the normalization of transnational commercial agreements motivated the United States to make commitments that seek to facilitate the resolution of international litigation and dispute resolution processes. One of the byproducts of the United States' commitment to international cooperation is 28 U.S.C.§ 1782, a statute that opens American courts to foreign parties seeking discovery for use in foreign proceedings. Continuous amendments to this statute, paired with a Supreme Court decision that provided an overly vague, unworkable balancing test, gave free rein to lower courts' discretionary powers, ultimately resulting in a myriad of conflicting decisions. This Note …

Using The Wto To Facilitate The Paris Agreement: A Tripartite Approach, Antonia Eliason

Vanderbilt Journal of Transnational Law

Climate change is the greatest threat humanity has faced, and its challenges can only be addressed through multilateral means. Lacking in accountability and enforcement mechanisms, however, the Paris Agreement requires additional support to achieve its full effect. Although not perfectly aligned with the goals of the Paris Agreement, the WTO's multilateral framework could provide the necessary flexibilities to work toward meeting the Paris Agreement's targets. This Article proposes a novel three-pronged approach for refocusing the multilateral trading system and facilitating the Paris Agreement.

First, the preamble to the Agreement Establishing the World Trade Organization explicitly recognizes sustainable development as a …

Us And Eu Efforts To Combat International Money Laundering In The Art Market Are No Masterpiece, Timothy E. Burroughs

Vanderbilt Journal of Transnational Law

Despite the lack of significant, tangible evidence of money laundering through fine art and antiquities dealers, the EU recently passed the Fifth Anti-Money Laundering Directive adding art dealers to the list of businesses obligated to comply with record keeping and due diligence requirements. Shortly thereafter, a similar measure was proposed in the U.S. House of Representatives. However, one-size-fits-all unilateral regulations will fail to protect the fine art and antiquities industry and will place crippling burdens on many art market participants. Instead, soft law agreements, used for most international finance regulation, should be the main tool to establish international standards. This …

Emerging Market Economies And International Investment Law: Turkey-Africa Bilateral Investment Treaties, Uche E. Ofodile

Vanderbilt Journal of Transnational Law

This Article offers a critical and penetrating insight into the bilateral investment treaties (BITs) between Turkey and countries in Africa. Since 2003, Turkey has concluded BITs with twenty-eight countries in Africa. This Article seeks answers to some very important questions. In the BITs between Turkey and countries in Africa, is Turkey merely conforming to the norms and standards established by Western countries, or is Turkey changing these norms in fundamental ways? Compared to BITs between Western nations and countries in Africa, are Turkey-Africa BITs more oriented towards sustainable development and, if so, in what respects? In what ways are emerging …

Is Strict Reciprocity Required For Fair Trade?, Daniel C.K. Chow, Ian Sheldon

Vanderbilt Journal of Transnational Law

The administration of Donald J. Trump has repeatedly claimed that reciprocity is required for "fair" trade. While this concept is not new in US political discourse, the Trump administration's insistence that strict or absolute reciprocity is required goes beyond any claims made by previous US administrations. By strict reciprocity, the United States means that all trade volumes and terms and conditions of trade must be mirror images of each other. As the United States has a trade deficit with all of its largest trading partners, the Trump administration claims that this is evidence of unfairness in trade harming the United …

An Empirical Study Of Dispute Resolution Clauses In International Supply Contracts, John F. Coyle, Christopher R. Drahozal

Vanderbilt Journal of Transnational Law

International transactions present unique legal risks. When a contract touches several different nations, a party may not know where it will be called upon to defend a lawsuit or, alternatively, which nation's law will be applied to resolve that dispute. To mitigate these risks, parties will often write dispute resolution provisions into their contracts. Arbitration clauses and forum selection clauses help to reduce uncertainty relating to the forum. Choice-of-law clauses help to reduce uncertainty as to the governing law. Over the past few decades, such provisions have become commonplace in international contracting. And yet there exist vanishingly few empirical studies …

Building Bridges: International Trade Law, Internet Governance, And The Regulation Of Data Flows, Neha Mishra

Vanderbilt Journal of Transnational Law

The regulation of internet data flows touches upon various distinct disciplines including internet governance and international trade law. In internet governance, three fundamental principles, namely, internet openness, internet security, and internet privacy apply to regulation of internet data flows. This Article argues that internet privacy and security, when implemented in a reasoned and transparent manner by different stakeholders, enable internet openness--thus, challenging the dominant perspective that cybersecurity and privacy requirements constrain the free flow of data. Further, this Article introduces a unique perspective by arguing that these three principles (notwithstanding their nonbinding nature) play an important role in applying trade …

The Gap-Filling Role Of Private Environmental Governance: A Case Study Of Semiconductor Supply Chain Contracting, Cassie D. Roberts

Vanderbilt Journal of Transnational Law

Three of the principal international agreements that govern various aspects of hazardous substances or wastes are not legally binding on American companies because the US Congress has not passed the requisite implementing legislation. The failure of American companies to meet or exceed the standards set forth in these agreements, although not legally mandated, could be detrimental to American businesses operating on the global stage. The American semiconductor industry responded to this potential disconnect by developing internal firm-specific standards that bind suppliers through supply chain agreements. This Note explores the phenomenon of private standard setting in the semiconductor industry, a prime …

Sustaining The Growth Of Mobile Money Services In Developing Nations: Lessons From Overregulation In The United States, Amanda B. Kernan

Vanderbilt Journal of Transnational Law

Billions of people around the world are excluded from the formal financial system and forced to store, transfer, and borrow money by using inefficient and unsafe methods. The recent introduction of mobile money programs in developing countries is revolutionizing financial inclusion by allowing users to store and transfer money on their mobile phones, thereby eliminating the need to access a bank or an internet connection. Unfortunately, fears that these programs will be used to launder money and finance terrorism have led the international community to develop and implement restrictive anti-money laundering policies that will likely impede the growth and accessibility …

Tweet To Defeat Government Bribes: Limiting Extraterritorial Jurisdiction Under The Foreign Corrupt Practices Act To Combat Global Corporate Corruption, Sarah Routh

Vanderbilt Journal of Transnational Law

Congress enacted the Foreign Corrupt Practices Act (FCPA) in the 1970s to address the rampant bribery of foreign officials by US companies. Because that resulted in a competitive disadvantage to US companies in the global corporate community, Congress amended the Act to add § 78dd-3, which extended the FCPA's jurisdiction to foreign entities and individuals whose alleged offenses had occurred within the United States. This led to a vast overall increase in enforcement matters, but foreign entities and individuals have been impacted the most, even if their actions have had virtually no connection to the United States. Not only have …

China's Belt And Road Development And A New International Commercial Arbitration Initiative In Asia, Weixia Gu

Vanderbilt Journal of Transnational Law

The policy centerpiece of President Xi Jinping's foreign strategy, China's Belt and Road Initiative (BRI), ambitiously aspires towards expanding regional markets and facilitating regional cooperation. In context of a rising volume of cross-border transactions generated by the BRI, a robust legal framework on dispute resolution is required to forge investor confidence and enable BRI's integral goal of economic integration. In light of the substantial levels of harmonization among arbitration laws, arbitration is argued to constitute a primary vehicle of international commercial dispute resolution in an economically integrated Asia under the BRI. It is against this backdrop that the Article argues …

Supernational Law, Frederic G. Sourgens

Vanderbilt Journal of Transnational Law

Should the United States continue to enter into free trade agreements containing sovereign commitments to resolve regulatory disputes with qualifying multinational corporations before international arbitral tribunals? This question has gained public prominence due to the vocal opposition of Senator Elizabeth Warren and President Donald Trump to the Trans-Pacific Partnership (TPP), denouncing it as disastrous and corrupt.' Public outcry has focused in particular on the investor-state dispute settlement (ISDS) mechanism included in the treaty. Public criticism submits that ISDS suffers from a fatal systemic asymmetry--it favors the profit interests of multinationals over the public policy concerns of the host states in …

Eu-Acp Economic Partnership Agreements: Modern Colonialism Disguised In Violation Of The Wto, Danielle Robertson

Vanderbilt Journal of Transnational Law

The Economic Partnership Agreements (EPAs) between the European Union and the African, Caribbean, and Pacific (ACP) nation-states are the most recent construct in a long history of developing countries' dependency and reliance on developed European countries. Even though Preferential Trade Agreements(PTAs) are widely used by countries party to the World Trade Organization (WTO), the European Union is hiding behind illusions of non-economic trade benefits, such as increased stability and health benefits, in their EPAs with ACP countries. The European Union has the economic bargaining power, creating an upper hand in the trade negotiations with the former colonial countries and other …

A Plurilateral Investment Treaty: Marrying Trade And Investment To Re-Establish A Customary International Norm, Kellie Travis

Vanderbilt Journal of Transnational Law

Despite some inherent risks, foreign direct investment (FDI) is for some the preferred method of investment. The rising number of bilateral investment treaties governing FDI is merely reflective of this investment vehicle's popularity. Since the early-nineteenth century, developed countries have sought to gain protection for investors engaging in these investment opportunities. One such protection, the Hull Doctrine, requires national governments to fully compensate investors in cases of unlawful expropriation. Until World War II, when developing countries began applying their own domestic eminent domain law to foreign investors, the Hull Doctrine was considered binding, customary international law. This Note analyzes the …

Tribunalizing Sovereign Debt: Argentina's Experience With Investor-State Dispute Settlement, Stephen K. Park, Tim R. Samples

Vanderbilt Journal of Transnational Law

The global sovereign debt market, lacking a formal bankruptcy regime or binding regulatory oversight, is fundamentally shaped by the specter of conflicts between debtors that refuse to pay and holdout creditors that refuse to settle. Never was this more evident than in Argentina's most recent sovereign debt crisis, which spurred daring, innovative, and often controversial legal strategies. This Article focuses on one of the legacies of Argentina's sovereign debt crisis: the use of investor-state arbitration under international investment law to enforce sovereign bond contracts. Following Argentina's financial collapse in 2001, private creditors brought dozens of cases against Argentina before the …

How Countries Should Share Tax Information, Arthur J. Cockfield

Vanderbilt Journal of Transnational Law

Offshore tax evasion, international money laundering, and aggressive international tax planning significantly reduce government revenues. In particular, for some low-income countries the amount of capital flight (where elites move and hide monies offshore in tax havens) exceeds foreign aid. Governments struggle to enforce their tax laws to constrain these actions, and they are inhibited by a lack of information concerning international capital flows. The main international policy response to these developments has been to promote global financial transparency through heightened cross-border exchanges of tax information. The Article examines elements of optimal cross-border tax information exchange laws and policies by focusing …

The Need For Speed: Regulatory Approaches To High Frequency Trading In The United States And The European Union, Megan Woodward

Vanderbilt Journal of Transnational Law

High frequency trading (HFT) is a financial investment execution technique with a growing presence in world financial markets. Investment firms engaging in HFT use computer-automated algorithms to trade financial instruments at high speeds. There is much debate as to what HFT entails, particularly its risks, benefits, and costs, and whom HFT affects (positively or negatively). In particular, this Note addresses efforts in the United States and the European Union to define and regulate HFT. The proposed Regulation Systems Compliance and Integrity (Reg SCI) and Regulation Automated Trading (Reg AT) in the United States and Markets in Financial Instruments Directive II …