Law Commons^™

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 …

Motion Picture Piracy: Controlling The Seemingly Endless Supply Of Counterfeit Optical Discs In Taiwan, Stephen K. Shiu

Vanderbilt Journal of Transnational Law

Annually, Hollywood loses roughly $3.5 billion dollars in revenue to optical disc piracy in Taiwan. Optical disc piracy involves the camcording or copying of motion pictures onto laserdiscs, digital versatile discs, or video compact discs. Through the U.S. Trade Representative's satellite enforcement offices in Taiwan and coordination with the Taiwanese legislature and enforcement agencies, the U.S. motion picture companies have been able to influence some change in the frequency and severity of optical disc piracy in Taiwan. This can be mainly attributed to the Motion Picture Association of America's alliance with the U.S. Trade Representative in placing Taiwan on numerous …

Services As Objects Of International Trade: Bartering The Legal Profession, Louise L. Hill

Vanderbilt Journal of Transnational Law

The General Agreement on Trade in Service calls for members of the World Trade Organization (WTO) to further liberalize and expand opportunities for international trade in services. With legal services included in this mandate, requests for specific commitments and offers have been made by WTO Member States. While services as components of international trade is new to many of the WTO Member States, free movement of services has been addressed by the European Union (EU) since the inception of the European Economic Community. Thus EU directives, declarations, codes and case law serve as valuable resources to WTO Member States as …

Trade And Morality: Preserving "Public Morals" Without Sacrificing The Global Economy, Miguel A. Gonzalez

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) exists for the purpose of promoting and facilitating trade amongst its member nations. When those member nations acceded to the WTO's agreements, however, they acknowledged that sometimes trade barriers are useful tools in protecting themselves from certain evils. This Note addresses one of those useful tools--the public morals exception--which allows a member nation to maintain trade barriers with respect to certain goods or services.

Since the WTO agreements have been in effect, the public morals has lacked two critical things.: a definition and boundaries. This Note will attempt to define the public morals exception in …

Table Talk: Around The Table Of The Appellate Body Of The World Trade Organization, James Bacchus

Vanderbilt Journal of Transnational Law

In this Article, James Bacchus describes his experiences as a "faceless foreign judge" of the World Trade Organization. In this capacity, Bacchus and his six colleagues on the WTO Appellate Body hear appeals in international trade disputes among the 144 member countries and other customs territories that are Members of the WTO. Bound by the WTO Rules of Conduct, he cannot comment on cases or the specific deliberation process, but rather comments on the processes and role of the Appellate Body relative to the WTO.

The Role Of Lawyers In The World Trade Organization, Peter D. Ehrenhaft

Vanderbilt Journal of Transnational Law

The World Trade Organization is a marvelously ambitious effort of now 140 countries to bring the rule of law to international trade. The WTO is a logical extension of the inspired ideas of the draftsmen of the General Agreement on Tariffs and Trade (GATT), who recognized at the end of World War II that the seeds of that conflagration were sown, in part, by the chaotic condition of international trade following World War I.

During that inter-war period, the United States adopted its Antidumping Act of 1921 and its Smoot-Hawley Tariff Act of 1930. Both survive to this day. By …

The Developing World In The New Millennium: International Finance, Development, And Beyond, Rurnu Sarkar

Vanderbilt Journal of Transnational Law

Former Treasury Secretary Lawrence Summers once commented that the end of the Cold War was the second most interesting story of the past two decades. According to him, the most compelling story during that time was the emergence of global capital markets.' This viewpoint heralds a subtle sea change that signals the beginning of a newly formed international consensus. Making a successful transition from being a "developing nation" to being an "emerging capital market" is now the most serious challenge facing the developing world today.

Trade relations and capital investments are now being rationalized in a new international economic order …

Transnational Bribery Of Foreign Officials: A New Threat To The Future Of Democracy, Julie B. Nesbit

Vanderbilt Journal of Transnational Law

Anti-corruption movements around the world have set the stage for a comprehensive attack on transnational bribery. The Organization of American States adopted the first convention to criminalize transnational bribery in 1996, and efforts by the OECD to address the issue culminated in the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which was signed by the representative Ministers in November 1997, and is expected to enter into force by 1999. While these developments are promising, they offer only a partial solution to a complex problem. Transnational bribery will persist until a comprehensive anti-corruption strategy, based on …

Roundtable Discussion, Joseph W. Dellapenna, Laurelyn Douglas, Ted Hagelin, Edwin L.-C. Lai, Harold G. Maier, Yu Ping, John M. Rogers, Ying J. Rogers, Peter Wesley-Smith

Vanderbilt Journal of Transnational Law

What we are trying to do in this meeting is to predict what Hong Kong is going to become. One thing of which we can be fairly confident is that we can't know now what Hong Kong will become. Yet speculating is often worthwhile, and so this morning I've asked Peter [Wesley-Smith] and I gave him two minutes' warning--to continue what he had done at the outset of yesterday's sessions. You'll remember that he described a history of the relationship among Hong Kong, various treaties, and what is now the People's Republic of China (hereinafter P.R.C.). I've asked Peter if …

U.S. Supreme Court Subordinates Enforcement Of Regulatory Statutes To Enforcement Of Arbitration Agreements, Christine L. Davitz

Vanderbilt Journal of Transnational Law

Through a series of cases culminating with Vimar Seguros Y Reaseguros v. M/V Sky Reefer, the U.S. Supreme Court has developed a strong pro-arbitration stance regarding disputes arising out of international commercial contracts. This Note analyzes the Court's reasons for this stance and compares those reasons with the history and purposes of the Federal Arbitration Act and the New York Convention. The author concludes that the Court's reasons are at odds with the FAA and the New York Convention. The Note further articulates the dangers posed to U.S. public policies that are created by allowing arbitration of statutory claims. The …

The Economic Implications Of The Reunification Of Hong Kong With China, Edwin L.-C. Lai

Vanderbilt Journal of Transnational Law

Professor Lai presented this essay at the Vanderbilt Journal of Transnational Law Symposium 1997: Hong Kong's Reintegration into the People's Republic of China. Professor Lai has updated his work since Hong Kong and China reunified. The author questions whether Hong Kong will really be able to remain an independent economic entity while also being a dependent political entity under the unprecedented "one country, two systems" concept.

In this essay, the author identifies the conditions under which Hong Kong's economy can prosper, both in the short term and the long term. After reviewing Hong Kong's recent economic performance, the author assesses …

Off The Precipice: Massachusetts Expands Its Foreign Policy Expedition From Burma To Indonesia, David R. Schmahmann, James Finch, Tia Chapman

Vanderbilt Journal of Transnational Law

This Article considers the wisdom and constitutionality of a proposed Massachusetts law penalizing companies that do business with Indonesia. In the March 1997 issue of the Vanderbilt Journal of Transnational Law, two of the authors expressed concerns about the constitutionality of state and local restrictions on business ties with Burma (Myanmar). This Article applies a similar analysis to conclude that the proposed legislation is an unconstitutional violation of the Supremacy Clause and the Foreign Commerce Clause. The authors also argue that the federal government has clearly preempted action by Massachusetts: first by providing aid to Indonesia under the generalized system …

Reflections On The Economic Future Of Hong Kong, Ted Hagelin

Vanderbilt Journal of Transnational Law

This Article assesses the economic future of Hong Kong after reunification with China. After reviewing Hong Kong's economic history, this Article discusses Hong Kong's present economic situation, and both the positive and negative influences on its economic future. The author identifies China's self-interest in Hong Kong's continued economic prosperity as a positive factor for Hong Kong's economy. China's self-interest stems largely from the recognition that Hong Kong's economic failure will impact China's politics, economics, and foreign relations. Negative developments within China, however, could lead to a precipitous downturn in Hong Kong's economy. Negative developments include potential military and political crises, …

The Estonian Securities Market Act: A Lesson For Former Republics Of The Soviet Union, John J.A. Burke

Vanderbilt Journal of Transnational Law

This Article describes and analyzes the Estonian Securities Market Act; the only securities statute presently in effect in Estonia. Before examining the requirements of that law, the Article provides an overview of the development of a securities market in Estonia, including a description of the securities, exchanges, and professionals that comprise the contemporary market. After providing this context, the Article analyzes the Estonian Securities Market Act. The author concludes that Estonia should not adopt complex securities legislation, but rather should "sample" the laws of other states. This process will allow Estonia to tailor a comprehensive regulatory system to the particular …

Corporate Tax Reform: The Key To International Competitiveness, Ann L. Hardman

Vanderbilt Journal of Transnational Law

This Note responds to "Integration of the Individual and Corporate Tax Systems: Taxing Business Income Once," a study the United States Department of the Treasury released on January 6, 1992. This Note explores some of the issues and concerns of integration and considers arguments in support of and against the United States system of taxation. The latter portion of this Note addresses the relationship between international economics and integration, focusing on the potential for international competitive disadvantage under the classical tax system. The author concludes that Congress should read the Treasury's study as a legislative proposal and act upon it …

International Space Law: Into The Twenty-First Century, Glenn H. Reynolds

Vanderbilt Journal of Transnational Law

In this Article, Professor Reynolds addresses the space law issues likely to be of most importance in the next several decades. Pressing issues include those of orbital debris and geostationary orbit crowding, private property rights in outer space resources, conflict over international trade in space goods and services, the danger of ballistic-missile technology proliferation, private remote-sensing systems, and the law of international cooperation in space. Professor Reynolds concludes with a philosophical and practical discussion of some more remote issues, including the legal systems that may govern future human societies in outer space and the legal issues that might be associated …

Intellectual Property In International Trade: Opportunities And Risks Of A Gatt Connection, J. H. Reichman

Vanderbilt Journal of Transnational Law

Professor Reichman uncovers a paradox at the heart of the debate about bringing international intellectual property relations within a GATT Code of Conduct. On the one hand, the industrialized countries that subscribe to free-market principles at home want to impose a highly regulated market for intellectual goods on the rest of the world, one in which authors and inventors may "reap where they have sown." On the other hand, the developing countries that restrict free competition at home envision a totally unregulated world market for intellectual goods, one in which "competition is the lifeblood of commerce." To unravel this paradox, …

International Trade And Intellectual Property: Promise, Risks, And Reality, Congressman Robert W. Kastenmeier, David Beier

Vanderbilt Journal of Transnational Law

The trading nations of the world are set to make decisions that will determine the future pattern of international trade. Negotiations are currently underway to bring trade in certain agricultural products, services, and goods and services protected as intellectual property" within the General Agreement on Tariffs and Trade (GATT). This Article will outline how the consideration of intellectual property came to be included in this round of talks. It will assess the potential benefits and risks of including intellectual property, forecast the probable outcome, and, finally, suggest ways to improve the chances for inclusion of intellectual property into the GATT. …

Remarks Of Dr. Carlos A. Primo Braga; Professor Robert Hudec; Yoichiro Yamaguchi; Alice T. Zalik; David Beier; Professor Donald S. Chisum; Professor John H. Jackson; Professor Suman Naresh; Professor Paul Goldstein; Mr. Emory Simon; Mr. Fred Koenigsberg; Mr. Harvey Schein; Mr. Ralph Oman; Mr. Michael Remington, Dr. Carlos A. Primo Braga

Vanderbilt Journal of Transnational Law

I am going to talk about LDCs intellectual property rights and the GATT. I do not think I need to talk too much on this, because Dr. Subramanian made an excellent presentation on the main issues yesterday. I will try to present the debate along the so-called North-South divide, and this is, of course, an oversimplification. I will be talking about the North proposal, which is basically the American proposal. It is a maximalist proposal, although parts of it are supported by other industrialized countries. The South proposals are basically the proposals of the foot draggers like Brazil and India, …

Uruguay Round Trips: A Bibliographic Essay, William M. Walker

Vanderbilt Journal of Transnational Law

The Uruguay Round of multilateral trade negotiations began with a special ministerial meeting of the Contracting Parties to the General Agreement on Tariffs and Trade (GATT) held in Punta del Este, Uruguay, on September 20, 1986. "Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods" (TRIPs) is a designated subject for negotiation in the Uruguay Round. The inclusion of intellectual property rights in the Uruguay Round is the culmination of a process that began during the Tokyo Round. While the Tokyo Round was in progress, the United States and the European Community reached a tentative accord on various …

The New Section 301 Of The Omnibus Trade And Competitiveness Act Of 1988, Steven R. Phillips

Vanderbilt Journal of Transnational Law

This Article examines the changes brought about in United States trade policy by the Omnibus Trade and Competitiveness Act of 1988. Mr. Phillips provides a detailed history of the evolution of the Act's three main revisions of section 301: the transfer from the President to the United States Trade Representative (USTR) of the power to identify foreign unfair trade practices and to take action in response; the imposition of mandatory retaliation by the USTR against unfair trade practices unless one of six exceptions applies; and, under the "Super 301" provision, the USTR's obligation to identify unfair trade balances and either …

Protecting First World Assets In The Third World: Intellectual Property Negotiations In The Gatt Multilateral Framework, Frederick M. Abbott

Vanderbilt Journal of Transnational Law

This Article addresses industrialized countries' growing concerns over technology transfer and their efforts to obtain protection of intellectual property rights under the General Agreement on Tariffs and Trade (GATT). Mr. Abbott analyzes the intellectual property problem in the context of the GATT framework and the weakness of current intellectual property protection. Developing countries do not accept the United States contention either that intellectual property is covered implicitly by the GATT or that the current lack of protection reflects a fundamental flaw in the General Agreement. Mr. Abbott focuses on this disagreement in laying out the framework for possible solutions, which …

Europe 1992 And The Rise Of The Pacific Rim: Do Changing World Trading Patterns Require A Change In United States Shipping Laws?, Andrew M. Danas

Vanderbilt Journal of Transnational Law

This Article analyzes the significant issues facing the Presidential Advisory Commission on Ocean Conferences in Ocean Shipping. This Commission will assess the success of the Shipping Act of 1984 and will report to Congress on the need for changes in the 1984 Act and in United States regulatory policy regarding international ocean common carriers. Mr. Danas recommends that the Commission carefully examine the antitrust-exempt conferences, which international ocean common carriers have been organizing for over one hundred years for the purpose of self-regulation and rationalization. Mr. Danas suggests that the review of the continued existence of the liner conference system …

Intellectual Property Rights And The Gatt: United States Goals In The Uruguay Round, Mark L. Damschroder

Vanderbilt Journal of Transnational Law

The pursuit of protection of IP rights is a valuable goal both for the United States and the rest of the world community. Such rights promote creativity and the advancement of knowledge, as well as fuel the domestic economy and improve the position of the United States vis-a-vis the other trading nations of the world. With the growing interdependence of the global economy, there is no time like the present to lay the foundation for a system of dispute settlement of such trade matters. Economic interdependence will continue to increase, and the problems of international trade in, and piracy of, …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Picketing Outside Foreign Embassies is Protected Speech Under the First Amendment and Restrictions on this Speech Must Serve a Compelling Government Interest and be Narrowly Tailored to the Specific Situation--Boos v. Barry, 108S.Ct. 1157 (1988).

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Notions of Comity and the Act of State Doctrine Preclude U.S. Federal Courts from Exercising Jurisdiction over the Actions of Foreign Corporations when Those Actions Constitute a Violation of U.S. Antitrust Laws but are Protected by Legislation in a Foreign Country--O.N.E. Shipping Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449 (2d Cir.1987).

Foreign Securities Offerings In The United States: The Impact Of Sec Clearance Of Denationalized French Stock Issues, John T. Vogel

Vanderbilt Journal of Transnational Law

In response to the growing internationalization of financial markets and the internal deregulation of foreign national securities structures, the United States Government, through the Securities and Exchange Commission (SEC or Commission), has entertained suggestions and has implemented measures to facilitate the flow of capital across United States borders. The world financial community has generally applauded these actions, but has nonetheless continued the call for more reform and liberalization of capital markets. The ideas behind the voices of reform have appeal: less federal regulation means more corporate access to international capital, more opportunities for investors, and a more efficient allocation of …

Insurance In The People's Republic Of China: Laws And Practice, Henry R. Zheng

Vanderbilt Journal of Transnational Law

The insurance industry in the People's Republic of China (PRC) has expanded rapidly during the past several years. Since the end of 1979 when domestic insurance was reestablished, the income generated from insurance business has been increasing at a rate of over forty-four percent annually.' By early 1987, over 500,000 enterprises and business entities utilized property insurance and about 34 million people purchased personal insurance; during the first half of 1986 the total insurance earnings from the People's Insurance Company of China alone reached a record high of over 2.33 billion yuan. In the meantime, the insurance business has become …

Validity Of Contracts Under The United Nations Convention On Contracts For The International Sale Of Goods, Christoph R. Heiz

Vanderbilt Journal of Transnational Law

Under article 4(a) of the CISG, domestic law governs if a sales contract's validity is at issue.' One must consult the conflict of laws provisions of private international law to determine which domestic law is applicable.

In contrast to the Convention, the Swiss Code of Obligations as well as relevant Swiss literature and jurisprudence clearly address the issue of contractual validity. Swiss contract law's error provisions are characterized as contract validity rules. If, for instance, a buyer claims that he erred on a certain fact that was a necessary basis for him to enter into an international sales contract under …

Foreign Sovereign Immunity In The United States Courts 1976-1986, Mark B. Feldman

Vanderbilt Journal of Transnational Law

In principle, the Reagan Administration should support measures that strengthen the international trading system and that help secure United States investment abroad, as such measures encourage the flows of capital, technology and know-how from the private sector, which the Administration recognizes to be essential to successful economic development in the Third World. However, the responsible attorneys in the State Department and the Justice Department are particularly sensitive to the reactions of foreign governments and to the interests of United States agencies as potential defendants in foreign courts.

The Executive finally defined its position in hearings in the House of Representatives …

A Critical Evaluation Of U.S. Fair Trade Policy, George Kleinfeld

Vanderbilt Journal of Transnational Law

This article utilizes economic analysis to critique fair trade rhetoric and expose the inconsistencies and protectionist consequences of United States antidumping and antisubsidy laws. Proposed reforms deemphasize the ambiguous concept of fair trade, and focus instead on balancing the conflicting economic interests at issue in most trade disputes. Between the elusive, impractical ideal of unfettered free trade and the protectionist objective of strict "fair trade" sanctions, lies a principled middle ground toward which trade policy-makers should be urged to gravitate.