Law Commons^™

Remote Control: Treaty Requirements For Regulatory Procedures, Paul Mertenskotter, Richard B. Stewart

Cornell Law Review

Modern trade agreements have come to include many and varied obligations for domestic regulation and administration. These treaty-based commitments aim primarily to improve the freedom of firms to operate in the global economy by aligning the ways in which governments regulate markets and private actors engage governments through administrative law. They therefore strike at the core of how economies are ordered and entail important distributional questions. An increasingly prevalent and diverse—but hitherto largely neglected—type of treaty obligation prescribes specific procedures for domestic administrative decision-making. This Article frames such requirements as tools of powerful states to control regulatory decision-making by government …

Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh

Cornell International Law Journal

This Article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this Article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of …

Transfer Mispricing In Africa: Contextual Issues, Edna Kabala, Manenga Ndulo

Southern African Journal of Policy and Development

Transfer pricing is a significant tax issue and lies at the core of international trade and globalisation. This brief raises contextual issues and challenges surrounding the experience of transfer mispricing in Africa. The brief comes at a time when African countries have consistently exhibited high real Gross Domestic Product (GDP) growth rates in the past two decades, and increased FDI inflows and technological upgrades have aided their high participation in global trade. Despite the profitability of MNEs operations in Africa, the investing firms are paying less in terms of tax. This has created a problem for African countries to raise …

“Private” Cybersecurity Standards? Cyberspace Governance, Multistakeholderism, And The (Ir)Relevance Of The Tbt Regime, Shin-Yi Peng

Cornell International Law Journal

We are now living in a hyper-connected world, with a myriad of devices continuously linked to the Internet. Our growing dependence on such devices exposes us to a variety of cybersecurity threats. This ever-increasing connectivity means that vulnerabilities can be introduced at any phase of the software development cycle. Cybersecurity risk management, therefore, is more important than ever to governments at all developmental stages as well as to companies of all sizes and across all sectors. The awareness of cybersecurity threats affects the importance placed on the use of standards and certification as an approach.

An Ode To Sea Turtles & Dolphins: Expanding Wto’S Mandate To Bridge The Trade-Environment Divide, Geary Choe

Cornell Law Library Prize for Exemplary Student Research Papers

Geary Choe’s ambitious paper showcased a diverse and sophisticated understanding of research in public international law and interdisciplinary sources.

Choe’s paper proposes expanding the World Trade Organization’s mandate to carve out a new exception for trade-restrictive measures in multilateral environmental agreements (MEAs). His process involved analyzing international conventions, WTO panel and appellate body reports as well as non-legal materials written by economists, environmentalists and non-governmental organizations. Choe used that research to examine the historical tension between the competing interests of trade vs. environment and concluded with original proposals of how to reconcile them within the WTO’s legal framework.

Most rewardingly, …

The Foreign Corrupt Practices Act: Imposing An American Definition Of Corruption On Global Markets, Mateo J. De La Torre

Cornell Law Library Prize for Exemplary Student Research Papers

Mateo de la Torre’s research had an international focus in examining the cross-cultural implications of Foreign Corrupt Practices Act (FCPA).

de la Torre’s research required a comparative analysis of foreign laws that are similar to the United States’ FCPA and included statutes, legislative histories, and commentary from Brazil, Japan, and the United Kingdom. He also consulted extensively with several members of the Cornell Law faculty. de la Torre’s findings provided the basis for his examination of the FCPA’s impact on nondomestic actors and markets, arguing that the United States’ aggressive stance belies the Act’s original purpose. He then presented frameworks …

The Macroprudential Turn: From Institutional 'Safety And Soundness' To Systematic 'Financial Stability' In Financial Supervision, Robert C. Hockett

Cornell Law Faculty Publications

Since the global financial dramas of 2008-09, authorities on financial regulation have come increasingly to counsel the inclusion of macroprudential policy instruments in the standard ‘toolkit’ of finance-regulatory measures employed by financial supervisors. The hallmark of this perspective is its focus not simply on the safety and soundness of individual financial institutions, as is characteristic of the traditional ‘microprudential’ perspective, but also on certain structural features of financial systems that can imperil such systems as wholes. Systemic ‘financial stability’ thus comes to supplement, though not to supplant, institutional ‘safety and soundness’ as a regulatory desideratum.

The move from primarily micro- …

Legitimacy And Impartiality In A Sovereign Debt Workout Mechanism, Odette Lienau

Cornell Law Faculty Publications

Particularly in light of recent developments in sovereign debt litigation, there is a pressing need for discussion of more robust sovereign debt restructuring mechanisms. This paper contends that any sovereign debt workout mechanism (DWM) should embody the principles of legitimacy and impartiality, to the extent possible, in order to garner the stable and long-term adherence of international stakeholders. These two elements are important both for attracting support ex ante, i.e. in the initial development of any treaty, ad hoc, or soft law restructuring mechanism, and for ensuring ex post that a DWM is ultimately utilized by states and their creditors. …

Bretton Woods 1.0: A Constructive Retrieval For Sustainable Finance, Robert C. Hockett

Cornell Law Faculty Publications

Global trade imbalance and domestic financial fragility are intimately related. When a nation runs persistently massive current account deficits to maintain global liquidity as has the United States now for decades, its central bank effectively relinquishes exchange rate flexibility to become a de facto central bank to the world. That in turn prevents the bank from playing its essential credit-modulatory role at home, at least absent strict capital controls that are difficult to administer and have long been taboo. And this can in turn render credit-fueled asset price bubbles and busts all but impossible to prevent, irrespective of the nation's …

Were "It" To Happen: Contract Continuity Under Euro Regime Change, Robert C. Hockett

Cornell Law Faculty Working Papers

One way or another, the European Monetary Union (EMU) is apt to endure. The prospect of continuation under the precise contours of the regime as we presently find it, however, is anything but certain. Hence many investors and other actual or prospective contract parties are likely to remain skittish until matters grow clearer. This skittishness, importantly, can itself hamper the prospect of expeditious European recovery. Addressing particular sources of ongoing uncertainty about EMU prospects can itself therefore aid in the project of recovery.

This Essay accordingly aims to impose structure upon one particular, and indeed particularly complex, source of uncertainty …

Stabilisation Clauses And The Zambian Windfall Tax, Sangwani Ng'ambi

Zambia Social Science Journal

Over the past decade, Zambia has seen an increase in the flow of foreign direct investment; a large quantity of which went into the copper mining industry. The price of copper increased radically, which prompted the Zambian government to reconsider the preferential tax regime that foreign mining companies enjoyed to ensure that Zambia benefited from this change in circumstances.

The tax regime was originally implemented to encourage the inflow of foreign capital, and to revive an industry that had been crippled by previously low copper prices. The concession agreements between the Government of Zambia and the mining companies contained Stabilisation …

The China Currency Issue: Why The World Trade Organization Would Fail To Provide The United States With An Effective Remedy, Marcus Sohlberg

Cornell Law School Inter-University Graduate Student Conference Papers

A critical issue in the global trading system that came to the forefront in 2010 concerns exchange rates. Having suffered to various degrees through the worst economic and financial downturn since the Great Depression, many large trading nations have sought to achieve economic recovery through export-led growth. In order to boost international competitiveness, many have engaged in competitive devaluations, i.e. interventions in currency markets to devalue domestic currency. According to Brazilian Finance Minister Guido Mantega this situation has escalated into a “global currency war”.

This paper focuses on China’s practice of maintaining an artificially undervalued currency, and addresses the question …

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Cornell Law Faculty Publications

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with an examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence, and tension between state ideology, positive law, and "law in action." The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has emerged as one of the largest hurdles for Russia's prolonged accession to the World Trade Organization (WTO), these historical precedents may help explain Russia's apparent theoretical and political disconnect from the WTO. If Russian policymakers …

Rethinking Free Trade, Fernando L. Leila

Cornell Law School Inter-University Graduate Student Conference Papers

This paper examines the present theories and shortcomings of current free trade policy, and the consequences thereof, which promote protectionist behavior among countries on an international scale. Theoretically, free trade should encourage progress within the global community. However, developing countries, with astonishing growth rates, like Brazil, China or India, have based their economies on opposing economic policies, closer to mercantilism than liberalization or free trade, allowing for poor countries to question whether free trade is the right way to improve their economies. Furthermore, a huge gap exists between what developed countries preach and what they practice, presenting a major obstacle …

Toward Internationally Regulated Goods: Controlling The Trade In Small Arms And Light Weapons, Asif Efrat

Cornell Law Faculty Publications

Contrary to the general trend of trade liberalization, specific goods—such as small arms, drugs, and antiquities—have come under increasing international control in recent decades through a set of international regulatory agreements. This article offers a theoretical framework of government preferences on the international regulation of these goods. Departing from conventional models of trade policy, the theoretical framework introduces negative externalities, rather than protection, as the motivation for restricting trade; it also takes moral concerns into account. I test this framework empirically through an original survey of government views on international small-arms regulation. Based on interviewing officials from 118 countries, the …

Globalization And The Border: Trade, Labor, Migration, And Agricultural Production In Mexico, Chantal Thomas

Cornell Law Faculty Publications

The debate over immigration policy in the United States has reached a crescendo in recent years, with particular concern over illegal workers and their impact on social well-being in this country. Yet in the prevailing analysis of this issue, the relationship between immigration and contemporary international trade policy is often overlooked. In particular, few commentators recognize or understand that a significant part of the surge in illegal labor from Mexico--the source of the majority of undocumented workers in the United States—stems from reforms that Mexico undertook in cooperation with the United States to liberalize trade flows across the Mexico-United States …

In The Name Of Sovereignty? The Battle Over In Dubio Mitius Inside And Outside The Courts, Christophe J. Larouer

Cornell Law School Inter-University Graduate Student Conference Papers

Contrary to some prominent legal scholars’ predictions, the principle of in dubio mitius, that is, the principle of restrictive interpretation of treaty obligations in deference to the sovereignty of states, has not disappeared. Worse, the Appellate Body (AB) of the World Trade Organization (WTO) has carried it into the 21st Century, reigniting the ideological debate dividing the legal doctrine over the conception of what the relationship between domestic and international law should be. Therefore, after retracing the history of this principle during which key legal figures opposed one another, this article examines the divergent positions defended by the proponents and …

Multilateralism Or Regionalism; What Can Be Done About The Proliferation Of Regional Trading Agreements?, Luwam G. Dirar

Cornell Law School Inter-University Graduate Student Conference Papers

Regional trading agreements are treaties entered into by states. States enter into regional trading agreements for different reasons some of which are economic, political and security reasons. Regional trading agreements (herein after RTAs) have been successful in achieving trade liberalization at a much faster speed than the World Trade Organization (herein after WTO). The most notable example of RTAs is the European Communities that has been successful to liberalize both trade in goods and services.

Members of those Regional Trading Agreements create rules of origin. Rules of origin are important in allocating the appropriate duty for imported goods. They tell …

Protecting Against Plunder: The United States And The International Efforts Against Looting Of Antiquities, Asif Efrat

Cornell Law Faculty Working Papers

In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern …

Insource The Shareholding Of Outsourced Employees: A Global Stock Ownership Plan, Robert C. Hockett

Cornell Law Faculty Publications

With the American economy stalled and another federal election campaign season well underway, the “outsourcing” of American jobs is again on the public agenda. Latest figures indicate not only that claims for joblessness benefits are up, but also that the rate of American job-exportation has more than doubled since the last electoral cycle. This year’s political candidates have been quick to take note. In consequence, more than at any time since the early 1990s, continued American participation in the World Trade Organization, in the North American Free Trade Agreement, and in the processes of global economic integration more generally appear …

The Paradox Of Excluding Wto Direct And Indirect Effect In U.S. Law, John J. Barceló Iii

Cornell Law Faculty Publications

No abstract provided.

Remedies And The Cisg: Another Perspective, Robert A. Hillman

Cornell Law Faculty Publications

In this brief comment, I apply behavioral decision theory to the question of the enforcement in transnational sales of super-compensatory agreed damages. I conclude that a good case can be made that such damages provisions should be enforced.

Developing Countries And The Wto, John J. Barceló Iii

Cornell Law Faculty Publications

When the World Trade Organization (WTO) was founded ten years ago on January 1, 1995, commentators hailed it as a major transformation of the world trading system. The new, more juristic and permanent World Trade Organization replaced the previous, more pragmatic and ad hoc General Agreement on Tariffs and Trade (GATT). The industrial countries, led by the United States, the EU, and Japan, brought about this change to consolidate and deepen their own and the world’s commitment to an open trading system. Their support for the change was crucial because they dominated the GATT, and they continue to dominate the …

Working Borders: Linking Debates About Insourcing And Outsourcing Of Capital And Labor, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Labor And Finance As Inevitably Transnational: Globalization Demands A Sophisticated And Transnational Lens, Katherine V.W. Stone, Timothy A. Canova, Claire Moore Dickerson

Cornell Law Faculty Publications

No abstract provided.

Challenges For Democracy And Trade: The Case Of The United States, Chantal Thomas

Cornell Law Faculty Publications

Predominant political theory holds that legislators are protectionist regarding international trade because susceptibility to minority interest groups leads them to vote in ways that protect domestic industries at the expense of free trade. Because free trade is widely regarded as beneficial to the majority, the protectionist tendency of the legislature is believed to be a disservice to most Americans. These two theories have led to policies that restrict the role of the legislature in the formulation of trade policy, specifically, the creation of the fast track framework for trade policy legislation that exists today. This Essay challenges these two theories, …

Should The World Trade Organization Incorporate Labor And Environmental Standards?, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

The "Race To The Bottom" Returns: China's Challenge To The International Labor Movement, Stephen F. Diamond

Cornell Law Faculty Publications

No abstract provided.

Poverty Reduction, Trade, And Rights, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

Disciplining Globalization: International Law, Illegal Trade, And The Case Of Narcotics, Chantal Thomas

Cornell Law Faculty Publications

This Article is the first in a series of studies of the globalization of illicit markets. My theses are as follows: First, the increase in international trade in illicit products and services parallels the growth in international trade more generally that accompanies the phenomenon of globalization. Second, at the same time that most international trade law has moved toward a posture of liberalization, there has been a movement to strengthen the prohibition and punishment of trade in illicit transactions. Third, the mechanisms that have developed to regulate this prohibition constitute a significant development in the international legal order.