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International Trade Law

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2019

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Full-Text Articles in Law

‘Overreaching’ Or ‘Overreacting’? Reflections On The Judicial Function And Approaches Of Wto Appellate Body, Weihuan Zhou, Henry S. Gao Dec 2019

‘Overreaching’ Or ‘Overreacting’? Reflections On The Judicial Function And Approaches Of Wto Appellate Body, Weihuan Zhou, Henry S. Gao

Research Collection Yong Pung How School Of Law

Since 2017, the US has blocked appointments to the WTO Appellate Body (AB), citing various concerns over its judicial approach, with the most significant being the issue of judicial overreach. This article provides a critical analysis of this issue and makes important contributions to the ongoing debate. Drawing on the fundamental function of the WTO, it offers a fresh approach to assess judicial overreach and shows that AB rulings in major non-trade remedy cases (that have consistently concerned the US) have served that function and hence should not be treated as ‘overreaching’. We argue that, the allegation of judicial overreach, …

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Washington’S 'Cutting-Edge' Technology Solution To Combating Sales Tax Fraud: Real-Time Data (Now), Real-Time Remittance In The Future, Richard Thompson Ainsworth, Robert Chicoine, Andrew Leahey, Sunder Gee Dec 2019

Washington’S 'Cutting-Edge' Technology Solution To Combating Sales Tax Fraud: Real-Time Data (Now), Real-Time Remittance In The Future, Richard Thompson Ainsworth, Robert Chicoine, Andrew Leahey, Sunder Gee

Faculty Scholarship

Globally, consumption tax compliance (value added tax and retail sales tax) has gone digital – digital invoices are becoming mandatory, centralized monitoring of transactions and tax payments are increasingly common, and artificial intelligence is assessing fraud risks in real-time. When tax is collected, it is increasingly being remitted in near-real-time. This is the trajectory for the modern retail sales tax (RST) imposed by most states in the US. While this may appear to be revolutionary to the average American, it is a well-worn path among global nations using the value added tax (VAT). The RST will eventually be following suit. …

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Symposium On Sustainable Development Goals, Trade, Investment, And Inequality, Olabisi D. Akinkugbe Nov 2019

Symposium On Sustainable Development Goals, Trade, Investment, And Inequality, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

This Symposium, co-hosted by Afronomicslaw and the Dalhousie Law Journal Blog is an outcome of one of the streams at the 2019 Annual Purdy Crawford Workshop at the Schulich School of Law. The theme of the Workshop which took place from Sept. 26–28 was “The Role of Business Regulation in Advancing the Sustainable Development Goals.” Co-organized by three Schulich School of Law Professors, the Workshop featured three inter-disciplinary and simultaneous streams as well as cross-over plenaries that focused on: “SDGs and Revenue Mobilization” – convened by Kim Brooks, the Purdy Crawford Chair in Business Law; “SDGs, Trade, Investment, …

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Investment In Latin America Will Limit Migration North, Ryan J. O'Riordan, Stanley P. Kowalski Nov 2019

Investment In Latin America Will Limit Migration North, Ryan J. O'Riordan, Stanley P. Kowalski

Law Faculty Scholarship

The refugee crisis at the US Southern Border is due to multiple compounding factors: Latin America’s over-reliance on commodities, failure to economically diversify to innovation, and a lack of coherent US strategic engagement with the region. The situation is hemispheric; imploding states and a serious humanitarian calamity loom ever larger on the southern horizon. Since this represents a long-term problem requiring strategic and sustainable development initiatives, a new Alliance for Progress for the 21st Century is proposed which will build partnerships to advance innovation-driven development across the region.

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Inconsistency's Many Forms In Investor-State Dispute Settlement And Implications For Reform, Lise Johnson, Lisa E. Sachs Nov 2019

Inconsistency's Many Forms In Investor-State Dispute Settlement And Implications For Reform, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

Attracting investment in agriculture has been a key policy goal of governments in the global south. Development partners have supported these policies. But what do governments hope to achieve by attracting investment in the agricultural sector? Why are companies interested in investing? What is in it for local communities? And what is the role of lawyers? This primer provides an introduction to some of the key issues that arise in the negotiation of contracts linked to investments in agriculture, and practical guidance for how to approach common issues. Section 1 of this primer outlines the typical goals of three important …

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What Do Chinese Clients Want?, Ji Li, Wei Zhang Nov 2019

What Do Chinese Clients Want?, Ji Li, Wei Zhang

Research Collection Yong Pung How School Of Law

The world’s two largest economies are locked in an escalating trade war, and caught in the crossfire are hundreds of Chinese multinational companies (MNCs) that have made substantial U.S. investments. Facing heightened legal risks in a less hospitable environment, the Chinese MNCs increasingly depend on local lawyers. Yet, their purchase of U.S. legal service, a topic of both practical and theoretical importance, has received little attention. To fill the gap, this article empirically investigates how Chinese companies in the United States select their U.S. legal counsel. By analyzing a unique dataset, the article finds that Chinese MNC managers uniformly prioritize …

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Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S ‘Netflix Tax’ (Part 4), Richard Thompson Ainsworth Nov 2019

Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S ‘Netflix Tax’ (Part 4), Richard Thompson Ainsworth

Faculty Scholarship

This is the fourth paper examining the recent amendments to the New Zealand Goods and Services Tax (GST); amendments that are collectively known as the Netflix Tax. These papers assess the effectiveness of the Netflix provisions, and how they could be enhanced if New Zealand adopted the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.

This final paper considers:

(a) the treatment of domestic agents when they are used by remote service providers to facilitate sales to New Zealand customers;

(b) how New Zealand intends to respond to resident consumers who …

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Fourth African International Economic Law Network Biennial Conference Symposium, Olabisi D. Akinkugbe, Regis Y. Simo, Luwam Dirar, Ohio Omiunu Oct 2019

Fourth African International Economic Law Network Biennial Conference Symposium, Olabisi D. Akinkugbe, Regis Y. Simo, Luwam Dirar, Ohio Omiunu

Articles, Book Chapters, & Popular Press

In July 2019, the African International Economic Law Network (AfIELN), held its Fourth Biennial Conference under the theme “Africa and International Economic Law in the 21st Century” at the Strathmore University Law School (Nairobi, Kenya). This symposium contains some of the papers presented at this conference in their abridged forms. Before introducing the authors’ views on this Conference’s broader theme, we provide the important context under which the Conference took place.

The AfIELN Fourth Biennial Conference came at a time when the African Union Members had just launched the operational phase of the African Continental Free Trade Area (AfCFTA), whose …

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Wto’Ing A Resolution To The China Subsidy Problem, Chad P. Brown, Jennifer A. Hillman Oct 2019

Wto’Ing A Resolution To The China Subsidy Problem, Chad P. Brown, Jennifer A. Hillman

Georgetown Law Faculty Publications and Other Works

The United States, European Union, and Japan have begun a trilateral process to confront the Chinese economic model, including its use of industrial subsidies and deployment of state-owned enterprises. This paper seeks to identify the main areas of tension and to assess the legal-economic challenges to constructing new rules to address the underlying conflict. It begins by providing a brief history of subsidy disciplines in the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) predating any concerns introduced by China. It then describes contemporary economic problems with China's approach to subsidies, their impact, and the …

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Gender-Identity Protection, Trade, And The Trump Administration: A Tale Of Reluctant Progressivism, Jean Galbraith, Beatrix Lu Oct 2019

Gender-Identity Protection, Trade, And The Trump Administration: A Tale Of Reluctant Progressivism, Jean Galbraith, Beatrix Lu

All Faculty Scholarship

The Trump Administration has been hostile to transgender people, stripping away many protections from discrimination established by the prior administration. It is therefore striking that President Trump’s signature international agreement to date—the “new NAFTA” recently negotiated with Canada and Mexico—includes a provision requiring all three countries to implement appropriate policies to protect workers against discrimination based on gender identity. This provision has a similar requirement with respect to discrimination on the basis of sexual orientation, notwithstanding the fact that the Trump Administration’s domestic policies have also shown hostility to such protections. How did this provision come to be included in …

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The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow Oct 2019

The Dialogic Aspect Of Soft Law In International Insolvency: Discord, Digression, And Development, John A. E. Pottow

Law & Economics Working Papers

Soft law is on the ascent in international insolvency, seeming now to occupy a preferred status over boring old conventions. An arguably constitutive aspect of soft law, which some contend provides a normative justification for international law generally, is its "dialogic" nature, by which I mean its intentional exposure to recursive norm contestation and iterative development: soft law starts a dialogue. The product of that dialogue, on a teleological view, may well be hard law. In the international insolvency realm, that pathway is through (soft) model domestic legislation that aspires toward enactment as municipal law. The happy story is that …

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Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Electronic Marketplaces) Part 3, Richard Thompson Ainsworth, Chang Che Oct 2019

Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Electronic Marketplaces) Part 3, Richard Thompson Ainsworth, Chang Che

Faculty Scholarship

This is the third paper examining the recent amendments to the New Zealand Goods and Services Tax (GST) that are commonly known as the Netflix Tax. A fourth paper will follow.

The importance and complexity of dealing with electronic marketplaces has made an independent paper on electronic marketplaces necessary. Taken together this set of four papers assess the effectiveness of the Netflix provisions, and how they can be enhanced by adopting the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.

This paper considers rules that allocate the responsibility for collecting, reporting …

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Building A Market Economy Through Wto-Inspired Reform Of State-Owned Enterprises In China, Weihuan Zhou, Henry S. Gao, Xue Bai Oct 2019

Building A Market Economy Through Wto-Inspired Reform Of State-Owned Enterprises In China, Weihuan Zhou, Henry S. Gao, Xue Bai

Research Collection Yong Pung How School Of Law

This paper responds to the widespread view that existing WTO rules are insufficient in dealing with China’s state capitalism, which has been further emboldened by its latest rounds of state-owned enterprise (“SOE”) reforms. Through a careful review of WTO agreements and jurisprudence, the paper argues that, we do not necessarily need new rules, because the unique challenges created by China’s state capitalism can be sufficiently dealt with by the WTO’s existing rules on subsidies coupled with the China-specific obligations. Thus, a more realistic approach would be to push China back to the path of market-oriented reforms through WTO litigation based …

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Uncitral Working Group Iii On Isds Reform: How Cross-Cutting Issues Reshape Reform Options, Lorenzo Cotula, Thierry Berger, Lise Johnson, Brooke Güven, Jesse Coleman Jul 2019

Uncitral Working Group Iii On Isds Reform: How Cross-Cutting Issues Reshape Reform Options, Lorenzo Cotula, Thierry Berger, Lise Johnson, Brooke Güven, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

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Draft Text Providing For Transparency And Prohibiting Certain Forms Of Third-Party Funding In Investor–State Dispute Settlement, Brooke Güven, Lise Johnson, Nathalie Bernasconi-Osterwalder, Lorenzo Cotula, Jane Kelsey Jul 2019

Draft Text Providing For Transparency And Prohibiting Certain Forms Of Third-Party Funding In Investor–State Dispute Settlement, Brooke Güven, Lise Johnson, Nathalie Bernasconi-Osterwalder, Lorenzo Cotula, Jane Kelsey

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

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Third-Party Rights In Investor-State Dispute Settlement: Options For Reform, Jesse Coleman, Lise Johnson, Brooke Güven, Lorenzo Cotula, Thierry Berger Jul 2019

Third-Party Rights In Investor-State Dispute Settlement: Options For Reform, Jesse Coleman, Lise Johnson, Brooke Güven, Lorenzo Cotula, Thierry Berger

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

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Draft Treaty Language: Withdrawal Of Consent To Arbitrate And Termination Of International Investment Agreements, Brooke Güven, Lise Johnson Jul 2019

Draft Treaty Language: Withdrawal Of Consent To Arbitrate And Termination Of International Investment Agreements, Brooke Güven, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

The United Nations Commission on International Trade Law (UNCITRAL) is currently working on how to reform international investment treaties, focusing in particular on those treaties’ provisions enabling investors to sue governments in international arbitration. As an observer organization in this process, CCSI has emphasized that in the context of investor-state dispute settlement (ISDS) reform, it is important to first consider what it is that investment treaties aim to achieve, and only then to consider what form(s) of dispute settlement will best advance those objectives. This means not only looking at reform of the existing ISDS mechanism, but also alternatives to …

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The Trade Facilitation Agreement: Is The Doha Development Round Succeeding?, Maureen Irish Jul 2019

The Trade Facilitation Agreement: Is The Doha Development Round Succeeding?, Maureen Irish

Law Publications

The Trade Facilitation Agreement (TFA) entered into force on February 22, 2017. It has re-oriented thinking on special and differential treatment at the World Trade Organization (WTO). Developing and least-developed countries can make their obligations conditional on the receipt of effective technical assistance that creates the necessary relevant capacity. They can also choose the implementation periods for provisions of the TFA in accordance with their own needs. These innovative approaches may be suitable for adoption in other agreements.

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Human Rights Law And The Investment Treaty Regime, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson Jun 2019

Human Rights Law And The Investment Treaty Regime, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with …

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Severance By Unilateral Declaration: Lessons From Singapore, Alvin W. L. See Jun 2019

Severance By Unilateral Declaration: Lessons From Singapore, Alvin W. L. See

Research Collection Yong Pung How School Of Law

Thisarticle examines, in the context of Singapore law, unilateral declaration as amode of severing a joint tenancy. In particular, it considers if and in what exceptionalcircumstances should severance by unilateral declaration be allowed in equitynotwithstanding the lack of registration, the effect of such an unregisteredseverance with regards to third parties, as well as how the different modes ofseverance interact with one another.

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Ccsi Submits Written Views To Us Department Of State Regarding Uncitral’S Working Group Iii, Columbia Center On Sustainable Investment May 2019

Ccsi Submits Written Views To Us Department Of State Regarding Uncitral’S Working Group Iii, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

In connection with the US Department of State’s Annual Advisory Committee on Private International law meeting in May 2019, CCSI submitted written views regarding UNCITRAL’s Working Group III on ISDS reform. CCSI’s comments highlighted specific areas of CCSI’s research as it relates to the US Government and its work within the Working Group. Specifically, US investment treaty negotiating objectives specify that covered foreign investors in the United States should not be accorded greater substantive rights than domestic investors. CCSI highlights the ways in which greater procedural rights afforded under investment treaties to foreign investors in practice result in greater substantive …

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Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 2), Richard Thompson Ainsworth May 2019

Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 2), Richard Thompson Ainsworth

Faculty Scholarship

This is the second in a four-part series addressing VAT/GST avoidance schemes involving remote sales of services. These schemes have been growing in importance. The IMF reports that the services component of cross-border trade has been on the rise for fifty-years or more, making the Internet a serious threat to revenue. Technology has accelerated tax avoidance.

Statutory draftsmen in New Zealand have looked at this problem directly with what has been called the Netflix Tax. Technologist in Fiji have been struggling with similar problems and have developed technology-based security systems that would seem to address remote sales of services more …

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Another Hague Judgements Convention? Bucking The Past To Provide For The Future, Louise Ellen Teitz Apr 2019

Another Hague Judgements Convention? Bucking The Past To Provide For The Future, Louise Ellen Teitz

Law Faculty Scholarship

No abstract provided.

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Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 1), Richard Thompson Ainsworth Apr 2019

Data First – Tax Next: How Fiji’S Technology Can Improve New Zealand’S 'Netflix Tax' (Part 1), Richard Thompson Ainsworth

Faculty Scholarship

Over the past decade the VAT in the South Pacific has been changing. More change is coming. Change is needed in both the larger economies (Australia and New Zealand) and the smaller ones (the Pacific Island Countries or PICs). The changes we see currently are propelled by cross-border remote sales of services and low-value goods.

The government response in the South Pacific is not uniform. The larger economies have relied on statutory remedies; the smaller economies are turning to technology. The larger economies are crafting complex, extra-territorial compliance provisions targeting remote sellers. The smaller economies are mandating secure digital invoices, …

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Socio-Economic Development In Africa: Tax Reform As A Tool For Fostering The Objectives Of The Afcfta, Oladiwura Ayeyemi Eyitayo-Oyesode Mar 2019

Socio-Economic Development In Africa: Tax Reform As A Tool For Fostering The Objectives Of The Afcfta, Oladiwura Ayeyemi Eyitayo-Oyesode

Articles, Book Chapters, & Popular Press

The African Continental Free Trade Area Agreement is aimed at transforming the economic landscape of the African continent. The agreement contains lofty objectives set up to enhance trade integration and promote the free flow of capital and investments. The agreement follows the EU model on market integration and signatories have committed to take measures to reduce the cost of doing business and create a conducive environment for private sector development in Africa. The agreement is not just aimed at eliminating barriers to trade, but is also focused on ensuring sustainable, inclusive social and economic development and structural transformation of the …

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International Taxation In An Era Of Digital Disruption: Analyzing The Current Debate, Itai Grinberg Mar 2019

International Taxation In An Era Of Digital Disruption: Analyzing The Current Debate, Itai Grinberg

Georgetown Law Faculty Publications and Other Works

The “taxation of the digital economy” is currently at the top of the global international tax policymaking agenda. A core claim some European governments are advancing is that user data or user participation in the digital economy justifies a gross tax on digital receipts, new profit attribution criteria, or a special formulary apportionment factor in a future formulary regime targeted specifically at the “digital economy.” Just a couple years ago the OECD undertook an evaluation of whether the digital economy can (or should) be “ring-fenced” as part of the BEPS project, and concluded that it neither can be nor should …

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Withdrawing From Nafta, Alison Peck Mar 2019

Withdrawing From Nafta, Alison Peck

Faculty & Staff Scholarship

Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious con- stitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to terminate …

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Data Exclusivities And The Limits To Trips Harmonization, Peter K. Yu Mar 2019

Data Exclusivities And The Limits To Trips Harmonization, Peter K. Yu

Faculty Scholarship

2019 marks the silver anniversary of the WTO TRIPS Agreement. Policymakers and commentators remain deeply divided about the strengths and limitations of this agreement. On the one hand, they marvel at its success in establishing international minimum standards for the protection and enforcement of intellectual property rights. On the other hand, they widely criticize the agreement for imposing high "one size fits all" standards upon developing countries.

Regardless of one's perspective, the harmonization project advanced by the TRIPS Agreement, and continued through TRIPS-plus bilateral, regional and plurilateral agreements, has been at the forefront of the international intellectual property debate. While …

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Symposium On "International Trade In The Trump Era", Padideh Ala'i Feb 2019

Symposium On "International Trade In The Trump Era", Padideh Ala'i

Presentations

Speaker, Symposium on International Trade in the Trump Era, Yale Law School (February 22, 2019) Symposium: International Trade in the Trump EraPanel I: The WTO and the Future of Dispute Settlement in International TradePresented Paper: The Vital Role of the WTO Appellate Body in the Promotion of Rule of Law and International Cooperation: A Case Study

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The Intricate Relationship Between Intellectual Property Exhaustion And Free Movement Of Goods In Regional Organizations: Comparing The Eu/Eea, Nafta, And Asean, Irene Calboli Feb 2019

The Intricate Relationship Between Intellectual Property Exhaustion And Free Movement Of Goods In Regional Organizations: Comparing The Eu/Eea, Nafta, And Asean, Irene Calboli

Faculty Scholarship

This article explores the relationship between national rules on the exhaustion of intellectual property (IP) rights and cross-border trade within regional organizations. In particular, this article compares three distinct approaches adopted by: the European Union (EU); the North American Free Trade Area (NAFTA); and the Association of South East Asian Nations (ASEAN). Based on this comparison, this article concludes that in order to effectively promote the free movement of goods, members of regional organizations need to consistently adopt national policies on IP exhaustion that support, at least, a system of regional exhaustion such as currently found in the EU. However, …

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