Law Commons^™

Against Consent, Andrew T. Guzman

Andrew T Guzman

This Article challenges the conventional view of consent in international law. It argues that our existing commitment to consent is excessive and that better outcomes would result from greater use of nonconsensual forms of international law. Though consent has an important role to play, we cannot address the world’s greatest problems unless we are prepared to overcome the problem it creates — the consent problem.

International law is built on the foundation of state consent. A state’s legal obligations are overwhelmingly — some would say exclusively — based on its consent to be bound. This focus on consent offers maximal …

Doctor Frankenstein's International Orgnizations, Andrew T. Guzman

Andrew T Guzman

In the classic novel, Frankenstein, Doctor Frankenstein creates a living creature in the hope of cheating death. The monster, as the creature is called, horrifies Doctor Frankenstein, turns against him, and kills several people, causing the doctor to regret his decision to make the monster in the first place.

When states establish an international organization (IO), they create an institution with a life of its own on the international stage. Though states can, collectively, control the IO, without unanimity among them the organization can often act on its own. The danger for a state, then, is that its creation, like …

Expropriatory And Non-Expropriatory Takings Under International Investment Law, Andrew T. Guzman, Jan H. Dalshuisen

Andrew T Guzman

The question of expropriation is at the heart of modern foreign investment law, yet remains an area of great uncertainty and ambiguity. Neither treaty law nor existing jurisprudence provides clarity on the questions of when government action amounts to an expropriation or what to do if does. This Article provides a framework for approaching questions of expropriation that helps understand the key questions that must be addressed by investment tribunals or, for that matters, host countries and investors. We begin with the neutral category of takings, meaning any government action that negatively affects that value of an investment. We argue …

Climate Change And U.S. Interests, Andrew T. Guzman, Jody Freeman

Andrew T Guzman

No abstract provided.

Importers As Regulators: Product Safety In A Globalized World, Andrew T. Guzman

Andrew T Guzman

In the wake of scandals involving lead toys, toxic toothpaste, poisonous pet food, and other dangerous products in recent years, policymakers have proposed a variety of strategies that purport to address safety concerns. Though many of these proposals would have salutary effects on consumer product safety, they do not provide, either individually or collectively, a full solution to the problem. This chapter offers a different proposal for addressing the challenges that global production poses for state-centered regulation of import safety. We argue that regulators should structure administrative penalties to make private importers regulate the foreign manufacturing processes from which they …

International Soft Law, Andrew T. Guzman, Timothy L. Meyer

Andrew T Guzman

Although the concept of soft law has existed for years, scholars have not reached consensus on why states use soft law or even whether “soft law” is a coherent analytic category. In part, this confusion reflects a deep diversity in both the types of international agreements and the strategic situations that produce them. In this paper, we advance four complementary explanations for why states use soft law that describe a much broader range state behavior than has been previously explained.

First, and least significantly, states may use soft law to solve straightforward coordination games in which the existence of a …

International Common Law: The Soft Law Of International Tribunals, Andrew T. Guzman, Timothy L. Meyer

Andrew T Guzman

Rising legalization in the international community has lead to greater use of international tribunals and soft law. This paper explores the intersection of these instruments. The decision of an international tribunal interprets binding legal obligations but is not itself legally binding except, in some instances, as between the parties. The broader, and often more important function of a tribunal’s decision – its influence on state behavior beyond the particular case and its impact on perceptions regarding legal obligations – is best characterized as a form of soft law.

Despite its inability to bind states, a tribunal can influence state behavior …

Climate Change And U.S. Interests, Andrew T. Guzman, Jody Freeman

Andrew T Guzman

The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost.

In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing …

How International Law Works: A Response To Commentators, Andrew T. Guzman

Andrew T Guzman

This is a response to the discussion of commentators in a symposium on my book, How International Law Works.

Determining The Appropriate Standard Of Review In Wto Dispute Resolution, Andrew T. Guzman

Andrew T Guzman

This article considers how the WTO judicial organs should determine the standard of review in the case they decide. It argues that a key factor should be the relative strengths of the WTO adjudicatory organs and domestic governments. On this bais, it explains when review at the WTO should be de novo, when it should be an intermediate review, and when it should largely defer to the decisions of member states. In the process, it compares these normative claims to existing WTO practice.

How International Law Works: Introduction, Andrew T. Guzman

Andrew T Guzman

This comment serves as the introduction to a symposium on my book, How International Law Works.

The Myth Of International Delegation, Andrew T. Guzman, Jennifer Landsidle

Andrew T Guzman

There is a growing and misinformed sense in some quarters that the United States and other countries have engaged (and continue to engage) in delegations to international institution that involve a significant threat to domestic sovereignty. Concerns about such delegations come from academics (John Yoo: “Novel forms of international cooperation increasingly call for the transfer of rulemaking authority to international organizations”), prominent politicians (Bob Barr: “Nary a thought is given when international organizations, like the UN, attempt to enforce their myopic vision of a one-world government upon America, while trumping our Constitution in the process. Moreover, many in our own …

International Tribunals: A Rational Choice Analysis, Andrew T. Guzman

Andrew T Guzman

In well-functioning domestic legal systems, courts provide a mechanism through which commitments and obligations are enforced. A party that fails to honor its obligations can be hauled before a court and sanctioned through seizure of person or property. The international arena also has courts or, to expand the category somewhat, tribunals. These institutions, however, lack the enforcement powers of domestic courts. How, then, do they work, and how might they work better or worse? The first objective of this Article is to establish that the role of the tribunal is to promote compliance with some underlying substantive legal rule. This …

Keeping Imports Safe: A Proposal For Discriminatory Regulation Of International Trade, Andrew T. Guzman, Kenneth A. Bamberger

Andrew T Guzman

The benefits of overseas outsourcing have come at a cost. Americans enjoy unprecedented levels of safety and security in the domestically-produced goods they use, food and drugs they ingest, and services they employ. Yet as U.S. firms increase the efficiency of their production, become more competitive globally, and offer better price-quality combinations to their customers by contracting with foreign companies for the production of goods and the provision of services, the mix of economic, legal, and societal forces that serve to protect consumers changes. Widespread revelations of Chinese-manufactured toxic toys and toothpaste, tainted food and drugs from abroad, and the …

Dispute Resolution In Sps Cases, Andrew T. Guzman

Andrew T Guzman

The Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) aims to find the right equilibrium between safeguarding each Member’s interest in protecting its domestic market from products that threaten the life or health of humans, animals or plants and ensuring that these threats are not abusively invoked by individual Members in order to distort international trade patterns.

This article proposes that the DSB should apply a more deferential standard of review when evaluating: (1) the level of risk a state is prepared to tolerate; (2) scientific data; and (3) the relationship between the measure at issue and the ‘risk assessment’ …

Customary International Law In The 21st Century, Andrew T. Guzman, Timothy L. Meyer

Andrew T Guzman

This chapter argues that rules of CIL support “harder” legal agreements by reducing the costs associated with such agreements. Beyond this supporting role for CIL, this chapter also argues that formal legal institutions provide ways in which states can create more credible rules of CIL. Under standard rational choice assumptions, states create legal obligations to maximize their cooperative gains, taking into account transaction costs. In an environment in which states exercise a veto over legal obligations flowing from explicit agreements, transaction costs can prevent the creation, by way of agreement, of an otherwise beneficial legal obligation. CIL can bridge this …

International Competition Law, Andrew T. Guzman

Andrew T Guzman

No abstract provided.

The Promise Of International Law, Andrew T. Guzman

Andrew T Guzman

In their recent book, The Limits of International Law, Professors Goldsmith and Posner throw down the gauntlet to scholars of international law. They advance a deeply pessimistic account of international law and its role in affecting state behavior -- alleging that customary international fails to act as “an exogenous influence on states’ behavior,” and expressing skepticism that multinational collective action problems can be solved by treaty. This review represents a response to the book’s claims. It is demonstrated that there is no theoretical reason to conclude that international law is ineffective, whether it addresses bilateral or multilateral problems and whether …

Competing For Capital: The Diffusion Of Bilateral Investment Treaties, 1960-2000, Andrew T. Guzman

Andrew T Guzman

Over the past forty-five years, bilateral investment treaties (BITs) have become the most important international legal mechanism for the encouragement and governance of foreign direct investment. The proliferation of BITs during the past two decades in particular has been phenomenal. These intergovernmental treaties typically grant extensive rights to foreign investors, including protection of contractual rights and the right to international arbitration in the event of an investment dispute. How can we explain the widespread adoption of BITs? We argue that the spread of BITs is driven by international competition among potential host countries—typically developing countries—for foreign direct investment. We propose …

The Design Of International Agreements, Andrew T. Guzman

Andrew T Guzman

States entering into international agreements have at their disposal several tools to enhance the strength and credibility of their commitments, including the ability to make the agreement a formal treaty rather than soft law, provide for mandatory dispute resolution procedures, and establish monitoring mechanisms. Each of these strategies – referred to as ‘design elements’ – increases the costs associated with the violation of an agreement and, therefore, the probability of compliance. Yet even a passing familiarity with international agreements makes it clear that states routinely fail to include these design elements in their agreements. This article explains why rational states …

Saving Customary International Law, Andrew T. Guzman

Andrew T Guzman

No abstract provided.

Power Plays And Capacity Constraints: The Selection Of Defendants In Wto Disputes, Andrew T. Guzman, Beth A. Simmons

Andrew T Guzman

This paper examines the relationship between the wealth and power of states and their ability to participate fully within the World Trade Organization’s system of dispute resolution. Two alternative hypotheses are considered. The power hypothesis predicts that politically weak countries will refrain from filing complaints against politically powerful states for fear of costly retaliation. The capacity hypothesis predicts that low-income states will tend to complain about behavior by high-income states because the latter offer a higher expected return. We test these two hypotheses and find considerable support for the capacity hypothesis and no support for the power hypothesis. We conclude …

Global Governance And The Wto, Andrew T. Guzman

Andrew T Guzman

No abstract provided.

Trade, Labor, Legitimacy, Andrew T. Guzman

Andrew T Guzman

No abstract provided.

A Compliance-Based Theory Of International Law, Andrew T. Guzman

Andrew T Guzman

This Article examines international law from the perspective of compliance. It puts forward a theory of international law in which compliance comes about in a model of rational, self-interested states. International law can affect state behavior because states are concerned about the reputational and direct sanctions that follow its violation. The model allows us to consider international law in a new light. Most strikingly, one is forced to reconsider two of the most fundamental doctrinal points in the field-the definitions of customary international law (“CIL”) and of international law itself. A reputational model of compliance makes it clear that CIL …

To Settle Or Empanel? An Empirical Analysis Of Litigation And Settlement At The Wto, Andrew T. Guzman, Beth A. Simmons

Andrew T Guzman

This paper seeks to understand the factors that cause disputes at the World Trade Organization to move from the negotiation stage to the panel stage. We hypothesize that transfer payments between states are costly to arrange and that the lowest-cost transfers are those that relate directly to the issue in dispute. This implies that when the subject matter of the dispute has an all-or-nothing character and leaves little room for compromise (for example, health and safety regulations), the parties’ ability to reach an agreement through the use of transfers is restricted. In contrast, if the subject matter in dispute permits …

Choice Of Law: New Foundations, Andrew T. Guzman

Andrew T Guzman

No abstract provided.

The Cost Of Credibility: Explaining Resistance To Interstate Dispute Resolution Mechanisms, Andrew T. Guzman

Andrew T Guzman

This paper explains why the use of mandatory dispute resolution clauses is the exception rather than the rule in international agreements. On one hand, these clauses increase the sanction for violation of the agreement and thereby increase the probability that the parties will comply. On the other hand, dispute resolution clauses impose a loss on the parties when violations occur. States, therefore, must balance the credibility and compliance benefits of a mandatory dispute resolution provision against the joint costs imposed by those provisions in the event of a violation. The paper develops a series of predictive and normative results based …

Antitrust And International Regulatory Federalism, Andrew T. Guzman

Andrew T Guzman

In this Essay, Andrew Guzman proposes internationalization of antitrust law to supplant current methods of antitrust regulation across national borders. Specifically, instead of relying on local regulation, bilateral agreements between states, or a choice-of-law rule for antitrust enforcement, countries should adopt universal substantive standards. Moreover, Guzman recommends the World Trade Organization (WTO), which already employs a dispute resolution mechanism, as the governing forum for international antitrust issues. There, states can negotiate transfer payments in one international transaction to achieve agreement in another. Upon evaluating Professor Eleanor Fox’s proposal of a stand-alone World Competition Forum that would specialize exclusively in international …

Arbitrator Liability: Reconciling Arbitration And Mandatory Rules, Andrew T. Guzman

Andrew T Guzman

In this Article, Professor Guzman resolves the tension that exists between mandatory legal rules and the widespread use of arbitration. In recent years, U.S. courts have expanded the range of enforceable arbitration agreements to include agreements that cover areas of law previously thought to be within the exclusive domain of courts. Among the disputes that are now deemed arbitrable are those that implicate mandatory rules such as securities and antitrust laws. Under current law, the willingness of courts to enforce arbitration agreements and to uphold the resulting arbitral awards with minimal judicial review makes it possible for the parties to …