Law Commons^™

Public Ownership And The Wto In A Post Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

Articles

Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated …

The Second Transformation Of The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

This chapter focuses on the structural changes that international investment norms have posed to the international intellectual property regime. It begins by documenting the regime’s first transformation by the adoption of the TRIPS Agreement and the marriage of intellectual property and trade through the World Trade Organization. The chapter then explores the regime’s potential second transformation when bilateral, regional, and plurilateral agreements and new investor-state disputes have caused international investment norms to intrude into the intellectual property domain. It continues to identify three sets of problems that have emerged from such intrusion. The chapter concludes by proposing three solutions to …

The Role Of The Registry And Legal Division Of The African Court Of Human And People's Rights In Dispute Settlement, Olabisi D. Akinkugbe, Morris K. Odeh

Articles, Book Chapters, & Popular Press

This Essay explores whether the African Court of Human and People's Rights’ (African Court) Registry and Legal Division have a similar expansive role in the dispute settlement mechanism as the World Trade Organization's (WTO) Secretariat. The African Court is the African Union's regional body for enforcing human rights. This Essay contributes to the scholarship on African international courts by testing the central arguments in Pauwelyn and Pelc's “Who Guards the ‘Guardians of the System’? The Role of the Secretariat in WTO Dispute Settlement” through a comparative analysis of the role of the Secretariat within the African Court. Despite the growing …

The Integrative Effects Of Global Legal Pluralism, Monica Hakimi

Book Chapters

International lawyers widely understand that legal pluralism is a fact of global life and that it can, in certain settings, be desirable. But many still approach it with some trepidation. A prominent skeptical claim is that pluralist structures lack the integrative resources that unify people around a shared governance project. This claim has been prominent with respect to two kinds of conflicts that are routine in international law: (1) conflicts that play out within a single international legal arrangement, and (2) conflicts that cut across multiple legal arrangements. For both, the skeptical claim is directed at the pluralist structure itself. …

Nations And Markets, Harlan G. Cohen

Scholarly Works

Economics and security seem increasingly intertwined. Citing national security, states subject foreign investments to new scrutiny, even unwinding mergers like the purchase of Grindr or the creation of TikTok. The provision of 5G has become a diplomatic battleground – Huawei at its center. Meanwhile, states invoke national security to excuse trade wars. The U.S. invoked the GATT national security exception to impose steel and aluminum tariffs, threatening more on automotive parts. Russia invoked that provision to justify its blockade of Ukraine, as did Saudi Arabia and the UAE to excuse theirs of Qatar. And with the spread of COVID-19, states …

Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant

Faculty Scholarship

The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I authorities over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

What Is International Trade Law For?, Harlan G. Cohen

Scholarly Works

Events of the past few years, including the Brexit vote in the United Kingdom and the demise of the Trans-Pacific Partnership and election of Donald Trump as President in the United States, have reignited debates about the global trade regime. In particular, many have begun to question whether the trade regime has done enough for those who feel left behind by globalization. While some have held fast to the view that redistribution of trade’s gains is primarily a matter of domestic policy, others have suggested tweaks to the international trade agreements aimed at better spreading the wealth.

But what if …

Fragmentation, Harlan G. Cohen

Scholarly Works

A danger, an opportunity, passé, a cliché, destabilizing, empowering, destructive, creative: Depending on whom you ask, fragmentation has meant any and all of these for international law. The concept of fragmentation has been a mirror reflecting international lawyers’ perception of themselves, their field, and its prospects for the future.

This chapter chronicles fragmentation’s meanings over the past few decades. In particular, it focuses on the spreading fears of fragmentation around the millennium, how the fears were eventually repurposed, where, speculatively, those fear may have gone, and how and to what extent faith in international law was restored.

...And Trade, Harlan G. Cohen

Scholarly Works

This short essay, part of a symposium on Gregory Shaffer’s Retooling Trade Agreements for Social Inclusion, argues that the normal science of trade law lacks the tools to confront trade law’s greatest current challenges. Instead, breaking out of trade law’s two-step politics, with its division of “growing the pie” and distributing its slices, and responding to new challenges of climate change, the digital economy, and artificial intelligence will require a new politics built on and designed to build new shared narratives embodying new policy paradigms.

China's Rise, The U.S., And The Wto: Perspectives From International Relations Theory, Jacques Delisle

All Faculty Scholarship

What do China’s dramatic economic rise, engagement with the World Trade Organization (“WTO”) (and other established features of the international economic legal order), and rising assertiveness in external relations tell us about China’s past and likely future relationship to status quo international economic legal institutions and the norms they instantiate? What do these developments indicate about prospects for those institutions and norms? In China’s Rise: How it Took on the U.S. at the WTO, Gregory Shaffer and Henry Gao offer, or point us toward, answers to these questions. They do so on a grander scale than their relatively modest …

Introduction: Legitimacy And International Courts, Harlan Grant Cohen, Andreas Follesdal, Nienke Grossman, Geir Ulfstein

All Faculty Scholarship

Legitimacy and International Courts examines the underpinnings of legitimacy, or the justification of the authority, of international courts and tribunals. It brings together an esteemed group of authors, noted for both their expertise in individual courts, tribunals, or other adjudicatory bodies, and their work on legitimacy, effectiveness, and governance more broadly, to consider the legitimacy of international courts from a comparative perspective. Authors explore what strengthens and weakens the legitimacy of various different international courts, while also considering broader theories of international court legitimacy. Some chapters highlight the sociological or normative legitimacy of specific courts or tribunals, while others address …

International Investment Agreements: Impacts On Climate Change Policies In India, China And Beyond, Lise Johnson, Brooke Güven

Columbia Center on Sustainable Investment Staff Publications

Mitigating and adapting to climate change will require a fundamental reorientation of our global economy as we move away from fossil fuels and transition to a low carbon and climate-resilient world. This reorientation depends on government actions to help catalyze and channel financial flows in new directions and away from business-as-usual practices.

International investment agreements (IIAs) – treaties that now number over 3,000 and have the objective of promoting and protecting cross-border investment flows_could potentially play a key role in these efforts to scale up and (re)direct investments to meet climate change mitigation and adaptation needs. As presently drafted and …

Space For Local Content Policies And Strategies, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper explores both the role that local content measures can play in advancing sustainable development, and the impact that trade and investment treaties concluded over the past 20 years have had and will continue to have on the ability of governments to employ those tools. Certain local content measures had been restricted under the WTO due to wide agreement by negotiating parties that their costs outweigh their benefits. But the WTO also left a number of local content measures in governments’ policy toolboxes. As is discussed in this paper, however, that is changing, with the range of permissible actions …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air …

The Many Faces Of Transparency, Padideh Ala'i

Articles in Law Reviews & Other Academic Journals

Transcript from the Proceedings of the Annual Meeting of American Society of International Law panel on the "Role of Transparency at the World Trade Organization."

The Conundrum Of Wto Accession Protocols: In Search Of Legality And Legitimacy, Julia Ya Qin

Law Faculty Research Publications

Accession to the World Trade Organization differs from that of other international organizations in one major aspect: the WTO may prescribe more stringent rules for acceded members, depending on the result of individual accession negotiations. These country-specific rules are set out in the protocols of accession and now form a significant part of WTO law. However, questions concerning the legality and legitimacy of such rules remain to be answered. The accession protocols effectively modify the provisions of the WTO multilateral trade agreements, but the legal basis for so doing has never been properly explained and the relationship between the accession …

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

• Another Mexican National Executed in Texas in Defiance of Avena Decision • Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India • United States Questions Claims Based on China’s “Nine-Dash Line” in the South China Sea • United States Takes Steps to Combat Illegal Trade in Wildlife • U.S. Compromises Facilitate Agreement on World Trade Organization’s Bali Package; Question Remains Whether Bali Package Requires Congressional Approval • Destruction of Syrian Chemical Arms Delayed • Iran Nuclear Agreement Is Implemented Notwithstanding Expressions of Distrust by Iran and the U.S. Congress

Private Enforcement Of Trips By Applying The Eu Law Principles Of Direct Effect And State Liability, Saud Aldawsari

Law Student Publications

This comment is divided into three sections. Part I introduces the World Trad Organization (WTO) generally and analyzes the Trade Related Agreement on Intellectual Property Rights (TRIPS) agreement specifically. Part II discusses the proposed theory and its basis. It then introduces Novartis. The comment then explores the relevant EU laws and analyzes the jurisprudence of Direct Effect and State Liability. Part III applies EU law to Novartis.

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …

Who's In Charge Of Global Finance?, Michael S. Barr

Articles

The global financial crisis caused widespread harm not just to the financial system, but also to millions of households and businesses and to the global economy. The crisis revealed substantive, fundamental weaknesses in global financial regulation and raised serious questions about whether national regulators and the international financial regulatory system could ever be up to the task of overseeing global finance. This Article analyzes post-crisis reforms with two questions in mind: First, how can we build an effective international financial architecture with more than one architect? Second, can we build a system that is legitimate and accountable? The Article suggests …

Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster

Faculty Scholarship

The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …

Climate Change And International Trade: Conflict Or Opportunity?, Joshua Meltzer

Brookings Scholar Lecture Series

How can international trade negotiations provide incentives or limit progress on domestic and international climate change policy? This presentation will explore how trade negotiations can reduce trade barriers to low carbon produced goods, the implications of the World Trade Organization (WTO) and free trade agreements, and how pricing carbon to reduce greenhouse gas emissions can lead to international competitiveness and carbon leakage concerns. This presentation will consider the implications of the November 6th election on short and long-term climate policy initiatives.

Trips And Bits: An Essay On Compulsory Licenses, Expropriation, And International Arbitration, Peter B. Rutledge

Scholarly Works

This essay examines the potential for arbitration to resolve disputes between private companies and developing countries over the propriety of compulsory licenses. At bottom, my thesis is that arbitration supplies the medium through which to mediate the tension between the profit-seeking goals of private multinational companies and the development goals of foreign nations, especially in the developing world. The compulsory license debate raises a clash of fundamental interests between the patent holder, the patent holder’s state, and the host state. Arbitration can play an important role in balancing those interests, albeit a highly unusual one. Arbitration provides an essential forum …

Book Review, International Organizations: Politics, Law, Practice (2010), Timothy L. Meyer

Scholarly Works

This essay reviews Ian Hurd’s International Organizations: Politics, Law, Practice. International law and international relations scholars are increasingly interested in the variation in the structures and powers of international organizations, as well as how that variation affects state decisions to comply with international law. Hurd’s book offers a nuanced overview of the relationship between the legal powers of international organizations and the political contexts in which they operate. The book uses eight case studies, including the United Nations, the World Trade Organization, the International Court of Justice, and the International Labor Organization, to assess how different political environments and institutional …

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …

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 …

The Limits Of Wto Adjudication: Is Compliance The Problem?, Juscelino F. Colares

Faculty Publications

Mainstream international trade law scholars have commented positively on the work of World Trade Organization (WTO) adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 8 and 9 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical …

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

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 …