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2018

International Trade Law

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Full-Text Articles in Law

Chart Of Cases With Third Party Funding, Kirrin Hough Dec 2018

Chart Of Cases With Third Party Funding, Kirrin Hough

Law and Justice in the Americas Working Paper Series

Spreadsheet listing cases where investors sued foreign governments under international investment treaties, and where the case was funded on the investor's side by third parties.


Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh Dec 2018

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

Research Collection School Of Law

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 ...


Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman Nov 2018

Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman

Testimony Before Congress

Virtually every major international gathering of world leaders recently has ended in failure—or at least failure to reach enough agreement to issue a concluding statement or communique. These failures come at a time when many have been looking for signs that world leaders would come together to address the most pressing problems facing the world—including climate change, the breakdown in the rules of the international trading system, the need everywhere for good jobs that pay a living wage, and rapidly growing income inequality.

The failure of these meetings to produce formal agreements—or even specific paths to reaching ...


Infringement, Unbound, Sarah R. Wasserman Rajec Oct 2018

Infringement, Unbound, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.


Asean Financial Integration And The Belt And Road Initiative: Legal Challenges And Opportunities For China In Southeast Asia, Christopher C. H. Chen Sep 2018

Asean Financial Integration And The Belt And Road Initiative: Legal Challenges And Opportunities For China In Southeast Asia, Christopher C. H. Chen

Research Collection School Of Law

This chapter explores the legalchallenges to Chinese financial institutions in Southeast Asia against thebackdrop of China’s grand ‘Belt and Road Initiative’ (BRI) and theestablishment of the Association of Southeast Asian Nations (ASEAN) EconomicCommunity. Banking and finance play important roles in promoting trade,investment and infrastructure projects. The development of ASEAN, an immenseeconomic bloc located immediately south of China, will have an enormous effecton the BRI strategy. This chapter outlines the current development of financialintegration within ASEAN with respect to the bloc’s banking and insurancesectors. It also considers the legal obstacles and potential trade barriersfacing Chinese banks and insurers ...


Rethinking International Investment Governance: Principles For The 21st Century, Frank J. Garcia, Emma Aisbett, Bernali Choudhury, Olivier De Schutter, James Harrison, Song Hong, Lise Johnson, Mouhamadou Kane, Santiago Peña, Mattew Porterfield, Susan Sell, Stephen E. Shay, Louis T. Wells Aug 2018

Rethinking International Investment Governance: Principles For The 21st Century, Frank J. Garcia, Emma Aisbett, Bernali Choudhury, Olivier De Schutter, James Harrison, Song Hong, Lise Johnson, Mouhamadou Kane, Santiago Peña, Mattew Porterfield, Susan Sell, Stephen E. Shay, Louis T. Wells

Boston College Law School Faculty Papers

Rethinking International Investment Governance: Principles for the 21st Century - written over the course of a week by a distinguished group of experts in international economic governance using the Booksprint process - aims to serve as a practical resource for those interested in the elements of an international investment system that promotes sustainable development and achieves legitimacy by providing benefits to all stakeholders.

The objective of Rethinking International Investment Governance is to change the terms of the debate so that societal values and goals are at the center of discussions about each reform proposal and process. This book rethinks international investment law ...


Non-Parties: The Negative Externalities Of Regional Trade Agreements In A Private Law Perspective, Daniela Caruso Jul 2018

Non-Parties: The Negative Externalities Of Regional Trade Agreements In A Private Law Perspective, Daniela Caruso

Faculty Scholarship

In private law theory and in international trade law alike, a new strand of scholarship has emerged in recent years. This strand is characterized by a focus on market actors who are excluded from deals struck by other parties and suffer economic hardship as a result. Scholars have also focused on doctrines and legal concepts apt to identify this type of hardship and to provide non-parties with justiciable claims and remedies. Private-law and trade-law scholars involved in this mode of research are often moved by justice concerns and by the realization that rules based solely on the enforcement of bilateral ...


Dictum On Dicta: Obiter Dicta In Wto Disputes, Henry S. Gao Jul 2018

Dictum On Dicta: Obiter Dicta In Wto Disputes, Henry S. Gao

Research Collection School Of Law

This paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate ...


Concluding Chapter: Theories Of Justice And International Trade Law, Frank J. Garcia May 2018

Concluding Chapter: Theories Of Justice And International Trade Law, Frank J. Garcia

Boston College Law School Faculty Papers

Why does a textbook on trade law end with a chapter on justice? By justice I mean that branch of political theory (going back to Aristotle) that concerns itself with the allocative fairness of social institutions, i.e. how rights, resources, privileges and opportunities are divided among those participating in the social enterprise. Why, indeed, has the relationship between justice and international economic law become an increasingly urgent subject of academic and policy debate? First, it has been increasingly recognized that international economic law and its institutions are powerful engines of resource allocation, establishing patterns of distribution for market access ...


Preface, Frank J. Garcia May 2018

Preface, Frank J. Garcia

Boston College Law School Faculty Papers

Preface to the textbook International Trade Law by Giovanni Di Lieto and David Treisman. The preface introduces the reader to the text's interest in the relationship of justice to trade and investment law.


Comment On The Draft Report Of The Icca/Queen Mary Task Force On Third Party Funding In International Arbitration, Frank J. Garcia Apr 2018

Comment On The Draft Report Of The Icca/Queen Mary Task Force On Third Party Funding In International Arbitration, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


The Case For An Eu Protagonist Role On Third Party Funding Regulation, Munia El Harti Alonso Apr 2018

The Case For An Eu Protagonist Role On Third Party Funding Regulation, Munia El Harti Alonso

Law and Justice in the Americas Working Paper Series

The Lisbon Treaty has enlarged the EU’s competences in external investment policy. The EU could thus increase its protagonist role in third-party funding (TPF) regulation in a manner analogous to its achievements in the investment regime, where the EU managed to rally the member states behind DG Trade’s vision. A treaty-based analysis combined with a political evaluation suggest the EU is expanding its field of competences either when it has a clear mandate or by establishing a modus vivendi as it has been the case with its external relations, particularly at the United Nations. There is therefore a ...


The Case Against Third-Party Funding In Isds: Executive Summary, Frank J. Garcia, Hyun Ju Cho, Tara Santosuosso, Randall Scarlett, Rachel Denae Thrasher Apr 2018

The Case Against Third-Party Funding In Isds: Executive Summary, Frank J. Garcia, Hyun Ju Cho, Tara Santosuosso, Randall Scarlett, Rachel Denae Thrasher

Boston College Law School Faculty Papers

No abstract provided.


The Regulation Of Third Party Funding: Gathering Data For Future Analysis And Reform, Rachel Denae Thrasher Apr 2018

The Regulation Of Third Party Funding: Gathering Data For Future Analysis And Reform, Rachel Denae Thrasher

Law and Justice in the Americas Working Paper Series

Third-party funding (TPF) is a relatively new phenomenon in the field of international investment arbitration. TPF takes place when a non-party to a dispute provides funding to one of the parties (usually the claimant) in return for a percentage of the amount recovered. International investment arbitration is a unique context, however, because investor-states dispute settlement puts States always in the role of respondent and private investors in the role of claimants. Despite this apparent imbalance, TPF proponents argue, among other things, that it provides much needed access to justice for poorer clients and adds value to the system by providing ...


Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett Apr 2018

Third-Party Funding In Investment Arbitration: Misappropriation Of Access To Justice Rhetoric By Global Speculative Finance, Tara Santosuosso, Randall Scarlett

Law and Justice in the Americas Working Paper Series

The United Nations Commission on International Trade Law (UNCITRAL) is considering changes to its rules governing international arbitration proceedings. UNCITRAL Working Group III is analyzing possible reforms of the arbitral rules to address the risks associated with the increased prevalence of third-party funded investment arbitration claims. Funders claim that existing regulation is sufficient, arguing in part that funding provides access to justice for impecunious claimants who otherwise would be unable to bring claims. This essay argues that funders’ access to justice reasoning is flawed at best and dangerously misleading at worst. UNCITRAL must take immediate action to address the potential ...


Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia Apr 2018

Third-Party Funding As Exploitation Of The Investment Treaty System, Frank J. Garcia

Boston College Law School Faculty Papers

Third-party funding of international investment arbitration is on the rise. Through TPF funders will cover the legal fees of investors filing claims under investment treaties in exchange for a portion of the arbitral award. Proponents of third-party funding claim that it provides access to justice for parties that normally would not have the funds to arbitrate against state actors. Given that the international investment law that governs these claims is unbalanced, and that funding only flows towards investor-claimants, and at the expense of states and their taxpayers, allowing third-party funding in investment arbitration risks creating unjustifiable wealth transfers from the ...


Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah Apr 2018

Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah

Articles

The Tax Cuts and Jobs Act of 2017 (“TCJA”) contains a provision that on its face appears to be a blatant violation of the WTO’s Subsidies and Countervailing Measures (SCM) rules. New IRC section 250 applies a reduced 13.125% tax rate to “foreign derived intangible income” (FDII), which is defined as income derived in connection with (1) property that is sold by the taxpayer to any foreign person for a foreign use or (2) services to any foreign person or with respect to foreign property. In other words, this category comprises exports for property and services, including royalties ...


The Wto Transparency Obligations And China, Henry S. Gao Feb 2018

The Wto Transparency Obligations And China, Henry S. Gao

Research Collection School Of Law

When it acceded to the WTO in 2001, China accepted comprehensive transparency obligations as well as substantive commitments covering both market access and rules issues. Initially designed to deal with its opaque trade law regime, the transparency obligations were also expected to help democratize the legislative process and promote the development of the rule of law in China. Now that more than 15 years have passed, an important question is: have the transparency obligations delivered on their original promise? This article answers the question by reviewing how the transparency obligations have worked in practice. It notes that, while transparency has ...


Regulation Of Digital Trade In Us Free Trade Agreements: From Trade Regulation To Digital Regulation, Henry S. Gao Feb 2018

Regulation Of Digital Trade In Us Free Trade Agreements: From Trade Regulation To Digital Regulation, Henry S. Gao

Research Collection School Of Law

This article reviews the evolution of rules on digital trade in US Free Trade Agreements (US FTAs), and argues that the US approach has shifted from treating it largely as a traditional trade issue to recognizing its unique digital nature and tailoring the rules accordingly, as it has done in the Trans-Pacific Partnership (TPP) Agreement. The article begins with a review of the efforts to regulate e-commerce in the WTO, as well as the achievements of the pre-TPP US FTAs so far, followed by a critical appraisal of the strengths and weaknesses of the e-commerce chapter in the TPP. It ...


The Wto Transparency Obligations And China, Henry S. Gao Feb 2018

The Wto Transparency Obligations And China, Henry S. Gao

Research Collection School Of Law

When it acceded to the WTO in 2001, China accepted comprehensive transparency obligations as well as substantive commitments covering both market access and rules issues. Initially designed to deal with its opaque trade law regime, the transparency obligations were also expected to help democratize the legislative process and promote the development of the rule of law in China. Now that more than 15 years have passed, an important question is: have the transparency obligations delivered on their original promise? This article answers the question by reviewing how the transparency obligations have worked in practice. It notes that, while transparency has ...


Regulation Of Digital Trade In Us Free Trade Agreements: From Trade Regulation To Digital Regulation, Henry S. Gao Feb 2018

Regulation Of Digital Trade In Us Free Trade Agreements: From Trade Regulation To Digital Regulation, Henry S. Gao

Research Collection School Of Law

This article reviews the evolution of rules on digital trade in US Free Trade Agreements (US FTAs), and argues that the US approach has shifted from treating it largely as a traditional trade issue to recognizing its unique digital nature and tailoring the rules accordingly, as it has done in the Trans-Pacific Partnership (TPP) Agreement. The article begins with a review of the efforts to regulate e-commerce in the WTO, as well as the achievements of the pre-TPP US FTAs so far, followed by a critical appraisal of the strengths and weaknesses of the e-commerce chapter in the TPP. It ...


Restoring Trade's Social Contract, Timothy Meyer, Frank J. Garcia Jan 2018

Restoring Trade's Social Contract, Timothy Meyer, Frank J. Garcia

Vanderbilt Law School Faculty Publications

As we write, the United States, Canada, and Mexico are renegotiating the North American Free Trade Agreement (NAFTA). These talks—and their possible failure—represent the biggest shift in U.S. economic policy in a generation. Since NAFTA came into force in 1994, it has transformed the North American economy. NAFTA has made possible continent-wide supply chains, in industries like the auto sector, that have reduced costs and allowed American automakers to remain competitive; it has opened markets for American agriculture; it has greatly increased the standard of living in Mexico; and it has reduced consumer prices across the continent ...


A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman Jan 2018

A Blueprint For A New American Trade Policy, Timothy Meyer, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

In recent years, it has become clear that American trade policy needs to change. For decades, U.S. policy has reflected the implicit assumption that trade liberalization is beneficial for everyone, with few distributional downsides over time. But this assumption hasn’t been borne out. Instead, decades of trade liberalization have led to a backlash that resulted in both 2016 presidential nominees opposing the Obama Administration’s proposed Trans Pacific Partnership (TPP). And since 2017, President Donald Trump has begun a trade war with China; raised tariffs on the grounds of protecting national security; renegotiated NAFTA, though on terms that ...


Restoring Trade’S Social Contract, Frank J. Garcia, Timothy Meyer Jan 2018

Restoring Trade’S Social Contract, Frank J. Garcia, Timothy Meyer

Boston College Law School Faculty Papers

As we write, the United States, Canada, and Mexico are meeting in Washington, D.C. to renegotiate the North American Free Trade Agreement (NAFTA). These talks—and their possible failure—represent the biggest shift in U.S. economic policy in a generation. Since NAFTA came into force in 1994, it has transformed the North American economy. NAFTA has made possible continent-wide supply chains, in industries like the auto sector, that have reduced costs and allowed American automakers to remain competitive; it has opened markets for American agriculture; it has greatly increased the standard of living in Mexico; and it has ...


Rethinking Trade Law In An Era Of Trump And Brexit, Frank J. Garcia Jan 2018

Rethinking Trade Law In An Era Of Trump And Brexit, Frank J. Garcia

Boston College Law School Faculty Papers

International trade and economic globalization are in crisis. In the U.S. and elsewhere, current regimes like NAFTA and the EU, and trade deals like the TTIP and the TPP, have become targets for the political backlash against trade and its larger context, economic globalization. Brexit and the 2016 U.S. election remind us that many feel betrayed by current trade policies, that free trade is being imposed on them at their cost but for others’ benefit.

At the heart of this crisis, however, there are as always opportunities. First, we have an opportunity to return to trade’s roots ...


Separation Of Trade Law Powers, Kathleen Claussen Jan 2018

Separation Of Trade Law Powers, Kathleen Claussen

Articles

No abstract provided.


Globalization Without A Safety Net: The Challenge Of Protecting Cross-Border Funding Of Ngos, Lloyd H. Mayer Jan 2018

Globalization Without A Safety Net: The Challenge Of Protecting Cross-Border Funding Of Ngos, Lloyd H. Mayer

Journal Articles

More than 50 countries around the world have sharply increased legal restrictions on both domestic non-governmental organizations (“NGOs”) that receive funding from outside their home country and the foreign NGOs that provide such funding and other support. These restrictions include requiring advance government approval before a domestic NGO can accept cross-border funding, requiring such funding to be routed through government agencies, and prohibiting such funding for NGOs engaged in certain activities. Publicly justified by national security, accountability, and other concerns, these measures often go well beyond what is reasonably supported by such legitimate interests. These restrictions therefore violate international law ...


Multilateralism’S Life-Cycle, Harlan G. Cohen Jan 2018

Multilateralism’S Life-Cycle, Harlan G. Cohen

Scholarly Works

Does multilateralism have a life-cycle? Perhaps paradoxically, this essay suggests that current pressures on multilateralism and multilateral institutions, including threatened withdrawals by the United Kingdom from the European Union, the United States from the Paris climate change agreement, South Africa, Burundi, and Gambia from the International Criminal Court, and others, may be natural symptoms of those institutions’ relative success. Successful multilateralism and multilateral institutions, this essay argues, has four intertwined effects, which together, make continued multilateralism more difficult: (1) the wider dispersion of wealth or power among members, (2) the decreasing value for members of issue linkages, (3) changing assessment ...


Things Have Changed (Or Have They?): Tariff Protection And Environmental Concerns In The Wto, Petros C. Mavroidis, Damien J. Neven Jan 2018

Things Have Changed (Or Have They?): Tariff Protection And Environmental Concerns In The Wto, Petros C. Mavroidis, Damien J. Neven

Faculty Scholarship

This paper considers the APEC and proposed EGA agreements which grant tariff concession in favor of "green" goods. We find that the practical significance of the APEC agreement should not be overestimated as it involves modest tariff concessions over a subset of goods which are not heavily traded. Still, these agreements involve a paradigm shift to the extent that they use tariffs concessions negotiated on a plurilateral basis as a policy instrument to meet public policy concern, instead of making market access conditional on meeting national regulations. We model the mechanism through which these tariff preferences provide incentives to change ...


Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore Jan 2018

Another One Bites The Dust: The Distance Between Luxembourg And The World Is Growing After Achmea, Petros C. Mavroidis, Carlo M. Cantore

Faculty Scholarship

The CJEU has become a gatekeeper. Ever since Opinion 1/91, the CJEU has been imposing barriers to the recognition of decisions by foreign jurisdictions. Its recent Achmea decision is the natural consequence of case law so far. This attitude would not be problematic by itself since, through this attitude, the European Union would still be liable at the international plane, even if it did not implement its international obligations (liability- over property rules). This is not the end of the story. The CJEU accepts the, in principle, relevance of decisions by some international jurisdictions. However, the CJEU has repeatedly ...