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Full-Text Articles in Law

Interstitial Space Law, Melissa J. Durkee Jan 2019

Interstitial Space Law, Melissa J. Durkee

Scholarly Works

Conventionally, customary international law is developed through the actions and beliefs of nations. International treaties are interpreted, in part, by assessing how the parties to the treaty behave. This Article observes that these forms of uncodified international law—custom and subsequent treaty practice—are also developed through a nation’s reactions, or failures to react, to acts and beliefs that can be attributed to it. I call this “attributed lawmaking.”

Consider the new commercial space race. Innovators like SpaceX and Blue Origin seek a permissive legal environment. A Cold-War-era treaty does not seem adequately to address contemporary plans for space ...


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 ...


The Role And Future Of Sovereign Wealth Funds: A Trade And Investment Perspective, Locknie Hsu Sep 2017

The Role And Future Of Sovereign Wealth Funds: A Trade And Investment Perspective, Locknie Hsu

Research Collection School Of Law

Sovereign wealth funds ("SWFs") have been greeted with bothenthusiasm and suspicion. In one respect, they have been called "white knights," where they step in to inject financing to troubledentities.' In others, they have been called "Trojan horses" and"chameleons."


Predicting Outcomes In Investment Treaty Arbitration, Susan Franck Jan 2015

Predicting Outcomes In Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

No abstract provided.


State Control Over Interpretation Of Investment Treaties, Lise Johnson, Merim Razbaevea Apr 2014

State Control Over Interpretation Of Investment Treaties, Lise Johnson, Merim Razbaevea

Columbia Center on Sustainable Investment Staff Publications

Many critiques of investment treaties relate to concerns that tribunals’ interpretations of these agreements depart from states’ understandings of the texts, and do so in unpredictable ways leading to expensive litigation and unforeseen liability. States, however, can take steps to make their intentions regarding the texts clearer, and reduce the risk of uncertain outcomes.

This policy paper discusses these possible steps, and the legal rules supporting them, providing guidance to states, attorneys, and tribunals regarding the important role of states in clarifying vague standards in and managing liability under existing investment treaties. A second paper, published by the Global Economic ...


The Cape Town Convention’S Improbable-But-Possible Progeny Part One: An International Secured Transactions Registry Of General Application, Charles W. Mooney Jr. Jan 2014

The Cape Town Convention’S Improbable-But-Possible Progeny Part One: An International Secured Transactions Registry Of General Application, Charles W. Mooney Jr.

Faculty Scholarship at Penn Law

This essay is Part One of a two-part essay series. It outlines and evaluates two possible future international instruments. Each instrument draws substantial inspiration from the Cape Town Convention and its Aircraft Protocol (together, the “Convention”). The Convention governs the secured financing and leasing of large commercial aircraft, aircraft engines, and helicopters. It entered into force in 2006. It has been adopted by sixty Contracting States (fifty-four of which have adopted the Aircraft Protocol), including the U.S., China, the E.U., India, Ireland, Luxembourg, Russia, and South Africa.

A novel, distinctive, and path-breaking feature of the Convention is the ...


New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson Aug 2013

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper discusses the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, which were adopted in August of 2013 and went into effect on April 1, 2014. It draws on negotiating history to elaborate on the content of and purpose of each of the Rules’ provisions, and identifies options for and barriers to applying these Rules in future arbitrations.


Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster Jan 2013

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 Human Element: The Impact Of Regional Trade Agreements On The Human Rights And The Rule Of Law, Claudio Grossman Jan 2011

The Human Element: The Impact Of Regional Trade Agreements On The Human Rights And The Rule Of Law, Claudio Grossman

Articles in Law Reviews & Other Academic Journals

No abstract provided.


International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan Jan 2010

International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan

Book Chapters

I am pleased to have the opportunity to respond to Andreas Paulus’s very interesting contribution, and to elaborate on some of the matters he raises. As will be all too obvious, I am not an expert on general public international law. I undertook this assignment in the hope that I would learn something (as I have), and that I would eventually think of something useful to say (less clear). Happily, the one area of international law where I do have some expertise is the law of the World Trade Organization (WTO). The WTO is often used as an example ...


Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge Oct 2009

Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge

Scholarly Works

The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific ...


The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan Jan 2007

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically ...


A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan Jan 2007

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning ...


Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck Jan 2007

Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck Jan 2007

Foreign Direct Investment, Investment Treaty Arbitration, And The Rule Of Law, Susan Franck

Articles in Law Reviews & Other Academic Journals

No abstract provided.


The Cape Town Approach: A New Method Of Making International Law, Mark J. Sundahl Jan 2006

The Cape Town Approach: A New Method Of Making International Law, Mark J. Sundahl

Law Faculty Articles and Essays

The use of multilateral treaties in the field of international commercial law has been in a state of steady decline. Traditional treaty law has been gradually replaced in recent years by softer methods of making international law, such as the use of restatements and model laws. Some scholars even claim that treaty law is dead or dying. This Article explains how the Cape Town Convention on International Interests in Mobile Equipment (which entered into force on March 1, 2006) provides an innovative approach to the creation of treaties that promises to revive the status of treaties in international law. The ...


Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Iii:2), Donald H. Regan Jan 2006

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Iii:2), Donald H. Regan

Book Chapters

In EC-Asbestos the Appellate Body has told us that (l) in interpreting Article III:4 of the GATT, we must take explicit account of the policy in Article III: l that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile- Alcohol the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection," we must consider "the purposes or objectives of a Member's legislature and government as a whole"- in other words, the regulatory purpose of the measure ...


Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia Jan 2005

Central American-Dominican Republic Free Trade Agreement: Sources Of Information, Barbara H. Garavaglia

Articles

Globalization and fre trade are usually discussed in a political context in the United States as well as in other areas of the world. As a consequence, it can be difficult to find neutral, basic information about recent new trade agreements, such as the Central American-Dominican Republic Free Trade Agreement (CAFTA-DR), because much of the information found in the news or on the Web is polemical, and it takes time for the legal literature to provide the kind of legal analysis needed by practicing attorneys. This short piece is an attempt to provide links to free, Web-based information on CAFTA-DR ...


Treaty Governance, Intellectual Property And Biodiversity, John Linarelli Jan 2004

Treaty Governance, Intellectual Property And Biodiversity, John Linarelli

Scholarly Works

When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework ...


Further Thoughts On The Role Of Regulatory Purpose Under Article Iii Of The General Agreement On Tariffs And Trade: A Tribute To Bob Hudec, Donald H. Regan Jan 2003

Further Thoughts On The Role Of Regulatory Purpose Under Article Iii Of The General Agreement On Tariffs And Trade: A Tribute To Bob Hudec, Donald H. Regan

Articles

My topic in this article is the role of regulatory purpose under Article III of the GATT, and I regard Bob [Hudec] as the patron saint of efforts to establish the relevance of purpose. His famous "Requiem for an 'Aims and Effects' Test" may have been called a requiem, but it was reluctant and sceptical. Bob thought dispute settlement tribunals ought to consider the regulator's purpose, and he thought they would do so, whatever they said. As decisions on Article III accumulate, we are in the process of learning that he was right on both counts.


Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan Jan 2002

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan

Articles

In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos) the Appellate Body has told us that (1) in interpreting Article 111:4 of the General Agreement on Tariffs and Trade (GATT), we must take explicit account of the policy in Article 111:1 that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile--Taxes on Alcoholic Beverages (Chile--Alcohol) the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection", we must consider "the purposes or objectives of a Member ...


(How) Should Trade Agreements Deal With Income Tax Issues?, Joel Slemrod, Reuven S. Avi-Yonah Jan 2002

(How) Should Trade Agreements Deal With Income Tax Issues?, Joel Slemrod, Reuven S. Avi-Yonah

Articles

What is the relationship between the international tax regime, as embodied in bilateral international tax treaties, and multilateral free trade agreements like the General Agreement on Tariffs and Trade (GATr)?' Are their fundamental goals consistent or inconsistent? If they are inconsistent, should the tax treaties or the GATT be changed to remedy the inconsistency? If they are consistent, should the scope of either be expanded to include the other?


Globalization And The Design Of International Institutions, Cary Coglianese Jan 2000

Globalization And The Design Of International Institutions, Cary Coglianese

Faculty Scholarship at Penn Law

In an increasingly globalized world, international rules and organizations have grown ever more crucial to the resolution of major economic and social concerns. How can leaders design international institutions that will effectively solve global regulatory problems? This paper confronts this question by presenting three major types of global problems, distinguishing six main categories of institutional forms that can be used to address these problems, and showing how the effectiveness of international institutions depends on achieving “form-problem” fit. Complicating that fit will be the tendency of nation states to prefer institutional forms that do little to constrain their sovereignty. Yet the ...


The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan Jan 2000

The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan

Articles

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III ...


The Settlement Of Investment Disputes Between States And Private Parties - An Overview From The Perspective Of The Icc, Horacio A. Grigera Naón Jan 2000

The Settlement Of Investment Disputes Between States And Private Parties - An Overview From The Perspective Of The Icc, Horacio A. Grigera Naón

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Indigenous Nations And International Trade, Robert Berry Jan 1998

Indigenous Nations And International Trade, Robert Berry

Librarian Publications

In an era where economic policy must be increasingly fashioned in global terms, the economies of Indigenous Nations in present-day Canada and the United States remain isolated from international commerce.These nations--once independent, now governed by a supervising state --in most cases cannot be said to enjoy evenan unhindered access to commerce within the states that surround them. Indeed, the insularity of the North American Indigenous Nations is a fundamental feature of their existence and, too, a formidable barrier to these nations' ability to establish vibrant and diversified economies.

This Note examines the central role that trade played in ...


Copyright And International Trips Compliance (Symposium: Fifth Annual Conference On International Intellectual Property Law And Policy), Shira Perlmutter, Jerome H. Reichman, Whitmore Gray Jan 1997

Copyright And International Trips Compliance (Symposium: Fifth Annual Conference On International Intellectual Property Law And Policy), Shira Perlmutter, Jerome H. Reichman, Whitmore Gray

Other Publications

MS. PERLMUTTER: We have heard today about copyright in two different regions of the world, in Central and Eastern Europe' and in China. In recent years there has been an increasing convergence in the substance of national laws in different regions of the world. One of the major factors has been the TRIPs Agreement? I will focus on the current efforts toward implementing the TRIPs Agreement, and this will be a procedure-oriented talk.


Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray Jan 1996

Globalisation Of Contract Law: Rules For Commercial Contracts In The 21st Century, Whitmore Gray

Articles

This is a paper given at the Asia-Pacific Lawyers Association meeting held in Bangkok in November 1995. The author describes the principles of international commercial contracts published in 1994 by the International Institute for the Unification of Private Law. Professor Gray sees a new era of harmonisation of contract law. An appendix gives an abstract of a contract law decision given by an Austrian Court in 1994.


U.S. Practices In Risk Assessment And Risk Management For Product Safety Under Article 2.2 Of The Agreement On Technical Barriers To Trade, Suckhong Ko Jan 1995

U.S. Practices In Risk Assessment And Risk Management For Product Safety Under Article 2.2 Of The Agreement On Technical Barriers To Trade, Suckhong Ko

LLM Theses and Essays

Article 2.2 of the Agreement on Technical Barriers to Trade (TBT) was applied to the GATT member countries in 1995. This article provides national product safety agencies with requirements for risk assessment and risk management. However, the terms used in the article are broad and open to interpretation. This paper argues that vast discretion and broad terms cannot solve technical barriers effectively; the “minimum requirements” standard within Article 2.2 of the TBT fails to consider those countries whose technology in product safety is inferior to that of developed countries. The United States has some of the strongest product ...


Enforcement Of Foreign Money-Judgments In The United States: In Search Of Uniformity And International Acceptance, Ronald A. Brand Jan 1991

Enforcement Of Foreign Money-Judgments In The United States: In Search Of Uniformity And International Acceptance, Ronald A. Brand

Articles

When international trade and investment increase, so does the need for satisfactory means of dispute resolution. Dispute resolution in national courts requires that litigants consider not only the likelihood of a favorable judgment but also the ability to collect on that judgment. In cases where the defendant’s assets lie in another jurisdiction, collection is possible only if the second jurisdiction will recognize the first jurisdiction’s judgment.

In the international arena, enforcement of United State judgments overseas is often possible only if the United States court rendering the judgment would enforce a similar decision of the foreign enforcing court ...