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Full-Text Articles in Law
Human Rights Provisions In Free Trade Agreements: Do The Ends Justify The Means?, Meredith Kolsky Lewis
Human Rights Provisions In Free Trade Agreements: Do The Ends Justify The Means?, Meredith Kolsky Lewis
Journal Articles
Numerous Free Trade Agreements (FTAs) contain provisions imposing human rights-related obligations, particularly in the case of agreements between the European Union and a developing country (often a former colony). Such obligations often consist of hortatory “best endeavors” language rather than legally binding provisions. Even the small number of provisions that are binding are very rarely enforced. Furthermore, even if an FTA features human rights-related provisions, it may contain other terms that have negative implications for human rights. Thus, including human rights provisions in FTAs will not necessarily result in better human rights outcomes. There are additional reasons to be cautious …
Food Miles: Environmental Protection Or Veiled Protectionism?, Meredith Kolsky Lewis, Andrew D. Mitchell
Food Miles: Environmental Protection Or Veiled Protectionism?, Meredith Kolsky Lewis, Andrew D. Mitchell
Journal Articles
This article examines the international trade, environmental, and development implications of campaigns to convince consumers to make food purchases based on food miles. Buying food from nearby sources has become a popular objective. One of the unmistakable messages of the “locavore” movement is that importing food – particularly food that comes from far away – causes environmental harm. The theory is that transporting food long distances results in the release of high levels of greenhouse gases (GHGs) into the atmosphere and is thus a dangerous contributor to climate change. Proponents of this view therefore argue that “food miles” – the …
The Convergence Of International Trade And Investment Arbitration, Roger P. Alford
The Convergence Of International Trade And Investment Arbitration, Roger P. Alford
Journal Articles
The World Trade Organization (“WTO”) and bilateral investment treaties (“BITs”) are among the most significant legal developments in the history of international economic law. Never before in the history of international relations has trade and investment been supported by such powerful legal guarantees and adjudicative processes. In less than two decades the WTO and BITs have permanently altered the legal landscape with reciprocal and mutually advantageous arrangements designed to reduce barriers to trade and investment and eliminate discriminatory treatment in international economic relations. In most respects the worlds of trade and investment are on parallel tracks headed in the same …
Dissent As Dialectic: Horizontal And Vertical Disagreement In Wto Dispute Settlement, Meredith Kolsky Lewis
Dissent As Dialectic: Horizontal And Vertical Disagreement In Wto Dispute Settlement, Meredith Kolsky Lewis
Journal Articles
This article examines the phenomena of dissent within WTO dispute settlement panels and within Appellate Body divisions ("horizontal disagreement") and the failure of certain WTO dispute settlement panels to follow previous rulings of the Appellate Body ("vertical disagreement"). With respect to horizontal disagreement, the article responds to a recent critique of my earlier piece on the subject (The Lack of Dissent in WTO Dispute Settlement, 9 J. INT’L ECON. L. 895 (2006)). With respect to vertical disagreement, the article examines whether there are textual or normative reasons why panels should not disagree with the Appellate Body. It argues that the …
The Self-Judging Wto Security Exception, Roger P. Alford
The Self-Judging Wto Security Exception, Roger P. Alford
Journal Articles
This Article analyzes the WTO security exception, with a particular focus on State practice. In the absence of any GATT or WTO jurisprudence, State practice affords the best vehicle to understand the meaning of Article XXI. In the few instances when invocation of the security exception has been challenged, State practice suggests that the security exception is not judicially reviewable.
A critical question emerges from this analysis of State practice. If a Member State can avoid WTO obligations through a self-judging security exception, what is to prevent bad faith invocations? The WTO regime includes a number of devices to address …
The Prisoners' Dilemma Posed By Free Trade Agreements: Can Open Access Provisions Provide An Escape?, Meredith Kolsky Lewis
The Prisoners' Dilemma Posed By Free Trade Agreements: Can Open Access Provisions Provide An Escape?, Meredith Kolsky Lewis
Journal Articles
This article explains why free trade agreements (FTAs) that are not compliant with the spirit of GATT Article XXIV’s requirement that such agreements cover “substantially all the trade” between the parties pose serious challenges for the multilateral trading system. It notes the paradoxical behavior of WTO members in continuing to negotiate such free trade agreements to the detriment of the WTO. It characterizes this paradox as a form of Prisoners’ Dilemma, in that although members would be better off pursuing trade liberalization via the WTO, their dominant strategy is to pursue FTAs. The article goes on to propose a pragmatic …
From Gats To Apec: The Impact Of Trade Agreements On Legal Services, Laurel S. Terry
From Gats To Apec: The Impact Of Trade Agreements On Legal Services, Laurel S. Terry
Journal Articles
This article provides a comprehensive overview of the treatment of legal services in the United States’ international trade agreements. Although many individuals are now familiar with the General Agreement on Trade in Services (GATS), far fewer realize that legal services are included in at least fifteen international trade agreements to which the United States is a party. This article begins by identifying those trade agreements and other developments including the 2009 Legal Services Initiative of the Asia Pacific Economic Cooperation (APEC). The article continues by explaining the structure of the GATS and comparing its provisions to the provisions found in …
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Journal Articles
Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …
Reflections On Us - Zeroing: A Study In Judicial Overreaching By The Wto Appellate Body, Roger P. Alford
Reflections On Us - Zeroing: A Study In Judicial Overreaching By The Wto Appellate Body, Roger P. Alford
Journal Articles
This essay is about the application of procedural approaches in the US-Zeroing case that serve to highlight potential problems with Appellate Body decision-making. Those problems go to central issues of judicial restraint, including concerns surrounding standards of review, appellate fact-finding, and notions of justiciability and ripeness. This essay will begin with an analysis of US-Zeroing's approach in applying the specialized standard of review under the Antidumping Agreement, arguing that it fails to adhere to the obligation of deference to permissible Member State interpretations of WTO antidumping obligations. It then examines the fact-finding procedures applied by the Appellate Body, which raise …