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2006

International Trade Law

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Full-Text Articles in Law

Charting Developments Concerning Punitive Damages: Is The Tide Changing?, John Y. Gotanda Nov 2006

Charting Developments Concerning Punitive Damages: Is The Tide Changing?, John Y. Gotanda

Working Paper Series

This essay discusses a number of developments outside of the United States concerning punitive damages, which may ultimately signal a change in the way other countries view American awards of such damages.

To date, courts in many countries have refused to recognize and enforce American punitive damages awards on the ground that they violate the host country’s public policy. In most civil law countries, such as France and Germany, penal damages can only be ordered in criminal proceedings; a civil award of such damages has been viewed as contrary to ordre public. In common law countries, while punitive damages ...


Procedural Issues In The Anti-Dumping Regulations Of China: A Critical Review Under The Wto Rules, Won-Mog Choi, Henry S. Gao Nov 2006

Procedural Issues In The Anti-Dumping Regulations Of China: A Critical Review Under The Wto Rules, Won-Mog Choi, Henry S. Gao

Research Collection School Of Law

Since the World Trade Organization (WTO) was established, China his made large-scale efforts to shape its trade remedy system through legal and organizational changes. Through these changes, China could clarify the meanings of WTO anti-dumping provisions including the provision relating to the definition of domestic industry. Moreover, procedural disciplines on reviews were fortified in Chinese anti-dumping system. While the overall improvements to the trade remedy system of China are evident, definitions of several key legal terms, including the concept of related producers, the negligible import standard, and adjustment factors for a fair comparison between normal values and export prices are ...


Book Review (Reviewing Petros C. Mavroidis & Alan O. Sykes, The Wto And International Trade Law: Dispute Settlement (2005)), Sungjoon Cho Sep 2006

Book Review (Reviewing Petros C. Mavroidis & Alan O. Sykes, The Wto And International Trade Law: Dispute Settlement (2005)), Sungjoon Cho

All Faculty Scholarship

Professors Petros Mavroidis and Alan Sykes have produced a dependable compendium on the WTO dispute settlement system. The book consists of six parts corresponding to six critical issues in the field; namely: (1) the function of the WTO dispute settlement system, (2) the standard of review, (3) remedies, (4) participation, (5) unilateral enforcement, and (6) governance. In each part, they carefully selected representative and informative articles which offer readers perspectives that are essential to comprehend this salient and discrete disciplinary area in the study of the WTO. Notwithstanding a few weaknesses, such as limited descriptions of the “dynamic” development of ...


Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda Jul 2006

Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda

Working Paper Series

In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent’s failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance.

Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant’s performance ...


Greed And Pride In International Bankruptcy: The Problems And Proposed Solutions To “Local Interests”, John A. E. Pottow Jul 2006

Greed And Pride In International Bankruptcy: The Problems And Proposed Solutions To “Local Interests”, John A. E. Pottow

Law & Economics Working Papers Archive: 2003-2009

From just-enacted (2005) chapter 15 of the U.S. Bankruptcy Code to the U.K. Enterprise Act of 2002, legislative reforms to international bankruptcy are on the rise. One of the thorniest issues facing scholars and policymakers alike in these efforts is what to do with the nettlesome problem of “local interests.” What exactly are these “local interests,” and what is it that we are we trying to protect? Literature to date has been elusive in pinning this down and has offered, for the most part, only undifferentiated anxiety that an international bankruptcy regime may impinge undesirably upon “local concerns ...


The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth Jul 2006

The Transatlantic Gmo Dispute Against The European Communities: Some Preliminary Thoughts, David A. Wirth

Boston College Law School Faculty Papers

Any day now, a World Trade Organization panel is expected to rule in a dispute between the U.S. and the EU concerning market access for genetically-engineered foods and crops. This piece, written before the release of the WTO panel's report, analyzes novel systemic issues concerning the impact of WTO law on regulatory design, at both the national and international levels, that are raised by this dispute. These include (1) the application of WTO disciplines to regulatory schemes that require prior governmental approval to protect the environment and public health from newly-introduced products and substances; (2) the role of ...


Moot Court Diplomacy, Mark R. Shulman Apr 2006

Moot Court Diplomacy, Mark R. Shulman

Pace Law Faculty Publications

No abstract provided.


No. 5 - International Trade Under The Rule Of Law: An American Society Of International Law Centennial Regional Meeting, Dencho Georgiev, Stephen Kho, Peter J. Spiro, Amy S. Dwyer, C. Donald Johnson, Raj Bhala, Eduardo Perez Motta, Gabriel M. Wilner, William J. Davey, Kim Van Der Borght, Nikolaos Zaimis, Daniel Bodansky, Charles Owen Verrill Jr., Marsha A. Echols, Donald M. Mcrae, Rebecca H. White Mar 2006

No. 5 - International Trade Under The Rule Of Law: An American Society Of International Law Centennial Regional Meeting, Dencho Georgiev, Stephen Kho, Peter J. Spiro, Amy S. Dwyer, C. Donald Johnson, Raj Bhala, Eduardo Perez Motta, Gabriel M. Wilner, William J. Davey, Kim Van Der Borght, Nikolaos Zaimis, Daniel Bodansky, Charles Owen Verrill Jr., Marsha A. Echols, Donald M. Mcrae, Rebecca H. White

Occasional Papers Series

Organized and sponsored by the Dean Rusk Center and designated an American Society of International Law Centennial Regional Meeting, this conference focused on the Dispute Settlement System (DSS) of the World Trade Organization (WTO) with a view toward discussing the need for a superstructure of international law governing trade and economic cooperation between states.


Defragmenting World Trade, Sungjoon Cho Feb 2006

Defragmenting World Trade, Sungjoon Cho

All Faculty Scholarship

This article argues that unchecked multiplication of regional trading blocs seriously fragments world trade, and simultaneously debilitates the multilateral trading system. It endeavors to overcome some of shortcomings of existing literature in this field, such as sector-specific approach and concentration on economic analysis. It attempts to offer holistic, normative diagnosis and prescription anchored by the trade, regulatory, and development objective of the global trading system represented by the WTO. From such a telic standpoint, the article highlights teleological failures caused by regionalist fragmentation and proposes both institutional and judicial means to defragment world trade. The article warns that such regionalist ...


Wto’S Identity Crisis (Reviewing Joost Pauwelyn, Conflict Of Norms In Public International Law: How Wto Law Relates To Other Rules Of International Law (2003)), Sungjoon Cho Feb 2006

Wto’S Identity Crisis (Reviewing Joost Pauwelyn, Conflict Of Norms In Public International Law: How Wto Law Relates To Other Rules Of International Law (2003)), Sungjoon Cho

All Faculty Scholarship

Joost Pauwelyn has written an extensive and thought-provoking treatise on the interaction of norms in public international law (PIL), in particular between norms of World Trade Organization (WTO) and non-WTO norms, through a conceptual lens of “conflict.” His main argument is non-WTO norms should be able to “trump” WTO norms under certain circumstances. After framing the concept of norm conflict in PIL (Chapter 1), and defining the nature of WTO law (“reciprocal” obligations) vis-à-vis that of other branches of PIL such as human rights and international environmental law (“integral” obligations) (Chapter 2), the book unfolds its conflict thesis, including hierarchy ...


Labor Provisions From Nafta To Cafta: Standards That Work, Or A Work In Progress?, Michael O'Donovan Jan 2006

Labor Provisions From Nafta To Cafta: Standards That Work, Or A Work In Progress?, Michael O'Donovan

Law and Justice in the Americas Working Paper Series

The emerging U.S. approach linking free trade to domestic labor protections is a practical framework on which to base substantive and procedural rights. Nevertheless, much more can be done in future agreements to improve these safeguards for workers in a way that will maximize the gains from trade and reduce the most harmful effects of development. In order to improve future agreements, the U.S. should expand access to consultations within the dispute resolution mechanism, focus complaints on core rights such as organization and bargaining, encourage the development of small independent unions in corporatist cultures, and incorporate the ILO ...


Deconstructing The Mythology Of Free Trade: Critical Reflections On Comparative Advantage, Carmen Gonzalez Jan 2006

Deconstructing The Mythology Of Free Trade: Critical Reflections On Comparative Advantage, Carmen Gonzalez

Faculty Scholarship

The theory of comparative advantage serves as the theoretical justification for the neoliberal economic reforms promoted by the International Monetary Fund, the World Bank, and multilateral and regional free trade agreements. This article employs insights from both neoclassical and heterodox economics in order to critique the theory of comparative advantage as applied to the agricultural sector. In particular, the article takes aim at the illusory notion that eliminating distortions in international agricultural trade caused by the lavish agricultural subsidies of wealthy nations will be sufficient to “level the playing field” and promote prosperity in both developed and developing countries. The ...


Wto Obligations As Collective, Chios Carmody Jan 2006

Wto Obligations As Collective, Chios Carmody

Law Publications

One view of obligations under the WTO Agreement is that they are bilateral, that is, they involve legal obligations between two countries. This is premised on the idea that the object of WTO obligations is 'trade'. According to this view, the WTO Agreement can be considered a 'bundle of bilateral relations' and WTO obligations should be analysed pursuant to rules concerning bilateral obligations under the Vienna Convention on the Law of Treaties and the Articles on State Responsibility. This article takes a different position. It posits that WTO obligations are more appropriately regarded as collective because their principal object is ...


Markets, Monocultures, And Malnutrition: Agricultural Trade Policy Through An Environmental Justice Lens, Carmen Gonzalez Jan 2006

Markets, Monocultures, And Malnutrition: Agricultural Trade Policy Through An Environmental Justice Lens, Carmen Gonzalez

Faculty Scholarship

Much of the literature on environmental justice struggles in the United States and in the Global South has highlighted the disproportionate concentration of environmental hazards in poor communities and communities of color. However, it is equally important to evaluate how human societies distribute access to environmental necessities, such as food and water. Food is a quintessential environmental necessity that is critical human survival, and the right to food is recognized under a variety of international human rights law instruments. This article examines the complex ways in which the rules governing international trade in agricultural products affect the fundamental human right ...


Balancing Regulations And Incentives For Foreign Direct Investment: A Case Study Of Mexico And Kazakhstan, Dauren B. Tynybekov Jan 2006

Balancing Regulations And Incentives For Foreign Direct Investment: A Case Study Of Mexico And Kazakhstan, Dauren B. Tynybekov

LLM Theses and Essays

Foreign Direct Investment (FDI) has a global character. As globalization grows, foreign direct investment grows. This research analyses the relationship between foreign direct investment and developing countries. The main contributors to foreign direct investment are multinational corporations and this research will show the impact of this kind of investment on the economy of developing countries. The research will show the way the developing countries try to benefit from FDI in order to complement their economic growth. This thesis will analyze the incentives and regulations the developing countries use to attract FDI and what needs to be done to make this ...


A Comparative Study On The Trade Barriers Regulation And Foreign Trade Barriers Investigation Rules, Junrong Song Jan 2006

A Comparative Study On The Trade Barriers Regulation And Foreign Trade Barriers Investigation Rules, Junrong Song

LLM Theses and Essays

The Trade Barriers Regulation and Foreign Trade Barriers Investigation Rules are enacted in the European Union and China respectively. Both of them establish a procedure for the private sector to petition the government to challenge foreign trade barriers. Through the comparative study on the two pieces of law, this paper intends to dig out the similarities and differences between them and develop some suggestions for the improvement of them.


Making Visible The Invisible: Strategies For Responding To Globalization's Impact On Immigrant Workers In The United States, Sarah Paoletti Jan 2006

Making Visible The Invisible: Strategies For Responding To Globalization's Impact On Immigrant Workers In The United States, Sarah Paoletti

Faculty Scholarship at Penn Law

No abstract provided.


Trade Special Issue: Foreword, Meredith Kolsky Lewis Jan 2006

Trade Special Issue: Foreword, Meredith Kolsky Lewis

Journal Articles

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 ...


Transparency In International Commercial Arbitration, Catherine A. Rogers Jan 2006

Transparency In International Commercial Arbitration, Catherine A. Rogers

Journal Articles

Scholars have long been making the case for expanding transparency in the international commercial arbitration system, but recently these proposals have taken on a greater sense of urgency and an apparent willingness to forcibly impose transparency reforms on unwilling parties. These new transparency advocates exhort the general public's stakehold in many issues being arbitrated, which they contend necessitates transparency reforms, including compulsory publication of international commercial arbitration awards.

In this symposium essay, I begin by developing a definition of transparency in the adjucatory setting, and conceptually distinguishing from other concepts, like "public access" and "disclosure," which are often improperly ...


The Paradox Of Excluding Wto Direct And Indirect Effect In U.S. Law, John J. Barceló Iii Jan 2006

The Paradox Of Excluding Wto Direct And Indirect Effect In U.S. Law, John J. Barceló Iii

Cornell Law Faculty Publications

No abstract provided.


Review Of The World Trade Organization: Law, Practice And Policy, Frank J. Garcia Jan 2006

Review Of The World Trade Organization: Law, Practice And Policy, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


Why Trade Law Needs A Theory Of Justice, Frank J. Garcia Jan 2006

Why Trade Law Needs A Theory Of Justice, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


Just Trade Under Law: Do We Need A Theory Of Justice For International Trade Relations?, Frank J. Garcia Jan 2006

Just Trade Under Law: Do We Need A Theory Of Justice For International Trade Relations?, Frank J. Garcia

Boston College Law School Faculty Papers

No abstract provided.


Investor-State Dispute Settlement Between Developed Countries: Reflections On The Australia-United States Free Trade Agreement, William S. Dodge Jan 2006

Investor-State Dispute Settlement Between Developed Countries: Reflections On The Australia-United States Free Trade Agreement, William S. Dodge

Faculty Scholarship

No abstract provided.


Gender Mainstreaming In International Trade: Catalyst For Economic Development And Political Stability, Constance Z. Wagner Jan 2006

Gender Mainstreaming In International Trade: Catalyst For Economic Development And Political Stability, Constance Z. Wagner

All Faculty Scholarship

This paper examines the role of gender mainstreaming in international trade policy and law upon the tenth anniversary of the Beijing Declaration and Platform for Action (“Beijing Declaration”) and the World Trade Organization (“WTO”). The author notes that these two topics have not been successfully integrated but will need to be if globalization is to proceed in a meaningful, positive way. After tracing the historical development of gender mainstreaming at the international level through the Beijing Declaration, the author outlines the manner in which various intergovernmental organizations within the United Nations system have implemented its mandate. However, gender mainstreaming is ...


The 2005 Trips Extension For The Least-Developed Countries: A Failure Of The Single Undertaking Approach?, Kevin C. Kennedy Jan 2006

The 2005 Trips Extension For The Least-Developed Countries: A Failure Of The Single Undertaking Approach?, Kevin C. Kennedy

Faculty Publications

No abstract provided.


Trade And Foreign Investment In The Americas: The Impact On Indigenous Peoples And The Environment, Kevin C. Kennedy Jan 2006

Trade And Foreign Investment In The Americas: The Impact On Indigenous Peoples And The Environment, Kevin C. Kennedy

Faculty Publications

No abstract provided.


Offshore Outsourcing And Worker Rights, Theodore J. St. Antoine Jan 2006

Offshore Outsourcing And Worker Rights, Theodore J. St. Antoine

Articles

For the workers in the Rust Belt of the United States, concentrated in Southern New England, Western New York State, Pennsylvania, Ohio, Michigan, Indiana, and Illinois, it doesn't make much difference whether their jobs are outsourced or lost to North Carolina or Mexico or China. In any event the sources of income that have existed for generations are gone and the economic and psychic pains are much the same. Nonetheless, for purposes of national policy it plainly matters whether the work is moving to another part of the country or is leaving the United States entirely. I am going ...


Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas Jan 2006

Comparative Study Of The Formation Of Electronic Contracts In American Law With References To International Law, Roberto Rosas

Faculty Articles

An understanding of the basic principles that regulate contract formation is of great importance when deciphering the most appropriate ways of fom1ing a new contract or when assessing the legality of an already existing contract. While the basic rules of contract formation are generally applicable to all types of contracts regardless of the method utilized in their creation, there are some juridical rules that apply specifically to electronically created contracts.