Law Commons^™

China Data Flows And Power In The Era Of Chinese Big Tech, W. Gregory Voss, Emmanuel Pernot-Leplay

Northwestern Journal of International Law & Business

Personal data have great economic interest today and their possession and control are the object of geopolitics, leading to their regulation by means that vary dependent on the strategic objectives of the jurisdiction considered. This study fills a gap in the literature in this area by analyzing holistically the regulation of personal data flows both into and from China, the world’s second largest economy. In doing so, it focuses on laws and regulations of three major power blocs: the United States, the European Union, and China, seen within the framework of geopolitics, and considering the rise of Chinese big tech. …

Non-State Actors For Profit: Revisiting Transnational Corporations' Personhood And Responsibility Under International Law, Katayoon Beshkardana, Faraz Shahlaei

Northwestern Journal of International Law & Business

The growing impact of Transnational Corporations (TCs) on international trade, investment, and human rights raises the question of international corporate responsibility. For international responsibility, TCs must be recognized as subjects of international law with legal personality. Apart from states as the primary subjects of international law, such status has been granted to inter-governmental organizations (IGOs). The factors that contributed to the IGOs’ recognition as international law subjects seem to be present for TCs today. While the International Court of Justice granted such legal status to IGOs, for TCs, the best path to recognition would be to establish a global authority …

I Want A New (Generic) Drug: A Comparative Case For Shifting U.S. Generic Drug Policies To Increase Availability And Lower Healthcare Costs, Immer S. Chriswell

Northwestern Journal of International Law & Business

Enacted in 1984, Hatch-Waxman was intended to increase generic drug availability and make critical healthcare more affordable for Americans. In the nearly forty years following, while it has increased availability of drugs, it has also allowed drug originators to create avenues to profit in ways not intended when the original compromise was struck, undermining its success. Moreover, given a weak antitrust standard against reverse settlement payments proscribed in Actavis, the U.S. faces a dilemma to further improve access to generic medications in the future. The E.U.’s approach to generic drugs, while presently geographically fragmented, is simpler and has a clear …

The Effect Of The Pro Act On Secondary Activity And International Trade, Christopher R. Rodenbaugh

Northwestern Journal of International Law & Business

No abstract provided.

Live And Let Liv?: The Case Against Antitrust Alarm And The Multi-Tour Future Of Professional Golf, Reed Silverman

Northwestern Journal of International Law & Business

No abstract provided.

Enforcement Penalties At The Itc, Andrea R. Hugill, John C. Jarosz, Katherine D. Cappaert

Northwestern Journal of International Law & Business

The U.S. International Trade Commission (“ITC” or “Commission”) has grown in importance as a venue for U.S. companies to pursue intellectual property (“IP”) violators and to block the sale or importation of goods from overseas that infringe U.S. IP rights. Once a violation of the Section 337 of the Tariff Act of 1930 is found, an order halting further infringement, including importation, is almost always entered. In theory, potentially sizeable penalties may be imposed on entities that do not comply with the terms of an import restriction. In practice, the terms of an import restriction are almost always honored, but …

Friendly Skies, Unfriendly Terms: Class Action Waivers And Force Majeure Clauses In Airline Contracts Of Carriage, Grant Glazebrook

Northwestern Journal of International Law & Business

The airline contract of carriage. These unassuming bits of language govern the relationship between passengers and their airlines. Over the past three years, a new term has sprouted in these agreements: the class action waiver. Before March 2020, only two of the ten largest United States-based airlines’ contracts of carriage had class action waivers. But as of April 2023, eight now have class action waivers. Why have airlines quickly adopted these copycat terms? What are the implications of this new contractual trend for flyers, airlines, and regulators? This note aims to contribute to the scholarship around these questions in three …

Submission Of Amici Briefs In Arbitration Related To Environmental Concerns: Developing A Better Framework For Their Consideration Under Icsid Rule 37(2), Clarissa Galaviz Lizarraga

Northwestern Journal of International Law & Business

This note examines the consideration of amicus curiae briefs in international arbitration matters under the International Centre for Settlement of Investment Disputes (“ICSID”), specifically focusing on arbitration cases involving environmental concerns. The note explores trends in consideration of amicus briefs in environmental arbitration by taking a historical look at cases and the rationales behind the decisions of the tribunals to consider amicus briefs and raises concerns regarding a better, uniform approach to amicus briefs.

To achieve a better system of consideration of amicus briefs when environmental concerns are at play, given their public and ecologic interest, the author suggests reworking …

Disciplining Cbdcs: Achieving The Balance Between Privacy Protection And Central Bank Independence, Cheng-Yun Tsang, Yueh-Ping Yang, Ping-Kuei Chen

Northwestern Journal of International Law & Business

Central bank digital currency (“CBDC”) is a crucial FinTech development that aspires to overhaul the current payment system. In the wake of the COVID-19 pandemic, CBDCs’ promises to reduce personal contact, facilitate socially desirable use of money, and initiate more targeted monetary measures have increased their popularity. In addition, CBDCs can potentially serve as a tool to internationalize a sovereign’s currency. World central banks, thus, have gradually formulated a consensus on structuring CBDCs, leaving the regulatory aspects of CBDCs deserving more attention. Among the regulatory issues related to CBDCs, observers often mentioned their association with privacy concerns, but comprehensive studies …

Leveling The Playing Field: How To Get International Student-Athletes Paid Under Name, Image And Likeness, Justin Auh

Northwestern Journal of International Law & Business

No abstract provided.

Trends In China-Africa Economic Relations And Dispute Settlement, Won Kidane

Northwestern Journal of International Law & Business

The rapid rise in the last two decades of China-Africa economic interactions in trade, investment, construction projects, and loans require sustained inquiry into the substantive rules of engagement and mechanisms of dispute settlement. Evidently, however, it would quickly emerge that the improvements in supranational legal frameworks have not kept pace with the growing scale and complexity of the economic interactions. While trade relations between China and Africa are theoretically subject to the same multilateral World Trade Organization (WTO) rules, they are in practice mostly based on informal unilateral concessions. Moreover, investment relations are partially governed by fragmented and mostly outdated …

Monitoring Sanctions Compliance At Sea, Richard L. Kilpatrick Jr.

Northwestern Journal of International Law & Business

No abstract provided.

What Remains Of The Alien Tort Statute After Nestlé Usa, Inc. V. Doe?, Clara Petch

Northwestern Journal of International Law & Business

Abstract

The Alien Tort Statute (ATS), which provides U.S. courts with jurisdiction over violations of the law of nations, has been a crucial mechanism for obtaining redress for international human rights abuses. However, over the past four decades, the Supreme Court has continually chipped away at the jurisdictional reach of the statute. Most recently, in June 2021, the Supreme Court addressed the scope of the ATS in two consolidated cases: Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe. Plaintiffs were former trafficked and enslaved children forced to work on cocoa farms in Ivory Coast under grueling conditions. Plaintiffs …

Unraveling The Longstanding Riddle About The Doctrine Of Legitimate Expectation Under International Investment Law: Ascertaining Legal Tests For The Customary International Law’S Minimum Standard Of Treatment, Haneul Jung, Nu Ri Jung

Northwestern Journal of International Law & Business

In 2018, the ICJ rendered a judgment in Bolivia v. Chile that effectively denied the status of the doctrine of legitimate expectation as a customary international law. The ICJ’s judgment came as a surprise to many in the international arbitration community because a whole host of international tribunals established under various investment treaties have found that this doctrine, as well as the broader principle of “fair and equitable treatment,” has effectively attained the status as the “minimum standard of treatment” under customary international law. Given the lack of elaborated reasoning, however, the ICJ’s ruling fails to resolve the recurring debate …

The Doha Declaration At Twenty: Interpretation, Implementation, And Lessons Learned On The Relationship Between The Trips Agreement And Global Health, Eric M. Solovy

Northwestern Journal of International Law & Business

No abstract provided.

Private Equity And Venture Capital In Germany: How Europe’S Heartland Is Poised To Become The Next Bay Area, Jake Besanceney

Northwestern Journal of International Law & Business

Abstract

This note examines the current state of private equity and venture capital activity and investment in Germany, and specifically in Berlin, in relation to the state of such activity and investment that existed in the San Francisco Bay Area prior to and following its tech explosion in the late twentieth century. Numerous factors such as political and ethnic diversity, a comparatively lower cost of living, and proximity to higher education institutes are propelling Berlin’s startup and tech scenes, and are eerily reminiscent of similar factors that fueled the Bay Area’s growth and attracted private equity and venture capital activity …

Esg Ratings: A Blind Spot For U.S. Securities Regulation, Alexander Coley

Northwestern Journal of International Law & Business

Providers of “Environmental, Social, and Governance” (ESG) ratings have emerged as prominent informational intermediaries in the sustainable finance ecosystem. The key players are familiar names such as Moody’s, Morningstar, MSCI and S&P. In recent years, investors, financial markets observers and academics have raised serious doubts about the value and integrity of ESG ratings, pointing to lack of reliability and comparability and risks of conflicts of interest and abuse, including the potential for “greenwashing.”

ESG ratings are now in the crosshairs of financial regulators, particularly, in Europe. However, the regulatory discourse has failed to contend with risks arising from the use …

Protection Of Test Data Under Article 39.3 Of The Trips Agreement: Advancements And Challenges After 25+ Years Of Interpretation And Application, Eric M. Solovy

Northwestern Journal of International Law & Business

Among the types of intellectual property rights covered by the TRIPS Agreement, WTO Members must, pursuant to Article 39.3, protect certain test and other data submitted “as a condition of approving the marketing of pharmaceutical or of agricultural chemical products.” Such protection provides the incentives necessary for the biopharmaceutical industry to conduct the lengthy, expensive multi-phased clinical testing that is required to demonstrate the safety and effectiveness of a new drug or vaccine.

Test data protection has become increasingly more important to the development of new medicines in the past several years. That is in significant part because biologics (i.e., …

An Innovative Framework: Evaluating The New German Business Stabilization And Restructuring Law (Starug), Andreas Rauch

Northwestern Journal of International Law & Business

This comment examines the restructuring framework, restrukturierungsgesetz (“StaRUG”), and argues that this new law represents an effective—albeit radical—departure from Germany’s previous, conservative insolvency regime. Passed in response to a 2019 EU Directive aimed at modernizing restructuring law Union-wide, and integrated into the German legal system against the backdrop of the COVID-19 pandemic, StaRUG and its ancillary reforms in other areas of German law create a restructuring proceeding that places a premium on a debtor’s continued business operations. Thus, in a striking shift from the traditional German approach to business distress, which strongly emphasized creditor rights, the new StaRUG focuses on …

The Disaster Chain: Counter-Mapping Global Value Chains, Peer Zumbansen

Northwestern Journal of International Law & Business

Abstract: Prevailing accounts by consultancies and logistics scholars present global value chains [GVCs] as an expression of contemporary international economic integration and connectivity. As such, they are considered crucial to the pursuit of economic growth and prosperity. At the same time, GVCs are deemed susceptible to “disruptions” through natural catastrophes, restrictive trade policies or pandemics. Left out of the standard narratives, even in light of the experience of the global Coronavirus pandemic, is the actual, as such disruptive impact of global value chain capitalism on human and natural lives. Dominant depictions of global value chain governance treat labor, environment and …

Clarity About Comity: How Courts Have Attempted Greater Guidance For Chapter 15 Litigants, Sabrina Lieberman

Northwestern Journal of International Law & Business

Abstract

This note explores the development of courts’ refusal to extend comity to foreign representatives who have filed a proceeding under chapter 15 of the U.S. Bankruptcy Code. Congress adopted chapter 15 as part of a comprehensive 2005 bankruptcy reform. It allows foreign entities to receive protection under the U.S. Bankruptcy Code. In most cases, foreign representatives who file a chapter 15 proceeding are involved with ancillary insolvency proceedings outside the United States. There is often a question of how or if a U.S. court overseeing the chapter 15 proceeding will defer to a judgment or process within the foreign …

Married To Sustainability: The Sdg Wedding Cake Framework As A Tool For Strategic Corporate Social Responsibility, Jacob Aubrecht

Northwestern Journal of International Law & Business

If anything can be said about the future, it is that nothing is certain. In this acceleratingly dynamic reality, stability and certainty are among the greatest assets a leader can have. The opportunity to secure long term stability is something that few would pass up. Broadly speaking, corporate leaders must be acutely aware of global market forces, government regulation, and their own power in the marketplace to create cogent predictions about the future.

This paper is designed for the burgeoning corporate leader that is looking to craft their strategic position on corporate social responsibility (CSR), or the savvy one looking …

Winter Is Here: The Impossibility Of Schrems Ii For U.S.-Based Direct-To-Consumer Companies, Vanessa Zimmer

Northwestern Journal of International Law & Business

In this paper, Vanessa Zimmer exposes the precarious position of Direct-to-Consumer (DTC) companies that are physically located in the United States but still subject to the European General Data Protection Regulation (GDPR) under Article 3(2) because they offer goods or services to European consumers online. Standard Contractual Clauses (SCCs) and supplementary measures have dominated privacy conversions in the year since the European Court of Justice invalidated the EU-U.S. Privacy Shield framework with its Schrems II decision.

However, Zimmer argues that the greater issue for U.S.-based DTC companies is the lack of clarity over what constitutes an international, or restricted, transfer …

Offshore Wind Development In The Great Lakes: Accessing Untapped Energy Potential Through International And Interstate Agreement To Overcome Public Trust Concerns, Jordan Farrell

Northwestern Journal of International Law & Business

Offshore wind energy development in the Great Lakes presents an immense opportunity for distributed generation of renewable energy; however, this potential has thus far remained untapped. One significant barrier to why there has not yet been such wind energy development in the Great Lakes is the public trust doctrine. This doctrine generally stands for the principle that a state cannot convey its submerged lands to a private party. However, there remains much legal uncertainty with regards to the doctrine. Courts and scholars have struggled to determine with any certainty the origins and grounding of the doctrine and the limits it …

This Must Be Our Place: Protectionism And Foreign Investment In Kazakhstan’S Farmland, Kristi Lew

Northwestern Journal of International Law & Business

No abstract provided.

Bridging Separate Worlds— Application Of Human Rights Law In Investment Treaty Arbitration, Raymond Yang Gao

Northwestern Journal of International Law & Business

With the proliferation of investor-state treaty arbitration, international investment law has been increasingly caught in a “legitimacy” crisis, with concerns looming large over resultant disruptive effects on human rights. Amid existing scholarship seeking to recalibrate the balance between investment protection and public interests, what is relatively undertheorized is a public international law dimension. In this regard, this Article explores the role of human rights law in integrating human rights considerations into investment tribunals’ decision-making, bridging the normative divide between international investment law and human rights. It makes three contributions. First, it systemizes the normative tensions and potential conflicts between international …

Forget Bit: The Impact Of Rta On Fdi And Economic Growth – A Comparison Of Brazil And Mexico, Rosa Meguerian-Faria

Northwestern Journal of International Law & Business

This article explores the relationship between international trade law, foreign direct investment (FDI), and economic growth of developing countries. Here, I argue that a developing state needs to capture the right combination of the different types of FDI to promote domestic growth. I apply principles of law, economics, and finance to my analysis of the importance of Bilateral Investment Treaties (BITs), compared to Regional Trade Agreements (RTAs) to FDI inflow, and how it can impact economic growth in developing countries. I show that the RTAs give a signal that the country is open to foreign investment, and therefore it promotes …

Self-Regulation In The Derivatives Markets: Stability Through Collaboration, Heath P. Tarbert

Northwestern Journal of International Law & Business

Sound financial regulation does not require choosing between governmental and private action. Instead, optimal regulatory solutions often blend the expertise and adaptability of private-sector influence with the stabilizing effects of federal oversight. This collaborative framework has a rich history in U.S. derivatives regulation, which has long relied on self-regulatory organizations (“SROs”) like exchanges, clearinghouses, and the National Futures Association to help promote market stability and customer protection. SROs remain subject to oversight by the Commodity Futures Trading Commission (“CFTC”), which guards against the proverbial fox-in-the-henhouse scenario while advancing quintessential government functions like mitigating systemic risk.

The advantages of this self-regulatory …

Send The Word Over There: An Offshore Solution To The Right To Be Forgotten, Jay Kaganoff

Northwestern Journal of International Law & Business

The right to be forgotten is a subject of contention in both the United States and the European Union. In the E.U., the right to be forgotten gives one the right to demand that information—even if published legitimately—be taken down or removed from search engine results. While well-intentioned, this has led to concerns of free press restrictions. In contrast, the right to be forgotten is not recognized in the U.S., although there are scholars who would like to see such a right here. This Note takes the view that introducing a right to be forgotten would be contrary to the …

Between Backlash And The Re-Emerging “Calvo Doctrine”: Investor-State Dispute Settlement In An Era Of Socialism, Protectionism, And Nationalism, Ylli Dautaj

Northwestern Journal of International Law & Business

The Investor-State Dispute Settlement (ISDS) regime stands on shaky ground. Its legitimacy is heavily questioned by critics and a “backlash debate” has ensued. As a result, a contested and infected debate has been on-going for some years now and multiple reform proposals have been offered, ranging from (a) moderate (and sensible) reform proposals—e.g., increased transparency; the inclusion of state counterclaims; the inclusion of higher ethical standards; reformulating deference standards; applying human rights and environmental law when interpreting international investment treaties; etc.—to more (b) radical reform proposals—e.g., the elaboration of either an Appellate System or an Investment Court System (ICS). Such …