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Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste Jan 2020

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This paper presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing ...


Floors And Ceilings In International Copyright Treaties (Berne/Trips/Wct Minima And Maxima), Jane C. Ginsburg Jan 2020

Floors And Ceilings In International Copyright Treaties (Berne/Trips/Wct Minima And Maxima), Jane C. Ginsburg

Faculty Scholarship

This Comment addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by the TRIPS ...


Cyberattacks And The Constitution, Matthew C. Waxman Jan 2020

Cyberattacks And The Constitution, Matthew C. Waxman

Faculty Scholarship

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.


Innovation Versus Encrustation: Agency Costs In Contract Reproduction, Stephen J. Choi, Mitu Gulati, Robert E. Scott Jan 2020

Innovation Versus Encrustation: Agency Costs In Contract Reproduction, Stephen J. Choi, Mitu Gulati, Robert E. Scott

Faculty Scholarship

This article studies the impact of exogenous legal change on whether and how lawyers across four different deal types revise their contracts’ governing law clauses in order to solve the problem that the legal change created. The governing law clause is present in practically every contract across a wide range of industries and, in particular, it appears in deals as disparate as private equity M&A transactions and sovereign bond issuances. Properly drafted, the clause increases the ex ante economic value of the contract to both parties by reducing uncertainty and litigation risk. We posit that different levels of agency ...


War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman Jan 2020

War Powers: Congress, The President, And The Courts – A Model Casebook Section, Stephen M. Griffin, Matthew C. Waxman

Faculty Scholarship

This model casebook section is concerned with the constitutional law of war powers as developed by the executive and legislative branches, with a limited look at relevant statutes and federal court cases. It is intended for use in Constitutional Law I classes that cover separation of powers. It could also be used for courses in National Security Law or Foreign Relations Law, or for graduate courses in U.S. foreign policy. This is designed to be the reading for one to two classes, and it can supplement or replace standard casebook sections on war powers that are shorter and offer ...


Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis Jan 2020

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A ...


Some Issues On The Law Of Direct Damages (Us And Uk), Victor P. Goldberg Jan 2019

Some Issues On The Law Of Direct Damages (Us And Uk), Victor P. Goldberg

Faculty Scholarship

When a contract is breached both US and UK law provide that the non-breaching party should be made whole. I propose a general principle that should guide implementation – the contract is an asset and the problem is one of determining the change in value of that asset at the time of the breach. In the simplest case, the breach of a contract for the sale of a commodity in a thick market, the change in the value of the asset is simply the contract-market differential; the contract-as-asset notion doesn’t add much. It becomes more useful as we move away ...


Unintended Agency Problems: How International Bureaucracies Are Built And Empowered, Anu Bradford, Stavros Gadinis, Katerina Linos Jan 2018

Unintended Agency Problems: How International Bureaucracies Are Built And Empowered, Anu Bradford, Stavros Gadinis, Katerina Linos

Faculty Scholarship

The ground underneath the entire liberal international order is rapidly shifting. Institutions as diverse as the European Union, International Monetary Fund, United Nations, and World Trade Organization are under major threat. These institutions reflect decades of political investments in a world order where institutionalized cooperation was considered an essential cornerstone for peace and prosperity. Going beyond the politics of the day, this Article argues that the seeds of today’s discontent with the international order were in fact sown back when these institutions were first created. We show how states initially design international institutions with features that later haunt them ...


The Caroline Affair In The Evolving International Law Of Self-Defense, Matthew C. Waxman Jan 2018

The Caroline Affair In The Evolving International Law Of Self-Defense, Matthew C. Waxman

Faculty Scholarship

The "Caroline" incident – an 1837 raid by British Canadian militia across the Niagara River border to sink an American steamboat being used by Canadian insurgents – is well-known to many international lawyers. United States Secretary of State Daniel Webster’s resulting correspondence with British representative Lord Ashburton is often cited today as a key authority on customary international self-defense standards. University of Ottawa professor Craig Forcese has produced a valuable new history and analysis of that event, its legal context, and its continuing influence: "Destroying the Caroline: The Frontier Raid that Reshaped the Right to War." As explained in this review ...


All Quiet In The Western (European Football) Front: Regulation Of Football In The European Continent, Petros C. Mavroidis Jan 2018

All Quiet In The Western (European Football) Front: Regulation Of Football In The European Continent, Petros C. Mavroidis

Faculty Scholarship

Regulation of football in Europe is, absent some piecemeal interventions (like sharing of TV rights) largely non-existent. This is the case, because the de facto regulator (UEFA, Union Européenne of Football Associations) has no mandate to comprehensively address on its own competitive balance, the focal point of football, and, in more general terms, sports regulation. Various aspects of competitive balance are part and parcel of antitrust law. European Union (EU) law thus, comes into the frame, since this is the body of law regulating antitrust in the European continent. The European Union, nevertheless, has no mandate to regulate football comprehensively ...


Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman Jan 2017

Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman

Faculty Scholarship

Important international law questions for formulating cyber strategy and policy include whether and when a cyber-attack amounts to an “act of war,” or, more precisely, an “armed attack” triggering a right of self-defense, and how the international legal principle of “sovereignty” could apply to cyber activities. International law in this area is not settled. There is, however, ample room within existing international law to support a strong cyber strategy, including a powerful deterrent. The answers to many international law questions discussed below depend on specific, case-by-case facts, and are likely to be highly contested for a long time to come ...


Debating Autonomous Weapon Systems, Their Ethics, And Their Regulation Under International Law, Kenneth Anderson, Matthew C. Waxman Jan 2017

Debating Autonomous Weapon Systems, Their Ethics, And Their Regulation Under International Law, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

An international public debate over the law and ethics of autonomous weapon systems (AWS) has been underway since 2012, with those urging legal regulation of AWS under existing principles and requirements of the international law of armed conflict, on the one side, in argument with opponents who favor, instead, a preemptive international treaty ban on all such weapons, on the other. This Chapter provides an introduction to this international debate, offering the main arguments on each side. These include disputes over defining an AWS, the morality and law of automated targeting and target selection by machine, and the interaction of ...


Trade Agreements, Regulatory Sovereignty And Democratic Legitimacy, Bernard Hoekman, Charles F. Sabel Jan 2017

Trade Agreements, Regulatory Sovereignty And Democratic Legitimacy, Bernard Hoekman, Charles F. Sabel

Faculty Scholarship

Governments increasingly are seeking to use bilateral and regional trade agreements to reduce the cost-increasing effects of differences in product market regulation. They also pursue regulatory cooperation independent of trade agreements. It is important to understand what is being done through bilateral or plurilateral mechanisms to address regulatory differences, and to identify what, if any, role trade agreements can play in supporting international regulatory cooperation. This paper reflects on experience to date in regulatory cooperation and the provisions of recent trade agreements involving advanced economies that have included regulatory cooperation. We argue for a re-thinking by trade officials of the ...


How Should The E.U. Respond To Brexit And Trump?: The Lessons From Trade Wars, John C. Coffee Jr. Jan 2017

How Should The E.U. Respond To Brexit And Trump?: The Lessons From Trade Wars, John C. Coffee Jr.

Faculty Scholarship

The U.K.’s decision to exit the E.U. (popularly known as “Brexit”) sets the stage for a potential retaliatory trade war. Similarly, the aggressive nationalism of U.S. President Donald Trump does also. In both cases, game theory suggests how such a conflict might be resolved. This paper first examines three standard game theory models – the Chicken Game, the Prisoner’s Dilemma, and the Stag-Hunt Game – and then turns to the strong incentives for rent-seeking by special interests and considers how rent-seeking likely affects how these games might play out. Although the conventional wisdom expects that the U ...


Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo Jan 2017

Liability For Providing Hyperlinks To Copyright-Infringing Content: International And Comparative Law Perspectives, Jane C. Ginsburg, Luke Ali Budiardjo

Faculty Scholarship

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to ...


Promoting International Cybersecurity Cooperation: Lessons From The Proliferation Security Initiative (Psi), Duncan B. Hollis, Matthew C. Waxman Jan 2017

Promoting International Cybersecurity Cooperation: Lessons From The Proliferation Security Initiative (Psi), Duncan B. Hollis, Matthew C. Waxman

Faculty Scholarship

Global efforts by states to cooperate through international rules in combating cyber threats have generated mixed results, at best. In this paper, we examine the architecture of the Proliferation Security Initiative (PSI) as a possible model for future cybersecurity cooperation among interested states. We identify several features of PSI's architecture (rather than its substantive focus on non-proliferation) for further analysis, including PSI's low entry costs, tiered structure, and flexibility, as well as its leveraging of both territorial jurisdiction and state consent. We conclude that, despite several hurdles visible in the scope of its membership and its legal framework ...


Extended Collective Licenses In International Treaty Perspective: Issues And Statutory Implementation, Jane C. Ginsburg Jan 2017

Extended Collective Licenses In International Treaty Perspective: Issues And Statutory Implementation, Jane C. Ginsburg

Faculty Scholarship

National legislation establishing extended collective licenses (ECLs) “authoriz[es] a collective organization to license all works within a category, such as literary works, for particular, limited uses, regardless of whether copyright owners belong to the organization or not. The collective then negotiates agreements with user groups, and the terms of those agreements are binding upon all copyright owners by operation of law.” Albeit authorized under national laws, collective coverage of non-members’ works may pose issues of compatibility with international norms. For example, if non-members must opt-out in order to preserve the individual management of their rights, is the opt-out a ...


A "Barbarous Relic": The French, Gold, And The Demise Of Bretton Woods, Michael J. Graetz, Olivia Briffault Jan 2016

A "Barbarous Relic": The French, Gold, And The Demise Of Bretton Woods, Michael J. Graetz, Olivia Briffault

Faculty Scholarship

Since the time of the French Revolution, when a gold standard saved the nation from hyperinflation, France has wanted gold to be the linchpin of international monetary arrangements. And, indeed, from the earliest use of bills and coins as money until August 1971, money was, in principle at least, a claim on gold.

At Bretton Woods, New Hampshire, where in July 1944 730 delegates from 44 countries met to create the post-war international financial order, the French argued that gold – which John Maynard Keynes had described two decades earlier as a “barbarous relic” – was the key to international monetary stability ...


Follow The Money: Essays On International Taxation – Introduction, Michael J. Graetz Jan 2016

Follow The Money: Essays On International Taxation – Introduction, Michael J. Graetz

Faculty Scholarship

Publicity about tax avoidance techniques of multinational corporations and wealthy individuals has moved discussion of international income taxation from the backrooms of law and accounting firms to the front pages of news organizations around the world. In the words of a top Australian tax official, international tax law has now become a topic of barbeque conversations. Public anger has, in turn, brought previously arcane issues of international taxation onto the agenda of heads of government around the world.

Despite all the attention, however, issues of international income taxation are often not well understood. This Introduction outlines a collection of essays ...


Bringing International Tax Policy Into The 21st Century, Michael J. Graetz Jan 2016

Bringing International Tax Policy Into The 21st Century, Michael J. Graetz

Faculty Scholarship

Michael J. Graetz delivered the following remarks at the Tax Policy Center's "A Corporate Tax for the 21st Century" conference on July 14 in Washington. These remarks are substantially taken from his April 2015 Ross Parsons Lecture at the University of Sydney Law School.


Commentaire De L'Article 19 De La Convention De Vienne De 1978 Sur La Succession D'État En Matière De Traités: Participation À Des Traités Signés Par L’État Prédécesseur Sous Réserve De Ratification, D’Acceptation Ou D’Approbation, Petros C. Mavroidis, Dr. Vassilis P. Tzevelekos Jan 2015

Commentaire De L'Article 19 De La Convention De Vienne De 1978 Sur La Succession D'État En Matière De Traités: Participation À Des Traités Signés Par L’État Prédécesseur Sous Réserve De Ratification, D’Acceptation Ou D’Approbation, Petros C. Mavroidis, Dr. Vassilis P. Tzevelekos

Faculty Scholarship

Commentary on Article 19 of the Vienna Convention on Succession of States in Respect of Treaties: Participation in Treaties Signed by the Predecessor State Subject to Ratification, Acceptance or Approval

French Abstract: Commentaide de l'article 19 de la Convention de Vienne sur la succession d'État en matière de traités. I. CARACTÉRISTIQUES GÉNÉRALES: 1. Les points épineux: à la recherche de fondements a) L’intention du prédécesseur et l’absence de liens suffisants entre le traité multilatéral signé sous réserve de ratification, d’acceptation ou d’approbation et le territoire b) L’absence d’une pratique étoffée II. LA ...


Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli Jan 2015

Private International Law Aspects Of Authors' Contracts: The Dutch And French Examples, Jane C. Ginsburg, Pierre Sirinelli

Faculty Scholarship

Copyright generally vests in the author, the human creator of the work. But because, at least until recently, most authors have been ill-equipped to commercialize and disseminate their works on their own, the author has granted rights to intermediaries to market her works. Since most authors are the weaker parties to publishing, production, or distribution contracts, the resulting deal may favor the interests of the intermediary to the detriment of the author’s interests. Many national copyright laws have introduced a variety of corrective measures, from the very first copyright act, the 1710 British Statute of Anne, which instituted the ...


Why The State?, Joseph Raz Jan 2014

Why The State?, Joseph Raz

Faculty Scholarship

The paper provides a broadly sketched argument about the importance of state-law and its limits, and the way current developments in international relations and international law tend to transform it without displacing its key position among legal systems in general. It argues that state law is (at least until present time) the most comprehensive law-based social organization within its domain. A standing which is manifested by acknowledged legitimacy by those subject to it (or many of them) and sovereignty, namely independence or external bodies. The paper argues that globalisation (broadly conceived) and attending developments in international greatly reduce the sovereignty ...


Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford Jan 2014

Exporting Standards: The Externalization Of The Eu's Regulatory Power Via Markets, Anu Bradford

Faculty Scholarship

This Article examines the unprecedented and deeply underestimated global power that the EU is exercising through its legal institutions and standards, and how it successfully exports that influence to the rest of the world. Introducing the notion of “the Brussels Effect,” the Article shows how market forces alone are sufficient to convert EU standards into global standards. Without the need to use international institutions or seek other nations’ cooperation, the EU has a strong and growing ability to promulgate regulations that become entrenched in the legal frameworks of developed and developing markets alike, leading to a notable “Europeanization” of many ...


Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew C. Waxman Jan 2014

Adapting The Law Of Armed Conflict To Autonomous Weapon Systems, Kenneth Anderson, Daniel Reisner, Matthew C. Waxman

Faculty Scholarship

As increasingly automated – and in some cases fully autonomous – weapon systems enter the battlefield or become possible, it is important that international norms to regulate them head down a path that is coherent and practical. Contrary to the claims of some advocates, autonomous weapon systems are not inherently illegal or unethical. The technologies involved potentially hold promise for making armed conflict more discriminating and causing less harm on the battlefield. They do pose important challenges, however, with regard to law of armed conflict rules regulating the use of weapons. Those challenges demand international attention and special processes for adapting existing ...


Self-Help And The Separation Of Powers, David Pozen Jan 2014

Self-Help And The Separation Of Powers, David Pozen

Faculty Scholarship

Self-help doctrines pervade the law. They regulate a legal subject's attempts to cure or prevent a perceived wrong by her own action, rather than through a mediated process. In their most acute form, these doctrines allow subjects to take what international lawyers call countermeasures – measures that would be forbidden if not pursued for redressive ends. Countermeasures are inescapable and invaluable. They are also deeply concerning, prone to error and abuse and to escalating cycles of vengeance. Disciplining countermeasures becomes a central challenge for any legal regime that recognizes them. How does American constitutional law meet this challenge? This Article ...


Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part Ii (Fair Use), Jane C. Ginsburg Jan 2014

Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part Ii (Fair Use), Jane C. Ginsburg

Faculty Scholarship

This survey of recent U.S. fair use decisions examines the domestic evolution of the doctrine, particularly in light of the significant expansion of noninfringing “transformative” uses. The article also considers the U.S.’ compliance with its international obligations under the Berne Convention and the TRIPs Accord, and inquires whether the substantial enlargement of the application of the U.S. fair use exception exceeds the leeway that the Berne Convention, art. 9(2), WCT art. 10, and TRIPs art. 13 grant to member states to provide for exceptions and limitations to copyright.


Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part I (Making Available Right), Jane C. Ginsburg Jan 2014

Letter From The U.S.: Exclusive Rights, Exceptions, And Uncertain Compliance With International Norms – Part I (Making Available Right), Jane C. Ginsburg

Faculty Scholarship

This Letter from the U.S. addresses U.S. compliance with its international obligation to implement the “making available right” set out in art. 8 of the 1996 WIPO Copyright Treaty. The “umbrella solution” which enabled member states to protect the “making available to the public of [authors’] works in such a way that members of the public may access these works from a place and at a time individually chosen by them” through a combination of extant exclusive rights, notably the distribution right and the public performance right, has not in the U.S. afforded secure coverage of the ...


Asking The Right Questions In Copyright Cases: Lessons From Aereo And Its International Brethren, Rebecca Giblin, Jane C. Ginsburg Jan 2014

Asking The Right Questions In Copyright Cases: Lessons From Aereo And Its International Brethren, Rebecca Giblin, Jane C. Ginsburg

Faculty Scholarship

Aereo was a US-based service that made unique copies of broadcast programs from individual antennae for each requesting user, for individual retransmission near-live or at some point in the future. To the uninitiated, it makes no sense for a company to design a television transmission service that utilises thousands of tiny antennae and thousands of copies to deliver signals to users. Wouldn’t it be much more efficient to use just one of each? And surely, when it comes to copyright liability, wouldn’t more copies result in more infringement, not less? However, Aereo’s strategy made a lot of ...


Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel Jan 2014

Global Experimentalist Governance, Grainne De Burca, Robert O. Keohane, Charles F. Sabel

Faculty Scholarship

This article outlines the concept of Global Experimentalist Governance (GXG). GXG is an institutionalized transnational process of participatory and multilevel problem solving, in which particular problems, and the means of addressing them, are framed in an open-ended way, and subjected to periodic revision by various forms of peer review in light of locally generated knowledge. GXG differs from other forms of international organization and transnational governance, and is emerging in various issue areas. The Montreal Protocol on ozone-depleting substances is used to illustrate how GXG functions. The conditions for the emergence of GXG are specified, as well as some of ...