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Articles 1 - 30 of 92
Full-Text Articles in International Law
Non-State Actors For Profit: Revisiting Transnational Corporations' Personhood And Responsibility Under International Law, Katayoon Beshkardana, Faraz Shahlaei
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 …
The Effect Of The Pro Act On Secondary Activity And International Trade, Christopher R. Rodenbaugh
The Effect Of The Pro Act On Secondary Activity And International Trade, Christopher R. Rodenbaugh
Northwestern Journal of International Law & Business
No abstract provided.
Trends In China-Africa Economic Relations And Dispute Settlement, Won Kidane
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 Moreover, investment relations are partially governed by fragmented and mostly outdated …
Cleared For Landing: Airbus, Boeing, And The Wto Dispute Over Subsidies To Large Civil Aircraft, Jeffrey D. Kienstra
Cleared For Landing: Airbus, Boeing, And The Wto Dispute Over Subsidies To Large Civil Aircraft, Jeffrey D. Kienstra
Northwestern Journal of International Law & Business
Competition between Airbus and Boeing in the large civil aircraft industry grew contentious as Airbus began to overtake Boeing in its long-held position as the world‘s leading producer of large civil aircraft. Airbus and Boeing had also each embarked on multi-billion dollar investments into the development of new aircraft, further raising the stakes. The United States and European Communities in turn increasingly scrutinized the subsidies provided by their counterpart to its respective aircraft manufacturer. This conflict over subsidies, which had persisted between the United States and European Communities since the inception of Airbus in 1970, reached a head in 2004 …
Why Does The Complainant Always Win At The Wto?: A Reputation-Based Theory Of Litigation At The World Trade Organization, Matthew C. Turk
Why Does The Complainant Always Win At The Wto?: A Reputation-Based Theory Of Litigation At The World Trade Organization, Matthew C. Turk
Northwestern Journal of International Law & Business
World Trade Organization (WTO) litigation presents an empirical puzzle: complaining parties "win" close to 90 percent of cases, while standard theories of litigation predict a strong tendency towards a 50 percent plaintiff win-rate. This Article explains the high win-rate by examining the reputational costs and benefits of filing a case. The WTO's lack of centralized enforcement means that the consequence of a judgment is merely to disseminate information that alters a party's reputation for compliance with its trade obligations. Such a "reputational sanction" applies to both losing respondents and complainants. The result is that only cases with a very high …
Making Wto Sps Dispute Settlement Work: Challenges And Practical Solutions, Eric Gillman
Making Wto Sps Dispute Settlement Work: Challenges And Practical Solutions, Eric Gillman
Northwestern Journal of International Law & Business
The Agreement on Sanitary and Phytosanitary Measures (SPS Agreement) represents an effort by the Members of the World Trade Organization (WTO) to balance competing interests in liberalizing trade, on one hand, and protecting human, animal, and plant life from risks posed by the free flow of goods on the other. SPS disputes center around a core question: Does the imported product at issue present a sufficiently serious threat to national health to warrant the imposition of trade-restrictive measures? Over twelve years and six disputes, panels and the Appellate Body (AB) have addressed this question by evaluating respondents' risk assessments. The …
Beyond Culture Vs. Commerce: Decentralizing Cultural Protection To Promote Diversity Through Trade, Sean A. Pager
Beyond Culture Vs. Commerce: Decentralizing Cultural Protection To Promote Diversity Through Trade, Sean A. Pager
Northwestern Journal of International Law & Business
For the past three decades, culture defenders and free traders have fought a pitched battle over global regulation of audiovisual industries, a collision of seemingly incompatible worldviews whose destructive repercussions policy-makers and scholars have struggled to contain. The battle has played out at multiple levels of international trade law, investment treaties, and UNESCO conventions. Now, the culture-trade war threatens to engulf e-commerce. Fortunately, there is a better way. The extraordinary flowering of Korean popular culture in recent decades—commonly known as the "Korean Wave"—can be traced directly to a set of decentralized policies enacted by South Korea's government in the 1990s. …
Recent Decisions Under The Investment Canada Act: Is Canada Changing Its Stance On Foreign Direct Investment?, Simone Collins
Recent Decisions Under The Investment Canada Act: Is Canada Changing Its Stance On Foreign Direct Investment?, Simone Collins
Northwestern Journal of International Law & Business
With the globalization of the world’s economy, countries have relied heavily on foreign direct investment within their borders to spur domestic economic growth and compete in the global marketplace. Canada, historically a leading destination for foreign investors, has seen its share of global foreign direct investment decline steadily over the past several decades. Most recently, Canada has made waves in the global community by taking positive actions to interfere with foreign acquisitions of Canadian entities, despite the Canadian government’s declarations to global competitors advocating free market principles and denouncing protectionist policies. This article discusses Canada’s procedures governing foreign direct investment …
The Trade Litigant's Gauntlet: The Hanging Judge And The Teflon Tribunal, Jay Charles Campbell
The Trade Litigant's Gauntlet: The Hanging Judge And The Teflon Tribunal, Jay Charles Campbell
Northwestern Journal of International Law & Business
The two U.S. agencies charged with conducting antidumping investigations may justifiably be labeled a "hanging judge" and a "Teflon tribunal." The Department of Commerce (DOC) investigates whether foreign firms have engaged in "dumping" exports to the United States. Since assuming responsibility for dumping investigations in 1980, the DOC has found that over 90% of the firms it investigated were "guilty." Such one-sided results subject far too many foreign firms to antidumping duty orders - which impair their ability to sell to the U.S. market - and send the wrong message to the United States' trading partners. Because the U.S. antidumping …
More Than Best Friends: Expansion Of Global Law Firms Into The Indian Legal Market, Chris Vena
More Than Best Friends: Expansion Of Global Law Firms Into The Indian Legal Market, Chris Vena
Northwestern Journal of International Law & Business
Over the past half century, there has been an accelerating trend towards liberalization in the legal services industry. International free trade agreements have sought to promote open markets for legal services. The United States, United Kingdom, many European countries, Australia, Japan, Russia, China, and Singapore have all opened their legal markets to foreign law firms. India is something of an anomaly in this regard. Although it has one of the world's largest economies and has benefited greatly from liberalization in many industries, India's legal industry remains closed. Competition for foreign capital with other developing nations, particularly China, makes this an …
Efficient Contracting Between Foreign Investors And Host States: Evidence From Stabilization Clauses, Sam Foster Halabi
Efficient Contracting Between Foreign Investors And Host States: Evidence From Stabilization Clauses, Sam Foster Halabi
Northwestern Journal of International Law & Business
Bilateral investment treaties are agreements between sovereign states that give broad protections to investors and investments made within the jurisdiction of the other state. The prevailing view in the academy and practice is that developing countries sign bilateral investment treaties in order to reassure investors from developed states that their investments will be safe from changes in domestic law. Without these "credible commitments," investors would be deterred from making investments, depriving developing countries of foreign capital. This Article disputes that view by demonstrating that foreign investors and host states effectively contract around the risk of changes in the law. This …
The Revolving Door Of Emigration: The Economic Influences Of Remittances In Developing Countries, Laura L. Norris
The Revolving Door Of Emigration: The Economic Influences Of Remittances In Developing Countries, Laura L. Norris
Northwestern Journal of International Law & Business
Economic incentives play an integral role in many individuals' choices to leave their country of origin. While a person may independently make the decision to migrate, some governments have developed extensive programs to promote the export of workers. Developing nations often initiate such programs for the purpose of acquiring additional sources of foreign exchange and external financing, as emigrants in transnational families can play a critical role in development through remittances. Remittances to developing countries totaled $325 billion in 2010, and they will likely continue to increase along with emigration. The following Comment considers the palpable contribution remittances have on …
Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman
Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman
Northwestern Journal of International Law & Business
In taking on the controversial debate over the role of state attorneys general in antitrust enforcement, the article draws upon recent legal and historical scholarship on federalism to argue that globalization requires a paradigm change in concepts of U.S. federalism. While many assume that increasing international economic integration makes state participation in economic regulation with international implications inherently problematic, the article demonstrates that, to the contrary, states have an important role to play in the regulation of international business. States have a long history of challenging the federal government in a way that has promoted a robust national dialogue on …
Of All Things Made In America Why Are We Exporting The Penn Central Test, Anthony B. Sanders
Of All Things Made In America Why Are We Exporting The Penn Central Test, Anthony B. Sanders
Northwestern Journal of International Law & Business
Developing countries enter into bilateral investment treaties ("BITs") in order to increase foreign direct investment ("FDI"). Ignoring this straightforward fact has led to a great deal of confusion in the assessment of BITs and their protection of regulatory takings. This article addresses the question of how a BIT should approach regulatory takings with the purpose of increasing FDI in mind. It explores the background of the United States Supreme Court's Penn Central test and the test's incorporation into the post-NAFTA round of U.S. BITs. Then, the article examines whether an uncertain and flexible test such as Penn Central is suitable …
The Significance Of South-South Bits For The International Investment Regime: A Quantitative Analysis, Lauge Skovgaard Poulsen
The Significance Of South-South Bits For The International Investment Regime: A Quantitative Analysis, Lauge Skovgaard Poulsen
Northwestern Journal of International Law & Business
Initially, bilateral investment treaties ("BITs") were intended as legal instruments to promote and protect investments from rich capital exporting states to the developing world. While BITs signed between developing countries (hereinafter South-South BITs) began to emerge from the mid-1960s onwards with the 1964 Kuwait-Iraq BIT, a typical BIT was until recently negotiated between a developed and a developing country (hereinafter North-South BITs). In order to examine these questions, this paper will investigate whether there are systematic differences in investment-rule making between South-South and North-South BITs. As noted by UNCTAD in its cursory review of South-South BITs, such an analysis has …
Rethinking The Foreign Direct Investment Process And Incentives In Post-Conflict Transition Countries, Kojo Yelpaala
Rethinking The Foreign Direct Investment Process And Incentives In Post-Conflict Transition Countries, Kojo Yelpaala
Northwestern Journal of International Law & Business
Burdened by the remnants of conflict, continuing threats of security lapses, significant market failures and weak institutions, post-conflict transition countries can hardly be described as normal economies. The task of transforming them into vibrant, productive, and self-sustaining economies is no simple assignment. Constructing the blueprint for reconstruction and economic development requires creativity of the first order. Conventional theories or pure neo-liberal market driven policy levers preached by the Washington Consensus Group are not likely to be productive. The design of the investment regime for development should therefore focus on non-conventional policy constructs. Contrary to the received theories, the history and …
Proportional Pragmatism: A Defense Of International Arbitration Agreements In The Face Of Asymmetrical Paternalism, Rusty O'Kane
Proportional Pragmatism: A Defense Of International Arbitration Agreements In The Face Of Asymmetrical Paternalism, Rusty O'Kane
Northwestern Journal of International Law & Business
With foreign direct investment's increasingly important role in the global market, a more comprehensive regulatory system has emerged to guide key participants. Bilateral investment treaties have developed as an essential piece of the emerging regulatory system. Bilateral investment treaties are "[international investment] agreements between two countries for the reciprocal encouragement, promotion and protection of investments in each other's territories by companies based in either country." These treaties have drastically affected the way foreign investors interact with host countries, especially in the area of dispute resolution. A distinctive feature of many BITs is that they provide for alternative dispute resolution procedures …
"The Little State Department": Hollywood And The Mpaa's Influence On U.S. Trade Relations, Kevin Lee
"The Little State Department": Hollywood And The Mpaa's Influence On U.S. Trade Relations, Kevin Lee
Northwestern Journal of International Law & Business
In this article, I argue that the U.S. government has actively advocated domestic film industry interests in bilateral and multilateral trade agreements because of Hollywood's importance to the U.S. economy, and also because of the MPAA's influential lobbying efforts. Furthermore, I show that the MPAA has intervened directly in bilateral trade relations to protect its interests, even when such interests may run counter to the benefit of the U.S. economy.
"Perfectly Properly Triable" In The United States: Is Extradition A Real And Significant Threat To Foreign Antitrust Offenders?, Daseul Kim
Northwestern Journal of International Law & Business
Seeking extradition of foreign officers in charge of foreign corporations for trial in the United States is one of the latest policies that the U.S. Department of Justice ("DOJ") has adopted to enforce U.S. antitrust laws internationally. As a result, the world has become a much riskier place for foreign officers and executives, who, in the past, could practically ignore U.S. antitrust laws and still hide safely behind the protection of their own countries' borders. The DOJ expects this "real and significant" threat of extradition to incentivize foreign corporate officers to comply with U.S. antitrust laws by altering their conduct, …
Beyond Enron: Regulation In Energy Derivatives Trading, Alexia Brunet, Meredith Shafe
Beyond Enron: Regulation In Energy Derivatives Trading, Alexia Brunet, Meredith Shafe
Northwestern Journal of International Law & Business
The bankruptcy of the Enron Corporation in December 2002 is the biggest corporate bankruptcy in U.S. history. The Houston-based company, formed in 1985, became the nation's seventh-largest company in revenue by buying electricity from generators and selling it to consumers. Because Enron made the market in energy trading, its collapse fundamentally altered the U.S. energy trading industry. Equally important, the disclosure of Enron's role in California's power market crisis shattered confidence in deregulated wholesale-electricity and natural gas markets, creating obstacles for new players seeking to restore confidence in energy trading markets. New market entrants offer their clients a more complete …
From North-South Divide To Private-Public Debate: Revival Of The Calvo Doctrine And The Changing Landscape In International Investment Law, Wenhua Shan
Northwestern Journal of International Law & Business
After dominating Latin American states for over a century, the Calvo Doctrine has been widely described as "dead," particularly in the wake of the global tide of economic liberalization that began in the 1990s. However, some recent moves within and beyond Latin America suggest that this principle is not dead, but on the resurgence. The "Revival of Calvo" phenomenon signals a change of direction in international investment law: neo-liberalism no longer dominates international investment law-making, and a more balanced, and perhaps also a more conservative and nationalistic approach, is gaining ground. This Article explores these recent events and analyzes to …
Defragmenting World Trade, Sungjoon Cho
Defragmenting World Trade, Sungjoon Cho
Northwestern Journal of International Law & Business
The global trading community is in a state of deep crisis. Its main system, multilateralism, has recently been clogged by viscous trade barriers created by a proliferation of bilateral, regional trading blocs. Globalization offers a worldwide "production value chain" which enables even small economies to take part in the global commerce by offering raw materials or labor. In fact, small economies hold a comparative advantage at certain stages of the international manufacturing process.1 However, the current pattern of regional trading blocs militates against such participation by erecting new barriers against non-members and thus compartmentalizing the global market.2 This is not …
Islamic Principles Governing International Trade Financing Instruments: A Study Of The Morabaha In English Law, Jason C. T. Chuah
Islamic Principles Governing International Trade Financing Instruments: A Study Of The Morabaha In English Law, Jason C. T. Chuah
Northwestern Journal of International Law & Business
The past years have seen a clear and incontrovertible rise in the use of international financial and commercial instruments expressed to be governed by Islamic principles. Banks and other commercial entities in Islamic and non-Islamic countries are increasingly aware of the commercial need to offer services which are specifically tailored to meet this sector of the international market. Disputes over the interpretation and application of such instruments invariably arise. English courts are not insulated from such disputes, given that the City of London is at the forefront of many international commercial and financial dealings. As a matter of law, the …
Taxing The International Athlete: Working Toward Free Trade In The Americas Through A Multilateral Tax Treaty, Jeffrey Dunlop
Taxing The International Athlete: Working Toward Free Trade In The Americas Through A Multilateral Tax Treaty, Jeffrey Dunlop
Northwestern Journal of International Law & Business
At first glance, it does not appear that taxation issues facing the international athlete and developing free trade between North and South America are closely related; they represent very different aspects of cross-border transactions and investment. On the other hand, they may be related when viewed as sequential steps in the process toward developing sustained economic relationships. This article will attempt to bridge that gap. First, Part II of this article discusses the current United States approach toward taxation of international athletes. Next, Part III reviews the history and issues facing tax treaty negotiations between the United States and developing …
The $4 Billion Question: An Analysis Of Congressional Responses To The Fsc/Eti Dispute Under Wto Export Subsidy Standards, William Chou
The $4 Billion Question: An Analysis Of Congressional Responses To The Fsc/Eti Dispute Under Wto Export Subsidy Standards, William Chou
Northwestern Journal of International Law & Business
During the decade-long relationship between the United States and the World Trade Organization (WTO), perhaps no controversy has fomented as long and bitterly as the dispute over the U.S. tax benefits for exporters. This article analyzes two competing bills before the House of Representatives, both devised to bring the United States in compliance with the WTO's ruling against the U.S. Foreign Sale Corporation (FSC) and Exterritorial Income (ETI) tax regimes as prohibited export subsidies. Hit with a $4 billion retaliatory tariff by the European Union, the House sought new tax legislation that would preserve at least some of the tax …
Meaning, Ambiguity And Legitimacy: Judicial (Re-)Construction Of Nafta Chapter 11, Ari Afilalo
Meaning, Ambiguity And Legitimacy: Judicial (Re-)Construction Of Nafta Chapter 11, Ari Afilalo
Northwestern Journal of International Law & Business
Chapter 11 of the North American Free Trade Agreement (NAFTA) benignly named the "Investment Chapter," is a theater for some of the most advanced issues of 21st century international law and adjudication. The Chapter gives private parties the right to challenge national policies that burden their ability to do business freely. It empowers arbitral tribunals to assess damages against the governments of NAFTA parties. The adjudicators, as this Article illustrates, render opinions with a constitutional flavor in that they assess the validity of domestic norms against larger principles of international economic law. In a drastic move away from classical century …
A Dual Catastrophe Of Protectionism, Sungjoon Cho
A Dual Catastrophe Of Protectionism, Sungjoon Cho
Northwestern Journal of International Law & Business
Suppose that a consortium of wealthy and powerful local industries, acting through lawmakers captured by these industries, managed to pass a statute, damaging to the larger public welfare, purely for a protectionist purpose. Suppose further that this statute victimizes exports from a small, poor country such as Vietnam, to a large, rich country such as the United States, because these imported products are cheaper and thus pose a competitive threat to rival domestic industries. Suppose also that courts in the importing country can do little to stop this chain of events. Rational individuals might find these events objectionable, if not …
General Exclusion Orders Under Section 337, Gary M. Hnath
General Exclusion Orders Under Section 337, Gary M. Hnath
Northwestern Journal of International Law & Business
Your company, Widgets Unlimited, imports foreign-made widgets into the United States. One day, you're informed that U.S. Customs & Border Protection (Customs) has detained your goods and is determining whether they infringe a patent owned by The American Widget Corporation, based on an exclusion order issued by the International Trade Commission (ITC) after a recent ITC investigation, titled Certain Widgets with Extra Shiny Surfaces. Since you were never a party to any proceeding at the ITC, and indeed, you never even knew American Widget had patents on its widgets, you conclude that there must be some mistake and wait for …
Injury Investigations In "Material Retardation" Antidumping Cases, Prakash Narayanan
Injury Investigations In "Material Retardation" Antidumping Cases, Prakash Narayanan
Northwestern Journal of International Law & Business
Despite the criticisms of economists to antidumping measures, they continue to be the most often used trade remedy measure. A new trend that may be observed is the use of the "material retardation" standard of injury to demonstrate injury to domestic industry that is one of the requirements for imposing antidumping duty. It is essential to be wary of this trend as unlike the other two types of injury, the WTO lacks specific guidelines for the use of this standard. The general rules in the Antidumping Agreement are unsuitable for the situations where the material retardation standard is relevant, and …
Test Of Multilateralism In International Trade: U.S. Steel Safeguards, Y.S. Lee
Test Of Multilateralism In International Trade: U.S. Steel Safeguards, Y.S. Lee
Northwestern Journal of International Law & Business
The highly publicized safeguard measures applied by the United States to an array of steel products in 2002 became one of the biggest and most controversial trade disputes in recent history. Virtually all major trading nations in the world, including the European Community, Japan , China , Brazil , Korea , New Zealand , Switzerland and Norway , were the direct parties to this dispute with the United States . The contentious legal grounds of the U.S. safeguard measures, as well as the lack of adequate consultations between the United States and its trading counterparts, have brought the international community …