International Trade Law Commons^™

A Further Look At A Hague Convention On Concurrent Proceedings, Paul Herrup, Ronald A. Brand

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The current project of the Hague Conference on Private International Law has reached a critical juncture that requires careful consideration of the terms that delineate the scope of the proposed convention. Work to date has not followed the mandate of the Council on General Affairs and Policy to produce a convention that would deal with concurrent proceedings, understood as including pure parallel proceedings and related actions. In two previous articles we have addressed the practical needs that should be addressed by the concurrent proceedings project and the general architecture of such a convention. The process is now mired in terminological …

The Historical Origins And Current Prospects Of The Multilateral Tax Convention, Reuven S. Avi-Yonah, Eran Lempert

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This article has three aims. First, it surveys the pre-BEPS efforts to create a multilateral tax convention (MTC) from the 19th century onward, and explains why these efforts have failed, leading to an international tax regime dominated by unilateralism and bilateralism. Second, it contrasts the success of multilateralism in investment and trade law. Third, it examines the BEPS era efforts to create an MTC and suggests that, while there has been more convergence of the tax laws of countries, a fundamental divergence of interests persists that will likely doom any such efforts to failure. The article concludes that, at this …

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

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The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may secure assets, evidence, or the status quo between parties prior to the completion of the arbitration process. This makes the availability of provisional measures granted by either arbitral tribunals or by courts fundamental to the arbitration. In this Article, I consider the existing legal framework for provisional measures in aid of arbitration, with particular attention to the sources of the rules providing for such measures. Those sources …

Climate Justice In The Anthropocene And Its Relationship With Science And Technology: The Importance Of Ethics Of Responsibility, Paolo Davide Farah, Alessio Lo Giudice

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Climate change is a global phenomenon. Therefore, globalization is the necessary hermeneutical horizon to develop an analysis of the metamorphosis climate change could cause at a political, social, and economic level. Within this horizon, this Article shows how the relationship between the concept of the Anthropocene epoch and the request for justice allows for framing a climate-justice and intergenerational equity–focused political interpretation of the effects of climate change. In order to avoid reducing such an interpretation to merely an ideological critique of capitalism, the conception of climate justice needs to be grounded in a rational, ethical model. This Article proposes …

Public Ownership And The Wto In A Post Covid-19 Era: From Trade Disputes To A 'Social' Function, Paolo Davide Farah, Davide Zoppolato

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Public ownership is closely bound to the need of the government to protect and guarantee the well-being of its citizens. Where the market cannot, or does not want to, provide goods and services, the State uses different tools to intervene, influence, and control some aspects of the private sphere of expression of its citizens in the name and interest of the collectivity. Although, in the past century, this behavior was accepted as one of the expressions of the public authority and part of the social contract, this perception has shifted partially in accordance with the wave of privatization programs initiated …

Reforming Shareholder Claims In Isds, Julian Arato, Kathleen Claussen, Jaemin Lee, Giovanni Zarra

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ISDS stands alone in empowering shareholders to bring claims for reflective loss (SRL) – meaning claims over harms allegedly inflicted upon the company, but which somehow affect share value. National systems of corporate law and public international law regimes generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of the corporate form. Though not necessitated by treaty text, nor beneficial in policy terms, ISDS tribunals nevertheless allow shareholders broad and regular access to seek relief for reflective loss. The availability of SRL claims in ISDS ultimately harms States and investors alike, imposing surprise ex post …

Wto Security Exceptions: A Sliding Scale Approach To Protect The Rules-Based System For Global Free Trade, Ts Somashekar, Kanchan Yadav

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Since the enforcement of the General Agreement on Tariffs and Trade (GATT) in 1947 and subsequently with the establishment of the World Trade Organization, the global community has been moving towards a more secure and rule-based international trade law regime. The cornerstones of the system are predictability and transparency, which ensure that a state, no matter how powerful, cannot undertake a discriminatory trade measure against another going above and beyond the rules. However, the recent instances of unilateral invocation of the security exceptions found in the various trade agreements endanger the very basis of the WTO system. The very first …

The Improvised Implementation Of Executive Agreements, Kathleen Claussen

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Implementation is at the core of lawmaking in our divided government. A rich literature covers the waterfront with respect to agencies' implementation of legislative mandates, and another equally robust line of scholarship considers Congress's implementation of treaties. Missing from those discussions, however, is another area of implementation central to U. S. foreign relations: the implementation of transnational regulatory agreements.

This Article examines how federal agencies have harnessed far-reaching discretion from Congress on whether and how to implement thousands of international agreements. Agencies regularly implement agreements by relying on a self-developed menu of options, much like they do in the domestic …

Fenceposts Without A Fence, Katherine E. Dr Lucido, Nicholas K. Tabor, Jeffery Y. Zhang

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Banking organizations in the United States have long been subject to two broad categories of regulatory requirements. The first is permissive: a “positive” grant of rights and privileges, typically via a charter for a corporate entity, to engage in the business of banking. The second is restrictive: a “negative” set of conditions on those rights and privileges, limiting conduct and imposing a program of oversight and enforcement, by which the holder of that charter must abide. Together, these requirements form a legal cordon, or “regulatory perimeter,” around the U.S. banking sector.

A Hague Parallel Proceedings Convention: Architecture And Features, Paul Herrup, Ronald A. Brand

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In Paul Herrup and Ronald A. Brand, A Hague Convention on Parallel Proceedings, 63 Harvard International Law Journal Online 1(2022), available at https://harvardilj.org/2022/02/a-hague-convention-on-parallel-proceedings/ and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3894502, we argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group …

A New Framework For Digital Taxation, Reuven Avi-Yonah, Young Ran (Christine) Kim, Karen Sam

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The international tax regime has wide implications for business, trade, and the international political economy. Under current law, multinational enterprises do not pay their fair share of taxes to market countries where profits are generated because market countries are only allowed to tax companies with a physical presence there. Digital companies, like Google and Amazon, can operate entirely online, thereby avoiding market country taxes. Multinationals can also exploit existing tax rules by shifting their profits to low-tax jurisdictions, thereby avoiding taxes in the residence country where their headquarters are located.

Recently, a global tax deal was reached to tackle these …

Trade's Mini-Deals, Kathleen Claussen

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The modern consensus is that U.S. trade law is made through statute and through large congressional-executive agreements, both of which maintain Congress' constitutional primacy over the regulation of foreign commerce. Contrary to this understanding, however, short, targeted agreements negotiated by the U.S. executive with foreign trading partners - recently referred to as "mini-deals" - have become a fixture of the trade law landscape over the last three decades in staggering number. More than 1,200 such agreements govern the movement of goods and services in and out of the United States from and to 130 countries. Such deals are not only …

Tax Harmony: The Promise And Pitfalls Of The Global Minimum Tax, Reuven Avi-Yonah, Young Ran (Christine) Kim

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The rise of globalization has become a double-edged sword for countries seeking to implement a beneficial tax policy. On one hand, there are increased opportunities for attracting foreign capital and the benefits that increased jobs and tax revenue brings to a society. However, there is also much more tax competition among countries to attract foreign capital and investment. As tax competition has grown, effective corporate tax rates have continued to be cut, creating a “race-to-the-bottom” issue.

In 2021, 137 countries forming the OECD/G20 Inclusive Framework on BEPS passed a major milestone in reforming international tax by successfully introducing the framework …

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

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A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …

Trade Transparency: A Call For Surfacing Unseen Deals, Kathleen Claussen

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For many years, the executive branch has concluded foreign commercial agreements with trading partners pursuant to delegated authority from Congress. The deals govern the contours of a wide range of U.S. inbound and outbound trade: from food safety rules for imported products to procedures and specifications of exported goods, to name two. The problem is that often no one-apart from the executive branch negotiators- knows what these deals contain. A lack of transparency rules has inhibited the publication of and reporting to Congress of these unseen deals. Dozens if not hundreds of foreign commercial deals are unseen in two ways: …

Trade Administration, Kathleen Claussen

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At the core of public debates about trade policy making in the United States and the so-called "trade war" is a controversy over who should be responsible for making U.S. trade law: Congress or the President. What these important conversations miss is that underlying much of our trade policy in recent decades is a widespread executive-branch lawmaking apparatus with monitoring, rulemaking, adjudicative, and enforcement features that operates in considerable shadow. Executive branch agencies are now the primary actors in trade lawmaking. This Article excavates that critical underbelly: what I call our "trade administrative state." It maps the trade administrative state's …

The Paris Agreement Compliance Mechanism: Beyond Cop 26, Jessica Owley, Imad Antoined Ibrahim, Sandrine Maljean-Dubois

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Without an international tribunal or tools like trade sanctions, there is little to coerce or encourage adherence with environmental treaties. The Paris Agreement, the governing global agreement to address climate change, relies on voluntary global cooperation. Countries determine their own commitments by setting nationally determined contributions of greenhouse gases emissions. The main mandatory elements of the agreement are reporting requirements. The success of the agreement turns on whether countries comply with these requirements. Article 15 of the Paris Agreement establishes a Compliance Committee and sets forth the mechanisms to ensure and facilitate compliance with the agreement. Yet, as with the …

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

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The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction, each of which …

The Vulnerable Sovereign, Ronald A. Brand

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The connection between sovereignty and law is fundamental for both domestic (internal sovereignty) and the international (external sovereignty) purposes. As the dominant forms of government have evolved over time, so has the way in which we think about sovereignty. Consideration of the historical evolution of the concept of sovereignty offers insight into how we think of sovereignty today. A term that was born to represent the relationship between the governor and the governed has become a term that is used to represent the relationships between and among states in the global legal order. This article traces the history of the …

A Hague Convention On Parallel Proceedings, Paul Herrup, Ronald A. Brand

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The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and …

Introduction To The Symposium On Soft And Hard Law On Business And Human Rights, Steven R. Ratner

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This symposium turns to a major debate within a field of international law that has moved from the periphery to center stage in just a few decades—business and human rights, or BHR: Can and should international law's approach to the human rights impacts of business activity shift from today's mostly soft-law framework to a multilateral treaty regime? While advocates for and against such a treaty debate this point at the UN Human Rights Council and other venues, this symposium examines the problem from four theoretical perspectives. Each contribution offers insights for practitioners and scholars alike, but they suggest no easy …

Importing Prescription Drugs From Canada — Legal And Practical Problems With The Trump Administration's Proposal, Rachel E. Sachs, Nicholas Bagley

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As Americans report ever-growing difficulty affording their prescription drugs, President Donald Trump has come under increasing pressure to act. To date, the Trump administration has attempted to advance a number of policy initiatives by means of executive action, but it has not yet adopted a program that would meaningfully assist patients. Most recently, the administration proposed a rule that, if finalized, would allow states to develop programs to import lower-priced prescription drugs from Canada, with the intent of reducing spending on drugs by U.S. patients and states and increasing access for patients.

The International Claims Trade, Kathleen Claussen

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Investments are mobile in the twenty-first century international economy. They are seldom held for their duration by a single owner from a single country. They change hands and they do so for a variety of reasons, often in the course of a dispute. But the scholarship addressing what happens when international investments and legal claims against sovereigns regarding those investments change hands appears only at the margins. The practice of buying and selling claims or claims trading is well known and institutionalized in some areas of domestic litigation. For cross-border investment disputes against sovereigns, however, many of the cases discussing …

Comparative Method And International Litigation 2020, Ronald A. Brand

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In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …

Our Trade Law System, Kathleen Claussen

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No abstract provided.

The Perils Of Pandemic Exceptionalism, Julian Arato, Kathleen Claussen, J. Benton Heath

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In response to the pandemic, most states have enacted special measures to protect national economies and public health. Many of these measures would likely violate trade and investment disciplines unless they qualify for one of several exceptions. This Essay examines the structural implications of widespread anticipated defenses premised on the idea of “exceptionalism.” It argues that the pandemic reveals the structural weakness of the exceptions-oriented paradigm of justification in international economic law.

Trade's Security Exceptionalism, Kathleen Claussen

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At the core of U.S. trade law is an under-studied structural dichotomy. On the one hand, well-established statutory authorities enable the President to eliminate trade barriers through negotiations with U.S. trading partners. On the other hand, different, lesser-known authorities allow the President to erect trade barriers on an exceptional basis where necessary for U.S. economic security. Rather than thinking of free trade as a source of or tool for economic security as political theorists long have, our law codifies these authorities as though they are in contrast to one another-allowing departures from the free trade norm when security so demands. …

The Casualty Of Investor Protection In Times Of Economic Crisis, Kathleen Claussen

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No abstract provided.

The International Law Commission's Soft Law Influence, Elena Baylis

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Since the 1990s, the International Law Commission has increasingly produced soft law, such as principles and draft conclusions, in addition to hard law like draft treaty articles This essay explores the implications of the International Law Commission’s transition toward a greater emphasis on soft law. Soft law is an effective vehicle for the International Law Commission’s mission of codification and progressive development of international law; the International Law Commission’s involvement increases the clarity and accessibility of international law norms and promotes a dynamic, synergistic relationship between hard law and soft law that contributes to the effective evolution of international law. …

The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand

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The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission process, …