Transnational Law Commons^™

Jurisdiction Over Non-Eu Defendants: The Brussels I Article 79 Review, Ronald A. Brand

Book Chapters

When the original EU Brussels I Regulation on Jurisdiction and the Recognition of Judgments was “recast” in 2011, the Commission recommended that the application of its direct jurisdiction rules apply to all defendants in Member State courts, and not just to defendants from other Member States. This approach was not adopted, but set for reconsideration through Article 79 of the Brussels I (Recast) Regulation, which requires that the European Commission report in 2022 on the possible application of the direct jurisdiction rules of the Regulation to all defendants. Without such a change, the Recast Regulation continues to allow each Member …

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

Articles

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 …

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

Articles

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 …

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

Articles

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 …

Trade Multilateralism And U.S. National Security: The Making Of The Gatt Security Exceptions, Mona Pinchis-Paulsen

Michigan Journal of International Law

Today, there are an unprecedented number of disputes at the World Trade Organization (“WTO”) involving national security. The dramatic rise in trade disputes involving national security has resuscitated debate over the degree of discretion afforded to WTO Members as to when and how to invoke Article XXI, the Security Exception, of the General Agreement on Tariffs and Trade (“GATT”), with binding effect. The goal of this article is to shed light on contemporary questions and concerns involving national security and international trade, particularly questions involving the appropriate invocation of Article XXI GATT, through careful attention to the article’s historical context. …

Given Today's New Wave Of Protectionsim, Is Antitrust Law The Last Hope For Preserving A Free Global Economy Or Another Nail In Free Trade's Coffin?, Allison Murray

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

State Control Over Interpretation Of Investment Treaties, Lise Johnson, Merim Razbaevea

Columbia Center on Sustainable Investment Staff Publications

Many critiques of investment treaties relate to concerns that tribunals’ interpretations of these agreements depart from states’ understandings of the texts, and do so in unpredictable ways leading to expensive litigation and unforeseen liability. States, however, can take steps to make their intentions regarding the texts clearer, and reduce the risk of uncertain outcomes.

This policy paper discusses these possible steps, and the legal rules supporting them, providing guidance to states, attorneys, and tribunals regarding the important role of states in clarifying vague standards in and managing liability under existing investment treaties. A second paper, published by the Global …

New Uncitral Arbitration Rules On Transparency: Application, Content And Next Steps, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

This paper discusses the UNCITRAL Rules on Transparency in Treaty-Based Investor-State Arbitration, which were adopted in August of 2013 and went into effect on April 1, 2014. It draws on negotiating history to elaborate on the content of and purpose of each of the Rules’ provisions, and identifies options for and barriers to applying these Rules in future arbitrations.

Toward A Trips Truce, Patricia L. Judd

Michigan Journal of International Law

The World Trade Organization's (WTO's) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS or Agreement), now over fifteen years old, regulates a marketplace characterized by extraordinary dynamism, influenced by the constant forces of globalization and technological evolution. Attempts to regulate this market raise natural, persistent questions concerning the Agreement's ability to serve its respective constituencies and adapt to change. The Agreement operates in the midst of an age-old dynamic pitting developing and developed countries against one another, especially when it comes to domestic enforcement against piracy and counterfeiting-a dynamic in which TRIPS has been criticized as a one-sided instrument. …

International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan

Book Chapters

I am pleased to have the opportunity to respond to Andreas Paulus’s very interesting contribution, and to elaborate on some of the matters he raises. As will be all too obvious, I am not an expert on general public international law. I undertook this assignment in the hope that I would learn something (as I have), and that I would eventually think of something useful to say (less clear). Happily, the one area of international law where I do have some expertise is the law of the World Trade Organization (WTO). The WTO is often used as an example in …

Are Eu Trade Sanctions On Burma Compatible With Wto Law?, Robert L. Howse, Jared M. Genser

Michigan Journal of International Law

This Article will explore the European Union's approach to Burma. The European Union, until recently, has implemented quite limited trade sanctions against the Burmese junta. According to the most recent figures, E.U. countries still import €306 million ($454 million) of commodities and products, ninety-five percent of which are textiles, timber, gems, and precious metals. However, the Common Position of November 19, 2007, strengthens considerably E.U. measures against the Burmese regime and contains a ban on the importation of these goods from Burma. Further, the Common Position requires E.U. countries to prohibit intentional and knowing "participation" in activities that "directly or …

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …

Transparency: An Analysis Of An Evolving Fundamental Principle In International Economic Law, Carl-Sebastian Zoellner

Michigan Journal of International Law

This Note will first sketch the theoretical underpinnings of transparency in an interdisciplinary overview of its possible meanings and advantages in the present context. It will then survey documents and instruments of international economic law in which language embracing the transparency principle is already present. The Note's main section proceeds to ask whether, in the actual application of those agreements, the transparency principle has had any notable impact on the interpretation of state obligations. Finally, in addressing transparency's future role in international economic law, this Note briefly discusses additional problems which might be resolved through a transparency-based approach.

Paper Dragon: Inadequate Protection Of Intellectual Property Rights In China, Omario Kanji

Michigan Journal of International Law

This Note will explore the extent to which China is in violation of its obligations under TRIPs. Section I surveys the current state of IPR infringement in China. Section II analyzes relevant TRIPs provisions, case law, and treaties that supplement TRIPs provisions. Section III analyzes Chinese criminal law, the December 2004 Judicial Interpretation of Chinese criminal law, and Chinese IP law as they pertain to IPR infringement. Section IV outlines enforcement efforts in China against the backdrop of the law analyzed in the previous section. Section V evaluates these enforcement efforts given China's capabilities and obligations, and Section VI concludes …

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Iii:2), Donald H. Regan

Book Chapters

In EC-Asbestos the Appellate Body has told us that (l) in interpreting Article III:4 of the GATT, we must take explicit account of the policy in Article III: l that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile- Alcohol the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection," we must consider "the purposes or objectives of a Member's legislature and government as a whole"- in other words, the regulatory purpose of the measure. Chile- Alcohol …

Juridical Substance Or Myth Over Balance-Of-Payment: Developing Countries And The Role Of The International Monetary Fund In The World Trade Organization, Ugochukwu Chima Ukpabi

Michigan Journal of International Law

This Note attempts to chart the division of labor in respect of balance-of-payment between the Fund and the WTO. More importantly, it reflects on how the intertwined relationship between the Fund and the WTO over balance-of-payment might impact on developing countries in the unfolding architecture of trade.

The Promotion Of Free-Trade Areas Viewed In Terms Of Most-Favored-Nation Treatment And "Imperial Preference", Sydney M. Cone Iii

Michigan Journal of International Law

This Article will first examine the relevant WTO provisions that permit free-trade agreements as exceptions to MFN treatment. It will then situate current U.S. policy in the context of the history and purpose of those provisions. Next, the discussion of history and purpose will take up a key debate in the original GATT negotiations, in which the United States championed MFN treatment, while European countries, in particular, Great Britain, sought to retain preferential trading arrangements-arrangements once associated with the rubric of "imperial preference." Against this background, the article will explore the question of whether current U.S. policy represents a reversion …

Bridging Fragmentation And Unity: International Law As A Universe Of Inter-Connected Islands, Joost Pauwelyn

Michigan Journal of International Law

The fragmentation of the international legal system is not new. The consent-based nature of international law inevitably led to the creation of almost as many treaty regimes, composed of different constellations of states, as there are problems to be dealt with. Traditionally, these different regimes operated in virtual isolation from each other. Most importantly, the Bretton Woods institutions (World Bank, IMF, and GATT, now WTO) focused on the world's economic problems, while the UN institutions tackled the world's political problems. Both the IMF and World Bank articles of agreement, for example, explicitly state that political factors cannot be taken into …

Interpreting The Wto Agreements- A Commentary On Professor Pauwelyn's Approach, Joshua Meltzer

Michigan Journal of International Law

In his paper, Professor Pauwelyn argues that pursuant to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (Vienna Convention), the Appellate Body should consider other rules of international law in the interpretation of the WTO Agreements, when that law reflects the "common intentions" of the parties to the WTO. He argues that this does not mean that "all the parties to the WTO treaty must have formally and explicitly agreed, one after the other, to the new non-WTO rule; nor even that this rule must be otherwise legally bind all WTO members; but rather, that this new …

Reply To Joshua Meltzer, Joost Pauwelyn

Michigan Journal of International Law

A reply to Joshua Meltzer's comment on the author's paper Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands

Assessing Clashes And Interplays Of Regines From A Distributive Perspective: Ip Rights Under The Strengthened Embargo Against Cuba And The Agreement On Trips, Robert Dufresne

Michigan Journal of International Law

This Article examines the clash of the two regulatory frameworks from the angle of distributive justice. By doing so, I suggest that in addition to the important issues of legitimacy, substantive norms, and hierarchy of legal orders, clashes between potential regulatory frameworks should also be conceptualized in the way in which they allocate goods (here the rights associated with IP) or recognize claims to or interests in such goods. The reasons for being concerned with distributive justice are threefold.

Wto Compassion Or Superiority Complex?: What To Make Of The Wto Waiver For "Conflict Diamonds", Joost Pauwelyn

Michigan Journal of International Law

In May 2003, the WTO granted a waiver for trade restrictions imposed on WTO members not participating in the Kimberley Certification Scheme combating so-called "conflict diamonds." This Article examines the implications of this waiver decision. It argues that GATT/TBT provisions may already excuse the trade restrictions at issue, especially now that the UN Security Council has explicitly supported them. The waiver, therefore, risks sending out the wrong signals, confirming a WTO "superiority complex." At the same time, by excluding restrictions between Kimberley participants from its scope, the waiver implies that WTO members considered the Kimberley scheme to be a non-WTO …

Further Thoughts On The Role Of Regulatory Purpose Under Article Iii Of The General Agreement On Tariffs And Trade: A Tribute To Bob Hudec, Donald H. Regan

Articles

My topic in this article is the role of regulatory purpose under Article III of the GATT, and I regard Bob [Hudec] as the patron saint of efforts to establish the relevance of purpose. His famous "Requiem for an 'Aims and Effects' Test" may have been called a requiem, but it was reluctant and sceptical. Bob thought dispute settlement tribunals ought to consider the regulator's purpose, and he thought they would do so, whatever they said. As decisions on Article III accumulate, we are in the process of learning that he was right on both counts.

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan

Articles

In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos) the Appellate Body has told us that (1) in interpreting Article 111:4 of the General Agreement on Tariffs and Trade (GATT), we must take explicit account of the policy in Article 111:1 that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile--Taxes on Alcoholic Beverages (Chile--Alcohol) the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection", we must consider "the purposes or objectives of a Member's legislature and …

Globalization And The Design Of International Institutions, Cary Coglianese

All Faculty Scholarship

In an increasingly globalized world, international rules and organizations have grown ever more crucial to the resolution of major economic and social concerns. How can leaders design international institutions that will effectively solve global regulatory problems? This paper confronts this question by presenting three major types of global problems, distinguishing six main categories of institutional forms that can be used to address these problems, and showing how the effectiveness of international institutions depends on achieving “form-problem” fit. Complicating that fit will be the tendency of nation states to prefer institutional forms that do little to constrain their sovereignty. Yet the …

The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan

Articles

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) …

The Applicability Of The Ecsc-Cartel Prohibition (Article 65) During A "Manifest Crisis", Ernst-Joachim Mestmäcker

Michigan Law Review

The Commission and the Council have found that the steel industry of the Community is facing a "manifest crisis" within the meaning of article 58 of the European Coal and Steel Community (ECSC) Treaty. Factors that have led to this crisis include structural peculiarities of the steel industry, an increase in production costs, a decrease in demand for steel and steel products, and the resulting excess capacity in steel mills. A majority of the Member States have attempted to protect their national steel industries from the economically mandated cutback in production capacity through substantial subsidization. International competition has thus degenerated, …

Implementing The Tokyo Round: Legal Aspects Of Changing International Economic Rules, John H. Jackson, Jean-Victor Louis, Mitsuo Matsushita

Michigan Law Review

International economic and political interdependence has increased dramatically since the close of World War II. We now watch foreign wars on our living room television sets, move billions of dollars worth of funds across national borders daily, and feel the effects of political violence in the Mideast throughout our domestic farmlands. A corollary to economic and political interdependence, however, is the less visible but equally pervasive problem of legal interdependence. Any attempt, in the contemporary world, to create new international rules or institutions necessarily depends on the national legal and constitutional systems of a number of countries. This Article analyzes …

Dam: The Gatt, Law And International Economic Organization, Carl H. Fulda

Michigan Law Review

A Review of The GATT, Law and International Economic Organization by Kenneth Dam