Law Commons^™

North American Energy In The Crossfire, Guillermo J. Garcia Sanchez, James W. Coleman

Faculty Scholarship

North America is the beating heart of global energy markets un-dergoing a terrible energy crisis that threatens to upend both the economy and global security. The clearest path out of this global crisis is increasing energy supplies from North America, which can restore energy security and drive a transition to cleaner energy sources. The U.S., Mexico, and Canada have abundant and varied resources to surmount this challenge but are in dire need of stronger cooperation across borders, and between private and public actors to achieve this goal. This Article shows how energy law changes in the U.S. and Mexico present …

What Lies Beneath: Usmca Chapter 24 And Sub-National Governance Of Environmental Issues, Alexandra R. Harrington

Pace Environmental Law Review

This article examines the sub-national governance issues existing in the USMCA through the lens of environmental law and regulation in each of the three State Parties. It asserts that the governance gaps created by failing to include the terms of sub-national laws in the express parameters of the USMCA are significant and can pose a challenge to the successful implementation of the Agreement now and into the future. The decision to focus on the USMCA regime was made because of the recent timing of its negotiation, the many efforts made by all sides to incorporate critical non-trade issues into the …

Bizarre Love Triangle: The Trilateral Responses To Tame The United States-Mexico Border, James M. Cooper

Faculty Scholarship

This article explores the role that multilateral agreements among Canada, Mexico, and the United States, and bilateral agreements between the United States and Mexico, have played along the border. Part I of this article explores the Washington Consensus and the culture of accumulation, plunder, and extractivism that it has engendered. Part II delves into various economic integration pacts that are part of the Washington Consensus starting with the NAFTA, then the Security and Prosperity Partnership (SPP), and finally, the United States-Mexico-Canada Agreement. It concludes that neither agreement make the border safer, nor make its working people more prosperous.

North American Energy In The Crossfire, Guillermo J. Garcia Sanchez, James W. Coleman

Faculty Journal Articles and Book Chapters

North America is the beating heart of global energy markets undergoing a terrible energy crisis that threatens to upend both the economy and global security. The clearest path out of this global crisis is increasing energy supplies from North America, which can restore energy security and drive a transition to cleaner energy sources. The U.S., Mexico, and Canada have abundant and varied resources to surmount this challenge but are in dire need of stronger cooperation across borders, and between private and public actors to achieve this goal. This Article shows how energy law changes in the U.S. and Mexico present …

When Drills And Pipelines Cross Indigenous Lands In The Americas, Guillermo J. Garcia Sanchez

Faculty Scholarship

From the Missouri River, passing through the Sonora Desert, all the way down to the Amazon Forest and the Andean Mountains, drills and pipelines are crossing over indigenous lands. In an energy-thirsty continent, there is no land left to spare, not even tribal land. Many of these energy infrastructure projects involve international investments that are protected by treaties and enforced by arbitral tribunals. At the same time, tribal communities have an internationally recognized right to receive prior and informed consultation before they are affected by projects of this nature. The Article focuses on the clash of rights between energy extraction …

Canadian Food Law Update, Patricia L. Farnese

Journal of Food Law & Policy

Provided below is an overview of developments in Canadian food law and policy in 2010. This update primarily analyzes the regulatory and policy developments and litigation activities by the federal government. This focus reflects the significance of federal activities in the food policy realm.

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo J. Garcia Sanchez

Faculty Scholarship

Chinese offshore investments in the oil and gas sector around the world are on the rise. Like dragons roaming the seas trying to dominate the tides, Chinese state-owned companies are particularly eager to bid for oil fields in maritime borderlines. The article tells the story of how Chinese state-owned companies are over paying for oil on the US-Mexico boundary to gather experience on how China’s global competitors handle resource development conflicts. My argument is that Chinese participation in transboundary field development fits within a long-term strategy to master international legal regimes. The presence of these petro-dragons in borderlines is an …

Two-Dimensional Hard-Soft Law Theory And The Advancement Of Women's And Lgbtq+ Rights Through Free Trade Agreements, Raj Bhala, Cody N. Wood

Georgia Journal of International & Comparative Law

No abstract provided.

Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu

Peter K. Yu

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical …

Withdrawing From Nafta, Alison Peck

Faculty & Staff Scholarship

Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious con- stitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to terminate …

Data Exclusivities In The Age Of Big Data, Biologics, And Plurilaterals, Peter K. Yu

Texas A&M Law Review

The past decade has seen many new developments impacting the intellectual property system. The introduction of big data analytics has transformed the fields of biotechnology and bioinformatics while ushering in major advances in drug development, clinical practices, and medical financing. The arrival of biologics and personalized medicines has also revolutionized the healthcare and pharmaceutical industries. In addition, the emergence of bilateral, regional, and plurilateral trade agreements have raised serious, and at times difficult, questions concerning the evolution of domestic and international intellectual property standards.

One topic linking all three developments together concerns the establishment of international standards to protect clinical …

Between Dialogue And Decree: International Review Of National Courts, Robert B. Ahdieh

Robert B. Ahdieh

Recent years have seen dramatic growth in the number of international tribunals at work across the globe, from the Appellate Body of the World Trade Organization and the International Tribunal for the Law of the Sea, to the Claims Resolution Tribunal for Dormant Claims in Switzerland and the International Criminal Court. With this development has come both increased opportunity for interaction between national and international courts and increased occasion for conflict. Such friction was evident in the recent decision in Loewen Group, Inc. v. United States, in which an arbitral panel constituted under the North American Free Trade Agreement found …

230+ Law And Economics Professors Urge President To Remove Isds From Nafta, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI helped launch a letter signed by over 230 law and economics professors urging President Trump to remove ISDS provisions from NAFTA. As the letter notes, the ISDS mechanism “undermines the important roles of our domestic and democratic institutions, threatens domestic sovereignty, and weakens the rule of law.” The letter builds upon the center’s past work, including a similar letter published last year calling on Congress to reject the Trans Pacific Partnership for its inclusion of ISDS, and broader analyses of both the threat that ISDS poses to domestic US law and of the ISDS provisions that were included in …

220+ Law And Economics Professors Sign Letter Opposing Isds In The Tpp, Columbia Center On Sustainable Investment

Columbia Center on Sustainable Investment Staff Publications

CCSI helped launch a letter joined by over 220 law and economics professors calling on Congress to oppose the final Trans-Pacific Partnership agreement because that treaty includes the investor-state dispute settlement (ISDS) mechanism. As the letter notes, the ISDS mechanism “threatens to dilute constitutional protections, weaken the judicial branch and outsource our domestic legal system to a system of private arbitration that is isolated from essential checks and balances.” Despite the Obama administration’s claims to have addressed growing concerns about the ISDS system, the final TPP would instead vastly expand the ISDS threat to the rule of law and …

Border Crossings: Nafta, Regulatory Restructuring, And The Politics Of Place, Ruth Buchanan

Ruth Buchanan

Professor Buchanan begins her paper by questioning whether recent economic and political shifts towards notions of "globalization" (e.g., the NAFTA) have failed to consider the politics or economics of change in particular places. Her prime example of a "place" where integration is illogically forced against a background of differentiation is the U.S.-Mexico border region. Through the scope of a "regulatory complex" (a complex of legal, institutional, regulatory, and social orderings), she departs from the common view of the NAFTA as a productive tool of North American integration, and instead views the NAFTA as exacerbating "differences between localities, industries, and labor …

Transcanada Lawsuit Highlights Need To Scuttle Tpp, Jeffrey D. Sachs, Brooke Güven, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

The Obama administration is still trying, against the odds, to push the Trans-Pacific Partnership trade and investment agreement (TPP) through the lame-duck session of Congress after the November presidential vote. The administration knows that TPP can’t pass before the election because both Hillary Clinton and Donald Trump oppose it; therefore, they are hoping for a stealth Senate vote between the election and inauguration of the new president in 2017.We can therefore “thank” TransCanada for reminding us why the TPP needs to be scuttled.

Emerging Issues: Transcanada V. Obama Administration – 15 Billion For Cancellation Of Keystone Xl Pipeline Project, Aviana Cooper

University of Baltimore Journal of International Law

TransCanada Keystone Pipeline, LP and TC Oil Pipeline Operations Inc., subsidiaries of TransCanada Corporation (“TransCanada”), lost their seven-year bid with the United States (U.S.) Government for a permit to complete the $5.4 billion oil pipeline connecting Canada and the U.S. On November 6, 2015, President Obama announced that Secretary of State, John Kerry, through powers under Executive Order 13337, had denied the application for a border crossing permit, prohibiting construction of the Keystone XL Pipeline Project. Following this denial, on January 6, 2016, TransCanada filed a complaint to the District Court of Texas against members of the Obama Administration, requesting …

Tpp Would Let Foreign Investors Bypass The Canadian Public Interest, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In early October, prime ministerial candidate Justin Trudeau promised Canadians “a full and open public debate” on the Trans-Pacific Partnership. With 30 chapters that would bind Canada to sweeping agreements on everything from services to intellectual property to the environment to procurement, there is much to debate.

The Tpp’S Investment Chapter: Entrenching, Rather Than Reforming, A Flawed System, Lise Johnson, Lisa E. Sachs

Columbia Center on Sustainable Investment Staff Publications

During the negotiations of the Trans-Pacific Partnership (TPP) agreement, many stakeholders raised strong concerns about the Investment Chapter of the TPP, and in particular, the investor-state dispute settlement mechanism (ISDS). The US Trade Representative (USTR) and other representatives of the negotiating partners assured the stakeholders that the TPP’s investment chapter would respond to the legitimate concerns about expansive investor protections and ISDS. The actual text, however, when made public, showed the opposite: a further evisceration of the role of domestic policy, institutions, and constituents. In their current form, the TPP’s substantive investment protections and ISDS pose significant potential costs to …

From Gats To Apec: The Impact Of Trade Agreements On Legal Services, Laurel S. Terry, Laurel S. Terry

Laurel S. Terry

This article provides a comprehensive overview of the treatment of legal services in the United States‘ international trade agreements. Although many individuals are now familiar with the General Agreement on Trade in Services (GATS), far fewer realize that legal services are included in at least fifteen international trade agreements to which the United States is a party. This article begins by identifying those trade agreements and other developments including the 2009 Legal Services Initiative of the Asia Pacific Economic Cooperation (APEC). The article continues by explaining the structure of the GATS and comparing its provisions to the provisions found in …

Pirates Or Privateers: Examining The Risks Of Conflicting International Regimes Through The Lens Of U.S.-Gambling, Eric A. Heath

Georgia Journal of International & Comparative Law

No abstract provided.

From Gats To Apec: The Impact Of Trade Agreements On Legal Services, Laurel S. Terry, Laurel S. Terry

Akron Law Review

This article provides a comprehensive overview of the treatment of legal services in the United States‘ international trade agreements. Although many individuals are now familiar with the General Agreement on Trade in Services (GATS), far fewer realize that legal services are included in at least fifteen international trade agreements to which the United States is a party. This article begins by identifying those trade agreements and other developments including the 2009 Legal Services Initiative of the Asia Pacific Economic Cooperation (APEC). The article continues by explaining the structure of the GATS and comparing its provisions to the provisions found in …

Eyes Wide Shut On Isds, Lisa E. Sachs, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

Recent agreement among congressional leaders on a “fast-track” bill may have been a victory for the Obama administration’s trade agenda. However, members of congress should take a look at the recent Bilcon case, decided by a NAFTA tribunal, to understand what they are signing up for.

Globalization And The Border: Trade, Labor, Migration, And Agricultural Production In Mexico, Chantal Thomas

Chantal Thomas

The debate over immigration policy in the United States has reached a crescendo in recent years, with particular concern over illegal workers and their impact on social well-being in this country. Yet in the prevailing analysis of this issue, the relationship between immigration and contemporary international trade policy is often overlooked. In particular, few commentators recognize or understand that a significant part of the surge in illegal labor from Mexico--the source of the majority of undocumented workers in the United States—stems from reforms that Mexico undertook in cooperation with the United States to liberalize trade flows across the Mexico-United States …

Constitutional Change And International Government, Chantal Thomas

Chantal Thomas

No abstract provided.

Strategic Globalization: International Law As An Extension Of Domestic Political Conflict, Jide Nzelibe

Northwestern University Law Review

No abstract provided.

New Weaknesses: Despite A Major Win, Arbitration Decisions In 2014 Increase The Us’S Future Exposure To Litigation And Liability, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In 2014, the US continued its overall record of success in defending investment treaty claims. But it did suffer losses on a number of important issues, and those losses will render the US (and its treaty parties) vulnerable to future claims, litigation expense, and liability. The US’s recent losses, which have thus far been largely ignored in commentary on the US’s experiences in investment arbitration, are highlighted in this briefing note.

The Interaction Of Tax And Non-Tax Treaties, Robert A. Green

Robert A. Green

This background note consists of two parts. Part one provides an overview of the extent to which tax matters are currently covered in non-tax treaties. This discussion focuses on the general agreement on tariffs and trade (GATT)/World Trade Organization (WTO) agreement and the North American free trade agreement (NAFTA) (which cover direct tax measures only to a limited extent) and the European Community (EC) treaty (which covers direct tax measures more broadly). Part two outlines the issues raised when tax matters are covered in non-tax treaties.

Expanding The Nafta Chapter 19 Dispute Settlement System: A Way To Declaw Trade Remedy Laws In A Free Trade Area Of The Americas?, Stephen J. Powell

Stephen Joseph Powell

Chapter 19 of the NAFTA transfers judicial review of U.S., Canadian, and Mexican government investigations under the controversial anti-dumping and countervailing duty (AD/CVD) laws from national courts to binational panels of private international law experts. The system stands as a unique surrender of judicial sovereignty to an international body, a hybrid of national courts and international dispute settlement with as yet no parallel in the world of international trade or other international law regimes. Binational panel decisions have been controversial because agencies chafe at their intimate examination of agency findings and supporting evidence. Panels also are viewed as substantially more …

The National Environmental Policy Act Of 1969 And Its Implications For Nafta: Public Citizen V. United States Trade Representative, 822 F. Supp. 21 (D.D.C.), Rev'd 5 F.3d 549 (D.C. Cir. 1993)., Kristin R. Loecke

Georgia Journal of International & Comparative Law

No abstract provided.