Law Commons^™

Ftas' Contribution Towards A More Flexible Copyright Space: Possibilities And Limits, Maria Vasquez Callo-Muller

American University International Law Review

Free Trade Agreements (FTAs) have often been considered instruments for heightened intellectual property rights protection, thereby in detriment of a more flexible copyright space. However, since the adoption of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, some FTAs have been incorporating a clause on the “Balance in Copyright and Related Rights Systems.” Among these, the Regional Comprehensive Economic Partnership Agreement and, more recently, the 2021 Australia-U.K. FTA contain such a clause. In addition, more discrete FTAs, such as the AustraliaPeru FTA, also incorporate similar provisions. This article considers what incorporating such clauses in FTAs means for the interpretation of …

Investments And Security: Balancing International Commerce And National Security With Expanded Authority For The Committee On Foreign Investment In The United States, Christopher Jusuf

Catholic University Journal of Law and Technology

What happens when the interests of international trade conflict with those of national security? This article analyzes this question within the context of the Committee on Foreign Investment in the United States (CFIUS), an obscure but increasingly powerful executive panel that exercises the president's broad authority to unilaterally interfere with and stop international mergers and acquisitions. With the passage of the Foreign Investment Risk Review Modernization Act (FIRRMA), CFIUS is more powerful now than it has ever been, and should be a key consideration for any company seeking to do business with foreign investors. This is especially true as America …

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 …

The Harmonization Myth In International Intellectual Property Law, Sarah R. Wasserman Rajec

Faculty Publications

There is a dominant narrative in international intellectual property ("IP") law of ever-increasing harmonization. This narrative has been deployed in ways descriptive, prescriptive, and instrumental: approximating the historical trend, providing justification, and establishing the path forward. Appeals to harmonization are attractive. They evoke a worldwide partnership and shared sacrifice to meet the goals of innovation and access to technology through certainty, efficiency, and increased competition through lowered trade barriers. Countries with strong IP protections consistently and successfully tout the importance of certainty and lower trade barriers when seeking new and stronger protections from countries with lower levels of protection. Yet …

Towards A New Generation In Central American Trade: Proposals For Modernizing Cafta-Dr, Julia E. Johnson

Pace International Law Review

To the surprise of many, the Trump Administration has signaled its intent to renegotiate the Dominican Republic-Central America Free Trade Agreement (CAFTA-DR). Why is the possible renegotiation of CAFTA-DR a surprise? CAFTA-DR has been largely favorable to the United States (U.S.)—the U.S. has enjoyed significant trade surpluses with CAFTA-DR countries since its ratification. CAFTA-DR has also promoted regional integration and co-production in Central America.Trade flows in and out of Central America have increased significantly. On balance, CAFTA-DR has benefitted all signatory nations from a trade standpoint, though it has left unaddressed a myriad of social, humanitarian, and governance issues. Consequently, …

Infringement, Unbound, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

No abstract provided.

International Provisions Of Public Law No. 115-97 (The “Tcja”) (Powerpoint), William B. Sherman

William & Mary Annual Tax Conference

No abstract provided.

Infringement, Unbound, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.

Regulatory Cooperation In International Trade And Its Transformative Effects On Executive Power, Elizabeth Trujillo

Faculty Scholarship

As international trade receives the brunt of local discontent with globalization trends and recent changes by the Trump administration have put into question the viability of such trade arrangements moving forward, there has been a clear trend in using international trade fora for managing regulatory barriers on economic development. This paper will discuss this recent trend in international trade toward increased regulatory cooperation through the creation of formalized transnational regulatory bodies, such as the U.S.-EU Regulatory Cooperation Body that was being discussed in the TTIP negotiations and comparable ones in the Canadian-EU Trade Agreement as well as U.S.-Mexico and U.S.- …

Do We Need A Global Commercial Code?, Michael Joachim Bonell

Dickinson Law Review (2017-Present)

The International Institute for the Unification of Private Law (UNIDROIT) first launched the idea of preparing a code of inter- national trade law. In 1970, the Secretariat of UNIDROIT submitted a note to the newly established United Nations Commission on International Trade Law (UNCITRAL) in justification of such an initiative and indicated some of the salient features of the project. What was proposed was a veritable code in the continental sense. The proposed code included two parts: part one dealing with the law of obligations generally, and part two relating to specific kinds of commercial transactions. However, the “Progressive codification …

The Right To Food And The Right To Intellectual Property In The United Nations (Including International Human Rights) And International Trade: Finding The Definition, Darinka Tomic

Electronic Thesis and Dissertation Repository

Intellectual property (IP) is omnipresent in both the context of the United Nations (UN) system (including international human rights law and the World Intellectual Property Organization (WIPO)), and international trade law, while the right to food has a much lower international profile. IP moved into international trade in 1994 through the TRIPS Agreement. The right to food has no presence in international trade. These two rights are the focus of this study – but are contrasted with several other rights: the right to health and the rights of persons with disabilities. The right to health was not present in …

Lodging The Sustainable Development Goals In The International Trade Regime: From Trade Rhetoric To Trade Plethoric, Nasser A. Alreshaid

Nasser A Alreshaid

While the international community is stimulated by the new sustainable development goals’ impetus, the global trade regime lives through its 40’s mid-life crisis and anticipates what it does not know. Views of the multilateral trading system being stalled by a proliferation of other preferential trade agreements, signal a deep inquiry into this policy trend. What this paper intends to highlight though, is that if lessons are drawn from the new sustainable development goals, these global trade challenges could be mere air turbulence. By introducing the needs of states and their constituents through these goals, an inclusive and more representative international …

Laying Down The "Brics": Enhancing The Portability Of Awards In International Commercial Arbitration, Benjamin C. Mccarty

Benjamin C McCarty

The drafters of the 1958 New York Convention intended Article V(2)(b) to be interpreted narrowly, and while most pro-arbitration national courts do maintain narrowly defined areas of public policy that are sufficient for refusal of the recognition and enforcement of a foreign arbitral award, this is not always the case. Developing states and jurisdictions that maintain corrupt or inefficient judicial systems have shown a greater willingness to invoke the public policy exception for a broader, amorphous variety of reasons. This phenomenon has created a sense of unpredictability among international investors, arbitrators, and business executives as to the amount of deference …

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Rising To China's Challenge In The Pacific Rim: Reforming The Foreign Corrupt Practices Act To Further The Trans-Pacific Partnership, Michael B. Runnels

Seattle University Law Review

It is a commonly held myth that the rise of U.S. global economic hegemony rests upon a free trade philosophy. On the contrary, protectionist trade policies were central to galvanizing American industrialization. This misconception lies at the heart of why the trade liberalization policies enforced under the U.S.-led Bretton Woods institutions, the World Bank and the International Monetary Fund (IMF), brought ruinous results to many poor countries. The subsequent decline in credibility of these institutions challenges their continued relevance and opens a space for powerful nations to fashion alternative rules of trade. China is a member of the IMF but …

A Fake Right Of Priority Under The Cross-Strait Agreement On Intellectual Property Right Protection And Cooperation, Ping-Hsun Chen

Ping-Hsun Chen

On June 26, 2010, Taiwan and China entered into a “Cross-Strait Agreement on Intellectual Property Rights Cooperation and Protection” (“Cross-Strait IP Agreement”). This Cross-Strait IP Agreement was renowned for China’s admission of a right of priority of Taiwanese patent applications or trademark applications. Under the TRIPS Agreement, China is obligated to admit a right of priority of Taiwanese applications, but it has never fulfilled such obligation. China’s particular concern is that a right of priority is rooted from the Paris Convention which only allows a state to join, so by admitting a right of priority of Taiwanese applications it may …

The North-South Divide In International Environmental Law: Framing The Issues, Carmen G. Gonzalez, Sumudu Atapattu

Carmen G. Gonzalez

The unprecedented degradation of the planet’s vital ecosystems is among the most pressing issues confronting the international community. Despite the proliferation of legal instruments to combat environmental problems, conflicts between rich and poor nations (the North-South divide) have compromised the effectiveness of international environmental law, leading to deadlocks in environmental treaty negotiations and non-compliance with existing agreements. Through contributions from scholars based in five continents, International Environmental Law and the Global South examines both the historical origins of the North-South divide in European colonialism as well as its contemporary manifestations in a range of issues, including food justice, energy justice, …

International Environmental Law And The Global South, Carmen G. Gonzalez

Carmen G. Gonzalez

The unprecedented degradation of the planet’s vital ecosystems is among the most pressing issues confronting the international community. Despite the proliferation of legal instruments to combat environmental problems, conflicts between rich and poor nations (the North-South divide) have compromised the effectiveness of international environmental law, leading to deadlocks in environmental treaty negotiations and non-compliance with existing agreements. Through contributions from scholars based in five continents, International Environmental Law and the Global South examines both the historical origins of the North-South divide in European colonialism as well as its contemporary manifestations in a range of issues, including food justice, energy justice, …

Infringement As Unfair Competition: A Blueprint For Global Governance?, Sean Pager, Eric Priest

Sean Pager

INFRINGEMENT AS UNFAIR COMPETITION: A BLUEPRINT FOR GLOBAL GOVERNANCE?

Sean A. Pager Michigan State University College of Law

Eric Priest University of Oregon School of Law

ABSTRACT

This Article examines a new approach to address persistent regulatory failures in global supply chains. In a series of recent cases, unfair competition actions have been brought in U.S. court against foreign manufacturers who infringe software overseas under the theory that the cost savings from infringement confers an unfair advantage in U.S. markets. While this theory has been advanced in the intellectual property context, the same approach could work to target abuses in …

Developing An International Carbon Tax Regime, Steven Specht

Steven Specht

As atmospheric CO2 remains in the range of 400 ppm, it is necessary to find new international coordination to deal with climate change. The best way forward is an international regime of harmonized domestic carbon taxes. By agreeing to a minimum amount of taxation on domestic, point-source producers, money can be set aside for adaptation costs and alternative means of energy production. Finally, such a plan will overcome the problem of non-participation of countries in agreements like the Kyoto Protocol. As this is a treaty dealing with economics and trade, countries can place taxes on imports of non-participatory countries under …

International Trade V. Intellectual Property Lawyers: Globalization And The Brazilian Legal Profession, Vitor M. Dias

Vitor M. Dias

No abstract provided.

Using Occam’S Razor To Solve International Attorney-Client Privilege Choice Of Law Issues: An Old Solution To A New Problem, Nathan M. Crystal, Francesca Giannoni-Crystal

Nathan M. Crystal

The practice of law is increasingly becoming “delocalized.” Globalization and the use of technology are two important factors in this fundamental change in practice. Delocalization is affecting almost all areas of practice, including issues involving attorney-client privilege (ACP). To some extent the choice-of-law rules governing ACP are also – like other fields of the law - being “delocalized,” but in our view only partially. This paper discusses six approaches to choice of law issues governing ACP that are being used by the courts. Aside from the traditional lex loci approach (which simply applies the law of the forum to the …

Avenues To Foreign Investment In China’S Shipping Industry—Have Lease Financing Arrangements And The Free Trade Zones Opened Markets For Foreign Non-Bank Investment?, Rick Beaumont

Rick Beaumont

No abstract provided.

Deliberative Engagement Within The World Trade Organization: A Functional Substitute For Authoritative Interpretations, Cosette D. Creamer, Zuzann Godzimirska

Cosette D Creamer

The transition from the General Agreement on Tariffs and Trade dispute settlement proceedings to the Dispute Settlement Mechanism (DSM) of the World Trade Organization represented a notable instance of judicialization within international economic governance, in that it significantly increased the independence of the DSM from direct government control. Since they began ruling on trade conflicts in 1995, the WTO’s adjudicative bodies have enjoyed a greater degree of interpretive autonomy than initially intended by states parties. This development largely stems from deadlock within the political organs of the Organization resulting in non-use of one of the primary means of legislative response—authoritative …

A Comparison Of The Jurisprudence Of The Ecj And The Efta Court On The Free Movement Of Goods In The Eea: Is There An Intolerable Separation Of Article 34 Of The Tfeu And Article Of 11 Of The Eea?, Jarrod Tudor

Jarrod Tudor

Article 11 of the European Economic Area (“EEA”) and Article 34 of the Treaty on the Functioning of the European Union (“TFEU”) prohibit quantitative restrictions on the free movement of goods. The EEA is monitored by the European Free Trade Area Court (“EFTA Court”) and the TFEU is monitored by the European Court of Justice (“ECJ”). In theory, the EFTA Court and the ECJ should interpret Article 11 and Article 34 in the same manner in order to promote harmonization of the law on the free movement of goods and allow for further economic integration between EFTA and the EU. …

The Free Movement Of Capital In Europe: Is The European Court Of Justice Living Up To Its Framers' Intent And Setting An Example For The World?, Jarrod Tudor

Jarrod Tudor

The benefits to free movement of international financial flows are numerous but include an efficient asset market and the opportunity for economic growth and development for countries engaged in an agreement allowing for such freedom. The free movement of capital is one of the four pillars of the Treaty on the Function of the European Union (TFEU) along with the free movement of goods, services, and labor. Article 63 of the TFEU prohibits limitations on the free movement of capital while Article 65 of the TFEU allows for some exceptions. Not only does the free movement of capital doctrine suppose …

Discriminatory Internal Taxation In The European Union: The Power Of The European Court Of Justice To Limit The Tax Sovereignty Of Member-States Under Article 110 Of The Tfeu, Jarrod Tudor

Jarrod Tudor

Protectionism can come in a variety of methods including the use of internal taxation policies that discriminate against imports making those imports more expensive on the domestic market and thus favoring domestically-produced goods. Discriminatory taxation policies have been developed by member-states to mask protectionism by distinguishing products based on import status, product similarity, product life cycle, consumption, tax collection practices, transportation charges, and state aid. The Framers of the Treaty on the Functioning of the European Union (TFEU) wrote Article 110 with the objective in mind to prohibit internal taxation policies from discriminating against goods in made in other member-states. …

Greek Debt Restructuring, Abaclat V. Argentina And Investment Treaty Commitments: The Impact Of International Investment Agreements On The Greek Default, Julien Chaisse

Julien Chaisse

This chapter further explains the Greek crisis and sets the scene for the subsequent analysis. Section I reviews the existing Greek treaties, while section II reviews their coverage of sovereign debt-related issues in terms of scope of application. Section III explains key features of the Greek– foreign IIAs and their significance for sovereign debt restructuring (SDR), namely the scope of Greek–foreign IIAs in terms of substantial rights of investors under IIAs. Section IV summarizes the main points of contention for the future of SDR in light of the Abaclat decision, but also the litigation prospects as for the Greek SDR.

Shared Responsibility Regulation Model For Cross-Border Reproductive Transactions, Sharon Bassan

Sharon Bassan

The term “cross-border reproductive transactions” refers to the phenomenon of tens of thousands of people who travel from one country to another to purchase reproductive services, in order to have a child. The foci of this paper are the lion share of cross-border reproductive transactions, specifically between consumers, i.e., intended parents from affluent countries, and suppliers of reproductive services, egg sellers and surrogate mothers, the majority of whom are from lower middle-income countries. Strong concerns regarding the morality of consumers’ states’ policy arise when a country nationally restricts or bans commercial surrogacy, while accepting the results of cross-border reproductive transactions …

Deconstructing The Wto Conformity Obligation-- A Theory Of Compliance As A Process, Julien Chaisse

Julien Chaisse

This Article deconstructs the WTO obligation of conformity enshrined in Article XVI:4 of the WTO Agreement, demonstrating that this key provision is not a mere interface between international and domestic law. In fact, the obligation of conformity is the source of a process of compliance which, although more modest than usual law of international responsibility, has proven to be effective in securing final compliance. Deconstructing the obligation of conformity helps to explain and demystify the high level of compliance with WTO law while significantly contributing to the understanding of why and how States comply with international law.