Law Commons^™

Extending Trade Law Precedent, Jeffrey Kucik, Sergio Puig

Vanderbilt Journal of Transnational Law

Precedent is celebrated as a fundamental feature of dense legal systems as it creates predictability, builds coherence, and enhances the authority of courts and tribunals. But, in international adjudication, precedent can also affect interstate cooperation and ultimately the legitimacy of international organizations. Wary of clashing with state interests, most international dispute settlement systems are designed so that rulings do not set obligatory precedent.

This Article describes the role of precedent in the Appellate Body (AB) of the World Trade Organization (WTO) to explain how precedent can affect compliance with the decisions of international courts and tribunals (ICs). This Article makes …

Building Bridges: International Trade Law, Internet Governance, And The Regulation Of Data Flows, Neha Mishra

Vanderbilt Journal of Transnational Law

The regulation of internet data flows touches upon various distinct disciplines including internet governance and international trade law. In internet governance, three fundamental principles, namely, internet openness, internet security, and internet privacy apply to regulation of internet data flows. This Article argues that internet privacy and security, when implemented in a reasoned and transparent manner by different stakeholders, enable internet openness--thus, challenging the dominant perspective that cybersecurity and privacy requirements constrain the free flow of data. Further, this Article introduces a unique perspective by arguing that these three principles (notwithstanding their nonbinding nature) play an important role in applying trade …

Data At The Docks: Modernizing International Trade Law For The Digital Economy, Andrew D. Mitchell, Neha Mishra

Vanderbilt Journal of Entertainment & Technology Law

The World Trade Organization (WTO) has been slow so far in responding to the various challenges arising from the integration of electronic commerce into cross-border trading activities. This slow response in the multilateral system is largely attributable to the complex, multifaceted nature of digital trade or electronic commerce, coupled with the conflict among countries on issues of Internet regulation and digital development. Nonetheless, international trade agreements, particularly at the WTO, play an important role in the creation of a secure, predictable, and trustworthy global regulatory framework for digital trade, and therefore, need to be reformed in a timely and meaningful …

Confused, Frustrated, And Exhausted: Solving The U.S. Digital First Sale Doctrine Problem Through The International Lens, Alandis K. Brassel

Vanderbilt Journal of Transnational Law

Users worldwide enjoy digital goods such as music and e-books on a daily basis. They have become a major part of people's lives, with uses ranging from lighthearted entertainment to serious educational pursuits. In many cases, convenience and affordability make digital goods more preferable than their analog counterparts. However, users often cannot use digital goods as freely as they would analog goods. Courts, legislation, and businesses prohibit those users, accustomed to reselling unwanted hard-copy books or vinyl records, from reselling digital books and music. This confuses users as to what they can actually do with their digital goods. This Note …

If You Can't Beat Them, Join Them: The U.S. Solution To The Issue Of Corporate Inversions, Scott Deangelis

Vanderbilt Journal of Transnational Law

There is an old proverb, "If you can't beat them, join them, "that suggests that those who cannot win against some group should stop fighting and instead band together with them. It seems clear that when it comes to corporate inversions, the United States cannot win. Instead, countries overseas have taken advantage of tax break schemes to lure multinational companies away from the United States. This Note suggests that to prevent further foreign inversions, the United States should join these foreign countries in two ways. First, the United States should put its support behind the OECD's plan of a multilateral …

Plain Packaging And The Interpretation Of The Trips Agreement, Susy Frankel, Daniel Gervais

Vanderbilt Journal of Transnational Law

Plain packaging of cigarettes as a way of reducing tobacco consumption and its related health costs and effects raises a number of international trade law issues. The plain packaging measures adopted in Australia impose strict format requirements on word trademarks (such as Marlboro or Camel) and ban the use of figurative marks (colors, logos, etc.). As a result, questions have been raised as to plain packaging's compatibility with the World Trade Organization's (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).

WTO members can validly take measures to protect and promote public health, but in doing so they …

"Shelter Chic": Can The U.S. Government Make It Work?, Kristina R. Montanaro

Vanderbilt Journal of Transnational Law

This Note discusses government donations of seized counterfeit goods to charitable institutions and the implications of these practices. The Customs and Border Protection (CBP) contributions to the Red Cross for the Hurricane Katrina relief effort serve as a backdrop for important concepts. In making these contributions, the CBP relied on its emergency authority and a presidential proclamation to avoid basic statutory requirements that it (a) obtain consent from the right holders and (b) de-trademark counterfeit goods prior to donation. While the donations inarguably benefitted countless disaster victims and freed up valuable CBP warehouse space, they may have had a detrimental …

Legislative Implementation Of The Food Chain Approach, Jessica Vapnek

Vanderbilt Journal of Transnational Law

Food safety is an essential element of food security, since "adequate" food means food that is not only available, but also safe. Food safety systems have traditionally focused on end-product testing, which is an unsatisfactory means of ensuring safe food. An increasing focus on prevention has spurred interest in a food chain approach, which aims to control all steps in the food chain from production to consumption. Although the approach has drawn international attention in recent years, national lawmakers have lacked guidance on its implementation. This Article serves that need. Part II of the Article describes the international backdrop to …

Paths To Local Food Security: A Right To Food, A Commitment To Trade, Marsha A. Echols

Vanderbilt Journal of Transnational Law

International bodies and nation-states attending international meetings on the subject have agreed that there is a "right to food." The first Millennium Development Goal, in which members of the United Nations General Assembly agreed to halve the number of persons without adequate food by the year 2015, complements this right to food. Many persons believe that the right to food--especially at the national level--is linked to national food self-sufficiency. Opponents of this view argue that self-sufficiency is economically irrational in many territories. Others believe that for many countries, particularly nations in sub-Saharan Africa, a government's obligation to ensure food security …

The World Trade Organization And Participatory Democracy: The Historical Evidence, Peter M. Gerhart

Vanderbilt Journal of Transnational Law

Although the World Trade Organization (WTO) is one of the most significant international institutions, its function, domain, and legitimacy are still heavily contested. The Author examines the history of the founding of the General Agreement on Tariffs and Trade (GATT), the WTO's predecessor, to see what history reveals about the role that GATT was originally expected to fulfill. The Author's interpretive examination shows that GATT's founders recognized that trade policy must be internationalized in order to give one country an opportunity to participate in the policy-making of other countries; otherwise, a county can impose costs on other countries without representation …

Let's Dump The 1916 Antidumping Act: Why The 1994 Gatt Provides Better Price Protection For U.S. Industries, Nicole Disalvo

Vanderbilt Journal of Transnational Law

The U.S. Congress is currently considering a vote to repeal the 1916 Antidumping Act. The 1916 Antidumping Act makes the importation of foreign goods that were sold below market prices illegal if the foreign company had the "intent [to] destroy or injure an industry in the United States." Few claims have been adjudicated under the 1916 Act since its passage, and no plaintiff has won a case based solely on the 1916 Antidumping Act. Commentators reason that the strict intent requirement or the availability of remedies in other antitrust statutes has contributed to this phenomenon. Recently, there has been debate …

Renegotiation And Adaptation Clauses In Investment Contracts, Revisited, John Y. Gotanda

Vanderbilt Journal of Transnational Law

Professor Dr. Klaus Berger, in Renegotiation and Adaptation of International Investment Contracts: The Role of Contract Drafters and Arbitrators, proposes that international investment contracts include a clause allowing the parties to renegotiate the terms of their contract if certain events take place.' If they are unable to reach an agreement, Professor Berger advocates that the parties agree to permit an arbitral tribunal to modify the terms of the contract to restore the economic equilibrium assumed by the parties when they concluded the agreement. Although commentators have often championed these clauses, private parties involved in international transactions have included them infrequently. …

Health Versus Trade: The Future Of The Who's Framework Convention On Tobacco Control, Alyssa Woo

Vanderbilt Journal of Transnational Law

On October 16, 2000, the World Health Organization (WHO) began the first session of negotiations of its first international health treaty, the Framework Convention on Tobacco Control (FCTC). Scheduled for adoption in May 2003, the FCTC is a comprehensive multilateral treaty that will cover everything from tobacco smuggling to tobacco advertising and the extent of the liability of tobacco companies.

This Note argues that even-handed domestic measures implementing the FCTC will be protected from international, trade-based complaints because the World Trade Organization's dispute settlement system has given sufficient and appropriate content to the health exception to the normal trade rules …

Harmonizing The Battle Of The Forms: A Comparison Of The United States, Canada, And The United Nations Convention On Contracts For The International Sale Of Goods, Charles Sukurs

Vanderbilt Journal of Transnational Law

As trade between the United States and Canada continues to increase on the heels of the free trade agreements of the early 1990s, the question of which body of commercial law to apply to these transactions becomes increasingly important. The United Nations Convention on Contracts for the International Sale of Goods (CISG) serves as the default governing law for many of these transactions. In spite of its lack of use and the confusion it has brought to choice of law provisions as a self-executing treaty, many scholars have suggested that the CISG can continue to serve as a body of …

Commercial Norms, Commercial Codes, And International Commercial Arbitration, Christopher R. Drahozal

Vanderbilt Journal of Transnational Law

This Article examines whether the incorporation of commercial norms into commercial codes is an appropriate law-making strategy. Most commercial codes, including the Uniform Commercial Code, regard common business practices as an important source for courts to consider when resolving contract disputes. Yet some scholars criticize this incorporation strategy, arguing that reliance on commercial norms is often inappropriate and may distort the true nature of the parties' agreement. Reliance on commercial norms does restrict the ability of contracting parties to allocate part of their agreement to extra-legal means of enforcement. Nevertheless, this Article asserts that those costs may be outweighed by …

Damned If You Do, Damned If You Don't? The Oecd Convention And The Globalization Of Anti-Bribery Measures, Christopher F. Corr, Judd Lawler

Vanderbilt Journal of Transnational Law

This article explores the efforts of the international community to battle corruption by focusing on the recently promulgated Organization of Economic and Cooperative Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. For many years the United States battled corruption by prohibiting its domestic businesses from bribing foreign officials. Other countries, however, generally viewed U.S. policy as a form of unilateral commercial disarmament and declined to pass their own anti-bribery legislation. The Convention, therefore, marks a recent shift by the international community, as it requires signatories to enact laws to punish domestic corporations for bribes …

Selected Bibliography: The Reintegration Of Hong Kong Into China, Audrey E. Haroz, Jonathan R. Smith

Vanderbilt Journal of Transnational Law

The reintegration of Hong Kong into the People's Republic of China (hereinafter P.R.C.) on July 1, 1997, brought together two countries, one capitalist and one communist, under one rule. As evidenced by the variety of perspectives offered at the Vanderbilt Journal of Transnational Law's Symposium on Hong Kong's Reintegration into the P.R.C., there is much scholarly debate concerning this merger and the effect it will have on the people and politics of both countries as well as on the international community.

An earlier version of this bibliography is included in the May 1997 issue of the Journal. This bibliography has …

The Limits Of Economic Power: Section 301 And The World Trade Organization Dispute Settlement System, C. O'Neal Taylor

Vanderbilt Journal of Transnational Law

Since World War 1I, the United States has sought trade liberalization through the use of multilateral and unilateral actions under the General Agreement on Tariffs and Trade (GATT) and Section 301 of the Trade Act of 1974, respectively. Unilateralism by the United States has involved the forceful opening of foreign markets by the threat of sanctions, such as blocking access to the U.S. market. Such unilateral actions led the world trading system into the most recent multilateral negotiations, the Uruguay Round. As a result, the United States conceded to an effort to achieve trade liberalization through the expansion of GATT …

Trade, Competition, And Intellectual Property--Trips And Its Antitrust Counterparts, Eleanor M. Fox

Vanderbilt Journal of Transnational Law

This Article examines the interface between TRIPS' protection of intellectual property rights and antitrust law, and the extent to which TRIPS invites a counterpart agreement that would internationalize intellectual property antitrust rules.

Professor Fox argues that TRIPS does not call for internationalizing antitrust law, and that even developing countries, which might find a greater need for antitrust protection against abuse of dominance after TRIPS, might be better served by developing and enforcing a national antitrust law of their own.

She argues that TRIPS does, however, contemplate some limits to antitrust, lest antitrust enforcement impair protections guaranteed by TRIPS. Professor Fox …

The Marlboro Man In Asia: U.S. Tobacco And Human Rights, Jonathan Wike

Vanderbilt Journal of Transnational Law

In recent years, U.S. tobacco manufacturers have responded to declining domestic consumption by aggressively promoting their products in Asia and other foreign markets. Their efforts have resulted in increased tobacco use and increased health risks in Asia. This Note discusses the legal implications of U.S. tobacco marketing in Asia, particularly the disadvantages faced by Asians who might wish to challenge U.S. tobacco manufacturers in court. The author first describes tobacco promotion In Asia and the limited potential for recovery against U.S. tobacco companies by Asian plaintiffs in their domestic courts. The Note then contrasts the limitations Asian plaintiffs face in …

Compliance With Trips: The Emerging World View, Adrian Otten, Hannu Wager

Vanderbilt Journal of Transnational Law

This Article provides an overview of the substantive provisions of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The authors begin by explaining how the TRIPS Agreement signals a new emphasis on protecting intellectual property in the international trading system and the World Trade Organization. They then discuss the Agreement's obligations on substantive protection, as well as its enforcement and dispute resolution mechanisms. Finally, the authors address the international plans for the Agreement's implementation and administration. Otten and Wager conclude that, while it does not solve all the problems related to international intellectual property matters, the TRIPS Agreement …

The Trips Agreement: Imperialistic, Outdated, And Overprotective, Marci A. Hamilton

Vanderbilt Journal of Transnational Law

According to Professor Hamilton, the TRIPS Agreement constructs international copyright law in the image of Western, Protestant-based capitalist copyright law. She suggests that the Agreement imposes presuppositions about human value, effort, and reward that contain political, sociological, and legal ramifications. In fact, the Agreement, with its focus upon valuing individual human creative achievement, could spur further developments in Western-based human rights in the rest of the world. By transplanting Western ideas to the rest of the world, TRIPS may actually encourage anti-authoritarian revolution. She further suggests that the TRIPS Agreement seeks to establish a free market of intellectual property goods. …

The United States Policy Of Stringent Anti-Treaty-Shopping Provisions: A Comparative Analysis, Simone M. Haug

Vanderbilt Journal of Transnational Law

Tax avoidance through international treaty shopping has become a subject of intense controversy in the international community. By shrewdly structuring businesses, corporations are currently able to take advantage of tax exemptions contained in tax treaties, though the countries that have joined the treaties never intended for them to benefit from such provisions. Many nations, including the United States, view this practice as tax treaty abuse. In response to such abuses, many countries are now incorporating strict anti-treaty-shopping provisions in their bilateral tax treaties.

Ms. Haug begins the Article by describing the practice of treaty shopping and, specifically, the various methods …

Trips Boomerang--Obligations For Domestic Reform, Harold C. Wegner

Vanderbilt Journal of Transnational Law

Today, one of the biggest obstacles facing inventors is the problem of patent harmonization. Inventors, who spend their time, money, and resources to develop new technology, are faced with the problem of ensuring that their new development receives patent protection not only in their home countries, but also worldwide. This problem is complicated by the fact that the United States maintains a different patent filing process than most other developed nations. Efforts of the international community to harmonize these different approaches, however, have been only partially successful.

In this Article, Professor Wegner examines the latest attempt by the international community …

Efficiencies And Merger Review In Canada, The European Community, And The United States, Mark A.A. Warner

Vanderbilt Journal of Transnational Law

This Article examines economic efficiencies analysis in the merger review processes of Canada, the European Community, and the United States. In recent years, legal counsel, academics, and policymakers have given greater attention to international harmonization and convergence of competition and antitrust law and policy. This trend has been spurred by the increasing acceptance of efficiency-based economics in competition policy generally and in merger policy particularly. The author, nevertheless, asks whether efficiency-based merger analysis also may create new jurisdictional conflicts among national merger enforcement authorities. For instance, a state concerned with its own domestic competitiveness might emphasize domestic efficiency gains in …

The Institutional And Policy Framework For Foreign Investment In The Eastern Caribbean, Puerto Rico, And The United States Virgin Islands, T. M. Ocran

Vanderbilt Journal of Transnational Law

This Article provides an overview, based in part on the author's field survey, of the investment laws and policies of the Eastern Caribbean subregion. The island states of the Eastern Caribbean offer foreign investors unique opportunities. Among the reasons that these states should attract investment is the close relation between the two two neighboring islands, Puerto Rico and the United States Virgin Islands, and the United States; this relation offers the Eastern Caribbean states ready access to the U.S. market. The author examines these relations and the institutional frameworks for investment employed by the various states. The Article raises questions …

The North American Free Trade Agreement: A Market Analysis, Leonard Bierman, Donald R. Fraser, James W. Kolari

Vanderbilt Journal of Transnational Law

The North American Free Trade Agreement (NAFTA) was the subject of heated debate in the United States Congress. The central issue of the debate was whether NAFTA would have a positive or negative economic impact on the parties to the treaty. This Article is a direct empirical market analysis that measures the perceived economic impact of NAFTA on the parties to the agreement and other states. The authors use stock market event analysis to study the effect of NAFTA on different sectors of the economy of the United States, Mexico, Canada, Europe, and the Asia/Pacific region. In doing so, the …

Extraterritorial Application Of Title Vii: The Foreign Compulsion Defense And Principles Of International Comity, Mary C. St. John

Vanderbilt Journal of Transnational Law

With an increasing number of United States corporations locating and affiliating overseas and United States citizens seeking employment with multinational corporations, the debate over the extraterritorial application of United States discrimination laws has attracted greater international attention. The 1991 amendment to Title VI1 of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of race, religion, sex, or national origin, specifically provides for extraterritorial application of Title Vii. The foreign compulsion defense, however, limits the scope of Title VII's application abroad and raises the issue of whether U.S. corporations can claim this defense when foreign …

Implications Of The Single European Act On European Community Law-Making: A Modest Step Forward, Barbara C. Potter

Vanderbilt Journal of Transnational Law

In this Article, Ms. Campbell Potter discusses the interaction of the European Community (EC) institutions and the effect the Single European Act (SEA) will have on EC law-making. Specifically, the author notes that the SEA provisions for expanded use of the qualified majority vote and the new cooperation procedure for passage of legislation have changed the balance of power among EC institutions and should facilitate enactment of EC legislation. Ms. Campbell Potter believes that the SEA will continue to be successful as long as Member States do not recklessly invoke "vital national interest" veto powers and as long as the …

The Foreign Commerce Clause And The Market Participant Exemption, David E. Dreifke

Vanderbilt Journal of Transnational Law

In this Note, the author argues that, despite the strictures of the Foreign Commerce Clause, under an expansive conception of the market participant exemption, states should be able to place restrictions on the export of state-owned or state-nurtured natural resources. In light of the current trade imbalance between Japan and the United States and by way of example, the author discusses Japan's importation of United States natural resources and the competing interests that argue for and against its continuance. Japan's economic growth, appetite for natural resources, and lack of adequate regard for environmental consequences is well documented. Economists and political …