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Full-Text Articles in Law
Trade Multilateralism And U.S. National Security: The Making Of The Gatt Security Exceptions, Mona Pinchis-Paulsen
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. …
On Territoriality And International Investment Law: Applying China's Investment Treaties To Hong Kong And Macao, Odysseas G. Repousis
On Territoriality And International Investment Law: Applying China's Investment Treaties To Hong Kong And Macao, Odysseas G. Repousis
Michigan Journal of International Law
To date, investor-state tribunals have been preoccupied with a range of issues revolving around the territorial application (territoriality) of international investment agreements (IIAs). The importance, as well as the various forms such issues take, has recently been highlighted in the decision of the Singapore High Court (SGHC) in Laos v. Sanum. In this case, the SGHC was asked by Laos to set aside an earlier arbitral award (in Sanum v. Laos), filed by a Macanese legal entity and rendered under the China-Laos bilateral investment treaty (BIT). In approaching the matter, the SGHC set aside the award on the grounds that …
Who's In Charge Of Global Finance?, Michael S. Barr
Who's In Charge Of Global Finance?, Michael S. Barr
Articles
The global financial crisis caused widespread harm not just to the financial system, but also to millions of households and businesses and to the global economy. The crisis revealed substantive, fundamental weaknesses in global financial regulation and raised serious questions about whether national regulators and the international financial regulatory system could ever be up to the task of overseeing global finance. This Article analyzes post-crisis reforms with two questions in mind: First, how can we build an effective international financial architecture with more than one architect? Second, can we build a system that is legitimate and accountable? The Article suggests …
United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan
United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan
Articles
US–Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an ‘equivalence regime’. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues – in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS …
Toward A Trips Truce, Patricia L. Judd
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. …
Breaking Patents, Daniel R. Cahoy
Breaking Patents, Daniel R. Cahoy
Michigan Journal of International Law
In the 1970s and 1980s, the Boeing aircraft company worked to address the rising cost of jet fuel by inventing lighter metal alloys for use in aerospace materials. Among its discoveries was a method of producing aluminum-lithium alloys with high "fracture toughness," and in 1989, Boeing received a patent for the process. Five years later, another aerospace company working as a National Aeronautics and Space Administration (NASA) contractor, Lockheed Martin, was attempting to solve a similar problem related to materials used in the space shuttle. Lighter materials were necessary for future shuttle missions to transport components of the International Space …
International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan
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 …
How To Think About Ppms (And Climate Change), Donald H. Regan
How To Think About Ppms (And Climate Change), Donald H. Regan
Book Chapters
The European Commission has apparently backed off from a proposal to tax imported goods produced by methods that generate excessive greenhouse gas emissions. So the issue of whether such a tax would be legal under the WTO has become slightly less urgent than it recently appeared. But Pascal Lamy the Director-General of the WTO still thought the possibility of some countries imposing emission-based trade restrictions was worth mentioning prominently in his speech to the Trade Ministers Conference in conjunction with the Bali Conference on climate change after Kyoto. And at that same conference, an official of the European Commission may …
Are Eu Trade Sanctions On Burma Compatible With Wto Law?, Robert L. Howse, Jared M. Genser
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 …
A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan
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 …
The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan
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 …
Paper Dragon: Inadequate Protection Of Intellectual Property Rights In China, Omario Kanji
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 …
Global Administrative Law: The View From Basel, Michael S. Barr, Geoffrey P. Miller
Global Administrative Law: The View From Basel, Michael S. Barr, Geoffrey P. Miller
Articles
International law-making by sub-national actors and regulatory networks of bureaucrats has come under attack as lacking in accountability and legitimacy. Global administrative law is emerging as an approach to understanding what international organizations and national governments do, or ought to do, to respond to the perceived democracy deficit in international law-making. This article examines the Basel Committee on Banking Supervision, a club of central bankers who meet to develop international banking capital standards and to develop supervisory guidance. The Basel Committee embodies many of the attributes that critics of international law-making lament. A closer examination, however, reveals a structure of …
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
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
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 …
Balancing Judicial Economy, State Opportunism, And Due Process Concerns In The Wto, Ana Frischtak
Balancing Judicial Economy, State Opportunism, And Due Process Concerns In The Wto, Ana Frischtak
Michigan Journal of International Law
This Note will focus on an aspect of the dispute settlement proceeding that has not been officially proposed for reform: the withdrawal of and amendments to measures being challenged by a complaining Member during the course of the proceedings. This aspect raises issues of judicial economy, state opportunism, and due process. In particular, this practice, where the respondent country to a dispute withdraws or amends the measure being challenged during the course of proceedings, threatens to undermine the legitimacy of the dispute settlement system as a fair and transparent adjudicating body.
Bridging Fragmentation And Unity: International Law As A Universe Of Inter-Connected Islands, Joost Pauwelyn
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
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
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
Like Father, Like Son: A Progeny Of The Antidumping Model For The Shipbuilding Industry, Seung Wha Chang
Like Father, Like Son: A Progeny Of The Antidumping Model For The Shipbuilding Industry, Seung Wha Chang
Michigan Journal of International Law
This Article is organized in the following manner: Part II introduces the OECD Secretariat's proposed pricing mechanisms based on the IPC antidumping model, while Part III provides for a critical evaluation of the proposed pricing mechanisms. First, Part III explains the reasons why the IPC antidumping model does not fit the shipbuilding industry due to the unique characteristic of the shipbuilding market. This Part thereafter demonstrates why the antidumping regime, as well as the proposed pricing mechanism, cannot be justified under the competition policy standards. While criticizing defenses for the current antidumping regime, Part III demonstrates why the proposed pricing …
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.
Envisioning A Global Legal Culture, Charles H. Koch Jr.
Envisioning A Global Legal Culture, Charles H. Koch Jr.
Michigan Journal of International Law
To encourage all, but particularly U.S., lawyers to think about transformation of the law, this Article will envision a global legal regime. The purpose is more reflective than predictive. Nominally, the Article has three parts. The first Part offers an overview description of the emerging supranational legal institutions and the major forces moving them. The next Part will outline civil law legal concepts and provide background for common law readers. To further the goal of this Article, it will do so as it suggests some issues that will arise as the civil law system is incorporated into the global legal …
A Guide To International And Foreign Legal Research Online, Jennifer L. Selby
A Guide To International And Foreign Legal Research Online, Jennifer L. Selby
Law Librarian Scholarship
Today, legal researchers in foreign and international law can enhance their search capabilities with web-based resources. However, a few caveats about doing foreign and international legal research on the web include: 1) not all material is available through the web, and the web is not always the fastest way to obtain materials; and 2) the web can be a good source of current and recent information, however, often older legal materials are not found on the web.
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
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.
Wto Compassion Or Superiority Complex?: What To Make Of The Wto Waiver For "Conflict Diamonds", Joost Pauwelyn
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 …
Do World Trade Organization Dispute Settlement Reports Affect The Obligations Of Non-Parties? -- Response To Mcnelis, Donald H. Regan
Do World Trade Organization Dispute Settlement Reports Affect The Obligations Of Non-Parties? -- Response To Mcnelis, Donald H. Regan
Articles
In the June 2003 issue of this Journal, Natalie McNelis argued that when a World Trade Organization (WTO) dispute is settled by a Dispute Settlement Body (DSB) report, even Members who are not parties to the dispute have an obligation to conform their behaviour to legal principles laid down in the report. 1 Although I am generally sympathetic to McNeis's conclusion-and although I think she does a great service by directing our attention to the question of how Members, as opposed to later tribunals, should respond to DSB reports-I think her argument cannot stand as she presents it. After explaining …
Foreign Direct Investment In Latin America Overview And Current Status, Reuven S. Avi-Yonah, Martin B. Tittle
Foreign Direct Investment In Latin America Overview And Current Status, Reuven S. Avi-Yonah, Martin B. Tittle
Other Publications
More firms than ever, and in more industries and countries, are expanding abroad through [foreign] direct investment [FDI]. Although FDI in 1980 was equivalent to only 5% of world GDP, by the end of the 1990's, that percentage had more than tripled to 17%. In 1993, the total US dollar value of world FDI was only US$ 200 billion, but by the year 2000, it had risen to US$ 1.3 thousand billion. Developing countries received around 25% of these inflows, mostly in the form of "greenfield" investments, where a new enterprise is essentially created from scratch.
Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan
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 …
Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah
Tax, Trade And Harmful Tax Competition: Reflections On The Fsc Controversy, Reuven S. Avi-Yonah
Articles
This article contrasts three approaches to dealing with the BEPS problem: adopting a unitary taxation regime, ending deferral, and adopting anti-base-erosion measures. It concludes that while the first approach is the best long-term option, the other two are more promising as immediate candidates for adoption in the context of U.S. tax reform and the OECD BEPS project.
The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan
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) …