Law Commons^™

In Praise Of Faction: How Special Interests Benefit Constitutional Order, Jide Nzelibe

Northwestern University Law Review

Political factions are rarely treated as normatively desirable entities in constitutional or international law. On the contrary, they are either regarded as forces that thwart the general welfare or as sources of chronic political instability. Thus, the conventional wisdom often focuses on how to deploy institutional or legal structures that minimize the influence of faction. By contrast, this Essay argues that the institutions of constitutional and international law that are forged by self-interested factions can create significant side benefits for the rest of the society. At bottom, such institutions are likely to be more durable and energetic than those created …

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Faculty Working Papers

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

"Consumer Protection:" Consumer Strategies And The European Market In Genetically Modified Foods, Johanna Gibson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Convergence And The Implementation Of A Single Set Of Global Standards: The Real-Life Challenge, Mary Tokar

Northwestern Journal of International Law & Business

This paper addresses the impact of convergence on auditing firms by focusing on the adoption of International Financial Reporting Standards (IFRSs) issued by the International Accounting Standards Board (IASB). While the adoption of the IFRSs by companies around the globe is intended to achieve convergence in accounting by eliminating different national approaches to financial reporting, many challenges arise from the process of adoption of the IFRSs, as well as from the ongoing and still incomplete process of convergence of national standards with the IFRSs.

The $4 Billion Question: An Analysis Of Congressional Responses To The Fsc/Eti Dispute Under Wto Export Subsidy Standards, William Chou

Northwestern Journal of International Law & Business

During the decade-long relationship between the United States and the World Trade Organization (WTO), perhaps no controversy has fomented as long and bitterly as the dispute over the U.S. tax benefits for exporters. This article analyzes two competing bills before the House of Representatives, both devised to bring the United States in compliance with the WTO's ruling against the U.S. Foreign Sale Corporation (FSC) and Exterritorial Income (ETI) tax regimes as prohibited export subsidies. Hit with a $4 billion retaliatory tariff by the European Union, the House sought new tax legislation that would preserve at least some of the tax …

Setting A Global Standard: The Case For Accounting Convergence, David Tweedie, Thomas R. Seidenstein

Northwestern Journal of International Law & Business

As capital markets play an increasingly central role in today's modern economies, policy-makers are confronted with the question of how to assure the continued effective functioning of these markets and, in particular, how to develop a sound financial reporting infrastructure. Recent experience suggests that such a reporting infrastructure must be built on accounting standards that are consistent, comprehensive, and based on clear principles to enable financial reports to reflect underlying economic reality.

Meaning, Ambiguity And Legitimacy: Judicial (Re-)Construction Of Nafta Chapter 11, Ari Afilalo

Northwestern Journal of International Law & Business

Chapter 11 of the North American Free Trade Agreement (NAFTA) benignly named the "Investment Chapter," is a theater for some of the most advanced issues of 21st century international law and adjudication. The Chapter gives private parties the right to challenge national policies that burden their ability to do business freely. It empowers arbitral tribunals to assess damages against the governments of NAFTA parties. The adjudicators, as this Article illustrates, render opinions with a constitutional flavor in that they assess the validity of domestic norms against larger principles of international economic law. In a drastic move away from classical century …

A Dual Catastrophe Of Protectionism, Sungjoon Cho

Northwestern Journal of International Law & Business

Suppose that a consortium of wealthy and powerful local industries, acting through lawmakers captured by these industries, managed to pass a statute, damaging to the larger public welfare, purely for a protectionist purpose. Suppose further that this statute victimizes exports from a small, poor country such as Vietnam, to a large, rich country such as the United States, because these imported products are cheaper and thus pose a competitive threat to rival domestic industries. Suppose also that courts in the importing country can do little to stop this chain of events. Rational individuals might find these events objectionable, if not …

General Exclusion Orders Under Section 337, Gary M. Hnath

Northwestern Journal of International Law & Business

Your company, Widgets Unlimited, imports foreign-made widgets into the United States. One day, you're informed that U.S. Customs & Border Protection (Customs) has detained your goods and is determining whether they infringe a patent owned by The American Widget Corporation, based on an exclusion order issued by the International Trade Commission (ITC) after a recent ITC investigation, titled Certain Widgets with Extra Shiny Surfaces. Since you were never a party to any proceeding at the ITC, and indeed, you never even knew American Widget had patents on its widgets, you conclude that there must be some mistake and wait for …

Convergence: Challenges, Controversies And Collaboration, David Van Zandt

Northwestern Journal of International Law & Business

In this Symposium issue, the Northwestern Journal of International Law and Business has brought together seven outstanding commentators on the possibilities, complexities and controversies of convergence.

Creation Of World Wide Accounting Standards: Convergence And Independence, David S. Ruder, Charles T. Canfield, Hudson T. Hollister

Northwestern Journal of International Law & Business

"Cross-border trading" in the stocks of multinational companies is the code word for the ability of all companies worldwide to be able to sell their securities in the markets of all countries. In a cross-border trading environment, the world's investment resources would be freely available to companies in all countries and capital would be allocated in an optimal fashion. One of the primary barriers to cross-border trading is the requirement that the financial statements of the companies being traded in the securities markets of a particular country be compatible. With comparable financial statements, multinational companies would be able to access …

A Securities Regulator Looks At Onvergence, Donald T. Nicolaisen

Northwestern Journal of International Law & Business

For many years there has been a dedicated group of practitioners, standard setters, business leaders and others from around the world who have worked to establish a single set of globally accepted accounting standards for the benefit of the capital markets. These people clearly had their hearts in the right place but, absent a binding mandate to apply the standards, it seemed largely a labor of love. Now I expect those pioneering initiatives and the many years of effort to pay off because in 2005 a large number of companies are joining what up to now has been a limited …

The Use Of International Accounting Standards In The European Union, Alexander Schaub

Northwestern Journal of International Law & Business

2005 is a watershed year for the application of International Accounting Standards (1ASs) in the European Union. From the first of January this year, all listed European companies must prepare their consolidated accounts using IASs or International Financial Reporting Standards (IFRSs). This requirement represents a quantum leap in the use of a single consistent set of accounting standards for capital markets in the European Union.

International Convergence Of Accounting Standards-Perspectives From The Fasb On Challenges And Opportunities, Robert H. Herz, Kimberley R. Petrone

Northwestern Journal of International Law & Business

Convergence of international accounting standards is not a new initiative at the Financial Accounting Standards Board (FASB or Board); in fact, the FASB has pursued international "convergence" for almost half of its more than thirty year existence.' The FASB's international activities initially fell under the heading of harmonization, or internationalization, of accounting standards. Today those activities are referred to as convergence.Whatever the term, the Board has long held the view that a single set of high-quality international accounting standards is desirable because its use will improve international comparability of financial information; reduce costs to financial statement users, preparers, auditors, and …

The Japanese Issues And Perspective On The Convergence Of International Accounting Standards, Mitsuru Misawa

Northwestern Journal of International Law & Business

Japan is negotiating diligently with the European Union and is asking for its approval of the Japanese accounting standard as an equivalent to the IFRSs. If the Japanese accounting standard fails to be recognized as an equivalent of the IFRSs, disclosure by Japanese companies based on the Japanese accounting standard currently in the European Union would not be allowed. This would severely affect the financing activities of Japanese companies seeking to raise funds in the European Union. Japanese corporations are also concerned about the possibility that Japanese accounting standards could be branded as inferior to the European or U.S. Accounting …

Injury Investigations In "Material Retardation" Antidumping Cases, Prakash Narayanan

Northwestern Journal of International Law & Business

Despite the criticisms of economists to antidumping measures, they continue to be the most often used trade remedy measure. A new trend that may be observed is the use of the "material retardation" standard of injury to demonstrate injury to domestic industry that is one of the requirements for imposing antidumping duty. It is essential to be wary of this trend as unlike the other two types of injury, the WTO lacks specific guidelines for the use of this standard. The general rules in the Antidumping Agreement are unsuitable for the situations where the material retardation standard is relevant, and …

Test Of Multilateralism In International Trade: U.S. Steel Safeguards, Y.S. Lee

Northwestern Journal of International Law & Business

The highly publicized safeguard measures applied by the United States to an array of steel products in 2002 became one of the biggest and most controversial trade disputes in recent history. Virtually all major trading nations in the world, including the European Community, Japan , China , Brazil , Korea , New Zealand , Switzerland and Norway , were the direct parties to this dispute with the United States . The contentious legal grounds of the U.S. safeguard measures, as well as the lack of adequate consultations between the United States and its trading counterparts, have brought the international community …

Trips' Rebound: An Historical Analysis Of How The Trips Agreement Can Ricochet Back Against The United States, Donald P. Harris

Northwestern Journal of International Law & Business

Recently, scholars and commentators around the world have reexamined the role intellectual property rights (IPRs) play in hindering or helping developing countries. These scholars have questioned the doctrine the IPRs help developing countries by promoting economic development, increasing foreign direct investment, stimulating domestic innovation, and improving access to new technologies, and have concluded that imposing "Western-styled" intellectual property regimes (e.g., the U.S. patent regime) on developing countries harms those countries. In particular, such regimes fail to bring any of the purported benefits, while they impose many costs, including preventing people from obtaining life-saving drugs. This Article argues that it is …

The Spirit Of Trips And The Importation Of Medicines Made Under Compulsory License After The August 2003 Trips Council Agreement, Jessica J. Fayerman

Northwestern Journal of International Law & Business

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement has changed prospects for access to necessary medications in the developing world. The use of compulsory licensing for pharmaceutical products embodied in Article 31 of TRIPS has been a contentious issue. Prior to 2003, countries with no manufacturing capacity of their own were not allowed to import medicines made under compulsory license, rendering the protections of Article 31 of little use to them. The 2003 Motta Agreement changed this. This expansion of the compulsory licensing power is both an impractical solution and it dilutes the premises upon which TRIPS was originally …

Changing Notions Of Sovereignty And Federalism In The International Economic System: A Reassessment Of Wto Regulation Of Federal States And The Regional And Local Governments Within Their Territories, Edward T. Hayes

Northwestern Journal of International Law & Business

International trade liberalization increasingly addresses disciplines which fall within the constitutional competence of regional and local governments. Traditional notions of nation/state sovereignty are evolving to recognize the importance of regional and local actors on the international economic scene. The ongoing evolution of international trade and sovereignty incresasingly places regional and local governments in a unique position to influence world trade, positively and negatively.

This article explores the manner in which the World Trade Organization attempts to regulate regional and local behavior. Specifically, this Article explores the inherent constitutional tension and resulting ambiguities in the WTO's effort to regulate regional and …

Case To Repeal The Antidumping Laws, The , Robert W. Mcgee

Northwestern Journal of International Law & Business

Antidumping laws were designed to protect domestic industry from foreign competition. They protect producers at the expense of consumers, which results in higher prices, lower quality products, less consumer choice and a general lowering of the standard of living for the vast majority of people. Antidumping laws also destroy more jobs than they create.

Fallacy Of Federalism In Foreign Affairs: State And Local Foreign Policy Trade Restrictions, The , Howard N. Iii Fenton

Northwestern Journal of International Law & Business

State and local foreign trade restrictions represent the convergence of two main threads of the globalization of the U.S. experience, and raise a serious challenge to the historic allocation of foreign policy responsibility to the federal government. The internationalization of state and local economies is the first thread. The second is the heightened efforts of state, city and county governments to play a role in foreign affairs and foreign policy decisions. Where they meet finds states and cities using their new-found international economic leverage to influence not only United States' foreign policy, but the domestic policies of foreign nations as …

Substantive Appraisal Of Horizontal Mergers Under Eec Regulation 4064/89: An Inquiry Into The Commission's First Year Decisions, Frank M. Hellemans

Northwestern Journal of International Law & Business

Rather, our purpose is to examine what criteria the Regulation prescribes for the substantive appraisal of mergers. We will not only scrutinize Article 2 of the Regulation and the different policies behind it, but we will also inquire into the Commission's decisions in order to find out how the Commission has applied the Regulation's substantive criteria to 'real live' mergers and acquisitions. Broadly speaking, this involves questions of product and geographic market definition, of calculating market shares and interpreting them and, finally, of basic goals of mergers control policy.

European Harmonization Of Data Protection Laws Threatens U.S. Participation In Trans Border Data Flow, George B. Trubow

Northwestern Journal of International Law & Business

We are in the midst of "Europe '92," the year when the European Community (EC) is to take on new shape and substance as it seeks transformation to economic and political strategies intended to enhance its position in international trade and commerce. With respect to matters of information processing and transborder data flow, the Council of Europe has prepared a draft directive concerning privacy and security regarding personal information (Privacy Directive). That draft, under consideration by the member states, is of great importance to the rest of the world since it contemplates that EC members will not exchange information with …

Legal Acceptance Of Electronic Documents, Writings, Signatures, And Notices In International Transportation Coventions: A Challenge In The Age Of Global Electronic Commerce, Judith Y. Gliniecki, Ceda G. Ogada

Northwestern Journal of International Law & Business

This paper surveys a number of international transportation conventions with respect to their treatment of electronic means as acceptable methods of generating documents. In addition, this paper looks at the methods of satisfying the applicable formalities of writing, signature, and notice.

Jurisdiction And The Court Of International Trade: Remarks Of The Honorable Gregory W. Carman At The Conference On International Business Practice Presented By The Center For Dispute Resolution On February 27-28, 1992, Gregory W. Carman

Northwestern Journal of International Law & Business

The United States and the other countries of the world will continue to develop rules and laws governing their relationships in international commercial matters as the years ensue. As part of that agenda, lawyers and members of the international trading community should be familiar with the dispute resolution provisions of the United States Court of International Trade and some of the procedural and substantive problems of the Court. The Court's function is to judicially review disputes under the customs and trade laws of the United States.

Does The Government Really Help Small Business Exporters--An Analysis Of Pre-Export Financing Programs Under The Small Business Expansion Act Of 1980 And The Export Trading Company Act Of 1982, Toni P. Lester

Northwestern Journal of International Law & Business

This paper will attempt to address these questions by examining the legislation and subsequent regulations that lead to the establishment of the SBA and Eximbank guarantee programs. First, there will be a brief discussion of the types of financing needed by small-business exporters and the problems they face when they try to get financing. The 1980's legislation, which attempted to redress some of those problems, as well as the regulations and guidelines that were adopted by the SBA and Eximbank to implement that legislation, will then be covered. Finally, based on an evaluation of the above regulations and guidelines, measures …

Critical Analysis Of Judicial Attempts To Reconcile The United States-Japan Friendship, Commerce And Navigation Treaty With Title Vii, A , Jeffrey J. Mayer

Northwestern Journal of International Law & Business

This paper offers a practical solution to the conflict between civil rights and economic growth through a new, but sensible, interpretation of the "right to choose" provision. Part I explains the conflicting rulings of the five Courts of Appeals that have addressed this issue. Part II concludes that the courts' various reconciliations between Title VII and the Japan FCN Treaty are, in each case, impossible to apply consistently or fairly. Courts have wrongly attempted to preserve the protections of Title VII for American employees of foreign corporations by asking factfinders to draw impossibly fine distinctions between permissible and prohibited criteria …

Current Administration Of U.S. Antidumping And Countervailing Duty Laws: Implications For Prospective U.S.-Mexico Free Trade Talks, Stephen J. Powell, Craig R. Giesse, Craig L. Jackson

Northwestern Journal of International Law & Business

U.S.-Mexico trade relations are changing at a rapid pace. In 1985, the United States and Mexico entered into a bilateral trade agreement that seeks to eliminate the subsidization of manufactured products. One year later, Mexico became a signatory to the General Agreement on Tariffs and Trade (the "GATT"), the multilateral accord that governs world trade in manufactured and agricultural products. In 1987, the two countries entered into a framework agreement that establishes a consultative mechanism designed to resolve bilateral trade disputes involving such issues as intellectual property protection, direct foreign investment, and trade in goods and services.

Trade Protectionism And Environmental Regulations: The New Nontariff Barriers, C. Ford Runge

Northwestern Journal of International Law & Business

This article reviews some economic and legal aspects of the growing role of environmental, health, and safety regulations operating as disguised barriers to trade. While this has always been a recognized problem in trade policy, the issue has gained new force as environmental policies move to the forefront of many national agendas. Because environmental standards have a growing national constituency, they are especially attractive candidates for disguised protectionism. International distinctions in the tolerable level of environmental risks are created because the weight attached to environmental standards tends to vary with the income levels of different countries. Incentives are created to …