Law Commons^™

Intellectual Property And International Trade: Merger Or Marriage Of Convenience?, R. Michael Gadbaw

Vanderbilt Journal of Transnational Law

This Article examines the interaction between trade and intellectual property rights policies through certain key developments in United States law, the General Agreement on Tariffs and Trade (GATT) and the World Intellectual Property Organization (WIPO). While this brief review is not intended to provide a definitive analysis, it will offer worthwhile insights into the prospects for, and implications of, such a merger. For this purpose, this Article considers the efforts in GATT to negotiate a code on intellectual property rights and the parallel efforts in WIPO to negotiate a treaty for the protection of semiconductor designs. While the GATT talks …

The United States Proposal For A Gatt Agreement On Intellectual Property And The Paris Convention For The Protection Of Industrial Property, Hans P. Kunz-Hallstein

Vanderbilt Journal of Transnational Law

The GATT Arrangement would, in short, establish high international standards for the protection and enforcement of intellectual property rights of all kinds--including patents for biotechnology processes and products, patents for microorganisms, copyrights for computer programs, and the protection of trade secrets and integrated circuit layout designs. The parties to the GATT Arrangement would undertake to adapt their national laws and enforcement mechanisms accordingly and they are to agree on a dispute settlement mechanism that will provide for member states the possibility of resorting to retaliation, including withdrawal of other GATT concessions or obligations, against a state that fails to carry …

International Trade And Intellectual Property: Promise, Risks, And Reality, Congressman Robert W. Kastenmeier, David Beier

Vanderbilt Journal of Transnational Law

The trading nations of the world are set to make decisions that will determine the future pattern of international trade. Negotiations are currently underway to bring trade in certain agricultural products, services, and goods and services protected as intellectual property" within the General Agreement on Tariffs and Trade (GATT). This Article will outline how the consideration of intellectual property came to be included in this round of talks. It will assess the potential benefits and risks of including intellectual property, forecast the probable outcome, and, finally, suggest ways to improve the chances for inclusion of intellectual property into the GATT. …

Remarks Of Dr. Carlos A. Primo Braga; Professor Robert Hudec; Yoichiro Yamaguchi; Alice T. Zalik; David Beier; Professor Donald S. Chisum; Professor John H. Jackson; Professor Suman Naresh; Professor Paul Goldstein; Mr. Emory Simon; Mr. Fred Koenigsberg; Mr. Harvey Schein; Mr. Ralph Oman; Mr. Michael Remington, Dr. Carlos A. Primo Braga

Vanderbilt Journal of Transnational Law

I am going to talk about LDCs intellectual property rights and the GATT. I do not think I need to talk too much on this, because Dr. Subramanian made an excellent presentation on the main issues yesterday. I will try to present the debate along the so-called North-South divide, and this is, of course, an oversimplification. I will be talking about the North proposal, which is basically the American proposal. It is a maximalist proposal, although parts of it are supported by other industrialized countries. The South proposals are basically the proposals of the foot draggers like Brazil and India, …

Aliens' Right To Seek Asylum: The Attorney General's Power To Exclude "Security Threats" And The Role Of The Courts, Mary S. Miller

Vanderbilt Journal of Transnational Law

The United States Court of Appeals for the Second Circuit is the only circuit court to analyze the relationship between section 235(c) and section 243(h), as amended by the Refugee Act. In "Azzouka v. Sava," the court resolved the apparent conflict between the two acts by holding that if the Attorney General determines that an alien is a security threat, that alien may be excluded without a hearing before an immigration judge despite the fact that the alien has requested political asylum."

This Note examines the interrelationship between sections 235(c) and 243(h) by analyzing the legislative, judicial, and administrative interpretations …

The Death Of Ideology In Soviet Foreign Investment Policy, Christopher Osakwe

Vanderbilt Journal of Transnational Law

This Article's primary thesis is that the Soviet Government's decision to permit the creation of international joint ventures in the Soviet Union is a major instrument of the policy of perestroika. As such, the stability and profitability of any international commercial joint enterprise in the Soviet Union is inextricably linked with the fate of perestroika. If perestroika succeeds, the Soviet Union will have a market-oriented socialist economy, fully integrated into the world economy. By virtue of this success, Western investors and entrepreneurs will be in a position to make deeper, more profitable, and more lasting inroads into the Soviet economy. …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

This Case Digest provides brief analyses of cases that represent current aspects of transnational law. The Digest includes cases that establish legal principles and cases that apply established legal principles to new factual situations. The cases are grouped in topical categories, and references are given for further research:

Constitutionality of the Immigration Marriage Fraud Amendments Upheld over Challenge by Deportable Alien and United States Spouse

Anetekhai v. Immigration and Naturalization Service

876 F.2d 1218 (5th Cir. 1989)

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Standing Granted to Challenge Hostile Takeover between Foreign Firms under United States Antitrust and Securities Laws

Consolidated Gold Fields PLC v. Minorco, …

Death Of A Treaty: The Decline And Fall Of The Antarctic Minerals Convention, Deborah C. Waller

Vanderbilt Journal of Transnational Law

On June 2, 1988, in Wellington, New Zealand, thirty-three states signed the Convention on the Regulation of Antarctic Mineral Resources. This agreement, the product of six years of negotiation, fills a significant gap in the Antarctic Treaty System: it provides rules governing the prospecting, exploration, and development of minerals in Antarctica. Recently, however, two Antarctic Treaty Consultative Parties--France and Australia--have refused to ratify the Minerals Convention, instead advocating a permanent ban on mineral activities in Antarctica. Their opposition thwarts plans for the ratification of the Minerals Convention. This Note provides an overview of the present Antarctic Treaty System, sets forth …

The Economics Of Intellectual Property Rights And The Gatt: A View From The South, Carlos A.P. Braga

Vanderbilt Journal of Transnational Law

This Article explores the attitude of less developed countries (LDCs) with respect to the debate on TRIPs at the Uruguay Round. Part II addresses the evolution of the debate at the GATT level. Part III presents the economics of intellectual property rights protection from the point of view of LDCs. Finally, Part IV summarizes the main conclusions and recommendations of the Article.

Uruguay Round Trips: A Bibliographic Essay, William M. Walker

Vanderbilt Journal of Transnational Law

The Uruguay Round of multilateral trade negotiations began with a special ministerial meeting of the Contracting Parties to the General Agreement on Tariffs and Trade (GATT) held in Punta del Este, Uruguay, on September 20, 1986. "Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods" (TRIPs) is a designated subject for negotiation in the Uruguay Round. The inclusion of intellectual property rights in the Uruguay Round is the culmination of a process that began during the Tokyo Round. While the Tokyo Round was in progress, the United States and the European Community reached a tentative accord on various …

Intellectual Property Rights: The Issues In Gatt, David Hartridge, Arvind Subramanian

Vanderbilt Journal of Transnational Law

This Article examines the need for a multilateral framework to address the trade-related aspects of intellectual property rights (TRIPs). The authors trace the growing importance of TRIPs from its emergence at the Tokyo Round in 1978 to its present state as a major focus of multilateral negotiations at the Uruguay Round. A detailed discussion of existing GATT provisions and their relevance to intellectual property rights follows. The authors then describe the four major substantive issues related to TRIPs that are before the Negotiating Group: substantive standards of intellectual property protection; procedures for the enforcement of intellectual property protection; dispute settlement …

Book Review, Michael C. Doland

Vanderbilt Journal of Transnational Law

The book is divided into two parts. The first part addresses those subjects that the Foreign Sovereign Immunities Act covers in detail, including the definition of foreign states and foreign government-owned corporations, judicial competence, jurisdiction, immunity, service of process, venue, and execution of judgments. The second part addresses those subjects that the Act covers in a cursory fashion, including burden of proof, rights of discovery, available remedies, and jury trials. In addition, the book treats those topics that received virtually no discussion under the Foreign Sovereign Immunities Act but that are essential to its understanding and enforcement, including the act …

The New Section 301 Of The Omnibus Trade And Competitiveness Act Of 1988, Steven R. Phillips

Vanderbilt Journal of Transnational Law

This Article examines the changes brought about in United States trade policy by the Omnibus Trade and Competitiveness Act of 1988. Mr. Phillips provides a detailed history of the evolution of the Act's three main revisions of section 301: the transfer from the President to the United States Trade Representative (USTR) of the power to identify foreign unfair trade practices and to take action in response; the imposition of mandatory retaliation by the USTR against unfair trade practices unless one of six exceptions applies; and, under the "Super 301" provision, the USTR's obligation to identify unfair trade balances and either …

From Red Lion Square To Skokie To The Fatal Shore: Racial Defamation And Freedom Of Speech, David Partlett

Vanderbilt Journal of Transnational Law

This Article addresses, against the backdrop of possible legislative reforms in Australia, the tension between the desire to eliminate racial defamation and the need to protect freedom of speech. In an historical overview, Mr. Partlett notes an increasing sensitivity to racial issues in Australia in the face of an assumed but nebulously stated value of free speech. Mr. Partlett analyzes theoretical and legal approaches to free speech from Commonwealth and United States perspectives, and analysis of recent legal and social developments in civil rights in the United States makes this Article relevant for both Commonwealth and United States reformers in …

Protecting First World Assets In The Third World: Intellectual Property Negotiations In The Gatt Multilateral Framework, Frederick M. Abbott

Vanderbilt Journal of Transnational Law

This Article addresses industrialized countries' growing concerns over technology transfer and their efforts to obtain protection of intellectual property rights under the General Agreement on Tariffs and Trade (GATT). Mr. Abbott analyzes the intellectual property problem in the context of the GATT framework and the weakness of current intellectual property protection. Developing countries do not accept the United States contention either that intellectual property is covered implicitly by the GATT or that the current lack of protection reflects a fundamental flaw in the General Agreement. Mr. Abbott focuses on this disagreement in laying out the framework for possible solutions, which …

Europe 1992 And The Rise Of The Pacific Rim: Do Changing World Trading Patterns Require A Change In United States Shipping Laws?, Andrew M. Danas

Vanderbilt Journal of Transnational Law

This Article analyzes the significant issues facing the Presidential Advisory Commission on Ocean Conferences in Ocean Shipping. This Commission will assess the success of the Shipping Act of 1984 and will report to Congress on the need for changes in the 1984 Act and in United States regulatory policy regarding international ocean common carriers. Mr. Danas recommends that the Commission carefully examine the antitrust-exempt conferences, which international ocean common carriers have been organizing for over one hundred years for the purpose of self-regulation and rationalization. Mr. Danas suggests that the review of the continued existence of the liner conference system …

The Public Policy Exception To The Recognition Of Foreign Judgments, Jonathan H. Pittman

Vanderbilt Journal of Transnational Law

This Note examines the public policy exception to the recognition and enforcement of foreign judgments. The author first examines other grounds that a United States court can use to refuse to recognize a foreign judgment. An analysis of several cases construing the public policy exception follows. The author concludes with a suggested analysis for courts faced with the public policy exception.

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Agency for International Development's Adoption of Policy Placing Abortion-Related Restrictions on Grants to Nongovernmental Organizations Upheld DKT Memorial Fund Ltd. v. Agency for International Development 887 F.2d 275 (D.C. Cir.1989)

Federal Long-Arm Statute Authorizes Assertion of Personal Jurisdiction over Foreign Holder of United States Patent in Patent Ownership Suit National Patent Development Corporation v. T.J. Smith & Nephew Ltd. 877 F.2d 1003 (D.C. Cir.1989) (en banc)

Venue over Alien Defendants in Antitrust Suit Proper in any United States Federal District Court under Alien Venue AcT-Go-Video, Inc. v. Akai Electric Co., Ltd. 885 F.2d 1406(9th Cir. 1989)

INS Oral Notice to …

Book Review: Right V. Might--International Law And The Use Of Force, Erik M. Jensen

Vanderbilt Journal of Transnational Law

Right V. Might contains much of interest, and it is a useful primer. But it is not helpful as a guide to national behavior. The amoralistic positions of many of its contributors are not ones that the United States, or any other states concerned with principle, should adopt. The United Nations Charter, narrowly construed, is not a moral document. While few seriously advocate the Charter's repudiation, moral discourse would not be harmed by such an act, and life would go on with states acting largely, although not entirely, on the basis of perceived self-interest. Professor Henkin uses doomsday rhetoric to …

Recent Decision, Mark D. Pethke

Vanderbilt Journal of Transnational Law

By directing courts to focus on the narrow question of whether the validity of a sovereign act is at issue, the Court clears some of the confusion that has arisen over the scope of the doctrine. It is no longer sufficient for courts to cite the mere possibility of embarrassment to foreign governments as a rationale for applying this doctrine when those governments' acts are not at issue. This opinion overrules Hunt and Clayco and their progeny.' In reminding courts that they possess "the power, and ordinarily the obligation, to decide cases and controversies properly presented to them," 'the Court …

Tender Offers In The European Community: The Playing Field Shrinks, Jeffrey P. Greenbaum

Vanderbilt Journal of Transnational Law

This Article discusses the Proposal in the European Community to standardize the tender offer process in the Single European Market of 1992. The Proposal promotes equal treatment of shareholders and contains substantive measures to achieve this goal. Mr. Greenbaum compares the Proposal to its United States counterpart, the 1968 Williams Act, notes the different approach taken by the Williams Act, with its emphasis on disclosure rather than substantive regulation, and examines these different approaches primarily in the context of hostile tender offers. Mr. Greenbaum shows that the Proposal's procedural requirements for the bidder and restrictions on target management defenses leave …

The Marine Mammal Protection Act And International Protection Of Cetaceans: A Unilateral Attempt To Effectuate Transnational Conservation, Laura L. Lones

Vanderbilt Journal of Transnational Law

This Note examines how the United States has used the Marine Mammal Protection Act to further international protection of cetaceans--dolphins, porpoises, and whales. The author first reviews the manifold reasons for protecting cetaceans. The author next describes the international operation of the Act as amended in 1984 by surveying those sections that have an impact on United States relations with other states and the regulations and cases that implement those sections. The author concludes that these restrictions have produced a decline in porpoise mortality, although more can be done. The author next describes the successes of the Act's treaty program. …

Intellectual Property In International Trade: Opportunities And Risks Of A Gatt Connection, J. H. Reichman

Vanderbilt Journal of Transnational Law

Professor Reichman uncovers a paradox at the heart of the debate about bringing international intellectual property relations within a GATT Code of Conduct. On the one hand, the industrialized countries that subscribe to free-market principles at home want to impose a highly regulated market for intellectual goods on the rest of the world, one in which authors and inventors may "reap where they have sown." On the other hand, the developing countries that restrict free competition at home envision a totally unregulated world market for intellectual goods, one in which "competition is the lifeblood of commerce." To unravel this paradox, …

Dispute Settlement In International Environmental Issues: The Model Provided By The 1982 Convention On The Law Of The Sea, John W. Kindt

Vanderbilt Journal of Transnational Law

This Essay discusses the merits of the dispute settlement provisions found in the 1982 United Nations Convention on the Law of the Sea, and calls for recognition and utilization of the provisions in all manner of disputes arising within the international legal community. Professor Kindt notes that despite the fact that the Convention's dispute settlement provisions represent the first time all major interest blocs of states have agreed upon a standard set of provisions for dispute settlement, the provisions have not received the attention they deserve. After analyzing the reasons for this lack of consideration, he urges that the dispute …

The Northern Ireland Broadcasting Ban: Some Reflections On Judicial Review, Russell L. Weaver, Geoffrey Bennett

Vanderbilt Journal of Transnational Law

This Essay initially examines the British government's ban on its broadcasting networks that restricts coverage of Northern Ireland organizations, and concludes by making some reflections on the system of judicial review in the United States. Professors Weaver and Bennett note that a comparable ban in the United States probably would be held unconstitutional. In Great Britain, however, the courts lack a similar power of judicial review, leaving the question of the Ban's legitimacy to the political process. While Great Britain enjoys a relatively free society, the authors conclude that government control over the British media poses troubling problems and suggests …

Interference With Non-National Ships On The High Seas: Peacetime Exceptions To The Exclusivity Rule Of Flag-State Jurisdiction, Robert C.F. Reuland

Vanderbilt Journal of Transnational Law

Pursuant to the exclusivity rule of flag-state jurisdiction, a ship on the high seas is subject to the exclusive jurisdiction of the state whose flag she lawfully flies. Conversely, a state may not ordinarily interfere with those ships registered under the laws of another state. International law makes exception to this general rule in certain discrete circumstances. When such an exception exists, a state may lawfully stop, visit, search, and arrest a non-national ship on the high seas--a right normally reserved to the flag-state alone. These exceptions to the exclusivity rule of flag-state jurisdiction form the subject matter of this …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

MCCARRAN-WALTER ACT PROVISIONS ALLOWING FOR THE DEPORTATION OF ALIENS WHO ADVOCATE WORLD COMMUNISM VIOLATE THE FIRST AMENDMENT

American-Arab Anti-Discrimination Committee v. Meese 1989 U.S. Dist. LEXIS 1327 (C.D. Cal. Jan. 26, 1989)

PHILIPPINE ACTION AGAINST FORMER PRESIDENT MARCOS NOT BARRED BY ACT OF STATE DOCTRINE AND INJUNCTION ALLOWED TO FREEZE ASSETS WORLDWIDE

Republic of the Philippines v. Marcos 862 F.2d 1355 (9th Cir. 1988) (en banc).

THE FOREIGN SOVEREIGN IMMUNITES ACT OF 1976 PROVIDES THE SOLE BASIS FOR OBTAINING JURSIDICTION OVER A FOREIGN STATE

Argentine Republic v. Amerada Hess Shipping Corp. 109 S. Ct. 683(1989).

ASLYUM APPLICANT WHO FAILS TO …

Conscientious Objection In South Africa: Governmental Paranoia And The Law Of Conscription, Lynn Berat

Vanderbilt Journal of Transnational Law

By the end of 1975, Mozambique and Angola' had gained independence; in 1980, Rhodesia became black majority ruled Zimbabwe.' Although it is currently occupied illegally by South Africa in contravention of both a United Nations Security Council Resolution and an advisory opinion of the International Court of Justice,' even Namibia (also known as South West Africa) will soon become an independent state.' No longer surrounded by a buffer zone of white minority ruled states separating it from black ruled Africa, South Africa stands alone, the last outpost of white supremacy on the continent.

Amidst all of these developments, the South …

Property Damage Claims Against The Customs Service: Are There Adequate Remedies?, Ronald L. Cornell Jr.

Vanderbilt Journal of Transnational Law

This Note explores the availability of adequate property damage remedies following the United States Supreme Court's decision in Kosak v.United States, denying property owners the right to recover under the Federal Tort Claims Act (FTCA)." The Note also proposes several alternative remedies, including judicial adjustments to claims brought under the Tucker Act' and fifth amendment "takings" clause,, tort claims against individual customs officials, and legislative adjustments to the administrative settlement process under the Small Claims Act." Part II of this Note traces the judicial treatment of property damage claims brought against the United States Government under the FTCA, as well …

Japan's East China Sea Ocean Boundaries: What Solutions Can A Confused Legal Environment Provide In A Complex Boundary Dispute?, Kendrick F. Royer

Vanderbilt Journal of Transnational Law

This Note addresses the ocean boundary delimitation conflict between Japan, China, Taiwan, and South Korea in the East China Sea. The author considers international law on boundary delimitation and concludes that the law is unclear on delimitations between states within four hundred nautical miles of one another. The International Court of Justice has held that equity is the norm to be applied to boundary delimitation disputes but it has not resolved the competition between the natural prolongation theory of delimitation and a theory based upon the Exclusive Economic Zone. The geology of the East China Sea brings this issue to …