Law Commons^™

A Private And Efficient Approach To Us-China Trade: Bringing A Non-Violation Case In The Wto, Daniel C.K. Chow, Ian M. Sheldon

Vanderbilt Journal of Transnational Law

When Joe Biden defeated Donald Trump to become president of the United States in 2020, many observers hoped that Biden would reset the troubled US-China trade relationship. The Trump administration had abandoned the rules-based approach to international trade of the World Trade Organization (WTO) and adopted a power-based approach instead. Using a power-based approach, the United States imposed or threatened sanctions if China did not dismantle its state-led economy and terminate the use of industrial subsidies to support its domestic industries. The United States also crippled the dispute settlement system of the WTO so that nations could not challenge US …

Tariffs And Threats In Us Trade Policy: Debunking The Myth Of "Global Reset", Julien Chaisse, Debashis Chakraborty

Vanderbilt Journal of Transnational Law

In June 2020, the United States pushed for a "reset"of tariffs at the World Trade Organization (WTO). This move was heralded as necessary for the United States to level the uneven playing field caused by "high bound tariff rates." Ordinarily, the United States perceives trade remedies as a defensive measure. However, in this context, the United States seems to be preemptively acting against any misapplied, anti-dumping duties that it may face. For this reason, a global reset of tariffs will likely find support. It can be counterproductive for the new US administration to pursue such a strategy. If realized, it …

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 …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Vanderbilt Journal of Transnational Law

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …

Using The Wto To Facilitate The Paris Agreement: A Tripartite Approach, Antonia Eliason

Vanderbilt Journal of Transnational Law

Climate change is the greatest threat humanity has faced, and its challenges can only be addressed through multilateral means. Lacking in accountability and enforcement mechanisms, however, the Paris Agreement requires additional support to achieve its full effect. Although not perfectly aligned with the goals of the Paris Agreement, the WTO's multilateral framework could provide the necessary flexibilities to work toward meeting the Paris Agreement's targets. This Article proposes a novel three-pronged approach for refocusing the multilateral trading system and facilitating the Paris Agreement.

First, the preamble to the Agreement Establishing the World Trade Organization explicitly recognizes sustainable development as a …

Eu-Acp Economic Partnership Agreements: Modern Colonialism Disguised In Violation Of The Wto, Danielle Robertson

Vanderbilt Journal of Transnational Law

The Economic Partnership Agreements (EPAs) between the European Union and the African, Caribbean, and Pacific (ACP) nation-states are the most recent construct in a long history of developing countries' dependency and reliance on developed European countries. Even though Preferential Trade Agreements(PTAs) are widely used by countries party to the World Trade Organization (WTO), the European Union is hiding behind illusions of non-economic trade benefits, such as increased stability and health benefits, in their EPAs with ACP countries. The European Union has the economic bargaining power, creating an upper hand in the trade negotiations with the former colonial countries and other …

(De)Legitimation At The Wto Dispute Settlement Mechanism, Cosette D. Creamer, Zuzanna Godzimirska

Vanderbilt Journal of Transnational Law

International courts employ a variety of legitimation strategies in order to establish and maintain a sound basis of support among their constituents. Existing studies on the legitimating efforts and legitimacy of the World Trade Organization's (WTO) judicial bodies have relied largely on theoretical or normative priors about what makes them legitimate. In contrast, this Article directly connects the study of courts' legitimating efforts with their effects by empirically mapping the reception of the WTO Dispute Settlement Mechanism's (DSM) exercise of authority by the system's primary constituents--WTO Members. Using an original data set of WTO Member statements within meetings of the …

The Club Approach To Multilateral Trade Lawmaking, Nicolas Lamp

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) stands at the center of an emerging structure of global economic governance. Its rules affect important aspects of everyone's lives--how much people pay for the products that they purchase, what types of employment are open to them, and which medicines they can access. And yet, while the WTO was conceived as a "negotiating machine" that would develop rules in sync with an increasingly dynamic global economy, negotiations on a new set of global trade rules have now been deadlocked for over a decade. This impasse is all the more surprising in light of the fact …

The Epic Struggle For Dolphin-Safe Tuna, Lauren Sullivan

Vanderbilt Journal of Transnational Law

In May 2012, the World Trade Organization (WTO) struck down the United States' dolphin-safe tuna labeling standard as a barrier to trade that is prohibited by the Technical Barriers to Trade Agreement (TBT). The analysis in the US-Tuna II report questions the validity of standardized eco-labels enforced by WTO Member States, which are an increasingly popular means to achieve environmental and consumer protection. This Note considers the merits of state-backed eco-labeling schemes, the implications of the US-Tuna II report for the WTO's approach to nontrade interests, and potential accommodations within the current WTO framework for eco-labels. It ultimately suggests that …

Plugging The Leak In § 1498: Coercing The United States Into Notifying Patent Owners Of Government Use, Steven Rushing

Vanderbilt Journal of Transnational Law

When the United States uses a patent for public, noncommercial purposes, it is required under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to provide notification to the patent owner. However, the United States has never implemented legislation to conform with its obligation and is therefore in violation of TRIPS. This Note argues that by permitting obvious and smaller violations--such as lack of notification--to fester, the United States has left the door open for other members of the World Trade Organization (WTO) to weaken the United States' overall trade policy. Members could likely accomplish this goal by first …

Three Structural Changes For A New System Of International Climate Change Mitigation Agreements Based On The Wto Model, Samara Spence

Vanderbilt Journal of Transnational Law

Past policy approaches to achieving international climate change mitigation have restricted the means for achieving mitigation to broad emissions caps. These policies have ignored the true nature of the climate change mitigation problem and have failed. This Note proposes a new design for a climate change mitigation system. It begins by analyzing the basic assumptions of the current cursory approach and by reviewing structural problems with those assumptions. It then reviews the successful World Trade Organization (WTO) model as a possible alternative structure and uses realities of the climate change problem to show why such an alternative could work in …

Catfish, Shrimp, And The Wto: Vietnam Loses Its Innocence, Do T. Cong

Vanderbilt Journal of Transnational Law

This Article explores the advantages that WTO membership brings to Vietnam in connection with antidumping disputes. In particular, this Article examines the trade relationship between Vietnam and the United States, including disputes over catfish and shrimp, prior to Vietnam's accession to the WTO. The Article concludes that Vietnam's WTO membership and experience with catfish and shrimp will serve exporters well when new trade disputes arise. Vietnamese exporters will better understand their options and will be better equipped to defend themselves in antidumping disputes.

A Theory Of Wto Adjudication: From Empirical Analysis To Biased Rule Development, Juscelino F. Colares

Vanderbilt Journal of Transnational Law

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends Case Type, Party Identity, Income Level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators' notorious decisions, that biased …

Empathizing With France And Pakistan On Agricultural Subsidy Issues In The Doha Round, Raj Bhala

Vanderbilt Journal of Transnational Law

Among the most contentious issues (if not the most contentious issue) in the Doha Round negotiations are agricultural subsidies. Developed countries stand accused of selfish adherence to domestic support and export subsidies that impoverish farmers in developing countries. Developing countries are blamed for self-inflicted wounds, caused by stubborn adherence to protectionist policies, covering both agricultural and industrial sectors. Agricultural subsidy cuts, as well as increased market access, are politically impossible for developed countries to concede without reciprocal access from developing countries, not only on farm products, but also in non-agricultural markets and service sectors.

There has been, and continues to …

The Limits Of International Human Rights Law And The Role Of Food Sovereignty In Protecting People From Further Trade Liberalization Under The Doha Round Negotiations, Wenonah Hauter

Vanderbilt Journal of Transnational Law

International free trade agreements under the auspices of the World Trade Organization (WTO) seriously undermine the international human right to adequate food. Conceivably, those deprived should be able to seek redress under Article 11 of the International. Covenant on Economic, Social, and Cultural Rights (ICESCR), which spells out the right to adequate food. Unfortunately, while the concept of the right to adequate food has developed substantially since its inception, its implementation has been slow. It is not a well-developed tool for individuals or the groups representing them to redress harms that will likely result from the current Doha Round negotiations …

Choosing Between Liberalization And Regulatory Autonomy Under Gats: Implications Of U.S.-Gambling For Trade In Cross Border E-Services, Nancy J. King, Kishani Kalupahana

Vanderbilt Journal of Transnational Law

In 2005, the World Trade Organization (WTO) Appellate Body presided over United States--Measures affecting the cross-border supply of gambling and betting services (U.S.-Gambling), in which Antigua argued that U.S. criminal laws banning the provision of cross-border online gambling services violate U.S. commitments under the General Agreement on Trade in Services (GATS). For the first time, the WTO's dispute settlement process directly addressed the application of GATS to domestic regulatory barriers restricting cross-border trade in services. This Article examines GATS rules on domestic regulation as well as the WTO Appellate Body and Panel decisions in the case and asks if the …

Liberalizing Trade In Agriculture And Food Security--Mission Impossible?, Christine Kaufmann, Simone Heri

Vanderbilt Journal of Transnational Law

The Agreement Establishing the World Trade Organization (WTO) foresees that trade should be conducted with a view to raising standards of living. It is undisputed that raising living standards contributes to the implementation of the right to food. Indeed, state parties to the WTO have obligations regarding the right to food not only under the international trade system, but also under the human rights regime. All WTO state parties are bound by customary human rights law, and most have ratified the International Covenant on Economic, Social, and Cultural Rights, of which Article 11 contains the most important codification of the …

Food Safety, South-North Asymmetries, And The Clash Of Regulatory Regimes, Obijiofor Aginam

Vanderbilt Journal of Transnational Law

This Article explores the globalization of food safety concerns driven by the phenomenon of economic globalization, and the "legalization" of food safety disputes within the rules-based architecture of the World Trade Organization (WTO). Focusing on the interaction between WTO norms and the treaties of other multilateral organizations, the Article discusses the implications of the "clash of food safety regulatory regimes" for South-North asymmetrical relations between the rich and poor countries. The Article also discusses global economic diplomacy and the emerging WTO jurisprudence on the Agreement on Sanitary and Phyto-Sanitary Measures (SPS) disputes. This Article explores both the perceived and actual …

An Appellate Mechanism For Review Of Arbitral Decisions In Investor-State Disputes, David A. Gantz

Vanderbilt Journal of Transnational Law

At a time when complaints and decisions in investor-state arbitration are proliferating as never before, concerns are being raised by the U.S. Congress, NGOs and some foreign governments over the lack of consistency (or serious errors) among the decisions that emanate from the largely ad hoc arbitral panels that are created under the provisions of bilateral investment treaties and the investment provisions of free trade agreements, such as NAFTA, Chapter 11. As a result, it is suggested that an appellate mechanism, perhaps patterned after the generally successful Appellate Body of the World Trade Organization, be created, possibly under the auspices …

Services As Objects Of International Trade: Bartering The Legal Profession, Louise L. Hill

Vanderbilt Journal of Transnational Law

The General Agreement on Trade in Service calls for members of the World Trade Organization (WTO) to further liberalize and expand opportunities for international trade in services. With legal services included in this mandate, requests for specific commitments and offers have been made by WTO Member States. While services as components of international trade is new to many of the WTO Member States, free movement of services has been addressed by the European Union (EU) since the inception of the European Economic Community. Thus EU directives, declarations, codes and case law serve as valuable resources to WTO Member States as …

As Soft As Tofu: Consumer Product Defamation On The Chinese Internet, Elizabeth Spahn

Vanderbilt Journal of Transnational Law

This Article examines the most notorious Chinese internet defamation case, Wang Hong v. Maxstation, which awarded substantial damages against an individual consumer as well as two online magazines for criticizing a laptop product on the internet. The case created a widespread political controversy on the internet in China, highlighting an underlying tension in the current policies of the Chinese government, which promotes a more open market economy while maintaining tight censorship over public speech. The case developed landmark legal doctrine in China, extending judge made defamation law while ignoring the Chinese consumer protection statute. Extending defamation doctrine to include factual …

Trade And Morality: Preserving "Public Morals" Without Sacrificing The Global Economy, Miguel A. Gonzalez

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) exists for the purpose of promoting and facilitating trade amongst its member nations. When those member nations acceded to the WTO's agreements, however, they acknowledged that sometimes trade barriers are useful tools in protecting themselves from certain evils. This Note addresses one of those useful tools--the public morals exception--which allows a member nation to maintain trade barriers with respect to certain goods or services.

Since the WTO agreements have been in effect, the public morals has lacked two critical things.: a definition and boundaries. This Note will attempt to define the public morals exception in …

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 …

A Cruel Trilemma: The Flawed Political Economy Of Remedies To Wto Subsidies Disputes, Michael Showalter

Vanderbilt Journal of Transnational Law

This Note examines the effectiveness of the World Trade Organization at remedying disputes involving trade subsidies. The WTO as created in the Uruguay Round was the first multilateral trade institution that included prohibitions against trade subsidies of a more-than-aspirational nature that were agreed to by most states in the world community. The WTO was thus envisioned as ushering in an era where subsidies had significantly less detrimental effects on the international economic community.

This Note seeks to evaluate the effectiveness of the WTO's subsidy provisions through analyses of decisions in early WTO jurisprudence. These decisions will be evaluated, in part, …

Enhancing The Legitimacy Of The World Trade Organization, Andrea Greisberger

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) has faced harsh criticism from developing nations in recent years. Many developing nations feel that the promises they received when they joined the WTO have not been fulfilled. These nations feel that wealthy, industrialized nations like the United States and the members of the European Union are the only ones that have benefited from the organization. Moreover, they feel that these developed nations have benefited at their expense through the WTO's dispute settlement process. Many improvements to the WTO have been proposed. However, the one that seems the most able to help developing nations, the …

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 …

The Doha Declaration And Beyond: Giving A Voice To Non-Trade Concerns Within The Wto Trade Regime, Larry A. Dimatteo, Kiren Dosanjh, Paul L. Frantz, Peter Bowal, Clyde Stoltenberg

Vanderbilt Journal of Transnational Law

The World Trade Organization (WTO) has been a significant force in the liberalization of trade across international borders since its inception in 1995. Commentators suggest that its reforms have converted the focus of international trade policy from removal of barriers to positive policy-making--a field historically occupied by domestic authorities. And although largely successful in the promotion of international trade, the Authors suggest that the binding provisions of the WTO ignore non-trade concerns such as environmental protection, consumer rights, labor rights, and state sovereignty. The Agreement's inattention to these related concerns is the primary locus of criticism of the WTO, culminating …

Avoiding A Nuclear Trade War: Strategies For Retaining Tax Incentives For U.S. Corporations In A Post-Fsc World, Carrie A. Von Hoff

Vanderbilt Journal of Transnational Law

On January 14, 2002, the World Trade Organization (WTO) Appellate Body affirmed that the FSC Repeal and Extraterritorial Income (ETI) Exclusion Act, a replacement for the Foreign Sales Corporation (FSC) Act, was an unlawful export subsidy under WTO agreements. Though the European Union has indicated a willingness to wait before imposing the largest trade sanctions in the history of the WTO, it insists that the United States comply with the ruling. This Note explores the history of the conflict and considers possibilities for the future of international trade taxation.

This Note first examines the background to the conflict, beginning with …

Foreign Sales Corporations--Subsidies, Sanctions, And Trade Wars, Candace Carmichael

Vanderbilt Journal of Transnational Law

The largest sanctions in the history of the World Trade Organization, the need to stabilize an ailing economy, and the need to maintain strong alliances in the face of a new global war on terrorism are all issues the United States currently faces in deciding how to resolve its dispute with the European Union regarding U.S. tax policy. In 1997, the European Union filed a complaint with the WTO claiming that the then-current U.S. tax regime violated U.S. international trade agreements. The European Union contended that the U.S. tax system gave rise to export-contingent subsidies, in violation of U.S. trade …

Table Talk: Around The Table Of The Appellate Body Of The World Trade Organization, James Bacchus

Vanderbilt Journal of Transnational Law

In this Article, James Bacchus describes his experiences as a "faceless foreign judge" of the World Trade Organization. In this capacity, Bacchus and his six colleagues on the WTO Appellate Body hear appeals in international trade disputes among the 144 member countries and other customs territories that are Members of the WTO. Bound by the WTO Rules of Conduct, he cannot comment on cases or the specific deliberation process, but rather comments on the processes and role of the Appellate Body relative to the WTO.