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Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran Jan 2021

Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran

Articles

The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard ...


The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand Jan 2021

The Hague Judgments Convention In The United States: A “Game Changer” Or A New Path To The Old Game?, Ronald A. Brand

Articles

The Hague Judgments Convention, completed on July 2, 2019, is built on a list of “jurisdictional filters” in Article 5(1), and grounds for non-recognition in Article 7. If one of the thirteen jurisdictional tests in Article 5(1) is satisfied, the judgment may circulate under the Convention, subject to the grounds for non-recognition found in Article 7. This approach to Convention structure is especially significant for countries considering ratification and implementation. A different structure was suggested in the initial Working Group stage of the Convention’s preparation which would have avoided the complexity of multiple rules of indirect jurisdiction ...


Importing Prescription Drugs From Canada — Legal And Practical Problems With The Trump Administration's Proposal, Rachel E. Sachs, Nicholas Bagley May 2020

Importing Prescription Drugs From Canada — Legal And Practical Problems With The Trump Administration's Proposal, Rachel E. Sachs, Nicholas Bagley

Articles

As Americans report ever-growing difficulty affording their prescription drugs, President Donald Trump has come under increasing pressure to act. To date, the Trump administration has attempted to advance a number of policy initiatives by means of executive action, but it has not yet adopted a program that would meaningfully assist patients. Most recently, the administration proposed a rule that, if finalized, would allow states to develop programs to import lower-priced prescription drugs from Canada, with the intent of reducing spending on drugs by U.S. patients and states and increasing access for patients.


Are Data Privacy Laws Trade Barriers?, Margot Kaminski Jan 2020

Are Data Privacy Laws Trade Barriers?, Margot Kaminski

Articles

No abstract provided.


Taming America's Sugar Rush: A Traffic-Light Label Approach, Alexia Brunet Marks Jan 2020

Taming America's Sugar Rush: A Traffic-Light Label Approach, Alexia Brunet Marks

Articles

Excess added sugar negatively impacts health and can lead to a litany of problems, such as diet-related chronic diseases, e.g., diabetes, cancer, heart disease, and obesity, costing Americans millions in rising medical bills each year. Even more, new studies reveal that individuals with these underlying chronic diseases are at a higher risk of complications from COVID-19 and other viruses compared to those who are deemed healthy. And yet added sugars are difficult to avoid because unlike naturally occurring sugars found in fruits, vegetables, and milk, these sweeteners are added during food processing and preparation.

The problem is that while ...


Trade's Security Exceptionalism, Kathleen Claussen Jan 2020

Trade's Security Exceptionalism, Kathleen Claussen

Articles

At the core of U.S. trade law is an under-studied structural dichotomy. On the one hand, well-established statutory authorities enable the President to eliminate trade barriers through negotiations with U.S. trading partners. On the other hand, different, lesser-known authorities allow the President to erect trade barriers on an exceptional basis where necessary for U.S. economic security. Rather than thinking of free trade as a source of or tool for economic security as political theorists long have, our law codifies these authorities as though they are in contrast to one another-allowing departures from the free trade norm when ...


Comparative Method And International Litigation 2020, Ronald A. Brand Jan 2020

Comparative Method And International Litigation 2020, Ronald A. Brand

Articles

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much ...


Provisional Measures In Aid Of Arbitration, Ronald A. Brand Jan 2020

Provisional Measures In Aid Of Arbitration, Ronald A. Brand

Articles

The success of the New York Convention has made arbitration a preferred means of dispute resolution for international commercial transactions. Success in arbitration often depends on the extent to which a party may, in advance, ensure that assets or evidence is secured in advance, or that the other party is required to take steps to secure the status quo. This makes the availability of provisional measures granted by either arbitral tribunals or by courts important to the arbitration process. In this chapter I consider the existing legal framework for such provisional measures in aid of arbitration. I give particular attention ...


The Casualty Of Investor Protection In Times Of Economic Crisis, Kathleen Claussen Jan 2019

The Casualty Of Investor Protection In Times Of Economic Crisis, Kathleen Claussen

Articles

No abstract provided.


The International Law Commission's Soft Law Influence, Elena Baylis Jan 2019

The International Law Commission's Soft Law Influence, Elena Baylis

Articles

Since the 1990s, the International Law Commission has increasingly produced soft law, such as principles and draft conclusions, in addition to hard law like draft treaty articles This essay explores the implications of the International Law Commission’s transition toward a greater emphasis on soft law. Soft law is an effective vehicle for the International Law Commission’s mission of codification and progressive development of international law; the International Law Commission’s involvement increases the clarity and accessibility of international law norms and promotes a dynamic, synergistic relationship between hard law and soft law that contributes to the effective evolution ...


Online Dispute Resolution, Ronald A. Brand Jan 2019

Online Dispute Resolution, Ronald A. Brand

Articles

This chapter was prepared from a presentation given by the author at the 2019 Summer School in Transnational Commercial Law & Technology, jointly sponsored by the University of Verona School of Law and the Center for International Legal Education (CILE) of the University of Pittsburgh School of Law. In the paper, I review online dispute resolution (ODR) by considering the following five questions, which I believe help to develop a better understanding of both the concept and the legal framework surrounding it:

A. What is ODR?

B. Who does ODR?

C. What is the legal framework for ODR?

D. What are ...


The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand Jan 2019

The Circulation Of Judgments Under The Draft Hague Judgments Convention, Ronald A. Brand

Articles

The 2018 draft of a Hague Judgments Convention adopts a framework based largely on what some have referred to as “jurisdictional filters.” Article 5(1) provides a list of thirteen authorized bases of indirect jurisdiction by which a foreign judgment is first tested. If one of these jurisdictional filters is satisfied, the resulting judgment is presumptively entitled to circulate under the convention, subject to a set of grounds for non-recognition that generally are consistent with existing practice in most legal systems. This basic architecture of the Convention has been assumed to be set from the start of the Special Commission ...


The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand Jan 2019

The Cisg: Applicable Law And Applicable Forums, Ronald A. Brand

Articles

Despite being in effect for over thirty years, a debate continues on whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a success. With 89 Contracting States, it clearly is widely accepted. At the same time, empirical studies show that private parties regularly opt out of its application. It has served as a model for domestic sales law, and as an important educational tool. But has it been a success? In this article I consider that question, and suggests that the scorecard is not yet complete; and that it will perhaps take significantly ...


Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah Apr 2018

Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah

Articles

The Tax Cuts and Jobs Act of 2017 (“TCJA”) contains a provision that on its face appears to be a blatant violation of the WTO’s Subsidies and Countervailing Measures (SCM) rules. New IRC section 250 applies a reduced 13.125% tax rate to “foreign derived intangible income” (FDII), which is defined as income derived in connection with (1) property that is sold by the taxpayer to any foreign person for a foreign use or (2) services to any foreign person or with respect to foreign property. In other words, this category comprises exports for property and services, including royalties ...


The Other Trade War, Kathleen Claussen Jan 2018

The Other Trade War, Kathleen Claussen

Articles

No abstract provided.


Separation Of Trade Law Powers, Kathleen Claussen Jan 2018

Separation Of Trade Law Powers, Kathleen Claussen

Articles

No abstract provided.


Dispute Settlement Under The Next Generation Of Free Trade Agreements, Kathleen Claussen Jan 2018

Dispute Settlement Under The Next Generation Of Free Trade Agreements, Kathleen Claussen

Articles

No abstract provided.


A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew Jan 2018

A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew

Articles

The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical study of ...


Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand Jan 2018

Recognition Of Foreign Judgments In China: The Liu Case And The 'Belt And Road' Initiative, Ronald A. Brand

Articles

In June, 2017, the Wuhan Intermediate People's Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and ...


You Say Embargo, I Say Bloqueo - A Policy Recommendation For Promoting Foreign Direct Investment And Safeguarding Human Rights In Cuba, Marcia Narine Weldon Jan 2017

You Say Embargo, I Say Bloqueo - A Policy Recommendation For Promoting Foreign Direct Investment And Safeguarding Human Rights In Cuba, Marcia Narine Weldon

Articles

The United States is the only major industrialized nation that restricts trade with Cuba. Although President Obama issued several executive orders that have facilitated limited trade (and President Trump has scaled some back), an embargo remains in place, and by law, Congress cannot lift it until, among other things, the Cuban government commits to democratization and human rights reform. Unfortunately, the Cuban and U.S. governments fundamentally disagree on the definition of "human rights, " and neither side has shown a willingness to compromise. Meanwhile, although some US. investors clamor to join their European and Canadian counterparts in expanding operations in ...


The Next Generation Of U.S.-Africa Trade Instruments, Kathleen Claussen Jan 2017

The Next Generation Of U.S.-Africa Trade Instruments, Kathleen Claussen

Articles

No abstract provided.


Contextual Analysis In Arbitration, Pat K. Chew Jan 2017

Contextual Analysis In Arbitration, Pat K. Chew

Articles

The arbitration process is embedded in a much larger context than the four walls in which the arbitration occurs. Exploring and studying that context—including the arbitral institution, the arbitrators, each party, the arbitration process, and the broader cultural and political environment— inform what actually occurs and to what extent one party may have inherent advantages over the other. This article illustrates this contextual analysis in two diverse settings: domestic employment arbitrations and international trade arbitrations. These analyses reveal one party’s advantages over the other, which are explained in part by market and cultural forces in which these arbitrations ...


Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew Jan 2017

Opening The Red Door To Chinese Arbitrations: An Empirical Analysis Of Cietac Cases (1990-2000), Pat K. Chew

Articles

This article reveals evidence-based details of the China International Economic and Trade Arbitration Commission (CIETAC) arbitral proceedings (1990-2000), allowing unprecedented insights into Chinese international business arbitration. It begins by confirming the prominence of Chinese foreign trade and foreign investment in the global economy and CIETAC’s critical role in securing that prominence. Among other results, the empirical study of CIETAC awards finds: (i) the parties were of diverse nationalities, most commonly with disputes between a Chinese party and a foreign party; and (ii) the majority of cases were sales and trade disputes, although a sizable number were investment/joint venture ...


Country By Country Reporting And Corporate Privacy: Some Unanswered Questions, Reuven S. Avi-Yonah Dec 2016

Country By Country Reporting And Corporate Privacy: Some Unanswered Questions, Reuven S. Avi-Yonah

Articles

Corporate privacy is an oxymoron. Individuals have a right to privacy, which the Supreme Court has recognized at least since Griswold v. Connecticut (1965). Warren and Brandeis’ famous defense of the right to privacy (1890) clearly applied only to individuals, because only individuals have the kind of feelings that are affected by invasions of privacy. Corporations are legal entities, and the concept of privacy does not apply to them, as the Supreme Court held in 1906. Thus, any objection to making corporate tax returns public cannot rest on the right to privacy. In fact, corporate returns were made public in ...


Sources Of Information On The Trans-Pacific Partnership, Barbara H. Garavaglia May 2016

Sources Of Information On The Trans-Pacific Partnership, Barbara H. Garavaglia

Articles

The Trans-Pacific Partnership Agreement (TPP) is a free trade agreement between 12 countries in the Asia Pacific region: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. The agreement, signed by the U.S. and other participating countries in Auckland, New Zealand on February 4, 2016, “promotes economic integration to liberalise trade and investment” and “bring economic growth” to the region and participating countries. One reason for the sense of uncertainty, unease, and concern surrounding free trade agreements in general and the TPP in particular is that the negotiations are not public ...


Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson Apr 2016

Contemporary Practice Of The United States Relating To International Law, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • United States Achieves Progress in Iran Relations with Nuclear Agreement Implementation, Prisoner Swap, and Hague Claims Tribunal Resolutions • European Union and United States Conclude Agreement to Regulate Transatlantic Personal Data Transfers • After Lengthy Delay, Congress Approves IMF Governance Reforms that Empower Emerging Market and Developing Countries • United States Joins Consensus on Paris Climate Agreement • United States and Eleven Other Nations Conclude Trans-Pacific Partnership


A New Governance Recipe For Food Safety Regulation, Alexia Brunet Marks Jan 2016

A New Governance Recipe For Food Safety Regulation, Alexia Brunet Marks

Articles

Although food safety is a significant and increasing global health concern, international economic law does not adequately address today’s global food safety needs. While most countries rely on a collection of formalized legal rules to protect food safety, these rules too often fall short. As fiscal constraints impede raising the number of border inspections, formal international commitments (treaties) frequently limit governmental efforts to raise food safety standards. Private companies, meanwhile, can readily adopt higher standards to meet consumer demands and supply chain needs, thus demonstrating more nimbleness and flexibility in adopting the highest food safety standards available. Can countries ...


The Right To Regulate (Cooperatively), Alexia Brunet Marks Jan 2016

The Right To Regulate (Cooperatively), Alexia Brunet Marks

Articles

The growing number of new technologies in food production— such as nanotechnology, genetic modification, animal cloning, and irradiation—are garnering different regulatory responses around the world. Based on their threshold for tolerating risk, countries are asserting their national right to regulate at home using labeling, quarantine, and outright bans on foods. But domestic regulation has its limits in a free trade environment. Countries that are not mindful of treaty obligations could face legal liability, as seen in the recent litigation between Uruguay and Philip Morris International. In short, traditional models of international regulatory cooperation (IRC) are failing to provide countries ...


Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan Jun 2015

Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan

Articles

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of ...


Scuttling Iuu Fishing And Rewarding Sustainable Fishing: Enhancing The Effectiveness Of The Port State Measures Agreement With Trade-Related Measures, Anastasia Telesetsky Jan 2015

Scuttling Iuu Fishing And Rewarding Sustainable Fishing: Enhancing The Effectiveness Of The Port State Measures Agreement With Trade-Related Measures, Anastasia Telesetsky

Articles

No abstract provided.