Law Commons^™

The Second Transformation Of The International Intellectual Property Regime, Peter K. Yu

Faculty Scholarship

This chapter focuses on the structural changes that international investment norms have posed to the international intellectual property regime. It begins by documenting the regime’s first transformation by the adoption of the TRIPS Agreement and the marriage of intellectual property and trade through the World Trade Organization. The chapter then explores the regime’s potential second transformation when bilateral, regional, and plurilateral agreements and new investor-state disputes have caused international investment norms to intrude into the intellectual property domain. It continues to identify three sets of problems that have emerged from such intrusion. The chapter concludes by proposing three solutions to …

Trading Pharma Goods The Wto Legal Framework, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

Trading of pharma goods has attracted widespread global attention in the wake of the COVID-19 pandemic. The Agreement on Trade in Pharmaceutical Products (“Pharma Agreement”) – a sectoral agreement between a handful of WTO members – was concluded in 1994 and aimed to eliminate duties on various pharmaceutical products. Nevertheless, this is all that the Pharma Agreement does: it eliminates duties and does not touch upon the regulatory aspects relating to marketing of pharmaceutical goods. WTO members remain sovereign to decide on this score, but must observe the WTO Licensing Agreement as well as nondiscrimination. Thus, while the intensity of …

Wto Dispute Settlement And The Appellate Body Crisis: Insider Perceptions And Members’ Revealed Preferences, Matteo Fiorini, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste, Robert Wolfe

Faculty Scholarship

The WTO dispute settlement system is in crisis, following the decision of the United States to block new appointments to the Appellate Body (AB). The AB went into hibernation in December 2019, not having enough sitting members to be able to operate. What do WTO members think of the performance of WTO dispute settlement? How much do WTO members care about the existence and operation of an appeals mechanism? In this article, we report on the results of a survey of WTO Members’ perceptions of the AB and the role it plays (should play). We complement this with data on …

Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant

Faculty Scholarship

The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.

Wto Dispute Settlement: Can We Go Back Again?, Rachel Brewster

Faculty Scholarship

The world's twenty-year experiment with a rule-based international trading order is most likely ending. Trade wars are raging again for the first time in two decades as World Trade Organization (WTO) members unilaterally impose and counterimpose sanctions. In Geneva, the WTO Appellate Body, whose existence is essential to the functioning of the WTO Dispute Settlement Understanding (DSU), is on a trajectory to shut down in December 2020. For all the fireworks, however, many commentators retain an optimism that the recent events will be a passing phase and that the world will return to a more law-oriented trading system after the …

The Significance Of The Data Exclusivity And Its Impact On Generic Drugs, Srividhya Ragavan

Faculty Scholarship

The following is a law review interview with Professor Srividhya Ragavan on the issues in interpretation of data exclusivity provisions under the TRIPS Agreement, and the impact of data exclusivity on generic drugs.

Us-Cool Retaliation: The Wto’S Article 22.6 Arbitration, Chad P. Bown, Rachel Brewster

Faculty Scholarship

This paper examines the World Trade Organization’s Article 22.6 arbitration report on the dispute over the United States’ country of origin labeling (US–COOL) regulation for meat products. At prior phases of the legal process, a WTO Panel and the Appellate Body had sided with Canada and Mexico by finding that the US regulation had negatively affected their exports of livestock – cattle and hogs – to the US market. The arbitrators authorized Canada and Mexico to retaliate by over $1 billion against US exports – the second largest authorized retaliation on record and only the twelfth WTO dispute to reach …

Trade In Environmental Goods: A Review Of The Wto Appellate Body’S Ruling In Us — Countervailing Measures (China), Rachel Brewster, Claire Brunel, Anna Maria Mayda

Faculty Scholarship

In this paper we claim that, in the WTO Appellate Body (AB)’s ruling in US-Countervailing Measures (China), the AB decision has essentially left unchanged the practice of imposing countervailing duties (CVDs) on environmental goods. While the US has formally “lost” the case, a change in the procedures and tests used to motivate the CVD will allow the US to continue using this policy tool. From an economic point of view, this is not welcome news since CVDs have the standard distortionary effects of tariffs and could go against environmental goals. From a political-economy point of view, the CVDs in this …

Double Remedies In Double Courts, Sungjoon Cho, Thomas H. Lee

Faculty Scholarship

This Article uses an ongoing trade controversy litigated in U.S. courts and the World Trade Organization dispute resolution system as a vehicle for exploring different models to deal with parallel adjudications in different legal systems between the same or related parties on the same issue. In lieu of more traditional models of subordination or first-to-decide sequencing, the Article proposes an engagement model as a solution to the double courts, single issue problem.

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …

The Next Generation Of Trade And Environment Conflicts: The Rise Of Green Industrial Policy, Mark Wu, James Salzman

Faculty Scholarship

A major shift is transforming the trade and environment field, triggered by governments’ rising use of industrial policies to spark nascent renewable energy industries and to restrict exports of certain minerals in the face of political economy constraints. While economically distorting, these policies do produce significant economic and environmental benefits. At the same time, they often violate World Trade Organization (WTO) rules, leading to increasingly harsh conflicts between trading partners.

This Article presents a comprehensive analysis of these emerging conflicts, arguing that they represent a sharp break from past trade and environment disputes. It examines the causes of the shift …

Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster

Faculty Scholarship

The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …

Arbitrating Trade Disputes (Who's The Boss?), Petros C. Mavroidis

Faculty Scholarship

World Trade Organization (“WTO”) dispute settlement has attracted a lot of interest over the years and there is a plethora of academic papers focusing on various aspects of this system. Paradoxically, there is little known about the identity of the WTO judges: since, at the end of the day, the WTO has evolved into the busiest forum litigating state-to-state disputes. There are many writings regarding the appointment process in other international tribunals. At the risk of doing injustice to many papers on this issue, we should mention the following works: Terris et al. look at various courts and especially those …

The Surprising Benefits To Developing Countries Of Linking International Trade And Intellectual Property, Rachel Brewster

Faculty Scholarship

The World Trade Organization's Trade Related Intellectual Property (TRIPS) Agreement is controversial, requiring WTO members to establish a host of domestic institutions to support intellectual property rights, including substantive laws creating rights and a host of enforcement procedures. Trade scholars and development advocates frequently criticize the agreement as economically harmful to developing countries. This Article does not argue that the TRIPS Agreement is beneficial for developing states, but highlights how the agreement has produced some surprising benefits over the last decade and a half. First, the TRIPS Agreement's requirement that developing states make the domestic enforcement of intellectual property rules …

The Remedy Gap: Institutional Design, Retaliation, And Trade Law Enforcement, Rachel Brewster

Faculty Scholarship

One of the major innovations of the World Trade Organization’s (“WTO”) Dispute Settlement Understanding (“DSU”) is the regulation of sanctions in response to violations of trade law. The DSU requires governments to receive multilateral approval before suspending trade concessions and limits the extent of retaliation to prospective damages. In addition, the DSU permits governments to impose only conditional sanctions: sanctions for violations that continue after the dispute resolution process is complete. This enforcement regime creates a remedy gap: governments cannot respond, even to obvious breaches, until the end of the dispute resolution process (and then only to the extent of …

Human Rights And Intellectual Property: Mapping The Global Interface, Laurence R. Helfer, Graeme W. Austin

Faculty Scholarship

Human Rights and Intellectual Property: Mapping the Global Interface explores the intersections between intellectual property and human rights law and policy. The relationship between these two fields has captured the attention of governments, policymakers, and activist communities in a diverse array of international and domestic political and judicial venues. These actors often raise human rights arguments as counterweights to the expansion of intellectual property in areas including freedom of expression, public health, education, privacy, agriculture, and the rights of indigenous peoples. At the same time, the creators and owners of intellectual property are asserting a human rights justification for the …

Shadow Unilateralism: Enforcing International Trade Law At The Wto, Rachel Brewster

Faculty Scholarship

This short essay briefly traces the evolution of trade law enforcement from the the GATT to the WTO regime. The WTO's Dispute Settlement Understanding (DSU) is widely viewed as a major innovation from the GATT regime in that it subordinates unilateral enforcement of trade law to a rule-based system of multilateral enforcement. I recognize the successes of the WTO regime but the institution effective permits (if not encourages) the unilateral enforcement of trade law outside of the DSU framework Specifically, I examine how the DSU system only provides a prospective remedy - that is, the DSU permits retaliation only for …

Maximum Carbon Intensity Limitations And The Agreement On Technical Barriers To Trade, Charles O. Verrill Jr.

Faculty Scholarship

Emission of greenhouse gases is a global problem. Any nation seeking to restrict such emissions by its manufacturers should avoid putting them at a disadvantage in world and domestic markets where they are likely to compete with producers that do not bear the cost of emission controls. One approach being considered in the United States would be adoption of technical regulations limiting the carbon intensity of basic products, such as cement, aluminum, steel, etc., offered for sale in the US market (carbon intensity would be defined as the C02 equivalent emissions per ton of product). Domestic and imported products that …

No Outsourcing Of Law? Wto Law As Practiced By Wto Courts, Petros C. Mavroidis

Faculty Scholarship

This article provides a critical assessment of the corpus of law that the adjudicating bodies of the World Trade Organization (WTO) – the Appellate Body (AB) and panels – have used since the organization was established on January 1, 1995. After presenting a taxonomy of WTO law, I move to discern, and to provide a critical assessment of, the philosophy of the WTO adjudicating bodies, when called to interpret it. In discussing the law that WTO adjudicating bodies have used, I distinguish between sources of WTO law and interpretative elements. This distinction will be explicated in part I below. Part …

Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster

Faculty Scholarship

Why does the United States ever prefer to settle disputes under a system of rules rather than a system of negotiations? Powerful states are advantaged by negotiation-based approaches to settling disagreements because they have the resources to resolve individual disputes on favorable terms. By contrast, rule-based dispute resolution advantages weak states as a means to hold powerful states to the terms of their agreements. Then why did the United States want a rule-based system to settle international disputes in the WTO? To answer this question, we have to understand domestic politics as well as international politics. International constraints, particularly international …

Come Together? Producer Welfare, Consumer Welfare, And Wto Rules, Petros C. Mavroidis

Faculty Scholarship

This chapter explains why the dynamic of World Trade Organization (WTO) negotiations tends to lead to the progressive liberalization of market-access barriers promoting consumer welfare. As all agreements tend to be ‘incomplete’, it is a legitimate task of WTO judges to clarify progressively the WTO requirements of nondiscriminatory treatment of like goods and of like services. The additional requirements, in the WTO Agreements on Technical Barriers to Trade and on Sanitary and Phytosanitary Standards, to base restrictive measures on the ‘necessity principle’ and on ‘scientific evidence’, offer useful ‘double checks’ for judicial identification of protectionist measures. While the WTO rules …

The Domestic Origins Of International Agreements, Rachel Brewster

Faculty Scholarship

This paper examines how international agreements are substitutes for statutes. The statutory law-making system and international agreement negotiations are separate, but sometimes rival, processes for setting national-level policy. International agreements have several advantages over domestic statutes. Under United States law, international agreements can entrench policies that might otherwise be subject to change; they can transfer agenda-setting power from the Congress to the President; and they can delegate authority to international organizations. Each of these effects can lead domestic interest groups to seek international negotiations rather than domestic legislation. Little difference exists between the politics of international and domestic law: Interest …

World Trade Organization's Anti-Discrimination Jurisprudence: Free Trade, National Sovereignty, And Environmental Health In The Balance, The , Ari Afilalo, Sheila Foster

Faculty Scholarship

A discussion of how the World Trade Organization (WTO) resolves disputes centering on the tension between the free trade commit ment of the General Agreement on the Tariffs and Trade (GATT) and domestic policies regarding such matters as environmental, health, consumer, and labor protection. This article describes this evolving jurisprudential framework and the cases that comprise it, and illustrates how this framework articulates and applies an anti-discrimination norm that pervades the GATT. If properly articulated and applied, we argue, the anti-discrimination jurisprudence of the WTO will foster the trade interests that underlie the GATT up to the point where the …

The World Trade Organization's Agreement On Government Procurement: Expanding Disciplines, Declining Membership?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

The Agreement on Government Procurement (GPA) – originally negotiated during the Tokyo Round – was renegotiated for the second time during the Uruguay Round. It is one of the WTO's so-called Plurilateral Agreements, in that its disciplines apply only to those WTO Members that have signed it. In contrast to most of the other Tokyo Round codes – e.g., the agreements on technical barriers to trade (standards), import licensing, customs valuation, subsidies, and antidumping – the GPA could not be 'multilateralized'. With the reintroduction of agriculture and textiles and clothing into the GATT, procurement has therefore become the major 'hole' …