Law Commons^™

The Wto, Looking Ahead, Mike Moore

Fordham International Law Journal

In this Essay, I would like to focus simply on some key points which I believe are central to the WTO's present, and also to its future. This Essay begins by discussing the importance of the rule of law to the WTOs work. Part II talks about changes that have come with an expanding membership. Part III concludes with a review of recent events and an optimistic outlook for the WTO.

The Future Of The Wto And The Reform Of The Anti-Dumping Agreement: A Legal Perspective, Konstantinos Adamantopoulos, Diego De Notaris

Fordham International Law Journal

This short contribution aims at identifying certain provisions of the Agreement that might be considered for amendment, in light of the general principles that, in our view, should inspire the reform of the ADA. Part I below deals with such general principles; Part II sets out suggestions concerning the determination of the product scope in an anti-dumping investigation; Part III deals with Article 5 of the ADA (initiation of the investigation); Part IV is concerned with amendments to Article 2 ADA (dumping); Part V deals with Article 3 ADA (injury); Part VI concerns the reform of Article 11 ADA (reviews …

The Wto From The Perspective Of A Developing Country, Ambassador Celso L.N. Amorim

Fordham International Law Journal

This Essay starts by laying out the shortcomings of the WTO. In Part II it lays out the issues at stake in the Seattle Conference. Part III is about the effects of the "Seattle fiasco." Part IV gives the author's views on what a development round should be. Part V asserts that the WTO should promote fair labor standards. Finally, Part VI discusses the prospects for the WTO to address concerns of developing nations.

A Re-Assessment Of Article Xx, Paragraphs (B) And (G), Of Gatt 1994 In The Light Of Growing Consumer And Environmental Concern About Biotechnology, Philip Bentley Q.C.

Fordham International Law Journal

This Essay will seek to explain EU regulatory practice in relation to new technologies, principally GMOs, and to show that the EU should be able to find an approach that meets public concerns while remaining consistent with Article XX, paragraphs (b) and (g). This Essay will also identify those areas where Article XX, in its present form, it likely to be a source of justified public concern.

Bargaining In The Shadow Of The Law: Early Settlement In Gatt/Wto Disputes, Marc L. Busch, Eric Reinhardt

Fordham International Law Journal

This Essay proceeds in four steps. Part I summarizes the quantitative evidence on the pattern of escalation and outcomes of more than 600 GATT/WTO disputes from 1948 through 1999. Part II elaborates on our theory of settlement bargaining within the context of an institution lacking enforcement power and shows how the hypotheses are consistent with the evidence introduced earlier. Part III discusses the theory's expectations regarding the effect of the 1989 and 1995 dispute settlement reforms and likewise compares those predictions with the evidence. Part IV highlights the implications of our perspective for proposed future reforms dealing with transparency and …

Pax Mercatoria: Globalization As A Second Chance At "Peace For Our Time", Jim Chen

Fordham International Law Journal

This Essay completes a scholarly cycle in which I have defended free trade and international economic cooperation against charges that globalization will harm the environment and drain jobs from the high-wage economies of western Europe, Japan, and the United States. The demolition of geographic and social barriers since the end of the Cold War has delivered not only material wealth but also physical tranquility, political stability, and personal freedom to vast portions of the world's population. The path to peace lies today, as it did in 1938, not in a retreat to obsolete notions of local sovereignty, but in a …

Europe's Evolving Regulatory Strategy For Gmos --- The Issue Of Consistncy With Wto Law: Of Kine And Brine, Robert Howse, Petros C. Mavroidis

Fordham International Law Journal

This Essay deals with one question: If challenged, how would regulatory restrictions on genetically modified organisms ("GMOs") be judged by a World Trade Organization ("WTO") adjudicating body. Many of the controversies about the effect of WTO law on domestic regulation have been influenced by the view that the law as it stands may well impede the ability of governments to regulate new and uncertain risks to health and the environment. The result in the Beef Hormones case is often cited for this proposition. In this Essay we aim to show that, contrary to an increasingly widespread popular perception, if WTO …

The Elimination Of Export Subsidies And The Future Of Net-Food Importing Developing Countries In The Wto, Tashi Kaul

Fordham International Law Journal

Before providing an overview of the current situation, Section I of this Essay examines past trends in the world agricultural trade in order to demonstrate how the share of the world's agricultural trade from developing and least-developed countries has stagnated compared to those of the industrialized countries. Section II discusses the factors which have led to this stagnation, including one of the most significant factors — the use of export subsidies, as exemplified by CAP. Section III analyzes the implications of eliminating such protectionism for NFIDCs, which form the main focus of this Essay. Section IV briefly addresses the implementation …

The Wto: A Train Wreck In Progress?, Willam A. Lovett

Fordham International Law Journal

This article argues that the WTO entrenches an asymmetrical, non-reciprocal trading system that benefits multi-national corporations especially, at the expense of industrial workers, farmers, and a wide range of business enterprises. It argues that the WTO doesn't deserve to survive in its present, unbalanced, and unsustainable form, and that it is doubtful that its voting regime, accumulated asymmetries, and overall rigidity can be overhauled. The author posits that bilateral and regional trade bargaining will become increasingly important and that world market forces are likely to bypass, and perhaps overwhelm, the WTO.

Two Snowflakes Are Alike: Assumptions Made In The Debate Over Standing Before World Trade Organization Dispute Settlement Boards, Philip M. Nichols

Fordham International Law Journal

This Essay identifies five assumptions that have worked their way into the debate on standing before the dispute settlement panels of the World Trade Organization (“WTO”). The dispute settlement process is one of the most visible — and most scrutinized — activities of the WTO. Moreover, the dispute settlement process constitutes an integral part of the international trade regime. The five assumptions discussed in this Essay are assumptions; they have neither been proven nor disproven by either side of the debate. This Essay does not empirically treat any of these assumptions, other than to demonstrate that they are assumptions. Rather, …

International Trade As A Vector In Domestic Regulatory Reform: Discrimination, Cost-Benefit Analysis, And Negotiations, Joel P. Trachtman

Fordham International Law Journal

This brief Essay summarizes, updates, and integrates work I have done elsewhere in order to suggest, first, why cost-benefit analysis is not used in dispute settlement, second, how to evaluate substitute formulae that are available for use within dispute settlement, and finally, how dispute settlement and treaty-making relate to one another in this field. This Essay considers the role of international discipline by dispute resolution bodies, in comparison to multilateral treaty-making or other legislation. Treaty-making or other legislation may take the form of harmonization to one degree or another, or importantly, may take the form of agreed rules of prescriptive …

The Banana Split: Has The Stalemate Been Broken In The Wto Dispute? The Global Trade Community's "A-Peel" For Justice?, Aisha L. Joseph

Fordham International Law Journal

This Comment examines the latest developments of the banana trade dispute, which threatens to disrupt, the economies of Third World countries and international relations on a general scale. Part I reviews the background of the legal treaties and the international organizations involved in the dispute, as well as the parties involved, and the dispute's basic history. Part II examines the dispute's procedural history, as presented before the World Trade Organization (“WTO”), and also highlights recent developments. Part III evaluates the WTO's legal rulings and analyzes key aspects of the banana dispute. Part III also suggests that while the system of …

Compensating Victims Of Aviation Disasters: Establishing Uniform And Equitable Remedies For Accidents Over Water, Melissa Pucciarelli

Fordham International Law Journal

This Comment tracks the development U.S. law, and international law, as it pertains to aviation crashes off the coast of the United States. Part I of this Comment details the vehicles for providing relief to the families of victims killed in aviation disasters. U.S. federal statutes, international agreements, maritime common law, and U.S. state law, depending on the circumstances, now may apply to actions for the recovery of damages for wrongful death. Part II discusses the recent initiatives proposed by the U.S. Senate and the U.S. House of Representatives to provide equitable treatment to the families of disaster victims. This …

The Julietta Gold Mining Project: Lessons For Project Finance In The Emerging Markets, Ian R. Coles

Fordham International Law Journal

This essay discusses the Julietta gold mining project and the categories of risk that investors and lenders look at when assessing the suitability of a project. The financing of projects on a limited recourse basis in the emerging markets is a subject that has received much attention over the course of the last several years. This has been particularly the case with respect to mining projects where declining commodity prices worldwide have led to the need for mining companies to access minerals in countries where the costs of extraction are lower than in the developed markets. The recent decline in …

Synthetic Lease Financing For The Acquisition And Construction Of Power Generation Facilities In A Changing U.S. Energy Environment, Thomas R. Fileti, Carl R. Steen

Fordham International Law Journal

This Essay will describe synthetic lease financings and provide an analysis of the advantages and disadvantages of these transactions for the acquisition or construction of a power generation facility. During the past two years, several leading players in the power generation industry have used “synthetic” leases to finance both the construction and acquisition of power generation assets, as well as bulk purchases of combustion turbines. Synthetic leases can offer a tax and balance sheet efficient alternative for the acquisition and construction of a power generation facility and related equipment (collectively referred to in this Essay as a “power generation facility”). …

International Project Finance And Arbitration With Public Sector Entities: When Is Arbitrability A Fiction?, Mark Kantor

Fordham International Law Journal

This article reviews the events surrounding two prominent arbitration decisions related to two Indonesia geothermal power projects sponsored by CalEnergy Company, Inc. ("CalEnergy"), known as the Patuha and Himpurna projects, and a Pakistani power project developed by the Hub Power Company, Ltd. ("HubCo"). The aggressive involvement of local courts in the CalEnergy and HubCo proceedings does not reassure investors relying on the perceived neutrality of international arbitral institutions to mitigate the risk of uncertain justice in unstable countries. The author asks: Are problems between State entities in troubled developing countries and international project sponsors simply not arbitrable as a practical …

Emerging Market Growing Pains: Lessons Of The California Power Crisis, George K. Miller

Fordham International Law Journal

In his March 15 column in The Wall Street Journal, David Wessel drew some interesting comparisons between Indonesia's and California's power crises. He observed that the U.S. federal government and bond market will have assisted California on terms much more favorable than those the International Monetary Fund imposed on Indonesia. Obviously California is not facing the same issues regarding currencies and interest rates. Both governments, however, face the political challenge of deregulating retail rates for electricity.

Export Credit Agencies, Project Finance, And Commercial Risk: Whose Risk Is It, Anyway?, Rodney Short

Fordham International Law Journal

This Essay questions whether Extra Credit Agencies should provide such long-term commercial risk insurance in project finance transactions. It can be argued that ECA-provided commercial risk insurance in project financings lifts from commercial banks the onus of rigorously analyzing the commercial risks of a project and that ECAs lack the institutional experience and commercial orientation to sufficiently appraise a project's commercial risk. This leads to the very real possibility that projects will be undertaken that on their own (i.e., without commercial risk insurance) might not be commercially viable.

Renegotiating International Project Agreements, Jeswald W. Salacuse

Fordham International Law Journal

The Essay examines the phenomenon of renegotiation of international project agreements, explores its nature and causes, and offers useful advice on how best to conduct the renegotiation process.

Sovereignty, Human Rights, And Self-Determination: The Meaning Of International Law, Father Robert Araujo

Fordham International Law Journal

This Essay contends that popular sovereignty and the other rights enumerated in the Universal Declaration of Human Rights (UDHR) are inextricably linked. When popular sovereignty is criticized, what will become of the other rights? The principal goal of this Essay, then, is to examine the concept of sovereignty as it relates to the practice and protection of human rights issues grounded in international law. This examination should reveal the existence of more than one kind of sovereignty: that of the State and that of the people (the nation or nations). This Essay's goal is to demonstrate that a State is …

The Modernization Of The Enforcement Of Articles 81 And 82 Ec: A Legal And Economic Analysis Of The Commission's Proposal For A New Council Regulation Replacing Regulation No. 17, Wouter P.J. Wils

Fordham International Law Journal

The purpose of this Essay is to analyze the proposed new regime for the enforcement of Articles 81 and 82 of the EC Treaty, compared with the current situation under Regulation No. 17, in the light of the four dimensions which have just been identified. The issue of timing of legal intervention is discussed first. Indeed, the most important aspect of the proposed reform is the abandonment of the current (pretence at) ex ante enforcement through prescreening and the move to a pure system of ex post enforcement through deterrence. The following section looks at the role of the competition …

Equal Access To Justice: Comparing Access To Justice In The United States And Other Industrial Democracies, Justice Earl Johnson, Jr.

Fordham International Law Journal

It is time--long past time--for the United States to join the growing international consensus that words like “due process,” “fair hearing,” “equal protection of the laws,” and “equality before the law,” all express a universal principle--a right to equal justice to be enjoyed by everyone. And, as the European Court on Human Rights pointed out, if this right is to be “practical and effective,” and not merely “theoretical or illusory,” then for those unable to afford counsel, the right to equal justice must include the right to a lawyer supplied by government. Why is this so important? As the European …

Access To Justice In Lithuania, Linas Sesickas

Fordham International Law Journal

This article examines the state of the Lithuanian legal system ten years after its independence and offers suggestions for reforms that would increase citizens' access to justice. The article addresses issues arising from the increasing legal and economic complexity of Eastern Europe and the corresponding increased need for legal advice. Finally, the article notes the difficulty in acheiving individualism and human rights goals while socio-economic disparity is increasing.

What Is Access To Justice? Identifying The Unmet Legal Needs Of The Poor, Philip Alston, Dr. Alex Boraine, Justice Catherine Brannon, Hina Jilani, Justice Earl Johnson, Jr.

Fordham International Law Journal

Philp Alston moderated a panel featuring Dr. Alex Boraine, Justice Catherine Branson, Hina Jilani, and Justice Earl Johnson, Jr.. The panelists discussed access to justice for the poor in their respective countries (South Africa, Australia, Pakistan, and the United States). The panelists discussed how the current system fails to address the legal needs of the poor, and what progress is being made in that area.

Welcoming Remarks: The Paris Bar: Access To Justice And Access To Legal Advice, Franics Teitgen

Fordham International Law Journal

Francis Teitgen, Batonnier of the Paris Bar Assocation, gave welcoming remarks on April 7, 2000, and discussed France's system for provision of legal aid services. He began by describing the history of legal aid in France. He then discussed the role of the Paris Bar Association in providing access to legal representation to those who could not otherwise afford it. Mr. Teitgen then discussed the process by which incarcerated individuals access lawyers. He also described a free legal consultation system run by the Paris Bar. He concluded by discussing new initiatives the Paris Bar is spearheading to increase access to …

An Overview Of Civil Legal Services Delivery Models, Edwin Rekosh, Pascal Dourneau-Josette, Daniel L. Greenberg, David J. Mcquoid-Mason, Anne Owers

Fordham International Law Journal

The panel, moderated by Edwin Rekosh, discussed access to civil legal aid in various contexts. Pascal Dourneau-Jostte described the French system of legal aid, as well as the European Court of Human Right's methods of providing free legal services. Daniel McQuoid-Mason described the civil legal aid system in South Africa; he noted that only 20% of the country's legal aid goes to civil aid. Anne Owers discussed civil legal aid in the UK. Daniel Greenberg gave an overview of civil legal aid in the United States.

The Effect Of Globalization On Domestic Legal Services, Michael Dowdle, E. Clinton Bamberger, Dorchen Leidholdt, Filipe Gonzalez Morales, Lucie White

Fordham International Law Journal

Globalization, in the context of this panel, refers to international, trans-border processes which are not regulated by the international legal framework, either private law or public international law. These processes, these unregulated influences, are having both positive and negative effects and affecting aspects of culture and society which had previously been considered domestic or wholly domestic concerns. This is creating a tension within both the domestic and international environments, and it is this particular tension that this panel seeks to address.

E. Clinton Bamberger, Emeritus Professor of Law, University of Maryland Law School, will speak about how domestic systems in …

Reception, Justice Juanita Bing Newton

Fordham International Law Journal

Justice Juanita Bing Newton, Deputy Chief Administrative Judge for Justice Initiatives for the State of New York, welcomes participants to a reception. She described her position and her role in spearheading access to justice initiatives in New York.

Welcoming Remarks: April 8, 2000, Michel Gout

Fordham International Law Journal

Michel Gout welcomed participants and described access to justice initiatives in the European Union. He discussed various instruments in European Union law that ensure access to justice (European Court of Justice, Court of First Instance, European Court of Human Rights, Brussels Convention Article 44, Hague Convention 2 Relating to Civil Procedures, Hague Convention 99 on Access to Justice, and Agreement of the COuncil of Europe on Transmission for Applications to Legal Aid). Mr. Gout described the successes of these instruments, and also the obstacles the European Union still faces in providing legal aid for its citizens.

Closing Address, April 8, 2000, Vincent Saldanha

Fordham International Law Journal

Vincent Saldanha thanked the participants for attending the conference. He noted that it is also an uncomfortable situation to presume to speak on behalf of the poor, as the poor are neither voiceless nor invisible. He noted, however, that the discussions over the previous days were devoid of arrogance and patronage. He went on to note that, despite the many international perspectives presented at the conference, there were a great deal of commonalities between the issues facing those who provide legal services for indigent populations. Mr .Saldanha argued that there is a fundamental right to justice, and noted that this …