Law Commons^™

The Dual Purpose Of The American Jobs Creation Act Of 2004, Dennis J. Kokenos

ExpressO

The American Jobs Creation Act of 2004 claims to help bring offshore investments back to the United States. In reality, the AJCA does much more. The AJCA of 2004 makes adjustments to the U.S. tax code which helps bring the U.S. in line with existing international trade obligations as well as stimulating the U.S economy.

“The (Cisg) Road Less Travelled”: Case Comment On Grecon Dimter Inc. V. J.R. Normand Inc., Antonin I. Pribetic

ExpressO

At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, …

The Shari'a Factor In International Commercial Arbitration, Faisal M. Kutty

ExpressO

The world has witnessed a phenomenal growth in commercial disputes transcending national borders due to our increasingly interrelated and globalized world economy. In addition to issues in interpretation of commercial agreements and practices, differences in custom, language, culture and religion will continue to fuel conflicts and disagreements between commercial players. Over the last few decades there have been growing commercial interaction between Western companies and their Middle Eastern counterparts. Given this interaction and the great geo-political and economic importance of this region, it is imperative that Western lawyers and dispute resolution professionals have a reasonable grasp of the general principles …

Transparency In Global Merger Review: A Limited Role For The Wto?, Keith R. Fisher

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This article identifies certain problems faced by parties to transnational merger transactions in view of the global proliferation in recent years of competition (and, specifically, merger review) laws. After considering the pros and cons of merger remedies (both structural and behavioral) that may be offered to mitigate potentially anticompetitive effects and illustrating (through a case study of the GE/Honeywell transaction) the pitfalls of divergent market definition even as between two legal regimes employing substantially similar standards, the article reviews and critiques proposals for establishing a supranational competition authority under the aegis of the World Trade Organization. While rejecting the WTO …

Deadly Discounts: How Reimportation Jeopardizes The Safety Of The U.S. Pharmaceutical Drug Supply Under The Federal Trade Commission Amendment, Nicole C. Bates

ExpressO

The amendment to a Federal Trade Commission (FTC) reauthorization bill, previously introduced as Senate Bill 334 (S.334) Pharmaceutical Market Access and Drug Safety Act of 2005 allows for the reimportation of prescription drugs into the United States from approximately 25 countries, including Canada via Internet pharmacies. There are no guarantees that the internet websites advertising as Canadian pharmacies are legitimate. The shipping of pharmaceutical drugs occurs through importation, which refers to drugs produced abroad then later shipped to the U.S., or re-importation, a term applied when drugs are produced in the U.S. and exported for sale to foreign countries and …

The Comparative Analysis On The Presumption Of Cartel Agreements Which Is Unique In The Korean Cartel Regulation Provision, Woo-Jong Jon

ExpressO

In terms of cartel regulation, Korea has a “presumption of agreement” provision that does not exist in the United States or in the European Union (EU). This provision is Article 19(5) of the Monopoly Regulation and Fair Trade Act (MRFTA). This provision was created for the convenience of enforcement because firms made cartel agreements by more sophisticated methods as the cartel regulation became more intense. Accordingly, in the continental law of Korea the approach of the courts in relation to cartel regulation is somewhat different to the United States. However, in terms of a standard for deciding specifically what to …

Up Against A Wall: Europe’S Options For Regulating Biotechnology Through Regulatory Anarchy, Aaron A. Ostrovsky

ExpressO

Based on the current state of EU law and the political sentiment surrounding Genetically Modified Organisms, this paper argues that the best approach to regulating the import and export of GMOs into the Community and between Member States is by what I will call for the purposes of this Paper “regulatory anarchy.” This system sits in opposition to a hierarchical regulatory approach which may be associated with traditional neo-functionalist theories of Community integration. Applied in the context of GMOs, regulatory anarchy envisions integration not coming solely from Community rules conceived by the Commission, but by Member State negotiated rules accomplished …

Towards A Development-Oriented Multilateral Framework On Competition Policy, Jae Sung Lee

ExpressO

No abstract provided.

Hollywood's Disappearing Act: International Trade Remedies To Bring Hollywood Home, Claire Wright

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No abstract provided.

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

ExpressO

Current support for such an appellate mechanism is largely derived from Congressional and NGO concerns regarding certain arbitral decisions rendered under NAFTA’s Chapter 11, where questions as to the consistency of tribunal interpretation of investment rules have been raised. Incorporation of such a mechanism or mechanisms in free trade agreements and bilateral investment treaties is effectively required by the President’s 2002 “Trade Promotion Authority.” Negotiation and drafting of an agreement establishing such a mechanism will commence shortly (three months) after the United States – Central America – Dominican Free Trade Agreement enters into force, probably January 1, 2006. The article …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The Wto Constitution: Tertiary Rules For Intertwined Elephants, Joel P. Trachtman

ExpressO

Constitutions have many dimensions. These dimensions include at least the following:

• an economic constitution in the sense of a set of rules for exchange of value and authority,

• an interfunctional constitution that allows for the integration of various social values,

• a political constitution that reflects the cultural and democratic integrity of a group of people,

• a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules,

• a human rights constitution that limits the sphere of governmental authority, and

• a …

Ubi Remedium, Ibi Ius At The Wto, Joel P. Trachtman

ExpressO

The WTO law of remedies for violation appears incoherent. States that fail to comply with their obligations are subject to WTO-authorized retaliation. First, this retaliation takes the inefficient form of blocked trade by the complaining state. This remedy is unlikely to be useful to developing countries. Second, the amount of trade blocked by the violation is often used as the measure of authorized retaliation. This measure is not necessarily incentive compatible, as it is not necessarily linked to welfare. Thus, its use may result in inefficient breach, or inefficient compliance, with WTO law. Third, only states that engage in dispute …

An Analysis Of The Duties And Obligations Of The International Legal Community To The Eradication Of Poverty And Growth Of Sustainable Development In Light Of The Jus Cogens Nature Of The Declaration Of The Right To Development, Freda R. Murray-Bruce

ExpressO

This paper examines the copious problem of world poverty affecting half of the world’s population in the South and assesses the international legal obligations of the international legal community, viz., developed states, transnational corporations and the international financial institutions of the IMF, World Bank and WTO to the eradication of poverty and the growth of sustainable development, in view of the inviolability and peremptory nature of the Charter of the UN, and the international human rights provisions arising therefrom. To this extent, we examine the 1986 General Assembly Declaration on the Right to Development, along with the other International Bill …

Principles Of Fairness For International Economic Treaties: Constructivism And Contractualism, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. This paper is about the elaboration of a theory of justice to underpin international economic law and international economic institutions. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. There is yet no consensus on the public reason underpinning the rules and the institutions. Economic efficiency concepts are widely used in the assessment of the welfare effects of world trade institutions and policies. Efficiency, however, is one of several standards that may be used, but …

Turning Offense Into Defense: Making Sense Of Public Citizen's Arguments Against The Wto, Branden A. Bell

ExpressO

ABSTRACT

The World Trade Organization (WTO) is under considerable fire from nearly every quarter. Undoubtedly, the biggest gun currently belongs to Public Citizen’s Global Trade Watch (GTW). GTW is the undisputed leader of the coalition that derailed the Millennium Round of WTO talks in Seattle. In 2004, GTW published a second edition of its book, Whose Trade Organization? that had been the manifesto of the Seattle protesters.

The WTO Dispute Settlement Body (DSB) is one of the most frequent target of the anti-WTO crowd (and sometimes the pro-WTO crowd.) One chapter of GTW’s book is reserved for its criticism of …

Bilateralism Under The World Trade Organization, Y.S. Lee

ExpressO

This paper addresses fundamental issues in the legal framework for international trade today, namely the proliferation of bilateralism under the multilateral framework of the GATT/WTO system. The GATT/WTO system requires non-discriminatory treatment in trade relations among all nations, but bilateral/regional trade arrangements that provide exclusive trade preferences have increased in recent years. This paper examines the consistency of these bilateral/regional arrangements with the requirements of WTO disciplines and explores the ways to achieve convergence between bilateralism and multilateralism in international trade today.

A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity

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This Article proposes a conceptual foundation for the field of international tax law. The Article refers to this foundation as the institutional competence of nations in global economic development. A nation’s institutional competence is its discretion to make decisions in pursuit of our collective goal of global economic development, discretion that is subject to a number of standards and limitations.

The Article constructs the institutional competence of nations in global economic development from institutional economics, simple game theory, and the literature on social norms. The Article expresses the institutional competence of nations through standards and limitations that reduce the abuse …

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

Is It A Subsidy? An Evaluation Of China's Currency Regime And Its Compliance With The Wto, Matthew R. Leviton

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No abstract provided.

From Pax Mercatoria To Pax Europea: How Trade Dispute Procedures Serve The Ec's Regional Hegemony , Tomer Broude

ExpressO

The European Union's policies towards the states on its new, post-2004 enlargement, external borders (the European Neighbourhood Policy and the Cotonou project) present complementary yet competing tendencies: the establishment of Pax Mercatoria (the model historically developed in and by the EC itself, wherein international political stability is facilitated by economic interdependence) and the pursuit of Pax Europea (the establishment of a European zone of superior international economic, political and legal influence). The balance between these will ultimately be struck by the cumulative economic, political and social effects of the new legal arrangements. This paper focuses on one issue affecting this …

Taking 'Trade And Culture' Seriously: Geographical Indications And Cultural Protection In Wto Law , Tomer Broude

ExpressO

The regulation of the relationship between international trade law and cultural protection is one of the challenges that the World Trade Organization (WTO) will be facing with greater intensity in the second decade of its existence. This paper approaches the problem as it is reflected in the current debate on Geographical Indications (GIs) for food and wine products in the WTO. It seeks to take 'trade and culture' seriously, looking not only at law's effects on trade but also on culture, and to examine the extent to which legal restrictions on international trade can in fact prevent the degradation of …

Facilitating Development In The World Trade Organization: A Proposal For The Council For Trade And Development And The Agreement On Development Facilitation (Adf), Y.S. Lee

ExpressO

Facilitating economic development has been an important objective in the World Trade Organization. Nonetheless, WTO rules set significant barriers to development efforts, and this paper advocates an extensive reform of the WTO system and WTO rules to remove these barriers and to better facilitate development

Ireland's New Responsibility: Refugees Buy The Irish Another Round, Shae D. Armstrong

ExpressO

Over the previous decade, Ireland's economic boom has attracted asylum seekers from around the globe to this small island nation. Ireland's economic explosion created growing pains for industrial sectors of the Irish economy. Ireland’s continued willingness to diversify its neighborhoods will promote even greater economic prosperity. Furthermore, refugees will satisfy several of the economic demands of Ireland’s massively growing economy. Asylum seekers granted refugee status in Ireland will satisfy present labor shortages in Ireland. Also, these refugees will allow Ireland to establish an economic partnership with non-EU countries that have a propensity to export asylum seekers.

Sharing Potential And The Potential For Sharing: Open Source Licensing As A Legal And Economic Modality For The Dissemination Of Renewable Energy Technology, Jason Wiener

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No abstract provided.

What Makes Asset Securitization "Inefficient"?, Kenji Yamazaki

ExpressO

Despite the damage caused by the recent Enron scandal , the asset securitization market has been vibrant and has become a popular financing alternative . A number of academics emphasize its merits and suggest that it is a more favorable way of financing, and Congress’s proposal to make sales of asset in securitization immune from characterization as secured transactions under the Bankruptcy Reform Act of 2001 (the “Reform Act”) almost materialized when the Enron scandal hit the scene. Conversely, there have been accusations that securitization is not a legitimate way of financing because, for example, it fosters fraudulent transactions.

Why …

The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton

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The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred …

The Customary International Law Game, Joel P. Trachtman, George Norman

ExpressO

Structural realists in political science and some rationalist legal scholars argue that customary international law cannot affect state behavior: that it is “epiphenomenal.” This article develops a game theoretic model of a multilateral prisoner’s dilemma in the customary international law context that shows that it is plausible that states would comply with customary international law under certain circumstances. Our model shows that these circumstances relate to: (i) the relative value of cooperation versus defection, (ii) the number of states effectively involved, (iii) the extent to which increasing the number of states involved increases the value of cooperation or the detriments …

Are Public Sector Assets By Nature Insuitable For Financing Transnational Investments? , Lucien A. Rapp

ExpressO

Does the legal regime applicable to publicly owned assets constitute a policy instrument to protect public investment? In what way can this benefit public sector property ? Are the structures of the regime sufficiently well established to provide investors with enough certainty?

This paper aims to answer these questions by taking a trans-national perspective. The main concern is to resolve the problems of ownership or non-ownership of public sector assets in the context of financing trans-national investments.

This paper responds to this issue by examining (in two stages) the various consequences for trans-national investment; the first regarding the acquisition of …

The Expansion Of Intellectual Property Rights By International Agreement: A Case Study Comparing Chile And Australia’S Bilateral Fta Negotiations With The U.S., Ralph G. Fischer

ExpressO

This paper attempts to address the ongoing debate regarding the expansion of intellectual property rights (IPRs) through international negotiations. Commentators have described three theories that purport to explain the growing scope of IPRs in international law, as reflected in international agreements: that these agreements reflect coercion by economically powerful nations; that they are the products of lobbying by multinational corporations; and that they represent autonomous, welfare-enhancing instruments that benefit all parties. The article tests these theories by using a case study comparing free trade agreement negotiations that the United States recently concluded with a less developed country, Chile, and with …