Law Commons^™

The Uncertain Future Of Icsid In Latin America, Ignacio Antonio Vincentelli

Ignacio Antonio Vincentelli

The purpose of this article is to research the historical interaction of the International Centre for Settlement of Investment Disputes (ICSID) and Latin America, in an effort to suggest that the recent ICSID-unfriendly measures taken by some Latin American countries might not be an aberrational phenomenon in the region. If, moved by the engine of ideology, the rest of Latin America follows the example of Bolivia (the most radical of the ICSID-hostile countries) and denounces the Washington Convention, instead creating a new forum to resolve FDI disputes, at the regional level (as was recently proposed), the future of ICSID in …

International Commercial Arbitration And The Transformation Of The Conflict Of Laws Theory, Markus A. Petsche

markus a petsche

No abstract provided.

Somali Piracy-Underlying Causes And New Challenges To International Law And World Order, Ademun Ademun-Odeke

Ademun Ademun-Odeke

No abstract provided.

Down The Rabbit Hole: The Madness Of State Film Incentives As As "Solution" To Runaway Production, Adrian H. Mcdonald

Adrian H. McDonald

This working paper is a "sequel" to my first law review article on runaway productions called "Through the Looking Glass": Runaway Productions and "Hollywood Economics," published in The University of Pennsylvania Journal of Labor and Employment Law in August 2007.

Since 2007, there has been a race to the bottom as virtually every state has enacted significant, if not detrimentally generous, tax incentives to lure film and television production. The efficacy of these incentives is evaluated at length, with particular attention paid to the origin and implementation of tax incentives in California, Massachusetts and Louisiana - states with colorful backgrounds …

Judicial Politics And International Investment Arbitration: Seeking An Explanation For Conflicting Outcomes, David Schneiderman

David Schneiderman

International investment arbitration has been described as a private system of justice addressing matters of high public policy. Yet, despite the very high stakes involved – in terms of both policy room and monetary implications – tribunal awards are sometimes difficult to reconcile. This conflict usually is explained with reference to the fact that these are ad hoc tribunals addressing specific disputes arising under particular investment treaties. Not so easily explained are conflicting tribunal awards drawing on virtually identical facts, invoking the same treaty text, where arbitrators seemingly change their mind from one case to the next without any explanation. …

Scope Of Arbitration In Chinese Bits: Policies & Implications, Guang Hong

Guang Hong

This article starts by analyzing the different ingredients that have come together to formulate the current state of China’s policy toward foreign investment. These ingredients are non-exhaustive in nature but are essential in setting the context for the issue to be discussed. Next, we move into the core issue: What are the implications of Bilateral Investment Treaties (“BITs”) that contain arbitration clauses, which incorporates a “narrow” or “broad” scope of arbitration? Specifically, how does the scope of arbitration affect foreign investors conducting Foreign Direct Investment (“FDI”) in China and how does it affect Chinese investors who conduct FDI abroad? In …

The Effectiveness Of Pandemic Preparations: Legal Lessons From The 2009 Influenza Epidemic, Bradly Condon, Tapen Sinha

Bradly Condon

The A(H1N1) influenza epidemic provided the first indication of the effectiveness of the pandemic preparations that countries and international organizations initiated in the wake of the 2003 SARS epidemic. In the case of SARS, China was criticized for not reporting the outbreak quickly enough. This led to new reporting requirements under WHO regulations. In the case of the 2009 influenza epidemic, Mexico and the United States complied with their obligations to report outbreaks to the WHO as soon as they detected a problem. The WHO declared a public health emergency of international concern within 48 hours of laboratory confirmation that …

How (Not) To Discourage The Unscrupulous Copyist, Peter L. Ludwig

Peter L. Ludwig

This short article explores how the U.S. and Japanese courts implement the doctrine of equivalence when determining patent infringement. The doctrine of equivalence is a balance of, on one hand, the public’s interest to know the metes and bounds of the patent; and on the other hand, the private interest of the patentee to be granted a sufficient scope for the granted patent. After comparing and contrasting the courts’ implementation of the doctrine, I propose a new method that places the burden on the patent practitioner, before infringement proceedings begin, to determine the proper scope of the patent.

Vietnam's Eligibility To Receive Trade Benefits Under The U.S. Generalized System Of Preferences, Alexander H. Tuzin

Alexander H. Tuzin

Last year, Vietnam officially requested to receive trade benefits under the U.S. Generalized System of Preferences (GSP) as a beneficiary developing country. The accompanying article initially examines the role of GSP programs within the WTO system, and then provides a comprehensive analysis of Vietnam’s prospects for receiving trade benefits under the U.S. GSP system. Vietnam remains a very poor country, and it could benefit considerably from preferential treatment under the U.S. GSP program. However, Vietnam’s compliance with the GSP eligibility criteria is problematic. In particular, Vietnam’s protections for both intellectual property rights and worker rights are inadequate. Ultimately, this article …

21st Century Trade Agreements: Implications For Development Sovereignty, Rachel D. Thrasher, Kevin P. Gallagher

Rachel D Thrasher

This paper examines the extent to which the emerging world trading regime leaves nations the “policy space” to deploy effective policy for long-run diversification and development and the extent to which there is a convergence of such policy space under global and regional trade regimes. We examine the economic theory of trade and long-run growth and underscore the fact that traditional theories lose luster in the presence of the need for long-run dynamic comparative advantages and when market failures are rife. We then review a “toolbox” of policies that have been deployed by developed and developing countries past and present …

African Regional Trade Agreements As Flexible Legal Regimes, James Thuo Gathii

James Thuo Gathii

Based on the types of treaty commitments contained in African Regional Trade Agreements (RTAs) and how these RTAs are understood by their members, this article argues these RTAs are flexible legal regimes. Flexibility here refers to the following defining features of African RTAs. First, these RTAs are regarded as establishing flexible regimes of cooperation as opposed to containing rules requiring scrupulous and rigorous adherence. Second, African RTAs incorporate as a central feature the principle of variable geometry according to which different speeds towards meeting time tabled and other commitments are adopted. Third, African RTAs adopt a broad array of social, …

Commerical Logic And The Doha Round: Will Pope's Encyclical Letter Impact Global Trade And Development Planning, Karen A. O'Rourke

Karen A. O'Rourke

Abstract: Relying on the Church’s principles of social doctrine , the Encyclical Letter released June29,2009, underscore the needed policy focus to create new forms of engagement both at the level of international “private” economics and at the level of private -public partnerships that support international commerce and development. Emphasis is placed on the broad concepts of authentic human development within a new context of a fully humane global economy where forms of future commercial enterprise can be based on reciprocity and where commercial logic and the current notions of economic utility are not opposed to new forms of economic democracy. …

African Regional Trade Agreements As Flexible Legal Regimes, James Thuo Gathii

James Thuo Gathii

Based on the types of treaty commitments contained in African Regional Trade Agreements (RTAs) and how these RTAs are understood by their members, this article argues these RTAs are flexible legal regimes. Flexibility here refers to the following defining features of African RTAs. First, these RTAs are regarded as establishing flexible regimes of cooperation as opposed to containing rules requiring scrupulous and rigorous adherence. Second, African RTAs incorporate as a central feature the principle of variable geometry according to which different speeds towards meeting time tabled and other commitments are adopted. Third, African RTAs adopt a broad array of social, …

A Long And Winding Road: The Doha Round Negotiation In The World Trade Organization, Sungjoon Cho

Sungjoon Cho

This article provides a concise history of the Doha Round negotiation, analyzes its deadlock and offers some suggestions for a successful deal. The article observes that the nearly decade long negotiational stalemate is symptomatic of the diametrically opposed beliefs on the nature of the Round between developed and developing countries. While developed countries appear to be increasingly oblivious of Doha’s exigency, i.e., as a “development” round, developing countries vehemently condemn the developed countries’ narrow commercial focus on the Doha Round talks. It will not be easy to untie this Gordian knot since both Worlds tend to think that no deal …

A Long And Winding Road: The Doha Round Negotiation In The World Trade Organization, Sungjoon Cho

All Faculty Scholarship

This article provides a concise history of the Doha Round negotiation, analyzes its deadlock and offers some suggestions for a successful deal. The article observes that the nearly decade long negotiational stalemate is symptomatic of the diametrically opposed beliefs on the nature of the Round between developed and developing countries. While developed countries appear to be increasingly oblivious of Doha’s exigency, i.e., as a “development” round, developing countries vehemently condemn the developed countries’ narrow commercial focus on the Doha Round talks. It will not be easy to untie this Gordian knot since both Worlds tend to think that no deal …

African Regional Trade Agreements As Flexible Legal Regimes, James Thuo Gathii

James Thuo Gathii

Based on the types of treaty commitments contained in African Regional Trade Agreements (RTAs) and how these RTAs are understood by their members, this article argues these RTAs are flexible legal regimes. Flexibility here refers to the following defining features of African RTAs. First, these RTAs are regarded as establishing flexible regimes of cooperation as opposed to containing rules requiring scrupulous and rigorous adherence. Second, African RTAs incorporate as a central feature the principle of variable geometry according to which different speeds towards meeting time tabled and other commitments are adopted. Third, African RTAs adopt a broad array of social, …

The Future Of Harmonization: Soft Law Instruments And The Principled Advance Of International Lawmaking, Robert A. Pate

Robert A Pate

With vast amounts of financial and intellectual capital already being spent on international harmonization, inefficiencies infecting the lawmaking process render it ineffective and threaten the goodwill of the whole enterprise. This paper represents a synthesis of some of the most meaningful criticism about the perceived failures of the classic vehicle for harmonization—international conventions. In it, we have highlighted these failures, looked for their underlying causes, and searched for compelling soft law alternatives. This paper seeks to show that, above all, conventions suffer from over ambition. By intervening in the legal marketplace, underestimating national distrust and legal conflict, and insisting on …

The Final Frontier: Incorporating Aspects Of Culture And History In The Formation Of A Workable, Legal Framework For Outer Space, Brett S. Janos

Brett S. Janos

No abstract provided.

International Trade And Right To Development, Preeti Gandhi, Swati Chauhan

Preeti Gandhi

If development is the goal of human society, trade is its life-blood. Trade is the engine of growth. High growth generates new trade opportunities and new prosperity. Trade and development are two crucial realities which have been extensively dealt with within and outside various trade systems.

Development was one of the central goals of the original GATT architects. Over the years, WTO has incorporated a number of rules, provisions and initiatives for developing countries- all with the idea of recognizing and safeguarding their special needs and interests, as contemplated in the various negotiations.

Harmonization Of International Legal Structure For Fostering Professional Services: Lessons From Early U.S. Federal-State Relations, Deth Sao

Deth Sao

In the current global marketplace, liberalization of trade in professional services (“services”) presents one of the biggest challenges and profitable opportunities for the international community. Changes in technology and state privatization polices over the past half century have made services the fastest growing sector in international trade. Despite such a transformation, the potential for further innovation and expansion in the services industries is in jeopardy. In response to public policy and regulatory concerns and political pressures to protect domestic jobs and industries, states have adopted a plethora of state-initiated discriminatory and restrictive policies against trade in services. Because existing international …

Legal Regimes And Regimes Of Knowledge: Governing Global Services Trade, Andrew T. Lang

Andrew T Lang

The starting point of this paper is that if we want to understand the way in which international law structures and mediates the deployment of power in international life, then we need to attend to the relationship between law and knowledge - the relationship between international legal processes and the processes by which we collectively come to know, describe, and imagine the world in which we live. My aim is to explore this relationship empirically by looking in detail at one case study, namely the international legal regime governing international trade in services, and specifically, the World Trade Organisation's General …

African Regional Trade Agreements As Flexible Legal Regimes, James Thuo Gathii

James Thuo Gathii

Based on the types of treaty commitments contained in African Regional Trade Agreements (RTAs) and how these RTAs are understood by their members, this article argues these RTAs are flexible legal regimes. Flexibility here refers to the following defining features of African RTAs. First, these RTAs are regarded as establishing flexible regimes of cooperation as opposed to containing rules requiring scrupulous and rigorous adherence. Second, African RTAs incorporate as a central feature the principle of variable geometry according to which different speeds towards meeting time tabled and other commitments are adopted. Third, African RTAs adopt a broad array of social, …

Leveling The Playing Field In Gmo Risk Assessment: Importers, Exporters And The Limits Of Science, Alison Peck

Alison Peck

The WTO system requires that trade restrictions to protect health and safety be based on a risk assessment supported by “sufficient scientific evidence.” Scholars and international standards organizations have pointed out, however, that science is not capable of providing answers to questions of health and safety without incorporation of value judgments and assumptions by the risk assessors. Before GMO-importing countries conduct risk assessments, GMO-producing and -exporting countries have already conducted separate risk assessments that led to the decision to produce and market the products in the first place. Both risk assessments – of exporting and importing countries – employ science …

Global Constitutional Lawmaking, Sungjoon Cho

All Faculty Scholarship

Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn …

Global Constitutional Lawmaking, Sungjoon Cho

Sungjoon Cho

The Scope And Application Of “General Principle Of Necessity” In Panel Report On China’S Protection Of Intellectual Property Rights, Navid R. Sato

Dr. Navid R Sato

World Trade Organization (WTO) as a leading global governance institution tremendously has affected the sovereignty of its Members by providing an institutional legal framework by which states can challenge sovereignty of each other. WTO Panels and the Appellate Body (WTO Tribunals) in order to “clarify existing provisions” of WTO Agreements and to bring “security and predictability” to the legal regime have put in practice some general principles such as due process or good faith and etc within the WTO adjudicatory system. One of the general principles that WTO tribunals have developed and established is “general principle of necessity” within the …

African Regional Trade Agreements As Flexible Legal Regimes, James Thuo Gathii

James Thuo Gathii

Based on the types of treaty commitments contained in African Regional Trade Agreements (RTAs) and how these RTAs are understood by their members, this article argues these RTAs are flexible legal regimes. Flexibility here refers to the following defining features of African RTAs. First, these RTAs are regarded as establishing flexible regimes of cooperation as opposed to containing rules requiring scrupulous and rigorous adherence. Second, African RTAs incorporate as a central feature the principle of variable geometry according to which different speeds towards meeting time tabled and other commitments are adopted. Third, African RTAs adopt a broad array of social, …

Corporate Scandals, Executive Compensation, And International Corporate Governance Convergence: A U.S.-Australia Case Study, Jacob Barney

Jacob Barney

The first decade of the 2000s began with a rash of large-scale corporate scandals touching every corner of the globe, and it draws to a close in the midst of a worldwide recession which, somewhat ironically, has brought to light gargantuan executive compensation packages, resulting in widespread public outcry. Given the global nature of these two sets of corporate crises, it stood to reason that there would emerge a universal movement to revise the laws and practices controlling executive compensation. However, the mere fact that such a movement has emerged does not mean that the response to this movement will …

Caveat Lessor: U.S. Aircraft Financiers Beware - 11 U.S.C. § 1110 Expectations May Not Be Met In Cross-Border Insolvencies, Kevin Gaunt

Kevin Gaunt

The Viação Aérea Rio Grandense (“Varig”) airline judicial recuperation in Brazil was the first major test case under the New Bankruptcy and Restructuring Law of Brazil (“the NBRL”), ratified in February of 2005 and going into effect on June 9, 2005. The experience was largely negative for aircraft and engine lessors and creditors, most of whom were United States-based and accustomed to special protections afforded them by 11 U.S.C. § 1110, which specifically provides greater protection to aircraft owners in bankruptcy procedures than other secured creditors enjoy. In the United States, an aircraft creditor may use § 1110 to circumvent …

Protecting Foreign Investors From International Securities Fraud, Derek N. White

Derek N White

This article discusses the subject matter jurisdiction of national courts in a little-known type of international securities cause of action that has vexed courts of the developed world. The cause of action is labeled the “foreign-cubed class action”, which is brought when a dispute arises regarding purported improprieties in an international securities transaction that contains foreign investors who purchase securities of foreign issuers on foreign stock exchanges. Notice the three “foreign” elements of the transaction ("foreign" meaning foreign to the court presiding over the action).

The number of foreign-cubed class actions brought in U.S. courts has risen sharply over the …