Law Commons^™

Trends In Fashion Law: Striking The Proper Balance Between Protecting The Art Form And Sustaining A Thriving Online Market, Elisabeth Johnson

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Implementing A Portable Reciprocity Passport To Crowdfund Real Estate Across Borders, Raymond Tran

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Review Of Double Taxation And The League Of Nations, Reuven S. Avi-Yonah

Reviews

Should we continue adapting the OECD Model to address tax challenges arising from digitalization of the economy or has the time come for radical reform? Sunita Jogarajan asked that question in her last study of the League of Nations' work on double taxation in the 1920s. The historical analysis provided in her book seems to suggest that the international tax regime will continue to inevitably evolve and the OECD Model can adapt. Her extensive archival research, conducted at the League of Nations Archives, the United Kingdom National Archives (London) and the Seligman Archives, Columbia University (New York), clearly demonstrates that …

Bringing The European Eel Back From The Brink: The Need For A New Agreement Under The Convention On Migratory Species, Chris Wold

Pace Environmental Law Review

The European eel is considered “Critically Endangered.” Its population has been declining due to overutilization, barriers to migration such as dams, pollution, and climate change. The international community has responded by including the European eel in Appendix II of the Convention on International Trade in Endangered Species (“CITES”) to regulate international trade and Appendix II of the Convention on Migratory Species (“CMS”) to help improve the species conservation status. The EU has taken regional action to prohibit imports into and exports from EU Member States, although intra-EU trade is permissible. Despite these actions, the eel’s conservation status might not be …

Defining 'Diversity' In Corporate Governance: A Global Survey, Askhaya Kamalnath

Journal of Legislation

This Article explores the connotation of the term “diversity” in the corporate governance sphere and the utility of such a connotation. To explore what the term has come to mean, this Article conducts a comparative analysis of how the term is used in the corporate governance context in the U.S., U.K., Australia, Canada, India, and Malaysia. Based on this analysis, this Article argues that the push for “diversity” (in the way it has come to be understood) on company boards needs to be re-examined and recommends that the SEC needs to define the term in accordance with its policy goals.

Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of …

Arms And The Man: Strategic Trade Control Challenges Of 3d Printing, Arjun Banerjee

International Journal of Nuclear Security

3D printing is on the verge of confronting Customs and other security agencies with a whole new set of mind-boggling problems. With the tremendous reach of the Internet worldwide, virtual blueprints to weapon parts, components and accessories of drones, narcotic drugs and psychoactive substances, all strategic trade items, as well as other restricted items such as pornographic material, can be proliferated and printed out swiftly by any individual or organization with access to a 3D printer. Intellectual Property Rights are also endangered by these machines. Technology is forever outpacing fast antiquating legal institutions, and security systems, which require revamping to …

Multilateral Economic Institutions And U.S. Foreign Policy: Hearing Before The Subcomm. On Multilateral Int'l Dev., Multilateral Insts., & Int'l Econ., Energy, & Envtl. Pol'y Of The S. Comm. On Foreign Relations, 115th Cong., Nov. 27, 2018 (Statement Of Jennifer A. Hillman), Jennifer A. Hillman

Testimony Before Congress

Virtually every major international gathering of world leaders recently has ended in failure—or at least failure to reach enough agreement to issue a concluding statement or communique. These failures come at a time when many have been looking for signs that world leaders would come together to address the most pressing problems facing the world—including climate change, the breakdown in the rules of the international trading system, the need everywhere for good jobs that pay a living wage, and rapidly growing income inequality.

The failure of these meetings to produce formal agreements—or even specific paths to reaching agreements in the …

Three Questions That Will Make You Rethink The U.S.-China Intellectual Property Debate, 7 J. Marshall Rev. Intell. Prop. L. 412 (2008), Peter K. Yu

Peter K. Yu

Commentators have attributed China’s piracy and counterfeiting problems to the lack of political will on the part of Chinese authorities. They have also cited the many political, social, economic, cultural, judicial, and technological problems that have arisen as a result of the country’s rapid economic transformation and accession to the WTO. This provocative essay advances a third explanation. It argues that the failure to resolve piracy and counterfeiting problems in China can be partly attributed to the lack of political will on the part of U.S. policymakers and the American public to put intellectual property protection at the very top …

The International Enclosure Movement, Peter K. Yu

Peter K. Yu

Most of the recent intellectual property literature concerns the enclosure of the public domain or the one-way ratchet of intellectual property protection. While these concerns are significant and rightly placed, a different, and perhaps more important, enclosure movement is currently taking place at the international level. Instead of the public domain, this concurrent movement encloses the policy space of individual countries and requires them to adopt one-size-fits-all legal standards that ignore their local needs, national interests, technological capabilities, institutional capacities, and public health conditions. As a result of this enclosure, countries are forced to adopt inappropriate intellectual property systems, and …

The Trips Enforcement Dispute, Peter K. Yu

Peter K. Yu

2010 marks the fifteenth anniversary of the entering into force of the WTO TRIPS Agreement. When the Agreement was adopted, commentators quickly extolled the unprecedented benefits of having a set of multilateral enforcement norms built into the international intellectual property regime. Although intellectual property rights holders continue to rely on protection offered by the TRIPS Agreement, many of them have now become frustrated with the inadequacy of such protection. The agreement’s enforcement provisions, in particular, have been criticized as weak, primitive, and obsolete.

After more than a decade of implementation, these provisions finally became the subject of a dispute before …

The Global Intellectual Property Order And Its Undetermined Future, Peter K. Yu

Peter K. Yu

As an introduction to the inaugural issue of the new WIPO Journal, this essay highlights some of the key recent developments in the intellectual property field. The essay begins by discussing the increasingly complex, and at times incoherent, international legal order governing the protection and enforcement of intellectual property rights. It shows how much the system has been transformed since the launch of the Paris and Berne Conventions in the 1880s.

The essay then examines the increasingly polarized debate on intellectual property law and policy. Although the debate’s growing divisiveness is understandable, given the rapid expansion of intellectual property rights …

Trips Enforcement And Developing Countries, Peter K. Yu

Peter K. Yu

No abstract provided.

Taking Atrip Down Memory Lane, Peter K. Yu

Peter K. Yu

The International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) was founded in Geneva in July 1981, with the support and assistance of the World Intellectual Property Organization. This professional academic association now includes hundreds of intellectual property professors and researchers from around the world. As the final contribution to the "ATRIP Passes 30" Symposium, which collects the reminiscences of the past and current ATRIP presidents, this short essay provides, in chronological order, some key information about all the pre-ATRIP Round Tables and ATRIP Congresses. This short history not only documents the historical origins, rapid growth …

Still Dissatisfied After All These Years: Intellectual Property, Post-Wto China, And The Avoidable Cycle Of Futility, Peter K. Yu

Peter K. Yu

No abstract provided.

Tpp And Trans-Pacific Perplexities, Peter K. Yu

Peter K. Yu

In the past few years, the United States has been busy negotiating the Trans-Pacific Partnership (TPP) Agreement with countries in the Asia-Pacific region. These countries include Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore and Vietnam. Although it remains unclear which chapters or provisions will be included in the final text of the TPP Agreement, the negotiations have been quite controversial. In addition to the usual concerns about having high standards that are heavily lobbied by industries and arguably inappropriate for many participating countries, the TPP negotiations have been heavily criticized for their secrecy and lack …

From Pirates To Partners (Episode Ii): Protecting Intellectual Property In Post-Wto China, Peter K. Yu

Peter K. Yu

In "From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century," I criticized the ineffectiveness and short-sightedness of the American foreign intellectual property policy toward China. As I argued, the coercive approach taken by the U.S. administrations created a "cycle of futility" in which China and the United States repeatedly threatened each other with trade wars, only to back down in the eleventh hour with a compromise that did not provide sustained improvements in intellectual property protection.

Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul of its …

Enforcement, Economics And Estimates, Peter K. Yu

Peter K. Yu

This article focuses on intellectual property enforcement, a topic that is of great importance to both developed and less developed countries. It begins by refuting the simple, and often politically motivated, claim that many countries fail to provide effective intellectual property enforcement by virtue of their lack of political will. Drawing on the latest economic literature, this article shows that high enforcement standards come with a hefty price tag and difficult trade-offs.

The article then outlines the challenges in measuring the cross-border economic impact of piracy and counterfeiting. As an illustration, the article discusses the ongoing effort by the US …

Acta And Its Complex Politics, Peter K. Yu

Peter K. Yu

Written for a special issue on the politics of intellectual property, this article examines the "country club" approach the negotiating parties of the Anti-Counterfeiting Trade Agreement (ACTA) embraced to establish new and higher international intellectual property enforcement standards. It points out that the agreement is flawed not only because it is a country club agreement but also because it is a bad country club agreement.

The article then situates ACTA in the context of a recent trend of using bilateral, plurilateral and regional trade and investment agreements to circumvent the multilateral norm-setting process. It contends that this disturbing trend could …

Currents And Crosscurrents In The International Intellectual Property Regime, Peter K. Yu

Peter K. Yu

Since the establishment of the TRIPs Agreement, intellectual property protection has been expanding rapidly, and many less developed countries have become dissatisfied with the international intellectual property regime. From bilateral free trade agreements to the increasing use of technological protection measures, many commentators fear that the recent "one-way ratchet" will roll back the substantive and strategic gains made by less developed countries during the negotiation of the TRIPS Agreement. Interestingly, intellectual property rightsholders feel equally threatened by the recent developments, in particular the development of the Doha Declaration, the World Summit on the Information Society, the WIPO Development Agenda, and …

Thinking About The Trans-Pacific Partnership (And A Mega-Regional Agreement On Life Support), Peter K. Yu

Peter K. Yu

Commissioned for a conference on the Trans-Pacific Partnership (TPP) at VNU University of Economics & Law in Vietnam, this article provides a retrospective analysis of the partnership. It begins with a historical overview of the TPP. The article then examines the partnership’s status in light of the United States' withdrawal and contends that the TPP will exert considerable influence regardless of whether it is dead or alive.

The second half of this article identifies three interrelated but distinct aspects of the TPP: (1) as a TRIPS-plus intellectual property agreement; (2) as a regional investment agreement; and (3) as a plurilateral …

When The Chinese Intellectual Property System Hits 35, Peter K. Yu

Peter K. Yu

This article explores what it means for the Chinese intellectual property system to hit 35. It begins by briefly recapturing the system’s three phases of development. It discusses the system’s evolution from its birth all the way to the present. The article then explores three different meanings of a middle-aged Chinese intellectual property system – one for intellectual property reform, one for China, and one for the TRIPS Agreement and the global intellectual property community.

Crossfertilizing Isds With Trips, Peter K. Yu

Peter K. Yu

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.

Written for a symposium on investor-state arbitration, this article focuses on the growing use …

Global Investment Rules As A Site For Moral Inquiry, Steven R. Ratner

Articles

The legal regime regulating cross-border investment gives key rights to foreign investors and places significant duties on states hosting that investment. It also raises distinctive moral questions due to its potential to constrain a state’s ability to manage its economy and protect its people. Yet international investment law remains virtually untouched as a subject of philosophical inquiry. The questions of international political morality surrounding investment rules can be mapped through the lens of two critiques of the law – that it systemically takes advantage of the global South and that it constrains the policy choices of states hosting investment. Each …

Remote Control: Treaty Requirements For Regulatory Procedures, Paul Mertenskotter, Richard B. Stewart

Cornell Law Review

Modern trade agreements have come to include many and varied obligations for domestic regulation and administration. These treaty-based commitments aim primarily to improve the freedom of firms to operate in the global economy by aligning the ways in which governments regulate markets and private actors engage governments through administrative law. They therefore strike at the core of how economies are ordered and entail important distributional questions. An increasingly prevalent and diverse—but hitherto largely neglected—type of treaty obligation prescribes specific procedures for domestic administrative decision-making. This Article frames such requirements as tools of powerful states to control regulatory decision-making by government …

Africa As An Investment Rule-Maker: Decrypting The Pan-African Investment Code, Makane Moise Mbengue, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

The Pan-African Investment Code (PAIC) is a legal instrument - shaped in the form of a model investment treaty - which has been drafted from the perspective of developing countries and least-developed countries focusing on sustainable development goals. It contains a number of Africa-specific and innovative features, which presumably makes it today a unique legal instrument. The PAIC presents an African consensus on the shaping of international investment law and has, since its adoption, influenced subsequent African investmentlaw making. Moreover, the PAIC is serving as the main basis for the negotiations on the Investment Protocol to the Agreement establishing the …

Free Trade In Electric Power, Joel B. Eisen, Felix Mormann

Felix Mormann

This Article develops the core legal framework of a new electricity-trading ecosystem in which anyone, anytime, anywhere, can trade electricity in any amount with anyone else. The proliferation of solar and other distributed energy resources, business model innovation in the sharing economy, and climate change present enormous challenges — and opportunities — for America’s energy economy. But the electricity industry is ill equipped to adapt to and benefit from these transformative forces, with much of its physical infrastructure, regulatory institutions, and business models a relic of the early days of electrification. We suggest a systematic rethinking to usher in a …

Against Populist Isolationism: New Asian Regionalism And Global South Powers In International Economic Law, Pasha L. Hsieh

Cornell International Law Journal

This Article provides the most up-to-date examination of the Regional Comprehensive Economic Partnership (RCEP), which is poised to become the world’s largest free trade agreement (FTA). It argues that the 16-country mega-FTA will galvanize the paradigm shift in Asian regionalism and build a normative foundation for the Global South in international economic law. Based on intertwined theoretical and substantive claims, this Article opens an inquiry into the assertive legalism of developing nations in the new regional economic order. It further manifests the pivotal force of emerging economies against populist isolationism in the Trump era that undermines the neoliberal foundation of …

Infringement, Unbound, Sarah R. Wasserman Rajec

Faculty Publications

No abstract provided.

Transparency In Corporate Groups, Jay Lawrence Westbrook

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article addresses a remarkable blind spot in American law: the failure to apply the well-established principles of secured credit to prevent inefficiency, confusion, and fraud in the manipulation of the webs of subsidiaries within corporate groups. In particular, “asset partitioning” has been a fashionable subject in which the central problem of non-transparency has been often mentioned but little addressed. This Article offers a concept for a new system of corporate disclosure for the benefit of creditors and other stakeholders. It would require disclosure of corporate structures and allocations of assets among affiliates to the extent the affiliates are to …