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Full-Text Articles in Law
Are World Trading Rules Passé?, Sungjoon Cho, Claire R. Kelly
Are World Trading Rules Passé?, Sungjoon Cho, Claire R. Kelly
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This Article probes previously under-explored failure of the world trading rules to keep abreast with the global marketplace. It argues that the global trading system, despite its well-documented contribution to the spectacular expansion of postwar trade, has never in fact fully moved away from the mercantilist past; its mono-linear conception of production and trading patterns; and its state centric, top-down paradigm of rule making. The inevitable anachronism precipitated by the out of date trading rules structure is seriously ill-suited to the contemporary non-territorial international business transactions defined by global supply chains. Consequently, while the trading rules officially seek to help …
Danbury Hatters In Sweden: An American Perspective Of Employer Remedies For Illegal Collective Actions, César F. Rosado Marzán, Margot Nikitas
Danbury Hatters In Sweden: An American Perspective Of Employer Remedies For Illegal Collective Actions, César F. Rosado Marzán, Margot Nikitas
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The European Court of Justice's ("ECJ") Laval quartet held that worker collective actions that impacted freedom of services and establishment in the E.U. violated E.U. law. After Laval, the Swedish Labor Court imposed exemplary or punitive damages on labor unions for violating E.U. law. These cases have generated critical discussions regarding not only the proper balance between markets and workers’ freedom of association, but also what should be the proper remedies for employers who suffer illegal actions by labor unions under E.U. law. While any reforms to rebalance fundamental freedoms as a result of the Laval quartet will have to …
Beyond Rationality: A Sociological Construction Of The World Trade Organization, Sungjoon Cho
Beyond Rationality: A Sociological Construction Of The World Trade Organization, Sungjoon Cho
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This Article critiques the rational-institutional analysis of the World Trade Organization (WTO) that Gregory Shaffer and Joel Trachtman present, and proposes an alternative “sociological” framework. The Article notes that rationalism, although a powerful heuristic of the WTO’s operation, inevitably overlooks the WTO’s rich social dimensions and thus leaves behind several theoretical blind spots, such as the lack of any satisfying explanation on institutional evolution and development concerns. In an attempt to address these blind spots, the Article offers a sociological-communitarian paradigm that emphasizes cognitive elements, such as ideas, norms, and discourse, to explain the social dynamic within the WTO. Under …
From Control To Communication: Science, Philosophy And World Trade Law, Sungjoon Cho
From Control To Communication: Science, Philosophy And World Trade Law, Sungjoon Cho
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Science has recently become increasingly salient in various fields of international law. In particular, the WTO Sanitary and Phytosanitary (SPS) Agreement stipulates that a regulating state must provide scientific justification for its food safety measures. Paradoxically, however, this ostensibly neutral reference to science tends to complicate treaty interpretation. It tends to take treaty interpretation beyond a conventional methodology under the Vienna Convention on the Law of Treaties, which is primarily concerned with clarifying and articulating the treaty text. The two decades old transatlantic trade dispute over hormone-treated beef is a case in point. This article demonstrates that beneath the controversy …
A Long And Winding Road: The Doha Round Negotiation In The World Trade Organization, Sungjoon Cho
A Long And Winding Road: The Doha Round Negotiation In The World Trade Organization, Sungjoon Cho
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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 …
Global Constitutional Lawmaking, Sungjoon Cho
Global Constitutional Lawmaking, Sungjoon Cho
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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 …
An Identity Crisis Of International Organizations, Sungjoon Cho
An Identity Crisis Of International Organizations, Sungjoon Cho
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An Identity Crisis of International Organizations Abstract International organizations (IOs) are ubiquitous. More than two hundred IOs touch our everyday lives, ranging banking to flu-shots. However, conventional political scientists seldom pay sufficient attention to IOs which they thoroughly deserve given their contemporary prominence. Because conventional international relations (IR) theories consider IOs as mere passive machineries, they hardly offer a satisfactory explanation on a distinctive mode of IOs’ institutional dynamic, in which a specific IO, as a separate and autonomous organic entity, grows, evolves and eventually makes sense of its own existence. This Essay offers a novel perspective which attempts to …
The World Trade Constitutional Court, Sungjoon Cho
The World Trade Constitutional Court, Sungjoon Cho
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The World Trade Constitutional Court Sungjoon Cho Abstract Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and “constitute,” the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this “constitutional adjudication” is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the …
Beyond Doha’S Promises: Administrative Barriers As An Obstruction To Development, Sungjoon Cho
Beyond Doha’S Promises: Administrative Barriers As An Obstruction To Development, Sungjoon Cho
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This article articulates the potentially fatal consequences of administrative barriers to the goal of developing poor countries and suggests retooling the current trade norms and policies in a developmentally-friendly manner. The article constructs the concept of administrative barriers centering on domestic regulations, i.e., antidumping measures, regulatory standards, and rules of origin, which have the most potential to obstruct development. It then highlights developmental hazards of these administrative barriers. It observes that both protectionist antidumping duties and the excruciating investigative procedures tend to offset developing countries' comparative advantages in favor of developed countries' domestic producers. It then argues that under-capacitated developing …
Doha’S Development, Sungjoon Cho
Doha’S Development, Sungjoon Cho
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This Essay argues that the current development crisis within the Doha Round is inextricably linked to the nature of modern day trade negotiations. This Round reveals a bargaining process in which the powerful can too easily exploit and prevail over the powerless. This process is also vulnerable to domestic political maneuvers such as capture. Under these circumstances, poor countries' development concerns are not well represented, which accounts, despite years of talks, for the current sorry state of the negotiational outcome on agricultural subsidies and tariffs. To overcome these flaws of trade negotiation, this Essay suggests that certain core legal precepts, …
Toward A New Economic Constitution: Judicial Disciplines On Trade Politics, Sungjoon Cho
Toward A New Economic Constitution: Judicial Disciplines On Trade Politics, Sungjoon Cho
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This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double …
Defragmenting World Trade, Sungjoon Cho
Defragmenting World Trade, Sungjoon Cho
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This article argues that unchecked multiplication of regional trading blocs seriously fragments world trade, and simultaneously debilitates the multilateral trading system. It endeavors to overcome some of shortcomings of existing literature in this field, such as sector-specific approach and concentration on economic analysis. It attempts to offer holistic, normative diagnosis and prescription anchored by the trade, regulatory, and development objective of the global trading system represented by the WTO. From such a telic standpoint, the article highlights teleological failures caused by regionalist fragmentation and proposes both institutional and judicial means to defragment world trade. The article warns that such regionalist …
A Dual Catastrophe Of Protectionism, Sungjoon Cho
A Dual Catastrophe Of Protectionism, Sungjoon Cho
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This Article argues that rampant parochial protectionism in the United States, a striking example of which is the recent skirmish over the Vietnamese seafood trade, yields catastrophic effects in domestic constitutional as well as foreign policy terms. Moreover, these harmful effects extend not only to the United States but also to the rest of the world. The Article consists of four Parts. Part I documents the trade dispute over Vietnamese catfish and shrimp exports to the U.S. market, with special attention to the question of how powerful southern lobbies prevailed over the broader economic interests of consuming industries and consumers. …
A Quest For Wto’S Legitimacy, Sungjoon Cho
A Quest For Wto’S Legitimacy, Sungjoon Cho
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No abstract provided.
A Bridge Too Far: The Fall Of The Fifth Wto Ministerial Conference In Cancún And The Future Of Trade Constitution, Sungjoon Cho
A Bridge Too Far: The Fall Of The Fifth Wto Ministerial Conference In Cancún And The Future Of Trade Constitution, Sungjoon Cho
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This article is intended to contribute to the process of diagnosis and prescription in response to the fiasco of the Fifth WTO Ministerial Conference in Cancún, Mexico, in September 2003. The article sketches previous WTO Ministerial Conferences in an attempt to glimpse the root of the problems that eventually caused the collapse of the Cancún Conference. It then focuses on the main developments in Cancún and offers a 'post-mortem', not in an attempt to place blame but to better understand what went wrong. It observes that North-South tension is likely to continue for the time being while rich countries, especially …
The Nature Of Remedies In International Trade Law, Sungjoon Cho
The Nature Of Remedies In International Trade Law, Sungjoon Cho
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Overemphasizing the sanctions aspect of the WTO law, which is partly attributable to an effort to placate the U.S. Congress into the ratification of the Uruguay Round, tends to create a misguided, distorted image of the WTO, one close to a super body reigning and commandeering over its member countries, rather than one akin to a legal community. This paper questions the conventional belief regarding the efficacy of the WTO sanctions in light of remedies and attempts to reconceptualize the true nature of WTO remedies. Part I examines how the concept of remedies has evolved through the history of the …
The Wto’S Gemeinschaft, Sungjoon Cho
The Wto’S Gemeinschaft, Sungjoon Cho
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This Article focuses on the current development-related problems in the global trading system. A widening income gap and widespread poverty among trading nations denote the WTO’s Gesellschaftian nature—interest and power—resulting in structural distortion and manipulation. This Article maintains that the global trading system can achieve its development agenda and become fair and legitimate only through a critical paradigmatic transformation enabled by the configuration of the “WTO’s Gemeinschaft.” This Article observes that a fundamental legal precept, the “Law of Nations” (jus gentium), plays a critical role in actualizing this communitarian telos. Part II redefines the global trading system through the theoretical …
Breaking The Barrier Between Regionalism And Multilateralism: A New Perspective On Trade Regionalism, Sungjoon Cho
Breaking The Barrier Between Regionalism And Multilateralism: A New Perspective On Trade Regionalism, Sungjoon Cho
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No abstract provided.
The Effectiveness Of International Legislative Responses To The Helms-Burton Act, Bernadette Atuahene
The Effectiveness Of International Legislative Responses To The Helms-Burton Act, Bernadette Atuahene
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The Cuban Liberty and Democratic Solidarity (Libertad) Act (Helms-Burton Act) is the latest appendage to the Cuban embargo. Title III has caused an international uproar because it gives U.S. victims of Cuban expropriation a right of action within U.S. courts against third parties who traffic in confiscated property. For example, a U.S. citizen can sue a Canadian Mining company doing business in Cuba if they are operating on or using expropriated property. The Helms-Burton Act (HBA) targets U.S. allies who continue to trade and invest in Cuba regardless of pending U.S. claims of expropriation. In response to the HBA, Cuba, …