Law Commons^™

Empirically Evaluating Claims About Investment Treaty Arbitration, Susan Franck

Articles in Law Reviews & Other Academic Journals

With the blossoming of empirical legal scholarship, there is an increased appreciation for the insights it offers issues of international importance. One area that can benefit from such inquiry is the resolution of disputes from investment treaties, which affects international relations, implicates international legality of domestic government conduct, and puts millions of taxpayer dollars at risk. While suggesting there has been a "litigation explosion", commentators make untested assertions about investment treaty disputes. Little empirical work transparently explores this area, however. As the first research that explains its methodology and results, this article is a modest attempt to evaluate claims about …

They Fought For Trade But Did Trade Win?: An Analysis Of The Trends Among Trade Disputes Brought By Wto Member States Before The Wto Dispute Resolution Body, Alexandra R. Harrington

Alexandra R. Harrington

Abstract: They Fought for Trade But Did Trade Win?: An Analysis of the Trends Among Trade Disputes Brought By WTO Member States Before the WTO Dispute Resolution Body.

Alexandra R. Harrington, Esq.

Much has been made of the common assumption that crime and bad conduct does not pay, particularly on the level of international crimes and criminal conduct. However, the field of bad conduct in international trade is not as frequently discussed. What does a study of the outcomes of complaints brought before the WTO’s dispute resolution body tell us about the uses of that entity for the promotion of …

"Possible Consequences" As Contained In Article 74 Of The Convention For The International Sale Of Goods (Cisg): Friend Of Foe?, Norbert Altvater

Norbert Altvater

Canadian lawyers have been reluctant to use CISG for sales transactions between jurisdictions with well developed sale of goods régimes. This stems in great part from their fear of the potential interpretation of the phrase “possible consequences” in Article 74 and the attendant liability to which that may expose their clients. Article 74 of CISG states that the damages which may be recovered “may not exceed the loss which the party in breach foresaw ... as a possible consequence of the breach.” This is often erroneously seen as being significantly broader that the concept of foreseeablility at common law. In …

Fighting Terrorism In The Middle East: A Middle Eastern Perspective, Mohamed R. Hassanien

Mohamed R. Hassanien Dr.

September 11 terrorist attacks ignited global interest in the Muslim world; hence the region has turned to be of a primary concern for the international community, with the national security bolted to the forefront of the American foreign policy and the rest of the world as well. six years after the attacks on New York, Pennsylvania and Washington, DC, American perspective has been the prevailing one in most of the writings about International law and terrorism. However, Middle Eastern approach towards international terrorism needs to be carefully explored in the light of the globalization that takes place everywhere.Winning the war …

Integrating Investment Treaty Conflict And Dispute Systems Design, Susan Franck

Articles in Law Reviews & Other Academic Journals

With the debate on the renewal of the Trade Promotion Authority Act, the proper terms of investment treaties - including dispute resolution provisions - have become an issue of public scrutiny. In a so-called litigation explosion, investors resolve disputes against host governments through international arbitration mechanisms in investment treaties; and there is little evidence of reliance on other processes like mediation. This escalation has lead to a teething period where parties and non-parties have expressed divergent views as to the efficacy, efficiency and fairness of the dispute resolution process. With billions of dollars and sovereignty at stake, the dispute resolution …

Using The Unidroit Principles To Fill Gaps In The Cisg, John Y. Gotanda

Working Paper Series

The United Nations Convention on the International Sale of Goods (CISG) sets forth only a basic framework for the recovery of damages, thereby giving a court of tribunal broad authority to determine an aggrieved party’s loss based on circumstances of the particular case. Unfortunately, the lack of specificity has resulted in much litigation, and seemingly conflicting results. To remedy this problem, some have argued that the gaps in the CISG damages provisions should be filled with the UNIDROIT Principles of International Commercial Contracts. In this paper, I argue that the gap-filling rules of CISG preclude the UNIDROIT Principles from being …

Trading Spaces: Lessons From Nafta For A Robust Investment Dispute Settlement , Mohamed R. Hassanien

Mohamed R. Hassanien Dr.

Arab leaders- in their last Summit held in Riyadh - have responded to many voices which called on Arabs to embark on their economic integration. In this summit, Arab leaders gathered to make some headway in the problems besieging the Middle East. Throughout this paper, I have tried to point out that, First and foremost, establishing an investment chapter in the GAFTA is quite essential, building on the current provisions of the Intra-Arab investment agreement signed in 1982 and drawing on the experiences of NAFTA. GAFTA may have a robust investment dispute mechanism which would secure GAFTA as an ambitious, …

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal R. Khan

Fazal Khan

This paper proposes a framework of international soft law and domestic drug regulations to a priori remove incentives for unethical clinical drug research in developing nations. The globalization of drug testing is very problematic from a bioethics perspective. While stringent regulations in the U.S. or E.U. may pose an adequate check on unethical research practices, many multinational corporations are engaging in regulatory arbitrage by outsourcing ethically questionable research to countries with less restrictive regulations. Given the tremendous financial reward a blockbuster therapy might generate, there is a strong incentive to move more research and development to countries with even looser …

Intellectual Property Piracy: Perception And Reality In China, The United States, And Elsewhere, Aaron Schwabach

Aaron Schwabach

The article is intended as a counterpoint to the all-too-frequent portrayal of China as the world’s leading violator of intellectual property rights. In fact, by many measures China, taken as a whole, is not the leading violator. Some measures show China as the leading violator only because they are aggregates, and do not take into account China’s size. When figures are adjusted for population, China’s rates of intellectual property violation are lower than those of many other countries, including the United States. The article first looks at examples of the current round of political and media China-bashing. It then examines …

Stronger Trade Or Stronger Embargo: What The Future Holds For United States-Cuba Trade Relations, Michael D. Margulies

Michael D Margulies

This paper provides an analysis of the history, politics, legislation and current state of affairs of United States-Cuban trade relations. Beginning with the political climate and events that have led to the existing and limited trade relations between the two countries, the article proceeds to identify the possibility for enhanced trade. The subject of the existing legislation is important in its own right and may serve as an indicator of what potential exists for future U.S.-Cuban relations. Though such a relationship may prove to be economically beneficial for both the U.S. and Cuba, there is much more at stake from …

The Mighty Pen, The Almighty Dollar, And The Holy Hammer And Sickle: An Examination Of The Conflict Between Trade Liberalization And Domestic Cultural Policy With Special Regard To The Recent Dispute Between The Us And China On Restrictions On Certain Cultural Products, Shuchao Henry Gao

Research Collection Yong Pung How School Of Law

The relationship between trade and culture has long been a hot topic in the debate on the conflicts between free trade and non-trade values. The recent case brought by the United States against China in the WTO on the measures affecting trading rights and distribution services for certain publications and audiovisual entertainment products is regarded by many as the latest example of the conflict. This article argues, however, that this case is more about the conflict between economic liberalization and political control. Applying the legal rules under the WTO Agreements and public international law, this paper concludes that the United …

Global Justice And The Bretton Woods Institutions, Frank J. Garcia

Frank J. Garcia

Trade, Empires And Subjects: China-Africa Trade Relations - A New Fair Trade Arrangement Or The Tird Scramble For Africa?, Uche Ofodile

Uche Ewelukwa

This paper examines the opportunities and pitfalls that renewed Sino-Africa trade relations presents for Africa, traces the evolution in China-Africa partnership discourse, identifies the basic legal and policy framework of the unfolding relationship, and calls for a clear Africa policy regarding China. The paper will also seek to identify the core characteristics of China’s partnership with Africa. The emphasis is on the trade and investment dimension of the Sino-Africa relations. The year 2006 was dubbed “China’s Year of Africa.” Since 2000, the interest of the People’s Republic of China (“China”) in Africa has grown steadily. The Forum on China-Africa Cooperation …

Infringement & The International Reach Of U.S. Patent Law, Moin A. Yahya, Cameron Hutchison

Moin A Yahya

American Patent Law, through both judicial and legislative efforts, has evolved from a strict territorial based set of laws asserting jurisdiction only over those infringements taking place on American soil to a more expansive set of rules asserting jurisdiction over any event that may harm patent holders in the United States regardless of where the infringement is taking place. This, we argue, is contrary to the original purpose of Patent Law and inconsistent with American obligations under the International Agreement on Trade-Related Aspects of Intellectual Property (TRIPS). We argue for a return to territorial based rules of jurisdiction. Such a …

A Study Of Interest, John Y. Gotanda

Working Paper Series

In recent years, a number of tribunals, mainly those deciding investment disputes, have re-examined traditional practices concerning the awarding of interest, particularly whether interest should be awarded at market rates and on a compounded basis. However, many tribunals deciding transnational contracts disputes continue to follow the practice of applying national laws on interest, which often results in the application of domestic statutory interest rates calling for a fixed rate of interest to accrue on a simple as opposed to compound basis. These statutory rates often do not change to reflect economic conditions and thus may under compensate or over compensate …

Conceptual Difficulties In The Empirical Study Of Bilateral Investment Treaties, Jason Webb Yackee

Jason Yackee

Abstract: Bilateral investment treaties (BITs) have emerged as one of the most visible aspects of the legalization of host state-foreign investor relations. They have unsurprisingly attracted the attention of empirical researchers, who attempt to explain the treaties’ causes and consequences. I argue that extant studies typically ignore two important conceptual difficulties that render the studies’ conclusions suspect. First, analysts routinely fail to appropriately define the relevant universe of treaties, automatically relying on a theoretically flawed United Nations compilation that ignores important differences in the procedural content of the treaties. I present an empirical examination of the investor-state dispute settlement provisions …

Ex Aequo Et Bono: De-Mystifying An Ancient Concept, Leon E. Trakman

Leon E Trakman Dean

The ancient concept, ex aequo et bono, holds that adjudicators should decide disputes according to that which is “fair,” and in “good conscience”. Despite its long history in international adjudication and even though it is enshrined in the Charter of the Permanent Court of International Justice, the concept of ex aequo et bono is often avoided on grounds that it operates outside of law, or is deemed to be contrary to law. This article argues that the concept has a valuable and emerging significance in modern law. It is ideally suited to resolving disputes between parties who are engaged in …

The Impact Of Regional Trade Areas On International Intellectual Property Rights, Brian Cimbolic

Brian Cimbolic

This article seeks to explore the impact of Customs Unions and Free Trade Areas (Regional Trade Areas, or “RTAs”) on both the developing world’s intellectual property concerns and on the international trade principle of most favored nation status. By examining various RTAs such as the North American Free Trade Agreement (“NAFTA”) and the upcoming Free Trade Agreement of the Americas (the “FTAA”), along with several smaller RTAs, this paper seeks to show that RTAs are undermining the principles of the International Trade Agreements they are a supposed to be a part of by refusing to apply MFN principles and by …

The Ebb & Flow Of The United States Coast Guard: Our Forgotten Heroes In Times Of Crisis, Lynne D. Shelton

Lynne D Shelton

The Ebb and Flow of the United States Coast Guard: Our Forgotten Heroes The American public is constantly reminded by advertising that armed forces are protecting their freedoms. It is common to turn on a television or radio and hear “the few, the proud the Marines” or even the newly touted “Army of One” Arguably, however, it is the Coast Guard who are the forgotten heroes who have been protecting our borders for over 200 years. The Coast Guard's motto is “Semper Paratus,” meaning "Always Ready". The United States Coast Guard, (USCG) has participated in every U.S. conflict from landing …

The Ebb & Flow Of The United States Coast Guard: Our Forgotten Heroes In Times Of Crisis, Lynne D. Shelton

Lynne D Shelton

The Ebb and Flow of the United States Coast Guard: Our Forgotten Heroes The American public is constantly reminded by advertising that armed forces are protecting their freedoms. It is common to turn on a television or radio and hear “the few, the proud the Marines” or even the newly touted “Army of One” Arguably, however, it is the Coast Guard who are the forgotten heroes who have been protecting our borders for over 200 years. The Coast Guard's motto is “Semper Paratus,” meaning "Always Ready". The United States Coast Guard, (USCG) has participated in every U.S. conflict from landing …

But Is It Law? An Analysis On The Legal Nature Of The Kimberley Process Certification Scheme On Conflict Diamonds And Its Treatment Of Non-State Actors, Kimberly J. Curtis

Kimberly J Curtis

In 2003, faced with the growing problem of illicit diamonds funding conflict and human rights abuses in Africa, representatives from states, the diamond industry and civil society formed the Kimberley Process Certification Scheme to regulate the flow of the so-called conflict diamonds. Since then, the agreement has developed into an authoritative legal agreement and enforceable regime. It demonstrates an example of a soft law agreement that through state practice, has been elevated to a higher level of obligation in international law.

The Kimberley Process also illustrates a growing trend in international law to incorporate non-state actors, particularly multinational corporations, into …

Moot Court In Global Language Of Trade, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Overcoming Chad’S Oil Curse: The African Union Convention On Preventing And Combating Corruption As A Framework For Securing Foreign Investments, Jennifer L. Akre

Jennifer L Akre

This comment addresses the issue of corruption in Africa, particularly with regard to Chad’s “partial expropriation” of foreign oil companies in the summer of 2006. It argues Chad violated principles of customary international law and key provisions of the African Union Convention on Preventing and Combating Corruption by unilaterally altering the regulatory scheme of the Chad-Cameroon Pipeline Project. The comment contends that such partial expropriations essentially amount to extortion, and therefore fall under the purview of regional anti-corruption agreements like the AU Corruption Convention. It will focus on the Convention as a possible solution for addressing scenarios like the one …

Implementing Wto Rules Through Negotiations And Sanction: The Role Of Trade Policy Review Mechanism And Dispute Settlement System, Julien Chaisse, Debashis Chakraborty

Julien Chaisse

Based on economic and legal perspectives, the current paper aims to analyze how the World Trade Organization combines negotiations and sanctions to ensure the implementation of its law. While the Trade Policy Review mechanism at the WTO deals with the WTO-compatibility of the trade policy of a particular member in question, the prevalence of such policies can be successfully challenged at the Dispute Settlement Body which makes decisions on trade disputes between governments that are adjudicated by the WTO. The TPR can play a major role in this framework, providing developing and less-developed countries valuable input on the WTO-compatibility of …

“Cultural Treatment” And “Most-Favoured-Culture” Principles To Promote Trade Related Cultural Diversity, Christophe Roy Germann

Christophe Roy Germann

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions approved by the General Conference of the United Nations Educational, Scientific and Cultural Organisation (UNESCO) on 20 October 2005 entered into force on 18 March 2007. This paper focuses on the policy goal of “cultural diversity” for “international trade related cultural goods and services”, and on strategies and means to achieve this goal for countries that cannot afford substantial subsidies for these purposes. It proposes to explore and discuss an innovative legal approach beyond the new UNESCO Convention on cultural diversity in order to materialize cultural diversity …

Global Justice And Trade: A Surprising Omission, Jonathan Klick, Fernando Teson

Jonathan Klick

Economists generally agree that free trade leads to economic growth. This proposition is supported both by theoretical models and empirical data. Further, while the empirical evidence is more limited on this question, the general consensus among economists holds that trade restrictions are likely to hurt the poor. Even if the latter consensus turns out to be wrong, if free trade leads to superior growth, governments would have more resources to redistribute to the poor. It is surprising then that philosophers and human rights scholars do not advocate liberalizing trade as a way to improve the welfare of the poor as …

Developing Governance And Regulation For Emerging Capital And Securities Markets, Ali Adnan Ibrahim

Ali A Ibrahim

This paper discusses various legal and regulatory issues for developing strong capital and securities markets in the transition economies. Toward this end, the paper analyses the available literature, and emphasizes that: (i) the development of corporate governance should be gradual and must take into consideration the customary laws that impact on the ownership structures and related preferences for doing business in the emerging markets; and (ii) the foreign investment policies should be consistent with the development of corporate governance and vice versa.

"Legal Traditions" And International Commercial Arbitration, Leon E. Trakman

Leon E Trakman Dean

“LEGAL TRADITIONS” AND INTERNATIONAL COMMERCIAL ARBITRATION The Common and Civil Law systems have guided the enactment of major codes, laws and guidelines that regulate international commercial arbitration. From the doctrine of freedom of contract to the procedural rules governing arbitration hearings, international arbitration has built its legal culture around these two traditions. Recent concerns expressed by luminaries like William Slate, President of the American Arbitration Association, challenge the pervasive influence of these traditions over international commercial arbitration. Is the American tradition of law practice too litigious to serve as a viable model for international commercial arbitration? Is arbitration unduly preoccupied …

"Legal Traditions" And International Commercial Arbitration, Leon E. Trakman

Leon E Trakman Dean

The Common and Civil Law traditions underpin international commercial arbitration. From the doctrine of freedom of contract to the procedures governing arbitral hearings, international arbitration has built its legal culture around these two great traditions. Recent concerns expressed by luminaries like William Slate, President of the American Arbitration Association, challenge the pervasive influence of these legal traditions over modern arbitration. Is the practice of law in the United States too litigious to serve as a viable model for international commercial arbitration? Is the culture of international arbitration unduly steeped in the Common and Civil Law at the expense of other …

At&T V. Microsoft – A Violation Of American Patent Law Principles And World Trade Organization Commitments, Robert E. Counihan

Robert E Counihan

In AT&T v. Microsoft, the Federal Circuit created disincentives to trade that constitute quantitative restrictions against the exportation of software from the United States. The statute in question, 35 U.S.C. §271(f), creates patent infringement liability for the exportation of components of patented inventions. When the Federal Circuit applied §271(f) to software in AT&T, a special rule was created. This rule denies software manufacturers the loopholes that are available in other industries that allow alternative, non-infringing forms to be exported. These loopholes allow other industries to compete with foreign manufacturers. The elimination of any loophole causes a disincentive to trade amongst …