Law Commons^™

The World Trade Organization: A Legal And Institutional Analysis, Anu Bradford

Faculty Scholarship

The law of the WTO can be complex and the intricacies of the WTO hard to grasp even by someone who has spent years studying this area of law. In providing a clear, well-structured and highly accessible introduction to the legal and institutional aspects of the WTO, Jan Wouters and Bart De Meester offer a refreshingly uncomplicated book that walks the reader through the basic legal doctrine underlying international trade.

Global Governance: The World Trade Organization's Contribution, Andrew D. Mitchell, Elizabeth Sheargold

Georgetown Law Faculty Publications and Other Works

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws …

Beyond The Wto? An Anatomy Of Eu And Us Preferential Trade Agreements, Henrik Horn, Petros C. Mavroidis, André Sapir

Faculty Scholarship

It is often alleged that PTAs involving the EC and the US include a significant number of obligations in areas not currently covered by the WTO Agreement, such as investment protection, competition policy, labour standards and environmental protection. The primary purpose of this study is to highlight the extent to which these claims are true. The study divides the contents of all PTAs involving the EC and the US currently notified to the WTO, into 14 'WTO' and 38 'WTO-X' areas, where WTO provisions come under the current mandate of the WTO, and WTO-X provisions deal with issues lying outside …

Compulsory Licensing Of Patented Pharmaceuticals: Why A Wto Administrative Body Should Determine What Constitues A Public Health Crisis Under The Doha Declaration, Aileen M. Mcgill

Aileen M McGill

In response to concerns that patent protection for pharmaceuticals negatively affected world health, the WTO issued the Doha Declaration in 2001, allowing member nations to issue compulsory licenses for patented pharmaceuticals during a public health crisis. The terms of this Declaration allow countries to determine what constitutes a public health crisis, what terms are appropriate for compulsory licenses, and what medications they should be entitled to produce. This article argues that the Doha Declaration has not served countries most in need of inexpensive medications: least developed countries with high rates of HIV/AIDS. The terms of the Doha Declaration are too …

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Jud Mathews

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …

Congressional Response To Wto Sanctions: Turning Lemons Into Lemonade In The American Jobs Creation Act Of 2004, Robin Organek

University of Miami International and Comparative Law Review

A unique tension exists between the World Trade Organization's various desires to level the international commercial trading field, and the United States' periodic desires to prioritize its own domestic goods and, in some cases, protect its own corporate citizens. This article will explore various historical rifts and what the future is likely to hold in light of Congress' passage of the American Jobs Creation Act of 2004.

The Sps Agreement Within The Framework Of Wto Law. The Rough Guide To The Agreement’S Applicability, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

Think Big And Ignore The Law: U.S. Corn And Ethanol Subsidies And Wto Law, Phoenix X. Cai

Phoenix X. Cai

Phoenix X.F. Cai

Think Big and Ignore the Law: U.S. Corn and Ethanol Subsidies and WTO Law

Abstract:

International trade law is currently confronting a substantial challenge arising from tensions over U.S. subsidies to its domestic agricultural producers. Because of three recent developments, nations with competing agricultural economies are increasingly likely to pursue litigation against the U.S. challenging those subsidies. First, Brazil’s success in its recent challenge to U.S. cotton subsidies in the Upland Cotton case will likely embolden these nations to undertake similar suits. Brazil based its claim on legal arguments that will apply equally to U.S. corn and …

Ec Incentive Arrangements For Sustainable Development And Good Governance (Gsp Plus) And Wto Law – Critical Analysis, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

This article analyses the current general system of preferences of the EC in order to assess its conformity with the international obligations imposed by law of the World Trade Organization. The analysis is carried out in light of the recent WTO ruling, which found the old system of preferences incompatible with WTO law. In this context, the article argues that some aspects of the new system relating to special incentive arrangements for sustainable development and good governance may potentially conflict with the requirements of international trade law.

Sps Measures Adopted In Case Of Insufficiency Of Scientific Evidence – Where Do We Stand After Ec-Biotech Products Case?, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

Risk Management Policies Under The Wto Agreement On The Application Of Sanitary And Phytosanitary Measures, Lukasz A. Gruszczynski

Lukasz A Gruszczynski

The globalization of the national food markets raises a number of difficult legal and political problems. In response, national governments have adopted a wide range of regulatory measures which are not only aimed at the protection of the environment and human health and safety but may also constitute attractive vehicles for protectionism. The Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) was therefore specifically designed to regulate possible abuses of sanitary and phytosanitary (SPS) regulations. Although, the most important part of the SPS Agreement relates to risk assessment disciplines, this article argues that it is legitimate to …

Poverty, Trade, And Political Theory, Fernando R. Teson

Fernando R Teson

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 do not advocate liberalizing trade as a way to improve the welfare of the poor as a class. While many …

Metrics And The Measurement Of International Trade: Some Thoughts On The Early Operation Of The Wto Rta Transparency Mechanism, Chi Carmody

Saint Louis University Public Law Review

No abstract provided.

The Trials Of Winning At The Wto: What Lies Behind Brazil's Success, Michelle R. Sanchez-Badin Mrs., Gregory Shaffer, Barbara Rosenberg

Michelle R Sanchez-Badin Mrs.

This Article aims to advance our understanding of three sets of interrelated questions: who shapes international trade law through litigation and bargaining; how do they do so; and what broader effects do international trade law and judicialization have within a country. The Article builds from four years of empirical investigation of international trade dispute settlement and its impact in Brazil. Its point of entry is an examination of what lies behind Brazil's use of the legal regime of the World Trade Organization (WTO), including in litigation, negotiations and ad hoc bargaining. We assess how the WTO legal regime has affected …

Conflicting Positions But Common Interests: An Analysis Of The United States Antidumping Policy Toward China, Qinglan Long

Richmond Journal of Global Law & Business

According to the Tariff Act of 1930, “dumping” is the sale of goods imported from a foreign county at less than their “fair value” on the domestic market. Thus, a good produced and sold in China for twenty dollars, but sold in the United States for only fifteen dollars, may be considered “dumped” on the U.S. market. The lower price may be explained by the exporter’s desire to gain market share or to monopolize the receiving market by selling its merchandise at a lower price. After domestic manufacturers are driven out of the market, the dumping manufacturer will recoup its …

Peer Pressure: Correlations Between Membership In Regional And Regional Economic Organizations In The Context Of Wto Dispute Resolution Claims, Alexandra R. Harrington Esq.

South Carolina Journal of International Law and Business

No abstract provided.

The Wto And The Anti-Corruption Movement, Padideh Ala'i

Articles in Law Reviews & Other Academic Journals

This article explores the role of the World Trade Organization (WTO) in promoting good governance while placing WTO within the larger framework of the ongoing global anti-corruption movement. Governmental policies aimed at fighting corruption are part of the good governance criteria set forth by the World Bank and other donor agencies. An important element of good governance is transparency, which has also been one of the pillars of the multilateral trading system. This article argues that from the perspective of the post-Cold War anti-corruption movement, the WTO is an important institution because it provides a comparatively successful forum for the …

Antidumping And Cotton Subsidies: A Market-Based Defense Of Unfair Trade Remedies, Nadia E. Nedzel

Northwestern Journal of International Law & Business

This article argues that trade remedies, problematic though they may be, provide a legal framework in which litigation can and must be promulgated to protect the benefits of a global market economy.

The Wto, Agriculture, And Developing Countries: The Need For Trade Reforms, Melissa Blue Sky

Sustainable Development Law & Policy

No abstract provided.

What Is An Invention? A Review Of The Literature On Patentable Subject Matter, Emir Aly Crowne Mohammed

Richmond Journal of Law & Technology

This work is a critical review of the literature on patentable subject matter. It examines the central feature of modern patent law—the “invention”—at an international and comparative level. As with most codified terms intended to have wide-ranging, prospective applicability, it is usually left undefined, or if defined, is usually drafted broadly and permissively. Despite the hallmarks of patentability (namely, novelty, inventiveness, and industrial applicability), some courts1 and academic commentators have questioned whether there still needs to be an invention in the first place, before one even considers its patentability.

The Current State Of The Unlawful Internet Gambling Enforcement Act And Recently Adopted Prohibition On Funding Of Unlawful Internet Gambling, Kristina L. Perry

Richmond Journal of Global Law & Business

Afterward

The Creation Of A Global Competition Regime. Where Exactly Do The Obstacles Lie–Practical Co-Operation Or Ideological Differences?, Mervyn Martin

Richmond Journal of Global Law & Business

There has been considerable interest in the creation of a global competition regime in the WTO since its conception. It is an issue that has always emerged in the forum’s agenda, and yet, more than ten years later, the international trading system has been unable to agree on a global competition framework. Notwithstanding the current agreement to hold any framework negotiations in abeyance to enable the Doha Round negotiations to proceed, two interesting conclusions can be drawn. First of all, that the agreement pertains only to negotiation related discussions and not discussions per-se on the issue of competition. This would …

From The Periphery To The Center? The Evolving Wto Jurisprudence On Transparency And Good Governance, Padideh Ala'i

Articles in Law Reviews & Other Academic Journals

The rise of the regulatory state in the latter half of the 20th century is reflected in the text of the World Trade Organization (WTO) Agreements and specifically its transparency related obligations. The oldest transparency and good governance obligation of the WTO is Article X of General Agreement on Tariffs and Trade (GATT). Article X imposes broad publication and due process requirements on the administration of measures in the area of trade in goods. The language of Article X is duplicated or incorporated by reference throughout the WTO Agreements. During the GATT years (1947-94), Article X was a silent provision …

The Permissible Reach Of National Environmental Policies, Henrik Horn, Petros C. Mavroidis

Faculty Scholarship

Trading nations exchange tariff concessions in the context of trade liberalizing rounds. Tariffs, nonetheless, are not the only instrument affecting the value of a concession. Domestic instruments affect it as well, but public order is not negotiable, and, consequently, is not scheduled. Public order is unilaterally defined, but must respect the default rules concerning allocation of jurisdiction which are common to all WTO Members and bind them by virtue of their appurtenance to the international community. In this paper, we focus on the interaction between trade and environment. The purpose of this study is to highlight how these rules and …

No Outsourcing Of Law? Wto Law As Practiced By Wto Courts, Petros C. Mavroidis

Faculty Scholarship

This article provides a critical assessment of the corpus of law that the adjudicating bodies of the World Trade Organization (WTO) – the Appellate Body (AB) and panels – have used since the organization was established on January 1, 1995. After presenting a taxonomy of WTO law, I move to discern, and to provide a critical assessment of, the philosophy of the WTO adjudicating bodies, when called to interpret it. In discussing the law that WTO adjudicating bodies have used, I distinguish between sources of WTO law and interpretative elements. This distinction will be explicated in part I below. Part …

Saving The Wto From The Risk Of Irrelevance: The Wto Dispute Settlement Mechanism As A ‘Common Good’ For Rta Disputes, Henry S. Gao, Chin Leng Lim

Chin Leng Lim

Over the past few decades, Regional Trade Agreements (RTAs) have proliferated globally. Such proliferation of RTAs created a renewed sense of urgency for the WTO to take action in order to avoid the fate of being eclipsed into irrelevance. There are several options for coping with the challenge. Theoretically speaking, the best approach would be to heighten the level of ambition in global trade talks to reduce all trade barriers to zero so that the discriminatory effect created by RTAs could be reduced or even eliminated. In reality, such an approach would be impossible for well-known reasons. The next best …

Public International Law And The Wto: A Reckoning Of Legal Positivism And Neoliberalism, S. G. Sreejith

San Diego International Law Journal

This Article proceeds in five parts. In part one, I review the scholarly skepticism as to how far international law is law in the "hard" sense and show that this skepticism has always permeated the discipline. In part two, I go on to examine what has prompted contemporary scholarship to credit the WTO with helping international law grow out of the "thin" normativity often attributed to it. The analysis suggests that certain features of legal positivism customarily associated with law in its strict sense, which were alleged to be lacking in international law, are found in the institutional apparatus of …

Should Or Must? Nature Of The Obligation Of States To Use Trade Instruments For The Advancement Of Environmental, Labor, And Other Human Rights, Stephen Powell

Stephen Joseph Powell

States have been careful to couch their human rights commitments in terms that avoid binding and measurable actions to ensure the human rights either of their own citizens or those in other countries. Despite the promise of a dozen U.N. treaties, states continue to equivocate as to measures necessary to meet critical individual needs. This essay argues that, nonetheless, the question whether economically powerful states may be held to human rights observance is not solely moral in nature. Instead, through a combination of treaties, custom, and historical facts, the human rights obligation of developed states has taken on penumbral legal …

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 …

Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

8 pages.

Includes bibliographical references

"Sally Fairfax, UC-Berkeley, Helen Ingram, UC-Irvine, and Leigh Raymond, Purdue University" -- Agenda