Comparative and Foreign Law Commons^™

The Irony Of International Business Law: U.S. Progressivism And China's New Laissez Faire, Andrew B. Spalding

Law Faculty Publications

As the financial crisis draws U.S. business overseas and developing countries rise in influence, the regulation of international business has never figured so prominendy in federal law. But the dominant paradigm through which academics and policymakers continue to view that law-the so-called Washington Consensus-proves deeply misleading. A more accurate account of the components, origins, and aims of U.S. international business law reveals two striking ironies.

First, in discrete but critical ways, the United States no longer represents the comparatively laissez-faire approach to federal business regulation. Rather, owing to its origins in the Progressive Era, U.S. federal law directs corporations toward …

International Arbitration Of Patent Disputes, 10 J. Marshall Rev. Intell. Prop. L. 384 (2011), Wei-Hua Wu

UIC Review of Intellectual Property Law

This paper discusses the concept of using international arbitration as a method of resolving patent disputes. First, this paper examines the arbitrability of patent validity disputes from a public policy viewpoint. The question is whether, or to what extent, the subject matter of patent validity disputes may be settled by international commercial arbitration. Second, this paper provides suggestions on strategies for organizational decision-makers to consider whether it is proper to choose arbitration as a more favorable tool when confronted with a patent dispute. Finally, this paper discusses how to choose the seat of arbitral institution and the applicable law.

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Cornell Law Faculty Publications

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with an examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence, and tension between state ideology, positive law, and "law in action." The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has emerged as one of the largest hurdles for Russia's prolonged accession to the World Trade Organization (WTO), these historical precedents may help explain Russia's apparent theoretical and political disconnect from the WTO. If Russian policymakers …

East Meets West: Introducing Sharia Into The Rules Governing International Arbitrations At The Bcdr-Aaa, Elana Levi-Tawil

Cardozo Journal of Conflict Resolution

As the size and complexity of international commercial transactions grow, parties to international commercial transactions are increasingly utilizing Alternative Dispute Resolution ("ADR") methods, specifically international commercial arbitration, to resolve the disputes that arise. However, since international commercial players first began to use international commercial arbitration to resolve these disputes, transnational recognition and enforcement of foreign arbitral awards has been a major issue. Since 1958, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention"), an agreement executed by the United Nation's General Assembly, has vastly expanded the recognition and enforcement of foreign arbitral …

The Limited Case For Permitting Sme Procurement Preferences In The Wto Agreement On Government Procurement, John Linarelli

Scholarly Works

This is a chapter in the book, Sue Arrowsmith & Robert D. Anderson, The WTO Regime on Government Procurement: Challenge and Reform (Cambridge University Press, 2011). The chapter puts under scrutiny public procurement policies designed to benefit SMEs per se, as small or medium sized enterprises, and to evaluate whether the GPA (and hence possibly other trade agreements liberalizing procurement markets) should be more accommodating to these policies, even though these policies might restrict international trade. The chapter also evaluates whether the GPA should be more accommodating to policies designed to benefit firms controlled by individuals who belong to historically …

Global Procurement Law In Times Of Crisis: New Buy American Policies And Options In The Wto Legal System, John Linarelli

Scholarly Works

This is a draft chapter, Sue Arrowsmith & Robert D. Anderson (eds.), The WTO Regime on Government Procurement: Challenge and Reform (Cambridge University Press, 2011). What should governments do to protect their citizens in a global economic crisis? National economies are interdependent and economic risk is systemic on a global scale, but economic policy remains pervasively national in scope. Fiscal policy has not been the subject of much in the way of collective action at the global level, and if it has, states accomplish it in ad hoc political (as opposed to legal) arrangements in response to particular crises. States …

Overcoming Babel’S Curse: Adapting The Doctrine Of Foreign Equivalents, Jonathan Skinner

Publications

No abstract provided.

After The Fall: Financial Crisis And The International Order, Robert B. Ahdieh

Faculty Scholarship

Recent years have challenged the international order to a degree not seen since World War II — and perhaps the Great Depression. As the U.S. housing crisis metastasized into a financial and economic crisis of grave proportions, and spread to nearly every corner of the globe, the strength of our international institutions — the International Monetary Fund, the World Trade Organization, the Group of Twenty, the Basel Committee on Banking Supervision, and others — was tested as never before. Likewise tested, were the limits of our national commitment to those institutions, to our international obligations, and to global engagement more …

Stretching The Dispute Settlement Understanding: U.S.—Cotton’S Relaxed Interpretation Of Cross-Retaliation In The World Trade Organization, David J. Townsend

Richmond Journal of Global Law & Business

In August 2009, the World Trade Organization (“WTO”) au-thorized Brazil to impose sanctions against the United States for its continued subsidization of cotton producers in violation of the WTO Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) and the Agreement on Agriculture. The WTO approved Brazil’s use of sanctions outside the General Agreement on Tariffs and Trade (“GATT”), authorizing cross-retaliation against rights owed to the United States under the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”). This is the third case of cross- retaliation authorized by a WTO arbitrator under the Understanding on Rules and Procedures Governing the …

Global Issues In Commercial Law, Claude D. Rohwer, Kristen David Adams

McGeorge School of Law Teaching Materials

This book seeks to provide an international perspective and also sufficient domestic context to facilitate a comparative-law discussion. The book includes staples of international commercial law, such as the United Nations Convention on Contracts for the International Sale of Goods (CISG) and international insolvency, but also items of particular contemporary concern, including clawbacks, microfinance, and religious objections to the payment of interest in commercial contracts.

Enhancing The Wto Tool Kit: The Case For Financial Compensation, Rebecca Ullman

Richmond Journal of Global Law & Business

World Trade Organization Dispute Settlement Understanding 160 represents an intersection of domestic law and international law. The subject of Dispute Settlement Understanding 160 (“DSU 160”) is the Fairness in Music Licensing Act, an American legislative act that extended copyright protection terms and carved out significant exemptions for commercial establishments. The exemptions set forth in the Fairness in Music Licensing Act (“FMLA”) conflict with U.S. international intellectual property obligations such that one must question whether there should be new and different remedies available to assist parties in meeting their international obligation.

Transcending Cultural Nationalist And Internationalist Tendencies: The Case For Mutually Beneficial Repatriation Agreements, Joshua S. Wolkoff

Cardozo Journal of Conflict Resolution

This Note will proffer a critical evaluation of the Italian government's current tactics for reclaiming its patrimony and argue that MBRAs are the most desired framework for resolving repatriation disputes, as they give rise to lasting collaborative relationships between source nations and cultural institutions and strive to keep valued works in the "public trust" without diminishing traditionally insular cultural identities. Thus, successful negotiations must account for competing interests including, inter alia: (i) the emotional currency of the object as assessed from the perspective of the source nation; (ii) the institution's desire to keep disputed works within the public sphere; (iii) …

Unwitting Sanctions: Understanding Anti-Bribery Legislation As Economic Sanctions Against Emerging Markets,, Andrew B. Spalding

Law Faculty Publications

Although the purpose of international anti-bribery legislation, particularly the U.S. Foreign Corrupt Practices Act (FCPA), is to deter bribery, empirical evidence demonstrates a problematic collateral effect. In countries where bribery is perceived to be relatively common, the present enforcement regime goes beyond the deterrence of bribery, and ultimately deters investment. Drawing on literature from political science and economics, this Article argues that anti-bribery legislation, as presently enforced, functions as de facto economic sanctions. A detailed analysis of the history of FCP A enforcement shows that these sanctions most often occur in emerging markets, where historic opportunities for economic and social …

International Movement To Deter Corruption: Should China Join?, Paul D. Carrington

Faculty Scholarship

Global concerns over the corruption of weak governments by firms engaged in transnational business are the source of an international movement that emerged in 1997. Special concern is presently directed at the weakness of enforcement of laws enacted in recent times to deter corrupt business practices in international trade that were enacted in response to that movement. One cause of weakness in law enforcement is the failure of China to share actively in those concerns and the efforts to address them. This essay will briefly record steps taken in other nations to address the concerns and the limited effectiveness of …

Hostile Takeover Bids In Japan? Understanding Convergence Using The Layered Approach, Michael Cody

Richmond Journal of Global Law & Business

No abstract provided.

Reforming Fairness: The Need For Legal Pragmatism In The Wto Dispute Settlement Process, Webb Mcarthur

Richmond Journal of Global Law & Business

The World Trade Organization (“WTO”) dispute settlement system is intended to be the central pillar of the international trade system by which trade disputes involving WTO member states are adjudicated, whether regarding trade in goods, services, or in intellectual property rights. However, an innocuous statement such as this, when closely considered, indicates potential problems for the system. The WTO is an international treaty-based organization, established in 1994 by 123 countries in Marrakesh, Morocco. In addition to settling disputes in international trade, the WTO is also a negotiating forum and a set of rules. The organization is more than a “table” …

World Trade Organization Agreements And Principles As A Vehicle For The Attainment Of Energy Security, Dennis J. Hough Jr.

Richmond Journal of Global Law & Business

Do you remember how you felt on Wednesday, January 7, 2009? Perhaps you do not. I know how some Europeans felt — cold. That was the day that Russia stopped all natural gas exports to Ukraine. By itself, this was a serious course of action. However, because Ukraine is the main transmission corridor for natural gas pipelines shipping gas to Europe, the situation commanded worldwide attention.

Special 301 And Access To Medicine In The Obama Administration, Sean Flynn

Scholarly Articles in Law Reviews & Journals

I. Introduction

This article examines the history and current use of the Special 301 program to restrict access to generic medicines in developing countries, specifically the 2009 and 2010 reports released under the Obama Administration. The news for access to medicines advocates is not good overall. Both reports continue the previous Administration’s policies of using Special 301 to promote Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) policies (“TRIPS-plus”) endangering access to medicines for millions of people worldwide. These policies violate not only the Obama Administration’s pledges to promote access to affordable medications in developing countries, but also U.S. commitments under …

Guilty By Association? Regulating Credit Default Swaps, Houman B. Shadab

Articles & Chapters

A wide range of U.S. policymakers initiated a series of actions in 2008 and 2009 to bring greater regulation and oversight to credit default swaps (CDSs) and other over-the-counter derivatives. The policymakers’ stated motivations echoed widely expressed criticisms of the regulation, characteristics, and practices of the CDS market, and focused on the risks of the instruments and the lack of public transparency over their utilization and execution. Certainly, the misuse of certain CDSs enabled mortgage-related security risk to become overconcentrated in some financial institutions.

Yet as the analysis in this Article suggests, failing to distinguish between CDS derivatives and the …

Limiting Anticompetitive Government Interventions That Benefit Special Interests, D. Daniel Sokol

UF Law Faculty Publications

When government regulates, it may either intentionally or unintentionally generate restraints that reduce competition ("public restraints"). Public restraints allow a business to cloak its action in government authority and to immunize it from antitrust regulation. Private businesses may misuse the government's grant of antitrust immunity to facilitate behavior that benefits businesses at consumers' expense. One way is by obtaining government grants of immunity from antitrust scrutiny. A recent series of Supreme Court decisions has made this situation worse by limiting the reach of antitrust law in favor of sector regulation. This is true even though the Supreme Court refers to …

Vat Derogations In Germany, Austria, Denmark, And Estonia: Use And Enjoyment Rules, Richard Thompson Ainsworth

Faculty Scholarship

When the Czech Republic elected (effective January 1, 2009) to derogate from the standard rules for determining the place of supply for intangible services, pursuant to Article 58 of the Recast VAT Directive (RVD), it was following the lead of ten other Member States. This paper considers four of those other jurisdictions - Germany, Austria, Estonia, and Denmark - and compares their derogations with that of the Czech Republic.

In each instance a use and enjoyment standard determines the place of supply for certain intangible services. The affected transactions are (potentially) wide ranging. In each instance non-EU countries are on …

Current And Future Issues In International Space Law, Professor Henry Hertzfeld

ILSA Journal of International & Comparative Law

Space law is a relatively new area of law and is based mainly on a set of United Nations (U.N.) Treaties negotiated during the 1960s and 1970s.

Comments On The Reforms To The Mexican Energy Laws Of 2008, Antonio Riva Palacio Lavin

ILSA Journal of International & Comparative Law

A strong discussion has taken place in Mexico since the beginning of this millennium concerning the legal reform of the energy sector, particularly the Mexican government's oil company, Petr6leos Mexicanos (Pemex).

The United States And International Criminal Tribunals: An Historical Analysis, Harry M. Rhea

ILSA Journal of International & Comparative Law

The relationship between the United States and international criminal tribunals has lasted for almost 100 years at least.

Legal Limbo: Where Should The Guantanamo Uighurs Be Released?, William L. Tucker

ILSA Journal of International & Comparative Law

The September 11, 2001 attacks on the United States shocked the world's conscience and changed the American public's feeling of vulnerability.

Rethinking The Relationship Between The Wto And International Human Rights, Gao Pengcheng

Richmond Journal of Global Law & Business

No abstract provided.

The Interaction Of Legal Systems In The Work Of The International Criminal Tribunal For The Former Yugoslavia, H.E. Judge Patrick Robinson

ILSA Journal of International & Comparative Law

The International Criminal Tribunal for the Former Yugoslavia (Tribunal) where I work is a court with a mandate to try individuals for the most serious violations of international humanitarian law committed during the conflict that engulfed Yugoslavia in the 1990s.

U.S. Policies Towards And In The U.N Security Council, Jose E. Alvarez

ILSA Journal of International & Comparative Law

For at least twelve years, Security Council reformers have proposed many ways to enlarge the size and diversify the composition of that body.

Binding Non-Signatories To International Arbitration Agreements: Raising Fundamental Concerns In The United States And Abroad, Tae Courtney

Richmond Journal of Global Law & Business

No abstract provided.

Custom As A Source Of Law: Argentinean And Comparative Legal Systems, German Savastano

ILSA Journal of International & Comparative Law

The purpose of this article is to reflect on custom as a source of law in the Argentinean and comparative legal systems.