International Trade Law Commons^™

Geographical Indications Under International Intellectual Property Law: An Indonesian Perspective, Mariana Molnar Gabor Warokka

Indonesian Journal of International Law

There are currently two systems for the registration of GI and Appellations of Origin. First, the Lisbon Agreement for the Protection of Appellations of Origin and their International Registration of 1958. Second, the Madrid Agreement Concerning the International Registration of Marks and the Madrid Protocol of 1989 for countries that protect GI under the trade mark regime. Indonesia has provided for GI protection under its Trade Mark Law No. 15 of 2001, and the appertaining Government Regulation No. 51 of 2007 concerning Geographical Indication. Several cases have been reported of Indonesian GI potential products, such as Kopi Toraja and Kopi …

The Abuse Of Guaranteed Pending Trial In The Chinese Criminal Process: A Violation Of International Human Rights Law, Li Enshen

Indonesian Journal of International Law

Guaranteed pending trial (Qubao Houshen) is one of the coercive measures used by the Chinese authorities to release suspects on bail in the criminal process. Unlike the western general practices, this instrument is not characterized as a legal right of suspects, but an effective means to circumvent the procedural requirements of investigation and prosecution in the laws. Further, the abuse of guaranteed pending trial is in fragrant violation of minimal international standards of human rights protection in the criminal justice system. The article first examines the procedural and practical deficiencies of this measure in the Chinese context. It then argues …

Sinic Trade Agreements, Peter K. Yu

Faculty Scholarship

In the past decade, the European Union and the United States have pushed aggressively for the development of bilateral and regional trade agreements. What are the strengths and weaknesses of these agreements? Are China's bilateral and regional trade agreements different from these agreements? What are China's goals and negotiation strategies? What will happen if China's bilateral approach clashes with that of the European Union or the United States?

This Article begins by examining China's growing engagement with the less developed world, in particular Africa, Latin America and Southeast Asia. It analyzes the goals, strengths and weaknesses of EU economic partnership …

Vat Fraud: The Tradable Services Problem, Richard Thompson Ainsworth

Faculty Scholarship

Tradable services – VoIP termination services, mobile minutes, software as a service (SaaS), or almost any service bought or sold in the “cloud” – are a distinct class of taxable supplies. These service-based supplies both resemble and differ fundamentally from goods. They also differ from services that are consumed-on-purchase (consumed services).

Tradable services are designed from the beginning for re-sale. They are hybrid supplies that behave commercially like goods, but have functional attributes that make them hard to distinguish from services generally. When determining the place of supply/ place of taxation for these kinds of supplies, their hybrid character presents …

Towards Promises Unfulfilled: Applying Sixteen Years Of Trade And Environmental Lessons To The Pending U.S.-Colombia Trade Promotion Agreement, Travis A. Brooks

Global Business & Development Law Journal

No abstract provided.

The North American Free Trade Agreemetn: Looking At The Binational Panel System Through The Lens Of Free Enterpresie Fund, John J. Garman, Matthew K. Bell

Richmond Journal of Global Law & Business

This paper examines the constitutionality of the binational panels of the North American Free Trade Agreement (“NAFTA”) under the United States Constitution. Part I provides an overview of the binational panel process. Part II outlines the process for challenging the constitutionality of binational panels and the obstacles that must be overcome. Part III discusses possible violations of the Due Process Clause. Part IV analyzes the constitutionality of binational panels under Article II of the United States Constitution. Part V examines the constitutional implications of Article III with respect to the absence of judicial review. Part VI is a case-by-case analysis …

"Consumer Choice" Is Where We Are All Going - So Let's Go Together, Neil W. Averitt, Robert H. Lande, Paul Nihoul

All Faculty Scholarship

Globalisation of business makes it important for firms to predict how their behaviour is likely to be treated in the roughly 200 nations that have competition laws. In that context, a crucial question is: are we in a position to develop a common intellectual framework that would give coherence to policy statements made on specific competition related issues and, at the same time, be acceptable, broadly, in a variety of legal systems, not necessarily based on identical assumptions? We believe that the answer is “yes.” A concept is emerging as a possible source of unification for competition policies around the …

Post-Wto China Tax Law System Reform And The Rule Of Law: Progress And Prospects, Tianlong Hu

SJD Dissertations

A close examination of China's accession commitments reveals that effective economic reform and trade liberalization call for substantiations from a matching legal infrastructure reform. For example, taxpayers' rights protection should be viewed in terms of broader political and civil rights reform. Indeed, a number of the values featured in the WTO principles and the rule of law framework encourage China's further integration into both the global trade network and the international human rights regime. This is particularly evident in the Chinese tax law context. WTO principles and the rule of law requirements must be introduced and evaluated together in tax …

Taking Stock: China's First Decade Of Free Trade, Jun Zhao, Timothy Webster

Faculty Publications

China has established itself as a global economic presence in the past ten years. This article explains one important but overlooked aspect of this rise, China’s newfound interest in free trade agreements (FTAs). This paper situates the FTA boom within a framework of international political economy and China’s recent regional rise. This paper probes the question of how China selects its FTA partners, referencing US trade practice and policy as a framework by which to analyze China’s own preferences. This paper then explores the main features of China’s FTAs, finding that it has adopted a flexible FTA strategy that attends …

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.

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 …

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 …

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 …

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 …

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.

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.

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 …

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” …

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 …

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

Richmond Journal of Global Law & Business

No abstract provided.

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 …

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) …

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 …

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 …