International Trade Law Commons^™

Gender And Economic, Social, And Cultural Rights, Christine M. Chinkin

Book Chapters

At the time of adoption of the International Covenant of Economic, Social and Cultural Rights (ICESCR) in 1966, the concept of gender had not entered the international arena. Relations between women and men in the allocation and enjoyment of rights were addressed through the concept of non-discrimination, inter alia on the basis of sex. The term ‘gender’ began to enter the international agenda in the 1980s, first through the global conferences on women. The World Conference on Human Rights at Vienna in 1993 continued this trend, referring to gender-based violence, gender bias, and gender-disaggregated statistics. It also called for ‘the …

District Courts Versus The Usitc: Considering Exclusionary Relief For F/Rand-Encumbered Standard-Essential Patents, Helen H. Ji

Michigan Telecommunications & Technology Law Review

Technological standards allow manufacturers and consumers to rely upon these agreed-upon basic systems to facilitate sales and further invention. However, where these standards involved patented technology, the process of standard-setting raises many concerns at the intersection of antitrust and patent law. As patent holders advocate for their patents to become part of technological standards, how should courts police this activity to prevent patent holdup and other anti-competitive practices? This Note explores the differing approaches to remedies employed by the United States International Trade Commission and the United States District Courts where standard-essential patents are infringed. This Note further proposes that …

Food Miles: Environmental Protection Or Veiled Protectionism?, Meredith Kolsky Lewis, Andrew D. Mitchell

Michigan Journal of International Law

Eat local. Such a small phrase yet such a loaded proposition. Buying food from nearby sources has become a popular objective. This aim is associated with helping farmers in one’s country or region; observing the seasonality of one’s location; eating fresher foods; striving for food security; and protecting the environment. One of the unmistakable messages of the “locavore” movement is that importing food—particularly food that comes from far away—causes environmental harm. The theory is that transporting food long distances results in the release of high levels of greenhouse gases (GHGs) into the atmosphere and is thus a dangerous contributor to …

A Material World: Using Trademark Law To Override Copyright's First Sale Rule For Imported Copies, Mary Lafrance

Michigan Telecommunications & Technology Law Review

When the Supreme Court held that the first sale rule of copyright law permits the unauthorized importation and domestic sale of lawfully made copies of copyrighted works, regardless of where those copies were made, copyright owners lost much of their ability to engage in territorial price discrimination. Publishers, film and record producers, and software and videogame makers could no longer use copyright law to prevent the importation and domestic resale of gray market copies, and therefore could no longer protect their domestic distributors against competition from cheaper imported copies. However, many of these copyright owners can take advantage of a …

Paper Compliance: How China Implements Wto Decisions , Timothy Webster

Michigan Journal of International Law

China’s growing economic and military clout generates scrutiny, optimism, insecurity, opportunism, opprobrium, and unease around the world, especially in the United States. Many question China’s role on the world stage. Politicians and academics openly doubt China abides by international law and other global standards of state conduct promulgated by Western liberal democracies since the end of World War II. The game may change—international trade, territorial and maritime disputes, environmental law, human rights, arms control, riparian rights, cyber-crime, endangered species—but the concern remains the same: is China an international scofflaw?

The Margin Of Appreciation In International Investment Law, Julian Arato

Articles

Investment treaties tend to say nothing, or only very little, about the appropriate standard of review for arbitrating disputes between sovereign states and foreign investors. Most treaties do not address whether states should be afforded any deference in their own assessment of their treaty obligations. Neither do they specify the converse, that state action must be strictly reviewed. They are simply silent – and their silence has been interpreted in innumerable ways by different tribunals. This interpretive chaos has generated calls for a unified approach – one that would resolve the uncertain and fragmented status quo, while being sufficiently flexible …

Tarrification Of The Coastwise Trade Laws, Keith E. Diggs

Michigan Law Review

The coastwise trade laws prohibit foreign vessels and mariners from transporting goods or passengers between American ports. These anticompetitive laws punish American producers and consumers yet barely sustain a dwindling merchant marine. Every attempt to repeal the laws encounters insurmountable political resistance. Reformers of the coastwise trade laws, then, should instead try to convert the prohibition on foreign involvement into a tariff.

A Dual Track Approach To Challenging Chinese Censorship In The Wto: The (Future) Case Of Google And Facebook, Anonymous

Michigan Journal of International Law

As economic and trade policies continue to affect more facets of society, the World Trade Organization’s (WTO) impact on government policy and citizens’ lives has grown. Since its creation on January 1, 1995, the WTO has fostered trade liberalization negotiations and served as a forum where member countries can discuss economic concerns with one another. The WTO is perhaps best known for its dispute settlement mechanism. When countries cannot reach a mutual resolution to a conflict governed by a trade agreement, they can initiate formal legal proceedings against one another by asking for a panel to be appointed. The panel …

Why International Catch Shares Won't Save Ocean Biodiversity, Holly Doremus

Michigan Journal of Environmental & Administrative Law

Skepticism about the efficacy and efficiency of regulatory approaches has produced a wave of enthusiasm for market-based strategies for dealing with environmental conflicts. In the fisheries context, the most prominent of these strategies is the use of “catch shares,” which assign specific proportions of the total allowable catch to individuals who are then free to trade them with others. Catch shares are now in wide use domestically within many nations, and there are increasing calls for implementation of internationally tradable catch shares. Based on a review of theory, empirical evidence, and two contexts in which catch shares have been proposed, …

Africa-China Bilateral Investment Treaties: A Critique, Uche Ewelukwa Ofodile

Michigan Journal of International Law

The purpose of this Article is to draw attention to, raise questions about, and generate discussions regarding the emerging norms, legal context, and long-term development-implications of South-South foreign direct investment (“FDI”) and South-South bilateral investment treaties (“BIT”). This Article seeks to refocus the discourse about FDI and BITs on developing countries in their role as exporters of capital and in the context of the much-touted new geography of investment. Can South-South BITs play a positive role in promoting development in sub-Saharan Africa any more than the Africa-North BITs? Is China concluding development-focused BITs with countries in Africa? The Article identifies …

Reforming Trade Remedies, Wentong Zheng

Michigan Journal of International Law

This Article aims to restart the debate on trade remedies by offering new perspectives on the fundamental defects of the current trade remedy regime and proposing a bold yet feasible road map for reforms. As shall become clear, the debate on trade remedies is an essential component of the broader debate on trade protectionism, an issue that has never been more important in light of the challenges facing the world economy today. Reforming trade remedies, therefore, has far-reaching implications for the global trade agenda.

Gsp And Development: Increasing The Effectiveness Of Nonreciprocal Preferences, Matthew G. Snyder

Michigan Journal of International Law

The intellectual foundations of nonreciprocal preferences were first laid out in the 1960s, as several scholars noted developing countries' increasing reliance on highly volatile, low-value-added exports like agricultural and mineral commodities. The Generalized System of Preferences (GSP), which became the mechanism for implementing nonreciprocal preferential market access, was developed in this context. GSP was envisioned as part of a larger development strategy that included import-substitution policies, infant industry protection, and preferential access to developed countries' markets. As GSP granted preferential access over World Trade Organization (WTO) most favored nation (MFN) rates, development economists anticipated that it would provide developing countries' …

Rebalancing Trips, Molly Land

Michigan Journal of International Law

Application of the World Trade Organization's (WTO) dispute resolution procedures to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) has provoked a variety of reactions over time. At its inception, the decision to enforce the treaty through the WTO's dispute resolution process was widely viewed as a loss for developing countries. Many feared it would lead to an explosion of litigation against developing countries and cause distortions in domestic intellectual property (IP) policy making. More recent scholarship, however, has argued that these fears were unfounded. Few disputes before WTO panels have involved violations of the TRIPS Agreement, even …

The Boundaries Of Most Favored Nation Treatment In International Investment Law, Tony Cole

Michigan Journal of International Law

Contemporary international investment law is characterized by fragmentation. Disputes are heard by a variety of tribunals, which often are constituted solely for the purpose of hearing a single claim. The law applicable in a dispute is usually found in a bilateral agreement, applicable only between the two states connected to the dispute, rather than in a multilateral treaty or customary international law. Moreover, the international investment community itself is profoundly divided on many issues of substantive law, meaning both that the interpretation given to international investment law by a tribunal will be determined largely by those who sit on it, …

United States--Certain Measures Affecting Imports Of Poultry From China: The Fascinating Case That Wasn't, Donald H. Regan

Articles

US–Poultry (China) was the first Panel decision dealing with an origin-specific SPS measure, or with what the United States referred to as an ‘equivalence regime’. More specifically, it was the first instance in which the basis for the challenged measure was the claimed inability of the complainant country to enforce its own food-safety rules. Unfortunately, as the litigation developed, the very interesting novel issues raised by such a measure were not discussed. This essay discusses those novel issues – in particular, what sort of scientific justification or risk assessment should be required for a measure like this, and what SPS …

Toward A Trips Truce, Patricia L. Judd

Michigan Journal of International Law

The World Trade Organization's (WTO's) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS or Agreement), now over fifteen years old, regulates a marketplace characterized by extraordinary dynamism, influenced by the constant forces of globalization and technological evolution. Attempts to regulate this market raise natural, persistent questions concerning the Agreement's ability to serve its respective constituencies and adapt to change. The Agreement operates in the midst of an age-old dynamic pitting developing and developed countries against one another, especially when it comes to domestic enforcement against piracy and counterfeiting-a dynamic in which TRIPS has been criticized as a one-sided instrument. …

Breaking Patents, Daniel R. Cahoy

Michigan Journal of International Law

In the 1970s and 1980s, the Boeing aircraft company worked to address the rising cost of jet fuel by inventing lighter metal alloys for use in aerospace materials. Among its discoveries was a method of producing aluminum-lithium alloys with high "fracture toughness," and in 1989, Boeing received a patent for the process. Five years later, another aerospace company working as a National Aeronautics and Space Administration (NASA) contractor, Lockheed Martin, was attempting to solve a similar problem related to materials used in the space shuttle. Lighter materials were necessary for future shuttle missions to transport components of the International Space …

Public Non-Commercial Use' Compulsory Licensing For Pharmaceutical Drugs In Government Health Care Programs, Pier Deroo

Michigan Journal of International Law

Suppose a relatively prosperous nation with universal public health coverage faces an HIV/AIDS crisis. It refuses to negotiate with the patent-holding manufacturers of the best antiretrovirals (ARVs) available, instead issuing compulsory licenses. Compulsory licenses permit the generic drug manufacturers designated in the compulsory licenses to make, use, import, and sell the patented ARVs without the permission of the patent owners, increasing competition and lowering prices. Realizing that drugs are much cheaper without patents, the nation decides to issue another round of compulsory licenses for an extensive list of patented drugs for its universal health care program. While improving public access …

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 …

The Implications Of Ifrs On The Functioning Of The Securities Antifraud Regime In The United States, Lance J. Phillips

Michigan Law Review

The United States is home to one of the most investor-friendly securities antifraud regimes in the world. Corporate misstatements that form the basis for a cause of action under one of the many antifraud provisions arise in a variety of contexts, an important one being as violations of U.S. generally accepted accounting principles ("GAAP"). For several years, the Securities and Exchange Commission has been considering changing the standardized accounting practice in the United States from GAAP to International Financial Reporting Standards ("IFRS") to promote comparability between global investment opportunities. IFRS is a principles-based system of accounting, while GAAP is rules …

The Inherent Jurisdiction Of Wto Tribunals: The Select Application Of Public International Law Required By The Judicial Function, Andrew D. Mitchell, David Heaton

Michigan Journal of International Law

This Article explores whether World Trade Organization (WTO) panels and the Appellate Body (WTO Tribunals) have the power to apply certain rules of public international law by reason of their judicial character, and because the application of these rules is necessary for the proper exercise of their judicial function. In other words, it seeks to answer the following questions: Do WTO Tribunals have inherent jurisdiction? And, if so, what are some of the rules applicable under and limitations on this jurisdiction?

International Adjudication: A Response To Paulus--Courts, Custom, Treaties, Regimes, And The Wto, Donald H. Regan

Book Chapters

I am pleased to have the opportunity to respond to Andreas Paulus’s very interesting contribution, and to elaborate on some of the matters he raises. As will be all too obvious, I am not an expert on general public international law. I undertook this assignment in the hope that I would learn something (as I have), and that I would eventually think of something useful to say (less clear). Happily, the one area of international law where I do have some expertise is the law of the World Trade Organization (WTO). The WTO is often used as an example in …

An Outsider's View Of Dassonville And Cassis De Dijon: On Interpretation And Policy, Donald Regan

Articles

My interest in the EC law on free movement of goods is long-standing and more than casual, but much less than scholarly. So I am delighted to contribute some remarks without pretending to expertise.

Introduction To Global Issues In Antitrust And Competition Law, Daniel A. Crane

Other Publications

This volume is a global reader. It presents materials and cases on the global issues of antitrust and competition policy. It may be used on its own or to supplement domestic antitrust casebooks.

It might seem strange to consider the treatment of global issues as a supplement to antitrust casebooks, for, in one important sense, antitrust is global. Markets commonly cross national boundaries. Mergers are as likely as not to combine firms from different nations and in any event to affect markets in many nations. Acts and conspiracies in New York, Washington, Tokyo, Zurich, Frankfurt, Johannesburg, Beijing, Delhi, or Sao …

Linking International Markets And Global Justice, Jeffrey L. Dunoff

Michigan Law Review

The U.S. government is the planet's largest purchaser of goods and services; worldwide, states spend trillions of dollars on procurement each year. Yet legal scholarship has devoted relatively limited attention to the conceptual and normative issues that arise when states enter the market. Should states as purchasers be permitted to "discriminate" to advance social objectives - say, racial justice - in ways that would be unlawful when they act as regulators? Is each country free to strike its own balance between the pursuit of economic and social objectives through procurement, or do international trade norms limit state discretion in the …

Domestic Effects Of The Foreign Activities Of U.S. Multinationals, Mihir A. Desai, C. Fritz Foley, James R. Hines Jr.

Articles

Do firms investing abroad simultaneously reduce their domestic activity? This paper analyzes the relationship between the domestic and foreign operations of US manufacturing firms between 1982 and 2004 by instrumenting for changes in foreign operations with GDP growth rates of the foreign countries in which they invest. Estimates produced using this instrument indicate that 10 percent greater foreign investment is associated with 2.6 percent greater domestic investment, and 10 percent greater foreign employee compensation is associated with 3.7 percent greater domestic employee compensation. These results do not support the popular notion that expansions abroad reduce a firm’s domestic activity, instead …

International Financial Centers And The World Economy, James R. Hines Jr.

Other Publications

International financial centers (IFCs) are countries and territories with low tax rates and other features that make them attractive investment locations. These properties of IFCs occasionally raise concerns that they may erode tax collections, divert economic activity, and otherwise burden nearby high-tax countries. A large body of economic research over the last 15 years considers these issues, with findings that point sharply in the opposite direction: the evidence strongly suggests that the policies of IFCs contribute to investment, employment, and the efficient functioning of markets and government policies in other countries.

IFCs contribute to economic activity by improving the potential …

Conserving Marine Wildlife Through World Trade Law, Eric A. Bilsky

Michigan Journal of International Law

Part I of this Essay marshals the evidence that fisheries around the world are in peril from destructive fishing practices. Part II argues that most fisheries management regimes are ineffective at counteracting the political pressures and economic incentives that lead to unsustainable fishing. Part III makes the case that government subsidies are major enablers of overfishing. The fourth and final Part discusses the continuing efforts to use international trade regulation to eliminate overfishing subsidies and halt the collapse of the world's marine fish populations.

International Law: Private Law In United States Law, Reuven S. Avi-Yonah

Book Chapters

This article discusses some aspects of the development of international economic law in the United States since the end of World War I and the impact it had on the development of international economic law generally, focusing specifically on the three areas in which U.S. law had the most significant impact on international economic law: international trade and investment, international taxation, and international antitrust measures. In general, in all three areas U.S. law had considerable influence on the development of international economic law in the twentieth century. However, the degree of influence in these and other areas varied depending on …

How To Think About Ppms (And Climate Change), Donald H. Regan

Book Chapters

The European Commission has apparently backed off from a proposal to tax imported goods produced by methods that generate excessive greenhouse gas emissions. So the issue of whether such a tax would be legal under the WTO has become slightly less urgent than it recently appeared. But Pascal Lamy the Director-General of the WTO still thought the possibility of some countries imposing emission-based trade restrictions was worth mentioning prominently in his speech to the Trade Ministers Conference in conjunction with the Bali Conference on climate change after Kyoto. And at that same conference, an official of the European Commission may …