International Trade Law Commons^™

Global Constitutional Lawmaking, Sungjoon Cho

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Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn …

The World Trade Constitutional Court, Sungjoon Cho

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The World Trade Constitutional Court Sungjoon Cho Abstract Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and “constitute,” the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this “constitutional adjudication” is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the …

Anticompetitive Trade Remedies: How Antidumping Measures Obstruct Market Competition, Sungjoon Cho

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Through trade policies such as antidumping remedies, the United States government often protects domestic producers at the expense of market competition. Yet a judicially created antitrust immunity, the Noerr-Pennington doctrine, obstructs the Federal Trade Commission’s antitrust investigations of these trade remedies. This Article argues that judicial and administrative interventions are needed to restore antitrust oversight when implementing trade remedies. This Article does not propose a repealing of the current antidumping statue, an act that would be politically infeasible in the current protectionist atmosphere of Congress. Instead, it takes a more modest yet realistic stance: antidumping remedies must be sanitized by …

China - Measures Affecting Imports Of Automobile Parts, Sungjoon Cho

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No abstract provided.

Corporate Social Responsibility Of Multinational Enterprises And The International Business Law Curriculum, Constance Z. Wagner

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The author argues for expanded coverage of corporate social responsibility in the U.S. law school curriculum. Corporate social responsibility is of increasing importance for businesses, particularly for those companies that conduct multinational operations. Current national legal and regulatory regimes fail to adequately address the social and environmental issues that arise in business operations. As a result, intergovernmental organizations, non-governmental organizations and businesses have begun to promulgate voluntary codes ofconduct. These codes touch on such subjects as core labor standards, environmental protection, bribery offoreign government officials in international business and human rights. Examples include the Organization for Economic Cooperation and Development …

Remedying Trade Remedies, Sungjoon Cho

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Although competition has been an ideological beacon of economic governance ever since the birth of the Union, it has largely been an internal affair. External competition from foreign producers has failed to be factored into antitrust scrutiny. On the contrary, the government, through its trade policies such as antidumping remedies, has often hampered foreign competition to protect domestic producers at the expense of all the benefits that foreign competition might bring to the economy. Antidumping remedies tend to create a legal cartel: they fix the import prices and generate non-price predation by petitioners. However, the Federal Trade Commission (FTC)'s potential …

Of The World Trade Court's Burden, Sungjoon Cho

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Decisions of the WTO tribunal (Court) on sensitive disputes, such as those concerning human health, have often caused resentment from some groups, besides losing parties. Beneath this disapproval against the Court lies an image of a Dworkinian Hercules which capriciously renders its own answers on risks and science. In judging which party should win the case, this Hercules assesses parties' arguments and evidence on risks and regulatory responses through a technical rule labeled the “burden of proof” (BOP). Yet, the BOP is more of the Court's burden than of parties' burden (who to prove) in that the final outcome of …

Toward An Identity Theory Of International Organizations, Sungjoon Cho

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Conventional international relations (IR) theorists, such as realists, neo-functionalists or regime theorists, view international organizations (IOs) as passive tools with which to achieve certain goals. Although an IO may facilitate inter-state cooperation and reduce transaction costs, it does not have a life of its own. Therefore, conventional IR theorists focus mostly on the creation of an IO and inter-state cooperation leading up to the creation. As a result, an IO's institutional change remains rather an “under-studied” and “under-theorized” issue in the conventional international relations (IR) framework.

Granted, conventional IR theories may provide useful insights on an inter-national dynamic among creators …

Beyond Doha’S Promises: Administrative Barriers As An Obstruction To Development, Sungjoon Cho

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This article articulates the potentially fatal consequences of administrative barriers to the goal of developing poor countries and suggests retooling the current trade norms and policies in a developmentally-friendly manner. The article constructs the concept of administrative barriers centering on domestic regulations, i.e., antidumping measures, regulatory standards, and rules of origin, which have the most potential to obstruct development. It then highlights developmental hazards of these administrative barriers. It observes that both protectionist antidumping duties and the excruciating investigative procedures tend to offset developing countries' comparative advantages in favor of developed countries' domestic producers. It then argues that under-capacitated developing …

Doha’S Development, Sungjoon Cho

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This Essay argues that the current development crisis within the Doha Round is inextricably linked to the nature of modern day trade negotiations. This Round reveals a bargaining process in which the powerful can too easily exploit and prevail over the powerless. This process is also vulnerable to domestic political maneuvers such as capture. Under these circumstances, poor countries' development concerns are not well represented, which accounts, despite years of talks, for the current sorry state of the negotiational outcome on agricultural subsidies and tariffs. To overcome these flaws of trade negotiation, this Essay suggests that certain core legal precepts, …

Toward A New Economic Constitution: Judicial Disciplines On Trade Politics, Sungjoon Cho

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This article first observes that protectionism is an icon of trade politics and thus likely to gather fresh momentum as a domestic election approaches. The paper then problematizes protectionism beyond mere seasonal election politics by revealing its fatal pathologies both to the United States and to the rest of the world. Protectionism basically caters to the special interest at the expense of the larger public interest, which may be coined as a Madisonian constitutional failure. It also deviates from global trading norms, which the United States hypocritically continues to preach adherence to for the rest of the world. This double …

Competition Law And The Wto: Rethinking The Relationship, David J. Gerber

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This essay identifies obstacles to the inclusion of a competition law regime in the WTO and suggests changes that are likely to be necessary if competition law is to become an effective part of the WTO. Two obstacles have impeded inclusion of competition law in the WTO's legal regime and are likely to continue to do so. They are (i) a lack of confidence that the norms, practices and procedures of the WTO rest on a robust conception of community and (ii) uncertainty and concern about what form of competition law might be included and what its role in the …

Gender Dimensions Of Biotechnology Policy And Trade, Constance Z. Wagner

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Gender issues in biotechnology policy and trade are rapidly emerging as some of the most interesting and challenging within these fields. Gender issues have been identified in three important areas impacted by biotechnology, namely agriculture, traditional knowledge, and health. The policy discussion on these matters is still in its early stages and more research will be needed in order to formulate approaches that adequately incorporate a gender perspective. Gendered aspects of biotechnology also raise concerns in international trade law, which have not yet been addressed in the current legal framework at any level, including the World Trade Organization (“WTO”) regime. …

Book Review (Reviewing Petros C. Mavroidis & Alan O. Sykes, The Wto And International Trade Law: Dispute Settlement (2005)), Sungjoon Cho

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Professors Petros Mavroidis and Alan Sykes have produced a dependable compendium on the WTO dispute settlement system. The book consists of six parts corresponding to six critical issues in the field; namely: (1) the function of the WTO dispute settlement system, (2) the standard of review, (3) remedies, (4) participation, (5) unilateral enforcement, and (6) governance. In each part, they carefully selected representative and informative articles which offer readers perspectives that are essential to comprehend this salient and discrete disciplinary area in the study of the WTO. Notwithstanding a few weaknesses, such as limited descriptions of the “dynamic” development of …

Defragmenting World Trade, Sungjoon Cho

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This article argues that unchecked multiplication of regional trading blocs seriously fragments world trade, and simultaneously debilitates the multilateral trading system. It endeavors to overcome some of shortcomings of existing literature in this field, such as sector-specific approach and concentration on economic analysis. It attempts to offer holistic, normative diagnosis and prescription anchored by the trade, regulatory, and development objective of the global trading system represented by the WTO. From such a telic standpoint, the article highlights teleological failures caused by regionalist fragmentation and proposes both institutional and judicial means to defragment world trade. The article warns that such regionalist …

Wto’S Identity Crisis (Reviewing Joost Pauwelyn, Conflict Of Norms In Public International Law: How Wto Law Relates To Other Rules Of International Law (2003)), Sungjoon Cho

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Joost Pauwelyn has written an extensive and thought-provoking treatise on the interaction of norms in public international law (PIL), in particular between norms of World Trade Organization (WTO) and non-WTO norms, through a conceptual lens of “conflict.” His main argument is non-WTO norms should be able to “trump” WTO norms under certain circumstances. After framing the concept of norm conflict in PIL (Chapter 1), and defining the nature of WTO law (“reciprocal” obligations) vis-à-vis that of other branches of PIL such as human rights and international environmental law (“integral” obligations) (Chapter 2), the book unfolds its conflict thesis, including hierarchy …

Gender Mainstreaming In International Trade: Catalyst For Economic Development And Political Stability, Constance Z. Wagner

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This paper examines the role of gender mainstreaming in international trade policy and law upon the tenth anniversary of the Beijing Declaration and Platform for Action (“Beijing Declaration”) and the World Trade Organization (“WTO”). The author notes that these two topics have not been successfully integrated but will need to be if globalization is to proceed in a meaningful, positive way. After tracing the historical development of gender mainstreaming at the international level through the Beijing Declaration, the author outlines the manner in which various intergovernmental organizations within the United Nations system have implemented its mandate. However, gender mainstreaming is …

A Dual Catastrophe Of Protectionism, Sungjoon Cho

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This Article argues that rampant parochial protectionism in the United States, a striking example of which is the recent skirmish over the Vietnamese seafood trade, yields catastrophic effects in domestic constitutional as well as foreign policy terms. Moreover, these harmful effects extend not only to the United States but also to the rest of the world. The Article consists of four Parts. Part I documents the trade dispute over Vietnamese catfish and shrimp exports to the U.S. market, with special attention to the question of how powerful southern lobbies prevailed over the broader economic interests of consuming industries and consumers. …

A Quest For Wto’S Legitimacy, Sungjoon Cho

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No abstract provided.

Linkage Of Free Trade And Social Regulation: Moving Beyond The Entropic Dilemma, Sungjoon Cho

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Focusing on the tension between free trade and social regulation, this Article argues that the WTO, in alliance with other international institutions, must develop a synergistic, nonentropic linkage within the constitutional structure of the global trading system. In the analysis set forth within the article, considerable emphasis is placed on the concept of a “trade constitution.” This is because any practical prescriptions for achieving the desired synergy must necessarily flow from an accurate understanding of the capabilities and constraints of legal and political realities inherent to a broad multisphere trading system composed of Member states, the WTO, and other international …

A Bridge Too Far: The Fall Of The Fifth Wto Ministerial Conference In Cancún And The Future Of Trade Constitution, Sungjoon Cho

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This article is intended to contribute to the process of diagnosis and prescription in response to the fiasco of the Fifth WTO Ministerial Conference in Cancún, Mexico, in September 2003. The article sketches previous WTO Ministerial Conferences in an attempt to glimpse the root of the problems that eventually caused the collapse of the Cancún Conference. It then focuses on the main developments in Cancún and offers a 'post-mortem', not in an attempt to place blame but to better understand what went wrong. It observes that North-South tension is likely to continue for the time being while rich countries, especially …

The Nature Of Remedies In International Trade Law, Sungjoon Cho

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Overemphasizing the sanctions aspect of the WTO law, which is partly attributable to an effort to placate the U.S. Congress into the ratification of the Uruguay Round, tends to create a misguided, distorted image of the WTO, one close to a super body reigning and commandeering over its member countries, rather than one akin to a legal community. This paper questions the conventional belief regarding the efficacy of the WTO sanctions in light of remedies and attempts to reconceptualize the true nature of WTO remedies. Part I examines how the concept of remedies has evolved through the history of the …

The Wto’S Gemeinschaft, Sungjoon Cho

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This Article focuses on the current development-related problems in the global trading system. A widening income gap and widespread poverty among trading nations denote the WTO’s Gesellschaftian nature—interest and power—resulting in structural distortion and manipulation. This Article maintains that the global trading system can achieve its development agenda and become fair and legitimate only through a critical paradigmatic transformation enabled by the configuration of the “WTO’s Gemeinschaft.” This Article observes that a fundamental legal precept, the “Law of Nations” (jus gentium), plays a critical role in actualizing this communitarian telos. Part II redefines the global trading system through the theoretical …

Book Review, J.O. Haley's Antitrust In Germany And Japan, The First Fifty Years, 1947-1998, David J. Gerber

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No abstract provided.

Are Your Click-Wrap Agreements Valid?—Internet Contracting In The Global Electronic Age: Comparative Perspectives For Taiwan, James Maxeiner

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Addresses the issue of standard terms in click-wrap and shrink-wrap licenses generally and in some detail how the laws of Taiwan, Germany, the European Union, the United States and Japan.

Conflicts In The Regulation Of Hostile Business Takeovers In The United State And The European Union, Barbara Ann White

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This essay focuses on hostile business takeovers to illustrate the significance that cultural differences among nations can play in developing a harmonized European Union law. After 12 years of development, the EU Directive regulating hostile takeovers, to everyone’s surprise, was voted down in the EU Parliament in 2001. The EU Parliament consists of the member nations and the movement to defeat the Directive was led by Germany, which had just suffered a brutal hostile takeover of its largest company by British raiders.

The “harmonization” efforts within the EU (i.e., establishing uniform laws among the member nations) mirrors the federalism movement …

Breaking The Barrier Between Regionalism And Multilateralism: A New Perspective On Trade Regionalism, Sungjoon Cho

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No abstract provided.

Book Review, G.B. Doern & S. Wilks Eds., Comparative Competition Policy: National Institutions In A Global Market (1996), David J. Gerber

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No abstract provided.

Another Attack On The Fast Track, Constance Z. Wagner

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Although the Congressional fight over the North American Free Trade Agreement (NAFTA) may have ended when the NAFTA Implementation Act passed by a narrow margin, the controversy surrounding NAFTA has not. In Made in the USA Foundation v. United States, the United Steel Workers of American and others asserted that NAFTA was void because it had been approved as a congressional-executive agreement when it should have been approved as a treaty under Article II, Clause 2 of the U.S. constitution. The author discusses the constitutional law issue raised by the lawsuit, namely the validity of the long-standing U.S. practice of …

The New Wto Agreement On Financial Services And Chapter 14 Of Nafta: Has Free Trade In Banking Finally Arrived?, Constance Z. Wagner

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This article discusses the U.S. policy rationale for seeking free international trade in financial services and assesses whether U.S. policy goals have been met through recent trade agreement negotiations. Free trade in financial services has been a goal of U.S. trade policy since the early 1980’s. Over a period of fifteen years, the United States concluded several agreements on financial services with key trading partners. The most significant agreements are the World Trade Organization (WTO) Agreement on Financial Services (FSA) and Chapter 14 of the North American Free Trade Agreement (NAFTA) on Financial Services. In both of these trade agreements, …