International Trade Law Commons^™

Renewed Injustice: Domestic Investors And The Energy Transition, Fernando Dias Simões

American University International Law Review

The Spanish renewable energy “saga” offers a graphic account of the structural biases of international investment law. Like other countries, Spain introduced economic incentives in support of photovoltaic energy, attracting sizable national and foreign investment. When this regime proved too burdensome on public finances, the government changed it drastically. Around 60,000 Spanish investors were affected. When these investors sought justice, they faced a different fate from their foreign counterparts. While foreign investors had the option to submit their claims to international arbitral tribunals, domestic investors were limited to national courts.

The outcome was a textbook example of unequal treatment of …

The Climate-Arbitration Nexus: How Legitimate Expectations Shape Investor Claims In A Decarbonizing World, M. Uzeyir Karabiyik

American University International Law Review

The global push for climate change mitigation, particularly through renewable energy promotion and fossil fuel phase-out, has sparked a surge in investor-state arbitrations. At the heart of these arbitrations lies the concept of “legitimate expectations,” which is considered by arbitral tribunals as a cornerstone of the fair and equitable treatment (FET) standard. This Article conducts a comprehensive analysis of diverse approaches adopted by arbitral tribunals in interpreting legitimate expectations in the context of climate action. It then delves into specific interpretations of this concept within two categories: disputes related to states’ renewable energy promotion policies and those that stem from …

The United States’ Strengthened National Security Review Of Chinese Investment: Implications From The Tech War, Charles C. Wang, Ulia Liu, Holden H. Dong

American University International Law Review

In recent years, the national security review system of United States (U.S.) foreign investment has entered into a period of intensified scrutiny of Chinese investment. This article analyzes the latest development of the U.S. foreign investment national security review system after the enactment of the 2018 Foreign Investment Risk Review and Modernization Act (FIRRMA) and relevant Executive Orders. The U.S. review of Chinese investment has been greatly strengthened in terms of the expanded scope of review in high-tech areas and prolonged and unpredictable review time. China has become the primary target of the U.S. national security review, especially in the …

Martinique’S Octroi De Mer: Ancient Dock Dues Threaten The Integrity Of The European Union’S (Eu) Internal Market And Contribute To The Cost Of Living Crisis., Johanna Leffler

American University International Law Review

In 1670, France implemented a tax on all imports known as the octroi de mer in Martinique, a Caribbean island in the Lesser Antilles of the West Indies. The octroi de mer outlived France’s colonial rule over Martinique, and today, it is imposed on both imported and locally produced products. This Comment argues that the octroi de mer system undermines the integrity and coherence of the European Union’s (EU) legal order, violating Article 349 of the Treaty on the Functioning of the European Union (TFEU or Treaty) because its very nature is contrary to the fundamental principles of the EU …

Blood Cobalt: Unmasking And Charging Corporations For Involvement In International Law Violations In The Democratic Republic Of Congo, Bolu Jegede

American University International Law Review

Joint Criminal Enterprise (JCE) is a legal doctrine developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to hold participants in a criminal enterprise equally liable for all results of the group’s criminal actions, even if the individuals were not directly involved in committing the crimes. While traditionally used to prosecute individual criminal actions, JCE provides a legal pathway to hold corporations criminally liable for their actions that further international law violations. Although corporations currently do not have specific, listed responsibilities under international law, they are required to respect human rights and ensure their activities do not perpetrate …

Double Standards In The Drug Trade: How European Nations Escape Sanctions While Senegal May Bear The Burden, Erin Soro

American University International Law Review

The focus of international drug control policies on sanctioning transit countries like Senegal for drug trafficking overlooks the significant role played by drug-consuming nations such as France and Spain. Despite a notable decrease in local drug consumption due to democratic progress and strong religious roots, Senegal remains a major transit hub for narcotics destined for Europe. This Comment argues that drug-consuming countries are equally culpable under international law and should face comparable sanctions to effectively address the global drug trade. This Comment highlights the imbalance in sanction implementation and advocates for a more equitable approach, recommending minimal sanctions for Senegal …

The China Challenge: Excluding Mexican/Chinese Evs From The United States, David A. Gantz

American University International Law Review

Part II of this Article summarizes the rules applicable to trade in passenger vehicles under the USMCA and WTO rules. Part III looks at the rationale for BYD and perhaps other Chinese auto producers to build factories in Mexico. Part IV examines the legal and practical options for BYD, and other Chinese autos and SUVs assembled in Mexico to penetrate the U.S. market. It also examines the actions available to the U.S. government to exclude those imports from the United States. Part V examines the implications of the exclusion policies for the United States, China, and Mexico that appear likely …

Achieving Effective Procurement During A Global Crisis: A Study Of The Uncitral Model Law On Public Procurement And The Wto Agreement On Government Procurement, Dmitri Goubarkov

American University International Law Review

The global nature of the COVID-19 pandemic presented unprecedented challenges for public procurement systems around the world. Governments everywhere faced an immense pressure to facilitate the rapid procurement of supplies and services needed to support overburdened health and social care systems. Speed and flexibility were needed to address the shortages of protective personal equipment, distribution of ventilators, and increased demand for medications, all of which required governments to forego traditional public procurement methods. Governments had to balance the underlying principles of their procurement systems—namely, competition, integrity, and transparency—against urgency, and do so in a way that does not erode public …

A Dam Over Troubled Waters? The Obligation To Negotiate In Good Faith In Annex "C" Of The Treaty Of Itaipu, Rene Figueredo Corrales

American University International Law Review

The year 2023 marked the fiftieth anniversary of the entry into force of the Treaty of Itaipú (“the Treaty”). According to paragraph VI of the Treaty, its provisions are to be reviewed after fifty years have elapsed from the date the Treaty entered into force. In October 2021, João Francisco Ferreira, the former Brazilian representative of the Itaipú binational entity, stated in a press conference what seemed to be a new interpretation of the review provision contained in Annex “C” of the Treaty of Itaipú. He noted that there is no obligation to negotiate Annex “C” if an agreement is …

The Conundrum Of The Essential Security Exception: Can The Wto Resolve The Gatt Article Xxi Crisis And Save The Dispute Settlement Mechanism?, Stephen Kho, Yujin Mcnamara, Sarah Kirwin, Brooke Davies

American University International Law Review

The continued blocking of Appellate Body members to the World Trade Organization’s dispute settlement mechanism has thrown the multilateral trading system’s most important governing body into an existential crisis. As a precondition for resuming the WTO’s dispute settlement functions, the United States has insisted that WTO Members agree that the “essential security exception” under Article XXI(b) of the General Agreement on Tariffs and Trade of 1994 is wholly self- judging and thus nonjusticiable. This article argues that the U.S. position is unsupported by the text, context, object and purpose, and negotiating history of Article XXI. Moreover, the U.S. position poses …

Slavery Still Exists And May Have Produced Your Hairdryer, Katherine Pratty

American University International Law Review

In 2020, the International Labour Organization (“ILO”) estimated that forced labor generated $51 billion USD. Many profiteers are not individual bad actors, but rather, corporations. Recently it came to light that one corporate profiteer is the multinational technology manufacturing company, creator of the most awarded hair care device in 2021: Dyson Limited. While Dyson has received praise for its products, Malaysia charged Dyson’s main production factory, ATA IMS, with labor law violations. Shortly thereafter, in February 2022, UK law firm Leigh Day publicly announced its suit against Dyson on behalf of the workers in Dyson’s Malaysia factory.

This Comment analyzes …

The Validity Of Trade Restrictions On Artificial Intelligence Technology Under The General Agreement On Tariffs And Trade's National Security Exception, Isabelle Brundieck

American University International Law Review

This Comment argues that the U.S. restrictions on the export of semiconductors and other AI technology to China do not violate the General Agreement on Tariffs and Trade 1994 (GATT 1994). Instead, such measures are legitimate expressions under GATT 1994’s Article XXI national security exception, which allows a country to break other articles within the agreement if necessary to protect the country’s essential national security interests. Given the national security risks associated with the rise of AI technology and the likelihood that such technology will be supplied to a military enterprise, the current trade restrictions qualify for the exception. However, …

A Little Less Conversation, A Little More Action: How American Unwillingness To Escalate Emboldens Mexico’S Populist Ambitions, David Montero

American University International Law Review

Part II of this Comment will explain the history of Mexico’s relationship with trade, as well as the finer details of the dispute resolution provisions of the USMCA that are of note. Part III will analyze two key violations of the USMCA by AMLO’s administration, contrasting the American response between the two and demonstrating the cycle of violations that has largely been created as a result of the failure to act. Part IV provides a simple recommendation to the U.S. administration for how to effectively halt its southern neighbor’s decline into unfettered populism that harms U.S. trade interests: employ the …

Ftas' Contribution Towards A More Flexible Copyright Space: Possibilities And Limits, Maria Vasquez Callo-Muller

American University International Law Review

Free Trade Agreements (FTAs) have often been considered instruments for heightened intellectual property rights protection, thereby in detriment of a more flexible copyright space. However, since the adoption of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, some FTAs have been incorporating a clause on the “Balance in Copyright and Related Rights Systems.” Among these, the Regional Comprehensive Economic Partnership Agreement and, more recently, the 2021 Australia-U.K. FTA contain such a clause. In addition, more discrete FTAs, such as the AustraliaPeru FTA, also incorporate similar provisions. This article considers what incorporating such clauses in FTAs means for the interpretation of …

A Monopoly As Vast As The Amazon: How Amazon’S Proprietary Data Collection Is A Violation Of The Treaty On The Functioning Of The European Union, Alexis Adams

American University International Law Review

No abstract provided.

The Olives Of Others: The United States Anti-Dumping And Countervailing Duties On Ripe Olives From Spain, Gregory Frering

American University International Law Review

No abstract provided.

Triping On Trade Secrets: How China’S Cybertheft Of U.S. Trade Secrets Violated Trips, Kassidy Schmitz

American University International Law Review

No abstract provided.

State Of Dilution: How U.S. Trademark And Anti-Dilution Law Violates The Agreement On Trade-Related Aspects Of Intellectual Property Rights, Sherwet Witherington

American University International Law Review

No abstract provided.

The Decline Of Online Piracy: How Markets - Not Enforcement - Drive Down Copyright Infringement, João Pedro Quintais, Joost Poort

American University International Law Review

No abstract provided.

Defeating The Object And Purpose Of The Arms Trade Treaty: An Analysis Of Recent U.S. Arms Sales To Saudi Arabia, William Pons

American University International Law Review

No abstract provided.

Africa Can Drum Up Large Infrastructure Deals With Food, Dunia P. Zongwe

American University International Law Review

No abstract provided.

False Hopes: Why A Renegotiated North American Free Trade Agreement Will Violate Conventions 87 And 98 Of The International Labor Organization, Charlie Lyons

American University International Law Review

No abstract provided.

Regulatory Policy And Innovation In The Wine Industry: A Comparative Analysis Of Old And New World Wine Regulations, Kevin J. Fandl

American University International Law Review

No abstract provided.

Evaluating The Current World Trading System; Considering Its Future Prospects, Alan Wm Wolff

American University International Law Review

No abstract provided.

When United Nations Sanctions Impact International Financial Governance: Lessons From The Libyan Sovereign Wealth Fund, Dini Sejko, Daley J. Birkett

American University International Law Review

No abstract provided.

Food Speculation: Between Virtual . . . And Reality, Alexandra Esmel

American University International Law Review

No abstract provided.

Trips-Plus, Public Health And Performance-Based Rewards Schemes Options And Supplements For Policy Formation In Developing And Least Developed Countries, Mohammed K. El-Said

American University International Law Review

No abstract provided.

Global Systemic Risk And International Regulatory Coordination: Squaring Sovereignty And Financial Stability, Federico Lupo-Pasini, Ross P. Buckley

American University International Law Review

No abstract provided.

Striking The Right Balance: Limits On The Right To Bring An Action Under Article 263(4) Of The Treaty On The Functioning Of The European Union, Roberto Mastroianni, Andrea Pezza

American University International Law Review

No abstract provided.

The Privatization Of The Use Of Force Meets The Law Of State Responsibility, Vanessa Ballesteros Moya

American University International Law Review

No abstract provided.