International Trade Law Commons^™

Does The United States Still Care About Complying With Its Wto Obligations?, Reuven S. Avi-Yonah

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The Tax Cuts and Jobs Act of 2017 (“TCJA”) contains a provision that on its face appears to be a blatant violation of the WTO’s Subsidies and Countervailing Measures (SCM) rules. New IRC section 250 applies a reduced 13.125% tax rate to “foreign derived intangible income” (FDII), which is defined as income derived in connection with (1) property that is sold by the taxpayer to any foreign person for a foreign use or (2) services to any foreign person or with respect to foreign property. In other words, this category comprises exports for property and services, including royalties from the …

Using Intellectual Property Law To Promote Human Flourishing For Market Women, J. Janewa Osei-Tutu

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No abstract provided.

Introduction To The Yale Symposium On Trade Law Under The Trump Administration, Kathleen Claussen, David Singh Grewal

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Dispute Settlement Under The Next Generation Of Free Trade Agreements, Kathleen Claussen

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Separation Of Trade Law Powers, Kathleen Claussen

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Old Wine In New Bottles? The Trade Rule Of Law, Kathleen Claussen

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The Other Trade War, Kathleen Claussen

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Taking The First Bite: Who Should Tax Apple's $187 Billion In Ireland, Reuven S. Avi-Yonah, University Of Michigan Law School

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On December 19, 2016, the European Commission (hereinafter “Commission”) published its final decision in the Apple State aid case. The Commission concluded that two tax rulings granted in 1991 and 2007 on the allocation of profits to the Irish branches of Apple Sales International (“ASI”) and Apple Operations Europe (“AOE”) amounted to illegal state aid, and ordered Ireland to immediately recover this aid from Apple. The key issue in the Apple decision is where Apple’s foreign income ($187 billion, as of 2016) should be regarded as being generated. In the authors’ opinion, there is almost no basis for any argument …

Humanizing Intellectual Property: Moving Beyond The Natural Rights Property Focus, J. Janewa Osei-Tutu

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This Article compares the natural rights property framework with the international human rights framework for intellectual property. These two frameworks share a common theoretical basis in the natural rights tradition but appear to lead to conflicting outcomes. Proponents of natural rights to intellectual property tend to support more expansive intellectual property protections. Yet, advocates of a human rights approach to intellectual property contend that human rights will have a moderating influence on intellectual property law. This Article is among the first scholarly works to explore the apparent conflict between these two important frameworks for intellectual property. It concludes that a …

The Next Generation Of U.S.-Africa Trade Instruments, Kathleen Claussen

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You Say Embargo, I Say Bloqueo - A Policy Recommendation For Promoting Foreign Direct Investment And Safeguarding Human Rights In Cuba, Marcia Narine Weldon

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The United States is the only major industrialized nation that restricts trade with Cuba. Although President Obama issued several executive orders that have facilitated limited trade (and President Trump has scaled some back), an embargo remains in place, and by law, Congress cannot lift it until, among other things, the Cuban government commits to democratization and human rights reform. Unfortunately, the Cuban and U.S. governments fundamentally disagree on the definition of "human rights, " and neither side has shown a willingness to compromise. Meanwhile, although some US. investors clamor to join their European and Canadian counterparts in expanding operations in …

Country By Country Reporting And Corporate Privacy: Some Unanswered Questions, Reuven S. Avi-Yonah

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Corporate privacy is an oxymoron. Individuals have a right to privacy, which the Supreme Court has recognized at least since Griswold v. Connecticut (1965). Warren and Brandeis’ famous defense of the right to privacy (1890) clearly applied only to individuals, because only individuals have the kind of feelings that are affected by invasions of privacy. Corporations are legal entities, and the concept of privacy does not apply to them, as the Supreme Court held in 1906. Thus, any objection to making corporate tax returns public cannot rest on the right to privacy. In fact, corporate returns were made public in …

Human Development As An Intellectual Property Metric, J. Janewa Osei-Tutu

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No abstract provided.

Sources Of Information On The Trans-Pacific Partnership, Barbara H. Garavaglia

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The Trans-Pacific Partnership Agreement (TPP) is a free trade agreement between 12 countries in the Asia Pacific region: Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. The agreement, signed by the U.S. and other participating countries in Auckland, New Zealand on February 4, 2016, “promotes economic integration to liberalise trade and investment” and “bring economic growth” to the region and participating countries. One reason for the sense of uncertainty, unease, and concern surrounding free trade agreements in general and the TPP in particular is that the negotiations are not public and …

Contemporary Practice Of The United States Relating To International Law, April 2016, Kristina Daugirdas, Julian Davis Mortenson

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In this section: • United States Achieves Progress in Iran Relations with Nuclear Agreement Implementation, Prisoner Swap, and Hague Claims Tribunal Resolutions • European Union and United States Conclude Agreement to Regulate Transatlantic Personal Data Transfers • After Lengthy Delay, Congress Approves IMF Governance Reforms that Empower Emerging Market and Developing Countries • United States Joins Consensus on Paris Climate Agreement • United States and Eleven Other Nations Conclude Trans-Pacific Partnership

Explaining Trade Agreements: The Practitioners' Story And The Standard Model, Donald H. Regan

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There are two widely accepted explanations of why politically motivated governments make trade agreements. There is an informal explanation, which I shall call the ′practitioners′ story′, even though it is most economists′ informal view as well. And there is a formal explanation in the economics literature, which I shall call the ′standard model′, referring to the basic structure shared by the Bagwell-Staiger and Grossman-Helpman models. Unfortunately, the practitioners′ story and the standard model contradict each other at every crucial point. For example, in the practitioners′ story, trade agreements are about reducing politically motivated protectionism; and getting an agreement depends on …

Measures With Multiple Purposes: Puzzles From Ec-Seal Products, Donald H. Regan

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European Communities—Measures Prohibiting the Importation and Marketing of Seal Products is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why Brazil—Retreaded Tyres is not such a case.) This generates puzzles about applying the definition of a “technical regulation” to complex measures; about whether an exception to a ban can be justified by a purpose different from that of the ban; and about how to apply “less restrictive alternative” analysis to measures with multiple goals. The first of these puzzles …

Ec – Seal Products: Seals And Sensibilities (Tbt Aspects Of The Panel And Appellate Body Reports), Donald H. Regan

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The EC-Seal Products case stemmed from complaints by Canada and Norway against European Union regulations that effectively banned the importation and marketing of seal products from those countries. The EU said it had responded to European moral outrage at the killing of seals. Canada and Norway challenged the regime under various provisions of the Technical Barriers to Trade (TBT) Agreement and the GATT. This article considers TBT aspects of the Panel and Appellate Body decisions. It discusses issues such as whether there is any bright line to be drawn between legitimate and illegitimate purposes in regulation, the proper legal meaning …

Investment Arbitration In East Asia And The Pacific A Statistical Analysis Of Bilateral Investment Treaties, Other International Investment Agreements And Investment Arbitrations In The Region, Sandra Friedrich, Claudia T. Salomon

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Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region's continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IlAs. On the heels of this development, the …

Regional Integration In Africa, Charles Chernor Jalloh, Ademola Abass

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The Margin Of Appreciation In International Investment Law, Julian Arato

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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 …

Managing Global Supply Chains: Coca Cola And Sugar In Brazil, Caroline Bradley

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Value Divergence In Global Intellectual Property Law, J. Janewa Osei-Tutu

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It is a challenge for the United States to adequately protect the interests of its intellectual property industries. It is particularly difficult to effectively achieve this objective when the interests of the United States are not in line with the social, cultural, and economic goals of other nations. Yet, as a major exporter of intellectual property protected goods, the United States has an interest in negotiating effective international intellectual property agreements that are perceived to be legitimate by the state signatories and their constituents. Focusing on value divergence, this Article contributes to the growing body of literature on developing a …

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

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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 …

The Cape Town Convention's International Registry: Decoding The Secrets Of Success In Global Electronic Commerce, Jane K. Winn

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The International Registry, established pursuant to the Cape Town Convention on International Interests in Mobile Equipment, is a new global electronic commerce system for recording and establishing the relative priority of interests in aircraft equipment. Other examples of global electronic commerce systems include the airline computer reservation system, the SWIFT financial network, and payment card networks.

The International Registry may be the most successful global electronic commerce system ever built in terms of the speed with which it was implemented, its adoption rate, and the dearth of controversy surrounding its operation. The real "driver" of its success is demand for …

What Role For “Women,” “Men,” And Transpeople/Intersex People In Gender Equality: A Commentary, Edward D. Stein

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This has been a very rich opening panel to what promises to be a terrific conference. The panelists' comments go in such varied directions that it is a challenge to be both a commentator and summarizer, especially when I have just a few minutes to speak. What I plan to do is say a little bit to draw together some of the themes that the panelists have been talking about that are connected to a couple of topics I have been working on while at the same time trying to look forward to some of the things I hope we …

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

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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.

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

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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 …

Divided By Common Language: ‘Capture’ Theories In Gatt/Wto And The Communicative Impasse, Dongsheng Zang

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This article tries to present an analytic framework for the understanding of WTO's failure in the Doha Round negotiations.

Substance, Procedure, And Institutions In The International Harmonization Of Competition Policy, Daniel A. Crane

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Many people who pay attention to the rapid development of antitrust regimes across the globe hold two tenets in common. First, most of the relevant stakeholders would benefit if competition policy could be harmonized interjurisdictionally.' Second, and alas, this beneficial harmonization is unlikely to happen on a significant scale in the foreseeable future.2 To many, antitrust harmonization is thus a noble but utopian aspiration. I generally share both the former sentiment and the latter lament but both are far too general to be of much use without further specification. Uniformity of competition policy is valuable to be sure, but not …