International Trade Law Commons^™

When Drills And Pipelines Cross Indigenous Lands In The Americas, Guillermo J. Garcia Sanchez

Faculty Scholarship

From the Missouri River, passing through the Sonora Desert, all the way down to the Amazon Forest and the Andean Mountains, drills and pipelines are crossing over indigenous lands. In an energy-thirsty continent, there is no land left to spare, not even tribal land. Many of these energy infrastructure projects involve international investments that are protected by treaties and enforced by arbitral tribunals. At the same time, tribal communities have an internationally recognized right to receive prior and informed consultation before they are affected by projects of this nature. The Article focuses on the clash of rights between energy extraction …

Delaware's Global Competitiveness, William J. Moon

Faculty Scholarship

For about a hundred years, Delaware has been the leading jurisdiction for corporate law in the United States. The state, which deliberately embarked on a mission to build a haven for corporate law in the early twentieth century, now supplies corporate charters to over two thirds of Fortune 500 companies and a growing share of closely held companies. But Delaware’s domestic dominance masks the important and yet underexamined issue of whether Delaware maintains its competitive edge globally.

This Article examines Delaware’s global competitiveness, documenting Delaware’s surprising weakness competing in the emerging international market for corporate charters. It does so principally …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Faculty Scholarship

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …

A Constitutional Moment In Cross-Border Taxation, Steven Dean

Faculty Scholarship

The complex pattern of formal and informal rules that governs the taxation of cross-border transactions tends to be thought of as rigidly path dependent. (Rixen, 2011) In truth, the Classification and Assignment Constitution has repeatedly undergone sudden changes initiated by influential actors. A failure to acknowledge the power wielded by a handful of states and organizations nurtures an evolutionary myth of cross-border taxation, but a close examination reveals traces of intelligent design, with repeated interventions altering the course of its development.

A century ago a material constitution coalesced around an elegant but flawed algorithm providing for the "classification and assignment …

Patriot Games: India And China: Brinkmanship In The Realm Of Apps, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

India recently decided to ban a slew of applications (“apps”), mostly Chinese, accessed on mobile phones and other internet-based devices citing privacy and security concerns arising from the surreptitious mining and profiling of user data that is collected by these apps. It found these activities to be prejudicial to the sovereignty and integrity of India, defence of India, security of the state and public order. China responded that it suspected India’s decision to ban these apps to have violated the obligations that India had committed to under the framework of he World Trade Organization (WTO). Through this paper, we explore …

Regulating Antitrust Through Trade Agreements, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These …

Trading Pharma Goods The Wto Legal Framework, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

Trading of pharma goods has attracted widespread global attention in the wake of the COVID-19 pandemic. The Agreement on Trade in Pharmaceutical Products (“Pharma Agreement”) – a sectoral agreement between a handful of WTO members – was concluded in 1994 and aimed to eliminate duties on various pharmaceutical products. Nevertheless, this is all that the Pharma Agreement does: it eliminates duties and does not touch upon the regulatory aspects relating to marketing of pharmaceutical goods. WTO members remain sovereign to decide on this score, but must observe the WTO Licensing Agreement as well as nondiscrimination. Thus, while the intensity of …

Plurilateral Cooperation As An Alternative To Trade Agreements: Innovating One Domain At A Time, Bernard M. Hoekman, Charles F. Sabel

Faculty Scholarship

At the end of 2017 different groups of WTO members decided to launch talks on four subjects, setting aside the WTO consensus working practice. This paper argues that these ‘joint statement initiatives’ (JSIs) should seek to establish open plurilateral agreements (OPAs) even in instances where the outcome can be incorporated into existing schedules of commitments of participating WTO members. Designing agreements as OPAs provides an institutional framework for collaboration among the responsible national authorities, transparency, mutual review and learning, as well as alternatives to default WTO dispute settlement procedures which may not be appropriate for supporting cooperation on the matters …

Informing Wto Reform: Dispute Settlement Performance, 1995-2020, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste

Faculty Scholarship

This article presents salient facts on the performance of WTO dispute settlement, using an updated dataset on cases adjudicated between 1992 and mid 2020. The dataset provides a comprehensive compilation of information on WTO disputes, including complainants, respondents and third parties; the substantive matters tabled; the WTO provisions invoked; the claims that are accepted or rejected by adjudicating bodies; the time involved to complete the consultation, panel and appeal (Appellate Body) stages; and the identity of panelists and how they were appointed. We highlight elements of the operation of the system that are salient to WTO reform discussions, while drawing …

Trade Integration In Turbulent Times, Petros C. Mavroidis

Faculty Scholarship

The WTO has been going through an existential crisis, from which it is like that it will not exit unscathed. If it is to remain an organization of universal membership, it will have to content itself to shallow integration. Its continuing policy relevance, will largely depend on the choices it will make about the nature of its own integration process. The good news is that no one can simply walk away from globalization. The downside (for the WTO) is that globalization is being increasingly administered through bilateral contracts.

Facilitating Money Judgment Enforcement Between Canada And The United States, Paul George

Faculty Scholarship

The United States has attempted for years to create a more efficient enforcement regime for foreign-country judgments, both by treaty and statute. Long negotiations succeeded in July 2019, when the Hague Conference on Private International Law (with U.S. participants, including the Uniform Law Commission) promulgated the new Hague Judgments Convention which harmonizes judgment recognition standards but leaves the domestication process to the enforcing jurisdiction. In August 2019, the Uniform Law Commission took a significant step to fill that gap, though limited to Canadian judgments. The Uniform Registration of Canadian Money Judgments Act provides a registration process similar to that for …

Overlapping Copyright And Trademark Protection In The United States: More Protection And More Fair Use?, Jane Ginsburg, Irene Calboli

Faculty Scholarship

This chapter addresses the phenomenon of overlapping rights under US law and complements Chapter 25 authored by Professors Derclay and Ng-Loy on the overlap of trademark, copyright, and design protection under several other Common Law and Civil Law jurisdictions. Because the United States does not provide sui generis protection for industrial design, but instead protects design through trademark law (notably by protecting trade dress) and design patents, this chapter focuses on the overlap between trademark and copyright protection. The Lalique bottles created for Nina Ricci perfumes, for example, may enjoy both trademark and copyright protection in the United States. Similarly, …

Sticky Bits, Cree Jones, Weijia Rao

Faculty Scholarship

One of the defining features of international investment law is its enforceability; almost all bilateral investment treaties (“BITs”) in a network of more than 3,200 agreements allow enforcement through investor-state arbitration. Thus, if a host country violates a treaty and harms a protected investment, the investor can bring a direct enforcement action against the host country through international arbitration. More than 800 enforcement actions have been initiated by investors, and more than seventy billion dollars have been awarded by arbitrators. The enforcement of international investment law has also given rise to a critique that arbitrators are expanding treaty protections through …

Trips And Its Contents, Peter K. Yu

Faculty Scholarship

In 2006, I published TRIPS and Its Discontents in a symposium commemorating the tenth anniversary of the WTO TRIPS Agreement. At that time, developing countries were deeply discontent with the Agreement and the new and higher intellectual property standards that the WTO had imposed upon them. By contrast, when the TRIPS Agreement was about to celebrate its twenty-fifth anniversary in April 2019, the developing countries' trenchant critiques of the Agreement were mostly gone. Also disappearing were their usual accusations of neoimperialism.

What has happened? Have developing countries successfully adjusted, or become sensitized, to the high intellectual property standards in the …

China's Innovative Turn And The Changing Pharmaceutical Landscape, Peter K. Yu

Faculty Scholarship

For more than a decade, China has been the world's leading supplier of active pharmaceutical ingredients. Today, it is not only the world's second largest pharmaceutical market, behind only the United States, but it also produces about four percent of the world's new pharmaceutical products. Despite these impressive accomplishments, China does not have internationally recognized pharmaceutical brands that are comparable to those found in Europe or the United States, such as Johnson & Johnson, Merck, Novartis, Pfizer, Roche and Sanofi. Nor does China rival India in its status as the "pharmacy of the world," providing generic drugs to needy countries …

Uk & Ksa Vats: A Cutting-Edge Proposal – Mini-Blockchain And Vatcoin, Richard Thompson Ainsworth, Musaad Alwohaibi, Mike Cheetham

Faculty Scholarship

This paper develops, extends, and clarifies themes introduced in five prior papers dealing with blockchain, and VATCoin in the context of both (a) the new VATs in the Gulf Cooperation Council (GCC), and (b) the mature VATs in the EU. Five additional papers on VAT technology advances in Fiji, with blockchain and VATCoin applications to New Zealand’s approach to online sales platforms (the Netlix Tax) are similarly referenced and extended. The GCC VAT papers were exploratory. For the most part, they were composed before any GCC jurisdiction had implemented a VAT, and in three instances even before the GCC Framework …

Delaware's New Competition, William J. Moon

Faculty Scholarship

According to the standard account in American corporate law, states compete to supply corporate law to American corporations, with Delaware dominating the market. This “competition” metaphor in turn informs some of the most important policy debates in American corporate law.

This Article complicates the standard account, introducing foreign nations as emerging lawmakers that compete with American states in the increasingly globalized market for corporate law. In recent decades, entrepreneurial foreign nations in offshore islands have used permissive corporate governance rules and specialized business courts to attract publicly traded American corporations. Aided in part by a select group of private sector …

Misaligned Lawmaking, Timothy Meyer

Faculty Scholarship

This Article makes three contributions. First, it introduces the Misalignment Thesis in the context of U.S. trade policy. The Misalignment Thesis is a descriptive claim about how the structure of a legislative bargain influences the long-term stability and effectiveness of that bargain. Second, the Article introduces the normative corollary to the Misalignment Thesis: if political stability hinges on respecting the legislative bargain, interdependent policies should be subject to renegotiation on the same timeline and implementation on the same terms. In light of this prescription, I offer three concrete proposals for aligning trade liberalization and trade adjustment assistance in order to …

The U.S. Posture On Global Access To Medication & The Case For Change, Michael Palmedo, Srividhya Ragavan

Faculty Scholarship

The year 2020 marks the 25th anniversary of including intellectual property rights within the larger agenda of trade. While the marriage between trade and intellectual property was always uncomfortable, COVID-19 exposed the flaws, failures and the inadequacy of the trade agenda to harmonise intellectual property rights, particularly for patents in pharmaceuticals. Typically, the United States through its questionable United States Trade Representative (USTR) process exposed the vulnerabilities of the intellectual property systems of the rest of the world. COVID-19 exposed the manner in which the so-called ‘superior’ intellectual property regime of the US left the country with a weak health-care …

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo J. Garcia Sanchez

Faculty Scholarship

Chinese offshore investments in the oil and gas sector around the world are on the rise. Like dragons roaming the seas trying to dominate the tides, Chinese state-owned companies are particularly eager to bid for oil fields in maritime borderlines. The article tells the story of how Chinese state-owned companies are over paying for oil on the US-Mexico boundary to gather experience on how China’s global competitors handle resource development conflicts. My argument is that Chinese participation in transboundary field development fits within a long-term strategy to master international legal regimes. The presence of these petro-dragons in borderlines is an …

Anticipating Venezuela's Debt Crisis: Hidden Holdouts And The Problem Of Pricing Collective Action Clauses, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

A creditor who asks for stronger enforcement rights upon its debtor’s default will rationally accept a lower interest rate reflecting the greater expected recovery the exercise of those rights provides. Over a dozen studies, however, have failed to document this basic relationship in the context of the collective action clause, a key provision in sovereign bonds. We conjecture that this failure is because enforcing the rights in question requires collective decision-making among anonymous creditors with different interests, impeding market predictions regarding future price effects. The pricing of rights that require collective enforcement thus turns on whether the market observes an …

Preventing The Bad From Getting Worse: The End Of The World (Trade Organization) As We Know It?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent survey evidence and proposals made in long-running negotiations to improve WTO dispute settlement procedures illustrate that many stakeholders believe the system needs improvement. The Appellate Body crisis could have been avoided but for the use of consensus as WTO working practice. Resolving the crisis should prove possible because the matter mostly concerns a small number of more powerful WTO members. We make several proposals to revitalize the WTO appellate function but argue that unless the WTO becomes a locus for new rulemaking, re-establishing the appellate function will not prevent a steady decline in the salience of the organization. A …

The Paradox Of Contracting In Markets, Robert E. Scott

Faculty Scholarship

Traditional economic analysis distinguishes economic organization along three dimensions: firm, contract, and market. This categorization is misleading in any number of respects, but none more so than the assumption that contract and market are separate modes of exchange. In fact, other than barter, which is almost unknown in contemporary commercial transactions, every market transaction is implemented by contract. Thus, in markets the two modes of exchange are inextricably combined. Moreover, the vast majority of contract activity occurs in some form of market, so it does not require much loss of generalization to say that not only are contracts in all …

Insulating A Wto Investment Facilitation Framework From Isds, George A. Bermann, N. Jansen Calamita, Manjiao Chi, Karl P. Sauvant

Faculty Scholarship

The authors identify several ways in which a WTO investment facilitation framework for development can be insulated from investor-state dispute settlement provisions in international investment agreements, and suggest specific formulations in this respect.

Stakeholder Preferences And Priorities For The Next Wto Director General, Matteo Fiorini, Bernard Hoekman, Petros C. Mavroidis, Douglas Nelson, Robert Wolfe

Faculty Scholarship

The WTO is looking for a new Director-General (DG). What does the trade community think is needed? This paper reports on the results of an expert survey undertaken as part of a research project on global trade governance at the European University Institute to solicit views on what WTO members and the international trade community consider the most important attributes of candidates for the position, as well as views on the substantive policy and institutional reform priorities confronting the WTO – and thus the new DG. The results suggest strong support for someone with managerial and political experience, and a …

To Ab Or Not To Ab?: Dispute Settlement In Wto Reform, Bernard M. Hoekman, Petros C. Mavroidis

Faculty Scholarship

Recent debates on the operation of the WTO’s dispute resolution mechanism have focused primarily on the Appellate Body (AB). We argue that this neglects the first-order issue confronting the rules-based trading system: sustaining the principle of de-politicized conflict resolution that is reflected in the negative consensus rule for adoption of dispute settlement findings. Improving the quality of the work of panels by appointing a roster of full-time professional adjudicators, complemented by reforms to WTO working practices that reduce incentives to resort to formal dispute settlement, can resolve the main issues that led to the AB crisis. Effective, coherent, and consistent …

Making Sense Of The Arbitrator’S Ruling In Ds 316 Ec And Certain Member States – Measures Affecting Trade In Large Civil Aircraft (Article 22.6-Ec): A Jigsaw Puzzle With (At Least) A Couple Missing Pieces, Petros C. Mavroidis, Kamal Saggi

Faculty Scholarship

“The U.S. won a $7.5 Billion award from the World Trade Organization against the European Union, who has for many years treated the USA very badly on Trade due to Tariffs, Trade Barriers, and more. This case going on for years, a nice victory”, tweeted President Trump’s on October 3, 2019. The United States (US) won not only the highest amount of retaliation ever adjudicated in the history of the WTO but also an ongoing right to retaliate on an annual basis until such time as the EU had complied by either removing the subsidies it granted Airbus or somehow …

Wto Dispute Settlement And The Appellate Body Crisis: Insider Perceptions And Members’ Revealed Preferences, Matteo Fiorini, Bernard M. Hoekman, Petros C. Mavroidis, Maarja Saluste, Robert Wolfe

Faculty Scholarship

The WTO dispute settlement system is in crisis, following the decision of the United States to block new appointments to the Appellate Body (AB). The AB went into hibernation in December 2019, not having enough sitting members to be able to operate. What do WTO members think of the performance of WTO dispute settlement? How much do WTO members care about the existence and operation of an appeals mechanism? In this article, we report on the results of a survey of WTO Members’ perceptions of the AB and the role it plays (should play). We complement this with data on …

Washington’S 'Cutting-Edge' Solution To Combat Sales Tax Fraud, Richard Thompson Ainsworth, Robert Chicoine, Andrew Leahey, Sunder Gee

Faculty Scholarship

Globally, consumption tax compliance (value added tax and retail sales tax) has gone digital – digital invoices are becoming mandatory, centralized monitoring of transactions and tax payments are increasingly common, and artificial intelligence is assessing fraud risks in real-time. When tax is collected, it is increasingly being remitted in near-real-time. This is the trajectory for the modern retail sales tax (RST) imposed by most states in the US. While this may appear to be revolutionary to the average American, it is a well-worn path among global nations using the value added tax (VAT). The RST will eventually be following suit. …

Data First, Tax Next: How Fiji’S Technology Can Improve New Zealand’S ‘Netflix Tax’ (Part 4), Richard Thompson Ainsworth

Faculty Scholarship

This is the fourth paper examining the recent amendments to the New Zealand Goods and Services Tax (GST); amendments that are collectively known as the Netflix Tax. These papers assess the effectiveness of the Netflix provisions, and how they could be enhanced if New Zealand adopted the technology and vision of Fiji’s VAT Monitoring System (VMS). The Netflix provisions were effective, July 1, 2017.

This final paper considers: (a) the treatment of domestic agents when they are used by remote service providers to facilitate sales to New Zealand customers; (b) how New Zealand intends to respond to resident consumers who …