International Trade Law Commons^™

Evaluating The Wto's Two Step Test For Environmental Measures Under Article Xx, Nita Ghei

ExpressO

There has been considerable dissatisfaction expressed by both free trade proponents and environment activists with respect to the WTO’s exercise of authority on the impact of environmental measures on international trade. The Article first sets out a analytical framework, based on public choice theory, which examines the incentives to implement measures to achieve environmental goals which function effectively as disguised barriers to trade. This is followed by a careful examination of the WTO’s jurisprudence in the area, which suggests that the WTO’s focus on the measure being implemented is correct. Furthermore, the two step test under Article XX, as conceived …

Thinking Outside The Border: Homeland Security And The Forward Deployment Of The U.S. Border, Gregory W. Bowman

ExpressO

Following the September 11, 2001, terrorist attacks, the U.S. government implemented a number of inbound cargo security programs it described as “pushing the border outward” or “expanding [the U.S.] perimeter of security.” Are these statements rhetorical flourish, or do these programs materially affect international cargo trade? This article argues that far from being mundane or rhetorical, these cargo security programs are transforming how U.S. borders operate from both a conceptual and practical perspective. Specifically, by moving certain aspects of border functionality to locations well-removed from the physical U.S. border, these programs make U.S. regulation of inbound trade significantly more extraterritorial. …

Only One Kick At The Cat: A Contextual Rubric For Evaluating Res Judicata And Collateral Estoppel In International Commercial Arbitration, Randy D. Gordon

Faculty Scholarship

Arbitration is the preferred method of resolving disputes arising out of international commercial transactions. It stands outside national legal systems because contracting parties agree in advance that they want neutral arbitrators — not local judges and juries — deciding who is at fault when a commercial relationship breaks down. But arbitration nevertheless butts up against litigation from time to time, often because one party attempts to arbitrate a matter that has been litigated to conclusion or vice versa. This article examines — through a contextual approach — questions of preclusion that thereby arise and ultimately suggests that res judicata and …

Damages In Lieu Of Performance Because Of Breach Of Contract, John Y. Gotanda

Working Paper Series

In contract disputes between transnational contracting parties, damages are often awarded to compensate a claimant for loss, injury or detriment resulting from a respondent’s failure to perform the agreement. In fact, damages may be the principal means of substituting for performance or they may complement other remedies, such as recision or specific performance.

Damages for breach of contract typically serve to protect one of three interests of a claimant: (1) performance interest (also known as expectation interest); (2) reliance interest; or (3) restitution interest. The primary goal of damages in most jurisdictions is to fulfil a claimant’s performance interest by …

Imposing Conditions On Developing Countries’ Tariff Preferences, Jennifer S. Jones

ExpressO

No abstract provided.

Greed And Pride In International Bankruptcy: The Problems And Proposed Solutions To “Local Interests”, John A. E. Pottow

Law & Economics Working Papers Archive: 2003-2009

From just-enacted (2005) chapter 15 of the U.S. Bankruptcy Code to the U.K. Enterprise Act of 2002, legislative reforms to international bankruptcy are on the rise. One of the thorniest issues facing scholars and policymakers alike in these efforts is what to do with the nettlesome problem of “local interests.” What exactly are these “local interests,” and what is it that we are we trying to protect? Literature to date has been elusive in pinning this down and has offered, for the most part, only undifferentiated anxiety that an international bankruptcy regime may impinge undesirably upon “local concerns.” This article …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The (Intellectual Property Law &) Economics Of Innocent Fraud: The Ip & Development Debate, Peter Matthew Beattie

ExpressO

This note/essay examines the evidence on the effect of stronger IP laws introduced during the process of international IP law harmonization initiated by the TRIPS agreement, on the economic development of developing countries. It has been argued by proponents of harmonization that stronger IP laws will provide a needed boost to the economic development of developing (and even least-developed) countries. Critics of harmonization have argued that stronger IP laws will have the opposite effect. What has been largely overlooked in this debate is the strength of the evidentiary foundation upon which the arguments of both sides depend. Many of the …

Cnooc-Unocal And The Wto: Discriminatory Rules In The China Protocol Are A Latent Threat To The Rule Of Law In The Dispute Settlement Understanding, Thomas P. Holt

Washington International Law Journal

In the summer of 2005, the Chinese state-owned oil company CNOOC, Ltd. (“CNOOC”) attempted to purchase American-owned Unocal Corporation on very favorable terms. There was a serious problem with the merger, however—the U.S. Congress was not about to let the People’s Republic of China (“China”) buy up an American company, no matter how much it was willing to pay. Following a period of increasingly heated rhetoric about the deal, the U.S. Congressman representing competitor Chevron Corporation’s home district inserted a provision in the Energy Policy Act of 2005 that was intended to, and did, scuttle the deal. The U.S. Congress’ …

Individual Rights And Investor Protections In A Trade Regime: Nafta And Cafta, Amy K. Anderson

Washington and Lee Law Review

No abstract provided.

The Executive Role In Culturing Export Control Compliance, Matthew G. Morris

Michigan Law Review

Part I argues that the nature of export control enforcement requires extensive self-governing behavior on the part of exporters and that enforcement should be directed toward that end. Part II examines several possible justifications for penalizing a business entity and concludes that deterrence and rehabilitation through education are the most viable, particularly in a self-regulating industry. Part III argues that examining the export compliance program is actually a necessary prerequisite to determining the general culpability required under the general factors, and on that basis alone cannot be relegated to a mitigating factor. Part IV argues that an emphasis on corporate …

Peru-U.S. Free Trade Agreement, Ricardo Y. Sallis

Brigham Young University International Law & Management Review

No abstract provided.

Genetically Modified Foods In The International Arena: Trade Conflicts, Labeling Controversy, And The Importance Of Informed Consumer Choice, Ilona M. Deminina

Brigham Young University International Law & Management Review

No abstract provided.

Wto Dispute Settlement Remedies: Monetary Compensation As An Alternative For Developing Countries, Adebukola A. Eleso

ExpressO

When the WTO came into existence formally as an institution in 1995, it was a culmination of the process to institutionalize the General Agreement on Trade and Tariffs (GATT) which had been in operation since 1947. As an institution with Membership of 149 countries, the goal of the WTO is to facilitate the implementation, administration, and operation of the Multilateral Trade Agreements (MTAs); to provide a forum for negotiations among Member States; to administer the Understanding on Rules and Procedures Governing the Settlement of Disputes, amongst others.

The Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) of …

Towards A Development-Oriented Multilateral Framework On Competition Policy, Jae Sung Lee

San Diego International Law Journal

The 1982 United Nations Convention on the Law of the Sea (LOSC) is a successful attempt by the international community to codify and unify the law of the sea. After long negotiations, the LOSC opened for signature at the Third United Nations Conference on the Law of the Sea (UNCLOS III) in 1982. Together with its two formal associations, the Part XI Implementation Agreement 1994 and the Straddling and Migratory Fish Stocks Agreement 1995, it is regarded as one of the most comprehensive documents ever adopted by the international community. The LOSC not only succeeded in addressing all topics covered …

The High Stakes Of Wto Reform, James Thuo Gathii

Michigan Law Review

Behind the Scenes at the WTO definitively exposes how the trade negotiation process makes it possible for a few rich countries to dominate the trade agenda at the expense of all other countries. It is one of the first studies that authoritatively shows how trade negotiations have developed into "a game for high stakes, between unequally matched teams, where much of the game is played with few rules and no referee" (p. 50). The book attributes the deadlocked nature of the Doha Round of multilateral trade negotiations and the recent disruptions of the World Trade Organization's ("WTO") ministerial meetings to …

The Lack Of Dissent In Wto Dispute Settlement: Is There A “Unanimity” Problem?, Meredith Kolsky Lewis

ExpressO

This article is the first piece of scholarship to analyze in detail the fact that there has been almost no dissent in World Trade Organization (WTO) dispute settlement reports. The article first examines the empirical data with respect to dissenting and concurring opinions at both the panel and Appellate Body levels. Fewer than five percent of panel reports and two percent of Appellate Body reports contain separate opinions of any kind. It second shows that the WTO is in fact actively discouraging dissents, and discusses why this might be the case. The article argues that dissents are valuable in general, …

Agricultural Biotechnology: Legal Liability From Comparative And International Law Perspectives, Drew L. Kershen, Stuart J. Smyth

ExpressO

Agricultural biotechnology has generated much discussion about possible legal liability for growing transgenic crops. In this article, the authors discuss how the legal regimes of four nations (Canada, Denmark, Germany, and the United States) would resolve various scenarios likely to raised liabilility issues. Building on this comparative discussion, the authors then discuss these likely scenarios as addressed in the on-going negotiations under the Cartagena Protocol on Biosafety Article 27 (Liability and Redress). The authors end the article with recommendations about an appropriate legal liabilty regime at the international level.

Don’T Get Bit: Addressing Icsid’S Inconsistent Application Of Most-Favored-Nation Clauses To Dispute Resolution Provisions, Gabriel Egli

ExpressO

No abstract provided.

Moot Court Diplomacy, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

A Cheese By Any Other Name: A Palatable Compromise To The Conflict Over Geographical Indications, Ivy Doster

Vanderbilt Law Review

In many grocery stores, shoppers must look in two places to find cheese. The first cheese section is usually near the dairy case; the second is often a specialty cheese case located in the produce department. Why make harried supermarket shoppers rush back and forth between two locations to find what they need for a fondue? The most noticeable difference between the cheeses in the two cases is probably the price: cheeses in the specialty case are generally much more expensive. A second difference is the packaging: many cheeses in the dairy aisle are pre-grated, pre-shredded, or pre-sliced and individually …

A Review Of The Role Of The Cites Secretariat In The Implementation Of The Non-Detriment Finding Requirement, Alice Stroud

William & Mary Environmental Law and Policy Review

No abstract provided.

On-Line But Out Of Touch: Analyzing International Dispute Resolution Through The Lens Of The Internet, Benjamin J.C. Wolf

Cardozo Journal of International and Comparative Law

The note explores the evolution and challenges of international dispute resolution, particularly arbitration, in the context of the internet's impact on global trade. It highlights how arbitration, while effective, faces new complexities such as jurisdictional disputes and enforcement difficulties due to the internet's borderless nature. The author argues that while arbitration remains a vital method for resolving international disputes, it must adapt to the unique challenges posed by digital transactions to ensure continued effectiveness.

Who Will Control Frankenstein?: The Korean Chaebol's Corporate Governance, Jeong Seo

Cardozo Journal of International and Comparative Law

In a chaebol, because a dominant family exercises control with only a small equity-holding, a sharp disparity exists between cashflow rights and voting rights. The controller reduces managerial agency costs but creates his own agency costs. Furthermore, the disparity exacerbates the controller's agency costs. Outsider shareholders' voting rights are ineffectual in eradicating this problem. Therefore, external monitoring devices over the chaebol controller are required.

Korea has relied on government regulation-including attempts to change chaebols' ownership structures-to address this problem. Unfortunately, without well-functioning capital markets, the regulation has proved ineffective. As observed in the SK scandal, a market for …

From Pirates To Partners (Episode Ii): Protecting Intellectual Property In Post-Wto China, Peter K. Yu

Faculty Scholarship

In "From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century," I criticized the ineffectiveness and short-sightedness of the American foreign intellectual property policy toward China. As I argued, the coercive approach taken by the U.S. administrations created a "cycle of futility" in which China and the United States repeatedly threatened each other with trade wars, only to back down in the eleventh hour with a compromise that did not provide sustained improvements in intellectual property protection.

Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul of its …

Of Shrinking Sweatsuits And Poison Vine Wax: A Comparison Of Excuse For Nonperformance Under The Ucc And The Cisg, Carla Spivack

ExpressO

This article compares the doctrine of excuse/exemption for nonperformance under UCC 2-615 and CISG Article 79 analyzing texts, commentary and cases, and the underlying policy concerns of both regimes. It argues that a narrow interpretation of Article 79's basis for excuse/exemption is the reading intended by the drafters and most likely to promote the CISG's goal of facilitating transborder transactions.

Sarbanes-Oxley Act Of 2002: Are Multi-National Corporations Unduly Burdened?, William Alan Nelson

ExpressO

The Sarbanes-Oxley Act was enacted by Congress in response to the frauds perpetrated by several large U.S. companies; Enron and WorldCom were the main catalysts for the swift regulatory response. Though the primary impetus of Sarbanes-Oxley was to deter corruption domestically, its impact has had multinational reach. Problems arise when foreign corporations domiciled outside the United States are subject to both U.S. securities law and the laws of their home country, particularly when the laws are in conflict. This five part comment examines the effect that the Sarbanes–Oxley Act of 2002 has had on multinational corporations. The comment begins by …

Exploring The Source Of Transatlantic Antitrust Divergence, Alan J. Devlin

ExpressO

This paper seeks to explore the sources of substantive divergence between the antitrust regimes of the U.S. and EC and to present a framework upon which harmonization could potentially be achieved. While the rise of the Chicago School and post-Chicago theory have merged to ensure a central role for economics in dictating antitrust enforcement in the United States, no such clear standard has emerged in Europe. The consequences for firms operating on a transatlantic basis are potentially severe, as they have to formulate different business strategies depending on which jurisdiction they operate in. An assessment of EC law demonstrates an …

Global Pharmaceutical Patent Law In Developing Countries- Amending Trips To Promote Access For All, Angela J. Anderson

ExpressO

This comment will analyze the need to amend and revise the current global pharmaceutical patent system under TRIPS to take into account the needs of developing countries and overall public health. This comment will emphasize that the current international trade rules, which although administered by the WTO, are dictated by developed country governments and powerful pharmaceutical companies, and therefore, without reform will further diminish the access of poor people in developing countries to vital medicines. Part II of this comment will provide a general overview of the international trade law governing patents on pharmaceuticals focusing specifically on the development of …

Global Copyright, Local Speech, Michael Dan Birnhack

ExpressO

Copyright is no longer a matter of "promoting the progress of science" in the words of the U.S. Constitution. It is now more than ever before a matter of trade. Furthermore, under the WTO's TRIPS Agreement, we now have a global copyright (G©) regime.

The globalization of copyright law destabilized previous balances. The shift to a trade environment requires us to reevaluate the previous balance. The concern explored in this article is that the old foundations will collapse under the heavy weight of global forces. The concern is that local culture, access to information, research and free speech in general, …