International Trade Law Commons^™

Choosing Between Liberalization And Regulatory Autonomy Under Gats: Implications Of U.S.-Gambling For Trade In Cross Border E-Services, Nancy J. King, Kishani Kalupahana

Vanderbilt Journal of Transnational Law

In 2005, the World Trade Organization (WTO) Appellate Body presided over United States--Measures affecting the cross-border supply of gambling and betting services (U.S.-Gambling), in which Antigua argued that U.S. criminal laws banning the provision of cross-border online gambling services violate U.S. commitments under the General Agreement on Trade in Services (GATS). For the first time, the WTO's dispute settlement process directly addressed the application of GATS to domestic regulatory barriers restricting cross-border trade in services. This Article examines GATS rules on domestic regulation as well as the WTO Appellate Body and Panel decisions in the case and asks if the …

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …

International Antitrust Negotiations And The False Hope Of The Wto, Anu Bradford

Faculty Scholarship

Multinational corporations ("MNCs") operate today in an increasingly open global trade environment. While tariff barriers have collapsed dramatically, several states and numerous scholars have raised concerns that the benefits of trade liberalization are undermined by various non-tariff barriers ("NTBs") to trade, including the anticompetitive business practices of private enterprise. As a result, demands to link trade and antitrust policies more closely by extending the coverage of the World Trade Organization ("WTO") to incorporate antitrust law have gathered momentum over the last decade.

Most advocates of a WTO antitrust agreement base their normative claims on largely intuitive assumptions about the necessity …

Can China Promote Electronic Commerce Through Law Reform? Some Preliminary Case Study Evidence, Jane K. Winn, Song Yuping

Articles

The government of the People’s Republic of China (P.R.C.) has announced its intention to make China a global leader in innovation by 2020. Many Chinese business leaders share this goal. The primary focus of this national strategy is to transform China into an exporter of high-technology products based on Chinese designs rather than merely a low cost, high volume manufacturer of products based on technology developed in other countries.

This paper will examine the implications for this strategy with regard to the use of computerized management information systems by Chinese businesses, and its relationship to recent law reform efforts intended …

Iraq, Secured Transactions, And The Promise Of Islamic Law, Mark J. Sundahl

Vanderbilt Journal of Transnational Law

When Iraq regains political stability, major reconstruction projects will have to be funded and local businesses will need financing in order to gain a foothold in the new economy. In order to attract the necessary capital, the Iraqi law of secured transactions must be reformed to allow for lenders to take security in the assets of their borrowers. However, the challenge of reforming Iraqi commercial law is complicated by the requirement under the new Iraqi Constitution that any new statutes enacted by the Iraqi legislature comply with the principles of Islamic law. This Article sets forth proposals for reform that …

Say What You Mean: Improved Drafting Resources As A Means For Increasing The Consistency Of Interpretation Of Bilateral Investment Treaties, Kelley Connolly

Vanderbilt Journal of Transnational Law

Following the demise of international recognition of the Hull Rule as the standard governing foreign direct investment, countries throughout the world have turned to bilateral investment treaties (BITs) to govern direct investment relationships. BITs allow countries to bind themselves credibly to commitments by granting substantive rights to investors and offering remedies for violations of those rights, thereby incentivizing new investments and facilitating economic ventures. The recent dramatic increase in disputes arising under BITs has shaken the legitimacy of these agreements. Arbitration panels interpret these documents inconsistently, which disparately impacts developing nations negatively. The inconsistent interpretations rob BITs of clarity and …

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …

Legislative Implementation Of The Food Chain Approach, Jessica Vapnek

Vanderbilt Journal of Transnational Law

Food safety is an essential element of food security, since "adequate" food means food that is not only available, but also safe. Food safety systems have traditionally focused on end-product testing, which is an unsatisfactory means of ensuring safe food. An increasing focus on prevention has spurred interest in a food chain approach, which aims to control all steps in the food chain from production to consumption. Although the approach has drawn international attention in recent years, national lawmakers have lacked guidance on its implementation. This Article serves that need. Part II of the Article describes the international backdrop to …

Liberalizing Trade In Agriculture And Food Security--Mission Impossible?, Christine Kaufmann, Simone Heri

Vanderbilt Journal of Transnational Law

The Agreement Establishing the World Trade Organization (WTO) foresees that trade should be conducted with a view to raising standards of living. It is undisputed that raising living standards contributes to the implementation of the right to food. Indeed, state parties to the WTO have obligations regarding the right to food not only under the international trade system, but also under the human rights regime. All WTO state parties are bound by customary human rights law, and most have ratified the International Covenant on Economic, Social, and Cultural Rights, of which Article 11 contains the most important codification of the …

The Limits Of International Human Rights Law And The Role Of Food Sovereignty In Protecting People From Further Trade Liberalization Under The Doha Round Negotiations, Wenonah Hauter

Vanderbilt Journal of Transnational Law

International free trade agreements under the auspices of the World Trade Organization (WTO) seriously undermine the international human right to adequate food. Conceivably, those deprived should be able to seek redress under Article 11 of the International. Covenant on Economic, Social, and Cultural Rights (ICESCR), which spells out the right to adequate food. Unfortunately, while the concept of the right to adequate food has developed substantially since its inception, its implementation has been slow. It is not a well-developed tool for individuals or the groups representing them to redress harms that will likely result from the current Doha Round negotiations …

Paths To Local Food Security: A Right To Food, A Commitment To Trade, Marsha A. Echols

Vanderbilt Journal of Transnational Law

International bodies and nation-states attending international meetings on the subject have agreed that there is a "right to food." The first Millennium Development Goal, in which members of the United Nations General Assembly agreed to halve the number of persons without adequate food by the year 2015, complements this right to food. Many persons believe that the right to food--especially at the national level--is linked to national food self-sufficiency. Opponents of this view argue that self-sufficiency is economically irrational in many territories. Others believe that for many countries, particularly nations in sub-Saharan Africa, a government's obligation to ensure food security …

Food Safety, South-North Asymmetries, And The Clash Of Regulatory Regimes, Obijiofor Aginam

Vanderbilt Journal of Transnational Law

This Article explores the globalization of food safety concerns driven by the phenomenon of economic globalization, and the "legalization" of food safety disputes within the rules-based architecture of the World Trade Organization (WTO). Focusing on the interaction between WTO norms and the treaties of other multilateral organizations, the Article discusses the implications of the "clash of food safety regulatory regimes" for South-North asymmetrical relations between the rich and poor countries. The Article also discusses global economic diplomacy and the emerging WTO jurisprudence on the Agreement on Sanitary and Phyto-Sanitary Measures (SPS) disputes. This Article explores both the perceived and actual …

Empathizing With France And Pakistan On Agricultural Subsidy Issues In The Doha Round, Raj Bhala

Vanderbilt Journal of Transnational Law

Among the most contentious issues (if not the most contentious issue) in the Doha Round negotiations are agricultural subsidies. Developed countries stand accused of selfish adherence to domestic support and export subsidies that impoverish farmers in developing countries. Developing countries are blamed for self-inflicted wounds, caused by stubborn adherence to protectionist policies, covering both agricultural and industrial sectors. Agricultural subsidy cuts, as well as increased market access, are politically impossible for developed countries to concede without reciprocal access from developing countries, not only on farm products, but also in non-agricultural markets and service sectors.

There has been, and continues to …

Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo

Faculty Scholarship

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …

Shifting Paradigms Of Parochialism: Lessons For International Trade Law, Elizabeth Trujillo

Faculty Scholarship

Much of the study of international private law has focused on exploring differences in legal systems in light of domestic issues or harmonization. Much less emphasis has been on accepting these various parochial interests as part of a global legal structure. This preliminary study into what drives parochial attitudes can help international trade scholars observe the traditions engendering these differing parochial attitudes and their impact on trade. Through a pluralist lens and in borrowing from studies in the social sciences on parochialism, this paper attempts to bring to light a world of "hybrid legal spaces" that adds complexity to the …

Taming The Dragon: China's Experience In The Wto Dispute Settlement System, Henry Gao

Research Collection Yong Pung How School Of Law

To many observers, a major challenge raised by China's accession to the WTO is whether the WTO dispute settlement system could cope with China, one of the major traders in the world with an economy that is halfway between a planned economy and a market economy. In this article, the author tries to answer this question by reviewing China's experience in the WTO dispute settlement system. Historically, the senior leadership in China attached disproportionate importance to the WTO dispute settlement system and preferred to avoid using the system. Thus, in the first four cases in which China was sued or …

A Common Tool For Individual Solutions: Why Countries Should Establish An International Organization To Regulate Internet Content, Paul Przybylski

Vanderbilt Journal of Entertainment & Technology Law

This note advances the case for an international organization to control Internet content. Part I describes the current state of affairs with respect to Internet regulation. First, this part describes briefly how the Internet works, to the extent that such a description is necessary to advance the argument presented in this note. Second, concentrating on Europe, the United States, and China, Part I describes the diverging preferences of countries regarding Internet regulation, the approaches they have taken, and the problems they have encountered due to the international nature of the Internet. Third, this part addresses the major attempt at international …

Article Iii And Supranational Judicial Review, Henry Paul Monaghan

Faculty Scholarship

With the rise of supranational legislative bodies, the use of supranational adjudicatory bodies has also increased. These adjudicatory bodies have even been allowed to review the domestic law decisions offederal administrative agencies, and their decisions are insulated from any review by Article III courts. These developments have been met by intense opposition. This Article addresses the question whether, as claimed by several writers, the emerging supranational adjudicatory order impermissibly contravenes the "essential attributes of the judicial power established by Article III." Examining two case studies, the North American Free Trade Agreement (NAFTA) and the Supreme Court's recent decisions regarding Article …

Applicable Law Provisions In International Uniform Commercial Law Conventions, Paolo E. Conci

LLM Theses and Essays

The development of international trade requires predictability and uniformity of the applicable legal framework. Such requirements can be satisfied by means of international uniform commercial law conventions, which try to set forth coherent and uniform bodies of substantial rules. A key role is also played by private international law, an instrument operating at a different level but often included in the uniform conventions themselves. This paper analyzes the relationship between international uniform commercial law conventions and private international law to investigate how it has developed over the last seventy years, and suggests a new approach to international commercial transactions in …

Promotion Of The Concept Of The Rule Of Law Through The Implementation Of The Central America Free Trade Agreement, Phillip A. Buhler

Articles, Book Chapters, & Popular Press

Quoting the Eighteenth Century philosopher Charles de Secondat Montesquieu, “We are free because we live under civil laws.” In the summer of 2006 lawyers and businessmen in the Dominican Republic, the United States and most of Central America experienced full implementation of the Dominican Republic – Central America Free Trade Agreement (hereinafter CAFTA). This regional trade agreement, following on the general model of the North American Free Trade Agreement (NAFTA) and the parameters of the General Agreement on Tariffs and Trade (GATT), is intended to establish a comprehensive legal regime to reduce and eventually eliminate most national barriers to the …

China's Participation In The Wto: A Lawyer's Perspective, Henry Gao

Research Collection Yong Pung How School Of Law

On 10 November 2001, China finally acceded to the World Trade Organization (WTO) after a marathon negotiation spanning 15 years. China's membership in the WTO raises interesting questions for both the WTO and China. For the WTO, the question is how to deal with China?a huge country of growing importance as a major global exporter and importer but is still in economic transition. For China, the question is how to implement the numerous obligations in the WTO accession package. This paper sets out by reviewing China's experience in the General Agreement on Tariffs and Trade (GATT) and the WTO. It …

Author's Response, John H. Jackson

Georgetown Law Faculty Publications and Other Works

It is a privilege for me to have received the attention to my latest book of such a trio of expertise and scholarly balanced policy perspectives from three different disciplines : economics, law, and diplomacy. It is also a privilege and honor for me to receive from each of these three sometimes divergent disciplines a general overall recognition of what I sought to accomplish in this book. I congratulate the reviewers. The book has an intricate logical structure but struggles with huge amounts of empirical information, in a purposefully short work. All three authors have recognized these features, and seem …

Odious, Not Debt, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

This article argues that the doctrine of Odious Debt, which has enjoyed a revival since the U.S. invasion of Iraq in 2003, frames the problem of odious debt in a way that excludes most of the problematic obligations incurred by twentieth-century despots. Advocacy and academic literature traditionally describe the odious debt problem as one of government contracts with private creditors. Most theories of sovereign debt key off the same relationship. But in the latest crop of cases, including Iraq, Liberia, and Nigeria, private creditors represent a small fraction of the old regime's debts. Most of the creditors are other governments …

The Bid Challenge Procedures Under The Wto Government Procurement Agreement: A Critical Study Of The Hong Kong Experience, Henry Gao

Research Collection Yong Pung How School Of Law

While there has been an extensive literature on the challenge procedure of the WTO Government Procurement Agreement (GPA) in general, as well as excellent country studies on the operation of the national challenge procedures of several key GPA Members, no such study has been conducted for Hong Kong yet. In the view of the author, even though Hong Kong has a relatively small procurement market, it combines the features of a clean and effective government and a highly internationalised procurement market, and thus makes an interesting subject of study. In this article, the author examines the efforts made by the …

Reconfiguring Industrial Policy: A Framework With An Application To South Africa, Ricardo Hausmann, Dani Rodrik, Charles F. Sabel

Faculty Scholarship

The main purpose of industrial policy is to speed up the process of structural change towards higher productivity activities. This paper builds on our earlier writings to present an overall design for the conduct of industrial policy in a low- to middle-income country. It is stimulated by the specific problems faced by South Africa and by our discussions with business and government officials in that country. We present specific recommendations for the South African government in the penultimate section of the paper.