International Trade Law Commons^™

The Objectives And Principles Of The Trips Agreement, Peter K. Yu

Faculty Scholarship

The Agreement on Trade-Related Aspects of Intellectual Property Rights, which established the minimum standards for the protection and enforcement of intellectual property rights for WTO members, remains one of the more controversial international intellectual property agreements that have entered into force. Although that Agreement embraces a highly problematic super-size-fits-all approach, it includes a number of safeguards and flexibilities to facilitate economic development and to protect the public interest. Articles 7 and 8, in particular, lay out explicit and important objectives and principles that can play important roles in the interpretation and implementation of the Agreement.

Presented at the 2009 Santa …

Canadian Food Law Update, Patricia L. Farnese

Journal of Food Law & Policy

Provided below is an overview of developments in Canadian food law and policy in 2009. This update primarily analyzes the regulatory and policy developments and litigation activities by the federal government. This focus reflects the significance of federal activities in the food policy realm. In 2009, regulatory and policy developments continue to be dominated by the 2008 Listeriosis outbreak in ready-to-eat, deli meats. Other noted activities include Canada's ongoing efforts to minimize the effects of infectious diseases related to meat production, Canada's request for a WTO panel to consider the effects of American Country of Origin Labelling, and an initiative …

European Union Food Law Update, Emilie H. Leibovitch

Journal of Food Law & Policy

In June 2009, citizens of the European Union elected a new European Parliament. Some Members of the European Parliament (MEPs) were reelected while some were not. The majority party is the EPP, the Group of the European People's Party, and the Group of the Progressive Alliance of Socialists & Democrats has the second majority of the seats. The elections were still governed by the Treaty of Nice, since up until very recently, the future of the Treaty of Lisbon was still uncertain. The Treaty of Lisbon was up until now rejected by a few Member States, who, by their reluctance …

An Entity Sui Generis In The Wto: Taiwan's Wto Membership And Its Trade Law Regime, Han-Wei Liu

Research Collection Yong Pung How School Of Law

As one of the founding members of the General Agreement on Tariffs and Trade (GATT), Taiwan (the Republic of China or ROC) - the 17th largest economy, was granted accession to the World Trade Organization (WTO) in November 2001 after its observer status of eleven years. Taiwan, classified by most commentators as an "unrecognized state" or an "entity sui generis", has been excluded from most of the major international organizations. Taiwan's accession to the WTO, therefore, is considered to be an important breakthrough in diplomacy for the past decades. Notwithstanding its WTO membership, the Taiwanese Government has employed numerous trade …

China’S Strategy For Free Trade Agreements: Political Battle In The Name Of Trade, Shuchao Henry Gao

Research Collection Yong Pung How School Of Law

Compared with Europe and America, East Asia is a latecomer in the new gold-rush of Free Trade Agreements (FTAs). In this process, China has played a significant role. This is not only due to the growing economic clout of China, but also because China has taken a conscious strategy to push for economic integration in the region. Thus, for the benefits of the countries in the region, it is very important to understand China’s FTA strategy. This article starts with the evolving picture of China’s FTA web, then discusses the key components of China’s FTA strategy, and concludes by noting …

Accountability For Property Crimes And Environmental War Crimes: Prosecution, Litigation, And Development, Mark A. Drumbl

Scholarly Articles

None available.

More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven A. Dean

Faculty Scholarship

Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity--could provide a viable alternative. Achieving tax deharmonization potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.

The Trans-Pacific Strategic Economic Partnership Agreement: High Standard Or Missed Opportunity?, Shuchao Henry Gao

Research Collection Yong Pung How School Of Law

When the Trans-Pacific Strategic Economic Partnership Agreement (P4 Agreement) was signed in 2005, it was hailed as a “high-standard” agreement that could serve as a model within the Asia-Pacific region and attract other countries in the region to join as members. This claim seems to have received support from recent events, such as the launch of the accession negotiation by the US and the expression of interests from Australia, Peru and Vietnam.

This article provides a critical analysis on whether the P4 Agreement is a “high-standard” agreement as its members have claimed. In the view of the author, the P4 …

Limiting Anticompetitive Government Interventions That Benefit Special Interests, D. Daniel Sokol

UF Law Faculty Publications

When government regulates, it may either intentionally or unintentionally generate restraints that reduce competition ("public restraints"). Public restraints allow a business to cloak its action in government authority and to immunize it from antitrust regulation. Private businesses may misuse the government's grant of antitrust immunity to facilitate behavior that benefits businesses at consumers' expense. One way is by obtaining government grants of immunity from antitrust scrutiny. A recent series of Supreme Court decisions has made this situation worse by limiting the reach of antitrust law in favor of sector regulation. This is true even though the Supreme Court refers to …

Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge

Scholarly Works

The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific area of …

Interview Of Ambassador Hugo Paemen Conducted By Rosine Plank-Brumback On September 24, 2009, Institute Of International Economic Law, Georgetown University Law Center

The Oral History Project of the World Trading System

Interview of Ambassador Hugo Paemen, Chef de Cabinet of European Commissioner Vicomte Étienne Davignon, Former Deputy-Director-General for External Affairs and Former Spokesperson of the European Commission, conducted by Rosine Plank-Brumback on September 24, 2009.

A Long And Winding Road: The Doha Round Negotiation In The World Trade Organization, Sungjoon Cho

All Faculty Scholarship

This article provides a concise history of the Doha Round negotiation, analyzes its deadlock and offers some suggestions for a successful deal. The article observes that the nearly decade long negotiational stalemate is symptomatic of the diametrically opposed beliefs on the nature of the Round between developed and developing countries. While developed countries appear to be increasingly oblivious of Doha’s exigency, i.e., as a “development” round, developing countries vehemently condemn the developed countries’ narrow commercial focus on the Doha Round talks. It will not be easy to untie this Gordian knot since both Worlds tend to think that no deal …

Expanding The P-4 Trade Agreement Into A Broader Trans-Pacific Partnership: Implications, Risks And Opportunities, Meredith Kolsky Lewis

Journal Articles

In 2005, New Zealand, Singapore, Chile and Brunei entered into a path-breaking free trade agreement, the Trans-Pacific Strategic Economic Partnership Agreement which is also known as the P-4 Agreement. The agreement contains an open accession provision which explicitly contemplates the expansion of the agreement to include other countries willing to commit to its terms. The expansion of the agreement has important implications for the world trading system. Its broad coverage and open accession provision may suggest that the agreement has the potential to serve as a stepping stone in the path towards further multilateral trade liberalization in the WTO context. …

China-United States Trade Negotiations And Disputes: The Wto And Beyond, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

This article examines trade negotiations and disputes between China and the United States. It begins by ascertaining the unique political aspects of China-U.S. bilateral economic ties and explains the historical background underlying the relations. The article then argues that trade frictions between China and the United States are unlikely to repeat the Depression-era trade wars. The article observes that both the Chinese and U.S. governments are aware that the adoption of WTO-inconsistent measures may result in retaliatory actions from the other side. Hence, the two governments have attempted to resolve potential disputes through high-level official talks. Even when certain issues …

Global Constitutional Lawmaking, Sungjoon Cho

All Faculty Scholarship

Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this turn …

China's Implementation Of The Un Sales Convention Through Arbitral Tribunals, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

This article examines implementation of the international sales law by arbitral tribunals in China. The leading Chinese arbitral tribunal -- CIETAC -- has recently released the full-text decisions issued in over 300 disputes involving international trade. Upon a careful examination of this decisions involving non-conformity of goods, the authors conclude that the decisions generally convey objective, non-biased jurisprudence (notwithstanding some caveats about the completeness of the available record). They go on to conclude that the ability to rely on a fairly predictable tribunal has been good for the development not only of China's trade-based economy but also for its more …

Interview Of James Bacchus Conducted By Rosine Plank-Brumback On June 10, 2009, Institute Of International Economic Law, Georgetown University Law Center

The Oral History Project of the World Trading System

Interview of James Bacchus, Former WTO Appellate Body Member and Former U.S. Congressman (D-FL), conducted by Rosine Plank-Brumback on June 10, 2009.

Restrictive Trade Measures Based On Extraterritorial Human Rights Violations: An Analysis Under Allocation Of Regulatory Jurisdiction And Transaction Costs, Gustavo Ferreira Ribeiro

Maurer Theses and Dissertations

Are states entitled to take unilateral or collective trade measures in cases of extraterritorial human rights violations? Are states obligated to do so? The debate is often blurred by a multitude of legal, political, economic, and moral arguments that have, so far, produced many misunderstandings. On one hand, the human rights community alleges that the superiority of human rights resolves any conflict. On the other hand, the trade community fears the intrusion of human rights language and power within the trade regime, including multilateral regimes like the World Trade Organization.

While exploring the above issue, this dissertation unfolds in three …

Development And Outcomes Of Investment Treaty Arbitration, Susan Franck

Scholarly Articles in Law Reviews & Journals

The legitimacy of investment treaty arbitration is a matter of heated debate. Asserting that arbitration is unfairly tilted toward the developed world, some countries have withdrawn from World Bank dispute resolution bodies or are taking steps to eliminate arbitration. In order to assess whether investment arbitration is the equivalent of tossing a two-headed coin to resolve investment disputes, this article explores the role of development status in arbitration outcome. It first presents descriptive, quantitative research about the developmental background of the presiding arbitrators who exert particular control over the arbitration process. The article then assesses how (1) the development status …

Vat Derogations In Germany, Austria, Denmark, And Estonia: Use And Enjoyment Rules, Richard Thompson Ainsworth

Faculty Scholarship

When the Czech Republic elected (effective January 1, 2009) to derogate from the standard rules for determining the place of supply for intangible services, pursuant to Article 58 of the Recast VAT Directive (RVD), it was following the lead of ten other Member States. This paper considers four of those other jurisdictions - Germany, Austria, Estonia, and Denmark - and compares their derogations with that of the Czech Republic.

In each instance a use and enjoyment standard determines the place of supply for certain intangible services. The affected transactions are (potentially) wide ranging. In each instance non-EU countries are on …

In The Name Of Sovereignty? The Battle Over In Dubio Mitius Inside And Outside The Courts, Christophe J. Larouer

Cornell Law School Inter-University Graduate Student Conference Papers

Contrary to some prominent legal scholars’ predictions, the principle of in dubio mitius, that is, the principle of restrictive interpretation of treaty obligations in deference to the sovereignty of states, has not disappeared. Worse, the Appellate Body (AB) of the World Trade Organization (WTO) has carried it into the 21st Century, reigniting the ideological debate dividing the legal doctrine over the conception of what the relationship between domestic and international law should be. Therefore, after retracing the history of this principle during which key legal figures opposed one another, this article examines the divergent positions defended by the proponents and …

Multilateralism Or Regionalism; What Can Be Done About The Proliferation Of Regional Trading Agreements?, Luwam G. Dirar

Cornell Law School Inter-University Graduate Student Conference Papers

Regional trading agreements are treaties entered into by states. States enter into regional trading agreements for different reasons some of which are economic, political and security reasons. Regional trading agreements (herein after RTAs) have been successful in achieving trade liberalization at a much faster speed than the World Trade Organization (herein after WTO). The most notable example of RTAs is the European Communities that has been successful to liberalize both trade in goods and services.

Members of those Regional Trading Agreements create rules of origin. Rules of origin are important in allocating the appropriate duty for imported goods. They tell …

Water As A Public Good: The Status Of Water Under The General Agreement On Tariffs And Trade, Bryant Walker Smith

Cardozo Journal of International and Comparative Law

The article argues that water is not a "product" under the General Agreement on Tariffs and Trade (GATT) due to the widespread and consistent assertion of public ownership over water resources through municipal and international law, which precludes its treatment as a tradable commodity under GATT. This "public-ownership consensus" implies that water resources remain under state control, and GATT's trade disciplines should not apply to water in its natural state.

Gently Modified Operations: How Environmental Concerns Addressed Through Customs Procedures Can Successfully Resolve The Us-Eu Gmo Dispute, David E. Sella-Villa

William & Mary Environmental Law and Policy Review

No abstract provided.

Courting Specialization: An Empirical Study Of Claim Construction Comparing Patent Litigation Before Federal District Courts And The International Trade Commission, David L. Schwartz

William & Mary Law Review

The United States International Trade Commission (ITC) has recently become an important adjudicator of patent infringement disputes, and the administrative law judges (ALJs) on the ITC are widely viewed as experts on patent law. This Article empirically examines the performance of the ITC in patent claim construction cases. The Article also compares the performance of the ITC on claim construction with that of federal district courts of general jurisdiction. This study does not find any evidence that the patent-experienced ALJs of the ITC are more accurate at claim construction than district court judges or that the ALJs learn from the …

Linking International Markets And Global Justice, Jeffrey L. Dunoff

Michigan Law Review

The U.S. government is the planet's largest purchaser of goods and services; worldwide, states spend trillions of dollars on procurement each year. Yet legal scholarship has devoted relatively limited attention to the conceptual and normative issues that arise when states enter the market. Should states as purchasers be permitted to "discriminate" to advance social objectives - say, racial justice - in ways that would be unlawful when they act as regulators? Is each country free to strike its own balance between the pursuit of economic and social objectives through procurement, or do international trade norms limit state discretion in the …

The Internationalization Of Law And Legal Education, Jan Klabbers, Mortimer N.S. Sellers

Books

The internationalization of commerce and contemporary life has led to a globalization of legal standards and practices. The essays in this text explore this new reality and suggest ways in which the new legal order can be made more just and effective.

A Fundamental Misunderstanding: Fcc Implementation Of U.S. Wto Commitments, Laura B. Sherman

Federal Communications Law Journal

In bilateral and multilateral trade agreements, the United States has agreed to open the market for telecommunications services to foreign service suppliers, an obligation implemented by the FCC since 1998. In contrast, the United States has made no commitments with respect to broadcasting services or broadcast licenses. This article clarifies the different treatment of telecommunications services and broadcast services in U.S. trade obligations and FCC orders.

Protecting Against Plunder: The United States And The International Efforts Against Looting Of Antiquities, Asif Efrat

Cornell Law Faculty Working Papers

In 1970 UNESCO adopted a convention intended to stem the flow of looted antiquities from developing countries to collections in art-importing countries. The majority of art-importing countries, including Britain, Germany, and Japan, refused to join the Convention. Contrary to other art-importing countries, and reversing its own traditionally-liberal policy, the United States accepted the international regulation of antiquities and joined the UNESCO Convention. The article seeks to explain why the United States chose to establish controls on antiquities, to the benefit of foreign countries facing archaeological plunder and to the detriment of the US art market. I argue that the concern …

The World Trade Constitutional Court, Sungjoon Cho

All Faculty Scholarship

The World Trade Constitutional Court Sungjoon Cho Abstract Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and “constitute,” the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this “constitutional adjudication” is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the …