International Trade Law Commons^™

Intellectual Property Rights As A Barrier For Developing Countries To Access A Covid-19 Vaccine, Kristina Frkovic

Marquette Intellectual Property & Innovation Law Review

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A Bull In A China Shop: How Cfius Made Tiktok A National Security Problem, Adina Feder

Cardozo International & Comparative Law Review

The note critiques the expansion of the Committee on Foreign Investment in the United States' (CFIUS) mandate under the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), particularly its inclusion of "sensitive personal data" as a factor in national security reviews. This expansion has led to overly broad and vague definitions, resulting in unnecessary restrictions on foreign direct investment (FDI) without adequately addressing legitimate national security concerns. The note argues that data privacy issues should be addressed through separate federal privacy legislation rather than CFIUS, which is ill-suited to handle such matters. It calls for clearer definitions and a …

Consensus Decision-Making And Legislative Inertia At The Wto: Can International Law Help?, Americo B. Zampetti, Patrick Low, Petros C. Mavroidis

Faculty Scholarship

The recent emergence of Joint Statement Initiatives (JSIs) – that is, negotiating initiatives among a subset of the World Trade Organization (WTO) membership – has reignited the debate over law-making in the WTO. As things stand, the WTO operates on the basis of a widespread expectation that consensus needs to be achieved for any decision to be taken. Agreements that produce rights and obligations only among a subset of the membership (‘plurilaterals’, or Annex 4 agreements) are also subject to the consensus rule and thus remain exceptional. Are JSIs the first move towards redressing the current equilibrium in favour of …

Third Amendment To The Chinese Copyright Law, Peter K. Yu

Faculty Scholarship

Since July 2011, China has actively explored ways to upgrade its copyright law. Although the law was already amended the year before, only two changes were made at that time. The last time Chinese copyright law undertook a major overhaul was more than two decades ago, two months before the country became the 143rd member of the WTO in December 2001.

On November 11, 2020, the Standing Committee of the National People's Congress of China finally approved the Third Amendment to the Chinese Copyright Law. Covering a wide range of issues from eligibility to ownership and from enforcement to anti-circumvention …

South Africa’S Reformed Investment Regime As A Model For Developing Countries, John Mayer

Lewis & Clark Law Review

Beginning in 2012, South Africa decided to unilaterally terminate many Bilateral Investment Treaties (BITs) with European countries—this represented a departure from the 1990s, where South Africa, like many other developing countries, entered into BITs with wealthy, capital-exporting states in the hopes of attracting foreign direct investment. In 2015, South Africa enacted, in place of the BITs, the Protection of Investment Act, designed to protect foreign investors while also providing the state more freedom to regulate in the public interest. This Comment analyzes the history of South Africa’s BIT policy, and argues that South Africa has suffered minimally, if at all, …

Same As It Ever Was : The Tijuana River Sewage Crisis, Non-State Actors, And The State, James M. Cooper

Faculty Scholarship

Sewage—a scary mixture of human waste and industrial toxins—flows into the Tijuana River Valley, an environmentally sensitive watershed that straddles the United Mexican States ("Mexico") and the United States of America. Treatment plants, a deteriorating one in Punta Bandera with limited capacity south of the border, and another in San Diego County completed in 1997, are inadequate to process the volume of sewage. So much sewage made its way into the Tijuana River that CBS 60 Minutes broadcast a special report on the binational environmental disaster in 2020.

Border factories and a population spike contribute to the sewage. Maquiladoras, …

The African Continental Free Trade Area: Local Content Requirements As A Means To Addressing Africa's Productive Capacity Constraints, Nchimunya D. Ndulo

Michigan Journal of International Law

The Agreement Establishing the African Continental Free Trade Area (AfCFTA) presents an unprecedented opportunity for African integration and is projected to spur unprecedented levels of job growth and productivity, and to drive sustainable economic development. However, as the implementation of the AfCFTA unfolds, it is apparent that certain bottlenecks stand in the way of the AfCFTA achieving its full potential. The bottleneck at the core of the AfCFTA’s effective implementation is the limited availability of tradable goods due to the limited productive capacity of many State Parties. This article argues that the implementation of local content requirements by State Parties, …

Unraveling The Longstanding Riddle About The Doctrine Of Legitimate Expectation Under International Investment Law: Ascertaining Legal Tests For The Customary International Law’S Minimum Standard Of Treatment, Haneul Jung, Nu Ri Jung

Northwestern Journal of International Law & Business

In 2018, the ICJ rendered a judgment in Bolivia v. Chile that effectively denied the status of the doctrine of legitimate expectation as a customary international law. The ICJ’s judgment came as a surprise to many in the international arbitration community because a whole host of international tribunals established under various investment treaties have found that this doctrine, as well as the broader principle of “fair and equitable treatment,” has effectively attained the status as the “minimum standard of treatment” under customary international law. Given the lack of elaborated reasoning, however, the ICJ’s ruling fails to resolve the recurring debate …

The Disaster Chain: Counter-Mapping Global Value Chains, Peer Zumbansen

Northwestern Journal of International Law & Business

Abstract: Prevailing accounts by consultancies and logistics scholars present global value chains [GVCs] as an expression of contemporary international economic integration and connectivity. As such, they are considered crucial to the pursuit of economic growth and prosperity. At the same time, GVCs are deemed susceptible to “disruptions” through natural catastrophes, restrictive trade policies or pandemics. Left out of the standard narratives, even in light of the experience of the global Coronavirus pandemic, is the actual, as such disruptive impact of global value chain capitalism on human and natural lives. Dominant depictions of global value chain governance treat labor, environment and …

Protection Of Test Data Under Article 39.3 Of The Trips Agreement: Advancements And Challenges After 25+ Years Of Interpretation And Application, Eric M. Solovy

Northwestern Journal of International Law & Business

Among the types of intellectual property rights covered by the TRIPS Agreement, WTO Members must, pursuant to Article 39.3, protect certain test and other data submitted “as a condition of approving the marketing of pharmaceutical or of agricultural chemical products.” Such protection provides the incentives necessary for the biopharmaceutical industry to conduct the lengthy, expensive multi-phased clinical testing that is required to demonstrate the safety and effectiveness of a new drug or vaccine.

Test data protection has become increasingly more important to the development of new medicines in the past several years. That is in significant part because biologics (i.e., …

Unjustly Vilified Trips-Plus:? Intellectual Property Law In Free Trade Agreements, Marketa Trimble

American University Law Review

Intellectual property (IP) law provisions of free trade agreements (FTAs) have attracted much criticism. Critics have argued that FTA negotiators, succumbing to the lobbying of various stakeholders, have eliminated or significantly limited many of the flexibilities that multilateral treaties had created, forced stronger IP protection onto developing countries, and fragmented international IP law. While agreeing with a great deal of the criticism expressed by others, this Article departs from the typical vilification of FTAs by identifying and analyzing the positive features of FTA IP provisions that are worth replicating and expanding in future FTAs. These positive features include provisions concerning …

The Inclusion Of Anti-Corruption Clauses In International Investment Agreements And Its Possible Systemic Implications, Yueming Yan

Research Collection Yong Pung How School Of Law

Empirical studies have demonstrated a recent trend of incorporating anti-corruption provisions into international investment and trade agreements. Some treaties, i.e. the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, include both substantive and procedural obligations such as establishing corruption as criminal offenses, promoting integrity among public officials, and raising public awareness of the threat of corruption. Others like Japan prefer to insert rather general and abstract provisions in its bilateral investment treaties, stating that they agree to take efforts to prevent and combat corruption without indicating specific measures. This article attempts to take a closer look at these anti-corruption provisions by …

Trade's Mini-Deals, Kathleen Claussen

Articles

The modern consensus is that U.S. trade law is made through statute and through large congressional-executive agreements, both of which maintain Congress' constitutional primacy over the regulation of foreign commerce. Contrary to this understanding, however, short, targeted agreements negotiated by the U.S. executive with foreign trading partners - recently referred to as "mini-deals" - have become a fixture of the trade law landscape over the last three decades in staggering number. More than 1,200 such agreements govern the movement of goods and services in and out of the United States from and to 130 countries. Such deals are not only …

China’S Entry Into The Wto—A Mistake By The United States?, Jennifer A. Hillman

Georgetown Law Faculty Publications and Other Works

The conclusion that China's accession to the WTO was a failure from a U.S. perspective stems from: 1) loading too many issues and expectations—including an entire panoply of national security and geostrategic concerns -- on to the WTO and its rules-based, binding dispute settlement system to address; 2) failure by the United States and the rest of the world to use the tools available as a result of China’s accession to the WTO to both protect their domestic markets and hold China to account for its WTO commitments; and 3) China’s U-turn away from market-economy reforms to a much more …

The Political Economy Of Wto Exceptions, Timothy Meyer

Faculty Scholarship

In a bid to save the planet from rising temperatures, the European Union is introducing a carbon border adjustment mechanism—essentially a levy on imports from countries with weak climate rules. The United States, Canada, and Japan are all openly mulling similar proposals. The Biden Administration is adopting new Buy American rules, while countries around the world debate new supply chain regulations to address public health issues arising from COVID-19 and shortages in critical components like computer chips. These public policy initiatives—addressing the central environmental, public health, and economic issues of the day—all likely violate World Trade Organization (WTO) rules governing …

Taxing, Regulating, And Trading Carbon: An Introduction To The Symposium, Timothy Meyer

Faculty Scholarship

No abstract provided.

Barriers To Criminal Enforcement Against Counterfeiting In China, Daniel C.K. Chow

Vanderbilt Journal of Entertainment & Technology Law

Multinational companies (MNCs) with valuable trademarks in China seek criminal enforcement against counterfeiting because other available avenues of relief, such as administrative and judicial remedies, have proven to be ineffective. While MNCs prefer enforcement through China’s Police, the Public Security Bureau (PSB), many MNCs are unaware of the significant hidden dangers of using the PSB.

Most MNCs will delegate enforcement of trademark rights to their Chinese subsidiaries. These subsidiaries are known to make illegal payments to the PSB that may violate the laws of the PRC as well as the United States Foreign Corrupt Practices Act (FCPA). These acts expose …

Art. 8.9 Ceta Investment And Regulatory Measures, Stefanie Schacherer

Research Collection Yong Pung How School Of Law

Article 8.9 CETA on “Investment and Regulatory Measures” is at the centre of continuous and vigorous debate on how to ensure a proper balance between private business interests and the prerogative of States to regulate public welfare issue. The concerns expressed in the debate on the right to regulate are well-known. International investment agreements (IIAs) came under criticism due to their substantive protection standards, whose language is perceived as lacking in precision; as a consequence, they deliver too little policy flexibility. The protection standards together with the investor-State dispute settlement (ISDS) system, moreover, afford high levels of discretion to the …

Tax Harmony: The Promise And Pitfalls Of The Global Minimum Tax, Reuven Avi-Yonah, Young Ran (Christine) Kim

Articles

The rise of globalization has become a double-edged sword for countries seeking to implement a beneficial tax policy. On one hand, there are increased opportunities for attracting foreign capital and the benefits that increased jobs and tax revenue brings to a society. However, there is also much more tax competition among countries to attract foreign capital and investment. As tax competition has grown, effective corporate tax rates have continued to be cut, creating a “race-to-the-bottom” issue.

In 2021, 137 countries forming the OECD/G20 Inclusive Framework on BEPS passed a major milestone in reforming international tax by successfully introducing the framework …

Responding To Mass, Computer-Generated, And Malattributed Comments, Steven J. Balla, Reeve Bull, Bridget C.E. Dooling, Emily Hammond, Michael A. Livermore, Michael Herz, Beth Simone Noveck

Articles

A number of technological and political forces have transformed the once staid and insider dominated notice-and-comment process into a forum for large scale, sometimes messy, participation in regulatory decisionmaking. It is not unheard of for agencies to receive millions of comments on rulemakings; often these comments are received as part of organized mass comment campaigns. In some rulemakings, questions have been raised about whether public comments were submitted under false names, or were automatically generated by computer “bot” programs. In this Article, we examine whether and to what extent such submissions are problematic and make recommendations for how rulemaking agencies …