International Trade Law Commons^™

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Everybody Wants To Rule The World: Central Bank Digital Currencies In The Era Of Decoupling The World’S Two Largest Economies, James M. Cooper

Faculty Scholarship

Some 130 central banks around the world are experimenting with various levels of a central bank digital currency (“CBDC”), a digitized form of a sovereign-backed, national currency that is a liability of that country’s central bank. Unlike fiat currency, CBDCs are trackable and potentially subject to interference and even freezing by government authorities. CBDCs will affect citizens’ control over commerce, payments, and savings, and impact their privacy rights. The Chinese government has piloted, refined, and rolled out its own CBDC called the Digital Currency/Electronic Payment initiative (“DC/EP”), also known as the digital yuan or e-CNY. The Chinese government is far …

How The International Investment Law Regime Undermines Access To Justice For Investment-Affected Stakeholders, Ladan Mehranvar

Columbia Center on Sustainable Investment

For over a decade now, the international investment law regime, which includes investment treaties and their central pillar, the investor-state dispute settlement (ISDS) mechanism, has been facing sustained calls for reform. These have largely centered on the concerns regarding the high costs of ISDS, the restrictions placed by the investment treaty regime on the right—or duty—of states to regulate in the public interest, and the questionable benefits arising from these treaties in the first place. Several states have taken proactive measures: some have revised investment treaty standards to better protect their regulatory powers; others have introduced new approaches to investment …

Uncitral Working Group Iii: Contribution On The ‘Right To Regulate’ Provision, Columbia Center On Sustainable Investment, International Institute For Environment And Development, South Centre

Columbia Center on Sustainable Investment

"UNCITRAL Working Group III: Contribution on the ‘Right to Regulate’ Provision" is a joint submission to the Secretariat's request for comments on the procedural and cross-cutting issues. The commentary focuses on the states' right-to-regulate provision, proposed in the Draft provisions on procedural and cross-cutting issues, and proposes additional policy options aimed at preserving the states' sovereign right (and duty) to regulate.

Overcoming The Pragmatic Approach Of The United Nations Guiding Principles On Business And Human Rights In Relation To The Fossil Fuel Industry, Barnali Choudhury

Articles & Book Chapters

Business has been good for Big Oil. Last year, the five largest Western oil companies raked in over USD$200 billion in profits. Last year, the global carbon emissions from the fossil fuel industry also peaked. Companies produced over 36 billion tons of carbon dioxide emissions during the year and global warming hit a new sustained high. Increasing temperatures also caused socio-economic impacts such as deaths, displacement of people, loss of employment and adverse impacts on food security.

While numerous studies have drawn links between the corporate activities of the fossil fuel industry and the devastating environmental and human rights impacts …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

The Trade Origins Of Privacy Law, Anupam Chander

Georgetown Law Faculty Publications and Other Works

The desire for trade propelled the growth of data privacy law across the world. Countries with strong privacy laws sought to ensure that their citizens’ privacy would not be compromised when their data traveled to other countries. Even before this vaunted Brussels Effect pushed privacy law across the world through the enticement of trade with the European Union, Brussels had to erect privacy law within the Union itself. And as the Union itself expanded, privacy law was a critical condition for accession.

But this coupling of privacy and trade leaves a puzzle: how did the U.S. avoid a comprehensive privacy …

Beyond The Name And Nationality: Who Are The Claimants In Investment Arbitration?, Vera Korzun

Akron Law Faculty Publications

Current efforts to reform international investment law focus in large part on the impact of investor-State dispute settlement (ISDS) on the regulatory power of the sovereign State. At the core of the reform debate is the ability of foreign investors, as claimants in investment treaty arbitrations, to challenge the laws and regulations of the host State as part of dispute resolution. Modern investment treaties seek to safeguard the State’s right to regulate, but also impose obligations on foreign investors and promote responsible business conduct. Yet, beyond the name and nationality as alleged in arbitration filings, very little is known about …

Addressing The Negative Externalities Of Trade: Flanking Policies And The Role Of Package Treaties, Gregory Shaffer

Georgetown Law Faculty Publications and Other Works

This article examines the rationales for addressing sustainability and social inclusion in trade policy and the tradeoffs among imperfect institutional choices in doing so through “flanking policies.” It examines three types of negative spillovers or externalities implicated by trade: material, moral, and social/political. Part I defines terms and sets forth the argument. Part II typologizes the three categories of negative externalities and then highlights the challenges posed for flanking measures given the reciprocal nature of externalities. It respectively addresses environmental harms and labor and social inclusion concerns. Part III assesses different institutional choices for addressing negative externalities, dividing them between …

The Taylor Swift Effect And International Law, Katrin Kuhlmann

Georgetown Law Faculty Publications and Other Works

Taylor Swift’s Eras Tour has come to an end, but the Taylor Swift Effect will remain a powerful force with influence well beyond even Swift herself. Often used to describe Swift’s economic impact through her fandom, it has become shorthand for the broader network effect that amplifies and extends the reach of her discography and cultural influence. As this article discusses, the Taylor Swift Effect has real implications for international relations and international law at a time when many nations are withdrawing from constructive international engagement, with devastating consequences in terms of global rights, liberties, and norms.

This article explores …

Corporations As International Economic Law Actors, Barnali Choudhury

All Papers

Actors in international law are presumed to be states. Yet in the international economic law arena, the corporation is one of the most prominent non-state actors. Indeed, in some instances, the corporation may even be more influential than the state in some arenas of international economic law. This short piece examines three instances of this influence. First, it looks at the role of corporations in law-making; second, it examines corporations’ role in monitoring and compliance; and, third, it explores corporations’ legal personality in international economic law. Finding corporations’ immense influence on law-making and monitoring and compliance, combined with a robust …

Good Faith As Mechanism For An Efficient Market, Victor Caminha Cavalcante

South Carolina Journal of International Law and Business

This article explores the role of the principle of good faith in enhancing commercial efficiency within Brazilian, Italian and U.S. legal systems. The principle, recognized under Brazilian Civil Law since the enactment of the 2002 Civil Code, is compared with its application under U.S. law, particularly through the Uniform Commercial Code (UCC) and Restatement (Second) of Contracts, and under Italian Civil Code. The study analyzes how good faith, as an objective legal standard, fosters contractual fairness, transparency, and predictability, thereby contributing to a more structured and efficient market. By examining case law, scholarly perspectives, and the interaction between traditional and …

The Consumer’S Choice To Boycott, Agnes Bresee

Seattle University Law Review

In the wake of employees losing their jobs upon voicing their political opinions concerning Israel, Harvard and Columbia law students’ job offers being rescinded upon expressing support for Palestine, and the names and social media profiles of individuals who support Palestine being collected and listed on Canary Mission, such backlash may leave many Americans wondering what form of resistance to settler-colonialist apartheid is acceptable in the twenty-first century. Recently, the movement to collectively boycott brands like Starbucks, which sued its Worker’s Union for a tweet expressing support for Palestine; Disney, which donated money to Israel; and McDonald’s, where a location …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Different Approach To Agency Theory And Implications For Esg, Jonathan Bonham, Amoray Riggs-Cragun

Seattle University Law Review

In conventional agency theory, the agent is modeled as exerting unobservable “effort” that influences the distribution over outcomes the principal cares about. Recent papers instead allow the agent to choose the entire distribution, an assumption that better describes the extensive and flexible control that CEOs have over firm outcomes. Under this assumption, the optimal contract rewards the agent directly for outcomes the principal cares about, rather than for what those outcomes reveal about the agent’s effort. This article briefly summarizes this new agency model and discusses its implications for contracting on ESG activities.

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

Investor-State Climate Litigation: Could International Investment Law Help To Protect The Climate?, Dr. Andreas Buser

Indian Journal of International Economic Law

Climate Protection and International Investment Law have an ambiguous relationship. Whereas some scholars highlight that investment Law could help in protecting green investments many commentators depict investment protection as an obstacle to States’ climate mitigation policies. This article seeks to go beyond that limited dichotomy in assessing whether investment law could be a tool for investors to argue for more, rather than less climate protection. In particular, full protection and security clauses may well be interpreted to contain due diligence obligations to protect climate sensitive investments against effects of climate change. Moreover, if States postpone climate protection to a time, …

Lost In Translation: The Limits Of Explainability In Al, Hofit Wasserman-Rozen, Ran Gilad-Bachrach, Niva Elkin-Koren

Cardozo Arts & Entertainment Law Journal

As artificial intelligence becomes more prevalent, regulators are increasingly turning to legal measures, like "a right to explanation," to protect against potential risks raised by AI systems. However, are eXplainable AI (XAI) tools-the artificial intelligence tools that provide such explanations-up for the task?

This paper critically examines XAI's potential to facilitate the right to explanation by applying the prism of explanation's role in law to different stakeholders. Inspecting the underlying functions of reason-giving reveals different objectives for each of the stakeholders involved. From the perspective of a decision-subject, reason-giving facilitates due process and acknowledges human agency. From a decision-maker's perspective, …

Tackling The Thicket: A Comparative Analysis Of Biologic Drugs And Biosimilars In The United States And Abroad, Lauren Cutler

Cardozo International & Comparative Law Review

The note examines the legal and regulatory landscape surrounding biologic drugs and biosimilars in the United States and Europe, focusing on patent protections, litigation trends, and the impact of biosimilar competition on drug pricing. It highlights the challenges posed by patent thickets and evergreening strategies employed by brand-name biologic manufacturers, which delay biosimilar market entry and maintain high drug prices. The analysis underscores the differences in regulatory frameworks and market dynamics between the U.S. and Europe, emphasizing the need for policy reforms to enhance competition and affordability in the biologic market.

Special Challenges In The Execution Of Arbitral Awards In India In Public- Private Partnerships: A Trade Perspective, Srividhya Ragavan, Niraj Kumar Seth

National Law School of India Review

With around 47 million pending cases at various stages of Indian judiciary and one of the lowest levels of judges per million of population in the world, India’s arbitration regime presents a ray of hope for millions of Indians who face the prospect of justice being denied to them due to inordinate delays caused by a clogged judicial pipeline. The enactment of the Arbitration and Conciliation Act, 1996 was presented as a viable alternative to resolving commercial disputes in a timely manner. This paper uses a case study to discuss how arbitration in India has not fulfilled the timeliness promise …

The ‘Public’ In The ‘Public Interest Test’: Rethinking The Parameters Of The Public Interest Test In India, Archana Subramanian

National Law School of India Review

In recent years, there has been a considerable difference in approach between the relevant anti-dumping investigation agency and the Ministry of Finance when it comes to the imposition of anti-dumping duties in India. This difference revolves around the interpretation of the ‘public interest test’ which requires investigating agencies to consider whether the imposition of anti-dumping duties would be in the larger interest of the public.

WTO law does not offer much guidance in this regard and Members have chosen to adopt different approaches when deciding whether the imposition of an anti-dumping duty is in the public interest. In India, the …

Prohibiting More Subsidies: The Trilateral Statement Vis- À-Vis The Scm Agreement, Manya Gupta, Uravi Pania

National Law School of India Review

This article critically examines the 2020 Joint Trilateral Statement by the US, EU, and Japan proposing additions to the list of prohibited subsidies under the WTO’s Agreement on Subsidies and Countervailing Measures (SCM Agreement). It argues that the proposal to include unlimited guarantees, subsidies to insolvent enterprises, subsidies in sectors with overcapacity, and certain debt forgiveness as prohibited subsidies is problematic for several reasons. First, there is a lack of economic rationale and evidence for blanket prohibition of these subsidies. Second, the language used in defining the proposed subsidies is vague and uncertain, leading to potential misinterpretation and implementation challenges. …

Opening India To International Competition In Government Procurement Markets: Cepa With Uae A Breakthrough?, Jędrzej Górski, Kanishka Bhukya

National Law School of India Review

The India-UAE Comprehensive Economic Partnership Agreement (‘CEPA’) is a landmark in India’s public procurement policy, introducing substantial liberalisation commitments for the first time. Historically insulated from international procurement obligations, India’s previous agreements, such as with Japan, were limited in scope. The CEPA, concluded in 2022, includes Chapter 10, which mandates significant procurement reforms. This article assesses whether the CEPA signifies a transformative change or a minor adjustment. Part II explores the global framework for public procurement under International Economic Law (‘IEL’) and Global Administrative Law (‘GAL’), focusing on the WTO Government Procurement Agreement (‘GPA’) standards. It details GPA’s non-discrimination and …

Corn War: A Trade Fight Between The United States And Mexico, Ernesto Hernández-López

Cardozo Law Review de•novo

An international fight grows over corn. The United States claims that México’s ban on genetically modified (GMO) corn violates the United StatesMexico-Canada Agreement (USMCA). México prohibits GMO corn for human consumption. American arguments focus on Sanitary and Phytosanitary (SPS) measures, covered in Chapter 9 of the USMCA. A trade panel will review these.

This Essay first describes SPS arguments and relevant trade rules. The United States’ complaints emphasize that México’s ban is excessive, is not consistent with international standards, and mishandles risks. Second, the Essay identifies the obstacles American positions face: weak mandates and deference to México. Chapter 9 of …

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Faculty Scholarship

At the 2000 General Assembly, the World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to address intellectual property issues relating to genetic resources, traditional knowledge (TK) and traditional cultural expressions (TCEs). Although the IGC initially focused its work on studying these issues, it obtained a new mandate to accelerate its work in October 2009 and began text-based negotiations on an international instrument, or international instruments, a few months later. These negotiations paved the way for WIPO to convene a diplomatic conference to conclude an International Legal Instrument Relating …