International Trade Law Commons^™

Blood Cobalt: Unmasking And Charging Corporations For Involvement In International Law Violations In The Democratic Republic Of Congo, Bolu Jegede

American University International Law Review

Joint Criminal Enterprise (JCE) is a legal doctrine developed by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to hold participants in a criminal enterprise equally liable for all results of the group’s criminal actions, even if the individuals were not directly involved in committing the crimes. While traditionally used to prosecute individual criminal actions, JCE provides a legal pathway to hold corporations criminally liable for their actions that further international law violations. Although corporations currently do not have specific, listed responsibilities under international law, they are required to respect human rights and ensure their activities do not perpetrate …

Double Standards In The Drug Trade: How European Nations Escape Sanctions While Senegal May Bear The Burden, Erin Soro

American University International Law Review

The focus of international drug control policies on sanctioning transit countries like Senegal for drug trafficking overlooks the significant role played by drug-consuming nations such as France and Spain. Despite a notable decrease in local drug consumption due to democratic progress and strong religious roots, Senegal remains a major transit hub for narcotics destined for Europe. This Comment argues that drug-consuming countries are equally culpable under international law and should face comparable sanctions to effectively address the global drug trade. This Comment highlights the imbalance in sanction implementation and advocates for a more equitable approach, recommending minimal sanctions for Senegal …

Shaping Green Regionalism: New Trade Law Approaches To Environmental Sustainability, Pasha L. Hsieh

Research Collection Yong Pung How School Of Law

Green regionalism aims to mutually reinforce environmental governance and economic integration. The article provides the first analysis of green regionalism in international law. It argues that green regionalism represents a paradigm shift in global normative endeavours towards environmental sustainability. By contextualising three waves of global regionalism, the article unveils the evolving architecture of green regionalism alongside negotiations of the World Trade Organization and multilateral environmental agreements. Moreover, it sheds light on the pertinent disputes and features of new green initiatives galvanised by the European Union, the United States and Asia-Pacific countries. These developments are pivotal in understanding the trade-environment nexus …

Defrosting Regulatory Chill, Guillermo J. Garcia Sanchez

Faculty Scholarship

In Homer’s Odyssey, King Odysseus asked his men to tie him to the mast of his ship with the hope that he would not jump into the sea after listening to the Sirens. The Odyssey’s hero made a pact to bind himself in the future. He knew that the temptation would be impossible to resist without restraints. Similarly, the creators and advocates of international investment agreements believe that providing rights to foreign investors through international treaties will chill State policies that would harm the interests of investors in the future. The “rope” to tie the State is the threat of …

U'Wa Indigenous People Vs. Columbia: Potential Applications Of The Escazu Agreement, Ariana Lippi

Sustainable Development Law & Policy

Though the case is ongoing, and results are still to be seen, it in many ways sets a precedent for indigenous communities in Latin America seeking redress for environmental and cultural injustices. With Colombia’s recent ratification of The Escazú Regional Agreement (the Agreement herein) in 2022, this case presents a unique opportunity for implementation of the Agreement and greater accountability within existing domestic legislation.

Incentivizing Sustainability In American Enterprise: Lessons From Finnish Model, Vasa T. Dunham

Sustainable Development Law & Policy

The disparate climate performances of Finland and the United States, two of the wealthiest countries in the world, bring to light the question of how corporate responsibility has been inspired in each jurisdiction. Having established the urgency of the climate crisis and the importance of corporate behavior in optimizing a given country’s approach to protection of the global environment, an examination of each nation’s legal frameworks may shed light on features of the corporate regime that are effective in advancing sustainability goals and those that are not.22 Part I of this paper establishes a comparative framework by providing background on …

Key Developments At The World Bank Inspection Panel (2013-2024), Dilek Barlas

Perspectives

Through the lens of important cases, this essay reflects on major developments that occurred at the Panel during the tenure of the author as the Executive Secretary of the World Bank Inspection Panel and shows how the Panel has evolved to improve accessibility, has influenced overall development policies, and has become a catalyst for institutional change. The essay observes that the Panel’s success has largely been due to its structural and operational independence, reporting as it does directly to the Bank’s Board of Executive Directors. However, there are challenges facing the Panel on certain issues, including most importantly its independence, …

Achieving Effective Procurement During A Global Crisis: A Study Of The Uncitral Model Law On Public Procurement And The Wto Agreement On Government Procurement, Dmitri Goubarkov

American University International Law Review

The global nature of the COVID-19 pandemic presented unprecedented challenges for public procurement systems around the world. Governments everywhere faced an immense pressure to facilitate the rapid procurement of supplies and services needed to support overburdened health and social care systems. Speed and flexibility were needed to address the shortages of protective personal equipment, distribution of ventilators, and increased demand for medications, all of which required governments to forego traditional public procurement methods. Governments had to balance the underlying principles of their procurement systems—namely, competition, integrity, and transparency—against urgency, and do so in a way that does not erode public …

The Secret's Out: The Role Of Restrictive Covenants In Trade Secret Law, Magdalene Eallonardo

American University Business Law Review

Trade secrets derive economic value from their classified nature, which leads companies to implement legal measures to prevent the spread of their confidential company information to the public. Restrictive covenants within employment agreements are a common form of these legal measures. However, because of employers’ restrictive terms, states are placing regulations on the scope of these agreements. With limited ability to contract their employees away from sharing their confidential information with direct competitors, companies utilize alternate methods to protect their trade secrets.

The Eu-China Cai And The Uyghur Challenge In The Context Of China's Domestic Law Barriers To International Labor And Human Rights Standards, Ronald C. Brown

American University Business Law Review

While China engages in world commerce as a global player and is signatory to international labor and human rights standards, at the same time it uses treaty reservations and its own domestic laws to limit and undermine the full application of those standards. Concern from Western governments and global human rights groups regarding China’s longstanding treatment of the Uyghur people has resulted in a freeze in negotiations for the EU-China Comprehensive Investment Agreement (CAI). This was also a result of China’s failure to ratify or implement relevant United Nations (U.N.) covenants and International Labour Organization (ILO) conventions and placing reservations …

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 …

Divined Comity: Assessing The Vitamin C Antitrust Litigation And Updating The Second Circuit’S Prescriptive Comity Framework, William Weingarten

Fordham Journal of Corporate & Financial Law

In re Vitamin C Antitrust Litigation, recently decided by the Second Circuit, sets a grave precedent for American plaintiffs seeking redress for antitrust injuries wrought by foreign defendants. The case involved a group of Chinese manufacturers and exporters of vitamin C, who conspired to fix prices and restrict output in the export market, injuring American consumers in import commerce. The foreign manufacturers conceded that they had colluded in fixing prices and restricting output, in flagrant violation of U.S. antitrust law. And yet, with the assistance of the Chinese government—intervening as amicus curiae—the defendants were successfully able to argue, on appeal …

The Artistry Of Mediation: A Look At Mediation’S Effectiveness For Resolving Cross-Cultural Disputes Through The Leonardo Da Vinci Conflict Between France’S Louvre Museum And Italy’S Uffizi Gallery, Sophia D. Casetta

Pepperdine Journal of Communication Research

Art is powerful, as it symbolizes the history and identity of the country that claims it. However, through timely transitions, such as trade and wars, the ownership of meaningful artworks blurs, with museums fighting to claim their heritage to put on honorable display for their people. Mediation can be a peaceful means to resolve art ownership disputes, as it accounts for respecting the individual cultures of the countries represented in the dispute. Using the key medication traits described within this essay, a prepared mediator involved in such a cross-cultural conflict should be able to help resolve the issue at hand. …

(Not) Right On Time: Interpretation Of "Pertinent Time" For Bancec Alter Ego Analysis And Its Effect On Attaching Foreign Sovereign Assets, James Hardman

University of Cincinnati Law Review

No abstract provided.

Making Room For The Past In The Future: Managing Urban Development With Cultural Heritage Preservation, Kubra Guzin Babaturk

Sustainable Development Law & Policy

Few would disagree that art and architecture are indispensable aspects of the collective human experiences. But can there be “too much” of it? How much is “too much?” Could art and cultural heritage be a hindrance to progress, urbanization, and sustainability? Which art is worth saving? A growing question is how to balance and reconcile expanding urban needs with efforts to preserve cultural heritage. Many cities across the global face this fresh moral dilemma. Cities like Istanbul, Rome, and Cairo––heirs to great empires, with history and art cursing through every alley, are still modern-day metropolises, with ever-burgeoning populations and social …

The Inspection Panel And International Law, Daniel D. Bradlow

Perspectives

This essay argues that the creation of the Inspection Panel (Panel) was an important international legal development. It was the first time that an international organization established a mechanism that enabled those communities and individuals who claimed they had been harmed by the decisions and actions of the international organization to hold the organization accountable. The creation of the Panel also promoted the role of non-state actors in making the soft international law that is applicable to the international financing of development projects. This essay will discuss each of these developments before drawing some conclusions about the Panel and international …

Can Mediation Provide Remedy For Human Rights Violations? A Quest For Justice Using A Development Bank Accountability Mechanism, Natalie Bugalski, David Pred

Perspectives

This essay describes what it takes—the enormous tenacity, solidarity, courage and skill required—for communities and their civil society partners to seek recourse through the dispute resolution processes of development bank accountability mechanisms. While these mechanisms can be the crucial centerpiece of an effective strategy, their critical shortcomings mean that community advocates must often engage in Olympian advocacy gymnastics to achieve even a small measure of redress. The essay makes recommendations for strengthening community-centered accountability in development finance, so that remediation and prevention of harm become the norm, and not the rare exception.

The 2022 U.S. Steel/Aluminum Tariff Ruling: A Legal Reckoning For The United States And The Wto Over The National Security Exception In International Law, Klint W. Alexander

American University Law Review

On December 9, 2022, the World Trade Organization (WTO) issued landmark rulings against the United States in four cases brought by China, Switzerland, Norway, and Turkey involving the U.S. imposition and maintenance of restrictive trade measures on steel and aluminum imports dating back to 2018. The major effect of the rulings was to quash the idea that a WTO member had unfettered discretion to invoke the national security exception under Article XXI(b) of the General Agreement on Tariffs and Trade (GATT 1994) whenever it suits its interests. The recent decisions build upon important WTO precedents addressing the applicability of the …

Ending Violence In Development Finance Actions To Affirmatively Prevent And Stop Reprisals Against Rights Defenders, Gregory Berry

Perspectives

This Essay makes a case for stronger enforcement and implementation of zero-tolerance policies on reprisals within Development Finance Institutions. It argues that for DFIs to inculcate any hopeful vision of a just and inclusive transition to a sustainable future, they must begin by affirmatively cutting at the roots of reprisals. The essay particularly emphasizes two essential changes. First, Independent Accountability and Audit Mechanisms must be empowered to protect the safety of defenders by self-initiating investigations where there are credible concerns of reprisals, and by accepting anonymously submitted complaints. Second, DFIs must evolve to grow teeth for enforcing measures against retaliatory …

Reflections On The Role Of The Panel, Charles Di Leva

Perspectives

Over the past thirty years, the World Bank and the Inspection Panel have had a supportive relationship regarding the principle of accountability, particularly as applied to the field of development finance operations and the role and responsibility of the Bank as a multilateral public sector financial institution. This relationship has been apparent in at least three key aspects: i) following the Bank’s lead, many development institutions around the globe have taken steps to improve their own accountability and developed independent accountability mechanisms (IAMs) modeled on the Inspection Panel; ii) the Bank and other development institutions have been supporting the development …

Glass Half-Full Or Glass Half-Empty? Thirty Years Of Accountability At The Inspection Panel--The Impact Of Its Work And What The Data Tells Us, Ramanie Kunanayagam, Mark Goldsmith, Ibrahim James Pam, Serge Selwan, Richard Wyness, Ayako Kubodera, Camila Jorge Do Amarel, Rupes Dalai

Perspectives

“A stroke of a genius”, “a bold experiment in transparency and accountability that has worked to the benefit of all concerned”, “a precedent under international law”, and a “citizen-based accountability mechanism” are some of the ways in which close observers have described the World Bank Inspection Panel, which celebrated its thirtieth anniversary in 2023.

The Promise Of Collaborative Problem Solving In Enhancing Iam Effectiveness, Gina Barbieri

Perspectives

This essay analyses the effectiveness of collaborative problem-solving through mediation within accountability mechanisms, and considers ways in which western mediation principles should be enhanced to ensure fair outcomes given the power imbalance at play in development disputes. It also considers whether there is any scope to use problem solving principles to address questions of compliance, arguing for consideration of a hybrid approach to bolster tools available to IAMs, and so strengthen outcomes for communities.

Rethinking 'What Counts' As Accountability, Jonathan Fox

Perspectives

The current accountability impasse suggests it may be time to rethink core concepts, as well as the field’s underlying theories of change. The idea of accountability is malleable, ambiguous — and contested. This fuzziness poses challenges for both theory and practice – how do we know what strategies bolster accountability – or whether accountability produces its expected effects? This think piece recognizes the challenge of defining ‘what counts’ as accountability, unpacks a longstanding theory of change - that sunshine is the best disinfectant - and considers some information-based reform initiatives to identify missing links in the causal chain between transparency …

Reforming World Bank Dispute Resolution: Icsid In Context, Susan Franck

Scholarly Articles in Law Reviews & Journals

During a tumultuous moment in history with shifts in power and politics, international dispute settlement stands at a crossroads. In theory, international dispute settlement should not institutionalize abuses of power, rely upon a monolithic one-size-fits-all model, or be a waste of resources, which will inevitably generate stakeholder dissatisfaction. Rather, dispute resolution should reflect both a commitment to the rule of law and equal treatment that sustains nuanced, fair, and just procedures most likely to provide results of substantive quality. Against this backdrop and with the major reforms concluded in July 2022, this article explores the reality of dispute resolution at …

Three Decades Of Seeking Elusive Remedies, Richard E. Bissell

Perspectives

Remedy is a topic to be approached with some trepidation in the area of accountability. Throughout three decades of proliferating International Accountability Mechanisms ( IAMs), remedy has been the issue least addressed by leadership. Most management and board members find it threatening, wherever a remedial action falls on the spectrum, from an apology for error to financial compensation. The pursuit of remedy builds on the demonstrated existence of harm, which is embarrassing at the least, and brings a focus on consequences and actionable steps for those people whose lives have been damaged as well as for environmental violations. This short …

The Values-Based Trade Agenda, Fernanda Giorgia Nicola Dr., Michelle Egan

Scholarly Articles in Law Reviews & Journals

With the increasing trade tensions between the United States and China, pressures created by Brexit, and the COVID-19 pandemic, most trade scholars have focused on rising protectionism exhibited through defensive strategies such as tariffs and export controls. However, this focus ignores the fundamental shift in international trade goals of the United States and the European Union towards a values-based trade agenda.

Instead of merely focusing on free trade based on efficiency and market access, trade regulators on both sides of the Atlantic have independently pursued measures designed to address environmental sustainability and social equity. These policies resonate with their domestic …

Enforcing Soft Law In International Investment Arbitration, Vera Korzun

Akron Law Faculty Publications

Drawing examples from international environmental law, sustainable development, and corporate social responsibility, this Article examines the evolving role of international investment arbitration in the enforcement of non-binding soft law rules of international law. In doing so, the Article explains how investment tribunals can, and have been called upon to, interpret and, paradoxically, enforce soft law instruments. The Article calls for reevaluation of the nature of soft law and the role of investor-state dispute settlement in international rulemaking and enforcement. It also argues that for international environmental law and law on sustainable development, where the lack of an enforcement mechanism has …

Regulating Global Stablecoins: A Model-Law Strategy, Steven L. Schwarcz

Vanderbilt Law Review

Digital currencies have the potential to improve the speed and efficiency of the payment system. The principal challenge is retail: to facilitate day-to-day payments among consumers as an alternative to cash, both domestically and across national borders. Two models of digital currencies are becoming viable: central bank digital currencies and nongovernment-issued currencies that are backed by assets having intrinsic value (stablecoins or, when widely used internationally, global stablecoins). Because they are not government issued, global stablecoins present complex and novel cross-border regulatory challenges, including managing the costs of complying with a multitude of national laws and ensuring international legal enforceability. …

Incomplete International Investment Law -- Applying The Incomplete Contract Theory, Tae Jung Park

University of Cincinnati Law Review

There is a puzzle in the field of international investment law: many negotiating countries fail to complete their International Investment Agreements (“IIA”) and postpone the renegotiations for completion as well. The literature on IIAs has neglected to consider the existence, causes, and solutions of this phenomenon. This study employs the incomplete contract theory to explain the causes and solutions surrounding this phenomenon.

Splitting Canada’S Northern Strategy: Is It Polar Mania?, C. Mark Macneill

Sustainable Development Law & Policy

On July 15, 2019, Prime Minister Justin Trudeau’s legislation splitting Indigenous and Northern Affairs Canada (INAC) into two new departments and dissolving INAC came into effect. The same legislation also formally established the mandates of the two new departments, Crown-Indigenous Relations and Northern Affairs (CIRNAC) and Indigenous Services Canada (ISC). The Government of Canada passed the legislation to develop deeper relations and higher levels of collaboration with Canada’s Indigenous people to build stronger and healthier northern communities. Dovetailing with the splitting of INC, Prime Minister Justin Trudeau announce the Arctic Policy Framework (APF). The APF was co-developed with indigenous, territorial, …