International Trade Law Commons^™

The New Poor At Our Gates: Global Justice Implications For International Trade And Tax Law, Ilan Benshalom

Faculty Working Papers

The Article explains why international trade and tax arrangements should advance global wealth redistribution in a world of enhanced economic integration. Despite the indisputable importance of global poverty and inequality, contemporary political philosophy stagnates over the controversy of whether distributive justice obligations should extend beyond the political framework of the nation state. This stagnation results from the difficulty of reconciling liberal impartiality with notions of state sovereignty and accountability. The Article offers an alternative approach that bypasses the controversy of the current debate. It argues that international trade results in relational distributive duties when domestic parties engage in transactions with …

The European Court’S Political Power Across Time And Space, Karen Alter

Faculty Working Papers

This article extracts from Alter's larger body of work insights on how the political and social context shapes the ECJ's political power and influence. Part I considers how the political context facilitated the constitutionalization of the European legal system. Part II considers how the political context helps determine where and when the current ECJ influences European politics. Part III draws lessons from the ECJ's experience, speculating on how the European context in specific allowed the ECJ to become such an exceptional international court. Part IV lays out a research agenda to investigate the larger question of how social support shapes …

Think Big And Ignore The Law: U.S. Corn And Ethanol Subsidies And Wto Law, Phoenix X.F. Cai

Sturm College of Law: Faculty Scholarship

Everyone should care about what happens at the World Trade Organization (WTO) in Geneva. This Article argues that new challenges to US corn and ethanol subsidies are highly likely. Even though at first glance this Article deals with the specialized and esoteric field of international trade law, its sweep is much broader. The subject of this Article is also both timely and salient. Part I explains the multi-layered WTO regime on agriculture and subsidies, with particular emphasis on the delicate interplay among multiple WTO agreements. Part II discusses the Upland Cotton case in detail, highlighting in particular the implications for …

Agreements That Divide: Trips Vs. Cbd And Proposals For Mandatory Disclosure Of Source And Origin Of Genetic Resources In Patent Applications Comment, Jonathan Carr

Florida State University Journal of Transnational Law & Policy

In an attempt to unify the regulation of intellectual property, the TRIPS Agreement sets forth standards for intellectual property law. Recently, however, many countries have become divided on the issue of whether member countries should be required to disclose the source and origin of genetic resources used in patented technologies. Developing countries claim that enforcement of such a requirement would help remedy the global biopiracy problem. This article reviews and assesses the many proposals to amend the TRIPS Agreement as well as the responses from countries, such as the United States, opposing the proposals. Included is a brief discussion about …

A Legal Regime For State-Owned Companies In The Modern Era, Phillip Riblett

Florida State University Journal of Transnational Law & Policy

Foreign state-owned companies (SOCs), particularly those in the energy sector, are more powerful than ever before. Yet under the Foreign Sovereign Immunities Act of 1976 (FSIA), agencies and instrumentalities-a category in which many SOCs fall-enjoy a presumption of immunity. At the same time, however, pursuant to the U.S. Supreme Court's 1983 decision in First National City Bank v. Banco Para el Comercio Exterior de Cuba, in most cases the foreign state also enjoys the benefit of legal separateness-i.e., it is very difficult for a third party to "pierce the corporate veil" between the sovereign and its subsidiary. Thus, SOCs enjoy …

Questioning The Silence Of The Bench: Reflections On Oral Proceedings At The International Court Of Justice, Cecily Rose

Florida State University Journal of Transnational Law & Policy

The growth of the docket of the International Court of Justice over the last several decades has been both a sign of its success and a source of its troubles. Because the Court's continued attractiveness as a forum for dispute settlement depends not only on the quality of its judgments, but also on the efficiency of its procedures, the Court has responded by attempting to modernize its working methods. Literature concerning the weaknesses of the Court's procedures, however, has not focused on how oral proceedings suffer from an absence of direct exchanges between the judges and counsel. The judges' hesitancy …

Free To Follow The Rules: A Glimpse At The Role Of Iraqi Media, Past, Present, And Future Comment, Cheryl D. Kluwe

Florida State University Journal of Transnational Law & Policy

The Iraqi media has always reflected the social attitudes of the people who controlled it and, to a much lesser degree, those of its recipients. This Comment is a brief foray into a few of the reasons for the recent changes in that dynamic. It is a discussion of how the transition of the native Iraqi media into a semblance of a free press has been affected by conditions both inside and outside of Iraq, public perception, and the U.S. government's varying influence over the Iraqi media. This short work as a whole underscores an uneasy symmetry between old attitudes …

The Case Of The Eroding Special Immigrant Juvenile Status, Wendi J. Adelson

Florida State University Journal of Transnational Law & Policy

This Article provides a case study of a larger problem in American administrative law: the creation of unexecuted rights, with a focus in particular on the recent degradation of the Special Immigrant Juvenile Status (SIJS). Nearly twenty years ago, Congress drafted legislation providing for a pathway to citizenship for unaccompanied minors. In subsequent years, the Department of Homeland Security has ignored Congress' mandate to issue policy directives implementing the benefits and privileges associated with SIJS in a manner that would allow eligible persons to take advantage of this status. After explicating the nature of this creeping erosion of the SIJS …

Looking Beyond The Dabhol Debacle: Examining Its Causes And Understanding Its Lessons, Preeti Kundra

Vanderbilt Journal of Transnational Law

This Note analyzes foreign direct investment in India, looking into the investment troubles surrounding the Dabhol power project, India's largest foreign investment project to date. After providing an introduction to the mechanics of project finance and a backdrop to the Dabhol power project, the Note considers whether the Indian government's actions, specifically the use of the Indian legal system, constituted "total expropriation" and violations of international law. Additionally, this Note considers what systemic changes India can make in order to create a more investment-friendly environment in the post-Dabhol context.

Culture, Sovereignty, And Hollywood: Unesco And The Future Of Trade In Cultural Products, Christopher M. Bruner

ExpressO

On October 20, 2005, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a treaty – by a vote of 148-2, with 4 abstentions – that legitimates domestic legal measures aimed at the protection of local producers of "cultural activities, goods and services." Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France – its principal proponents – and a major blow to Hollywood and the United States, audiovisual products being among America's most lucrative exports. Both Canada and France, like many countries around the world, have …

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 …

Creative Industries In Developing Countries And Intellectual Property Protection, Lauren Loew

Vanderbilt Journal of Entertainment & Technology Law

International intellectual property law (hereafter referred to as IP law) has an increasingly important significance for international trade and relations. From the music industry to the drug industry, intellectual property is a lucrative market, and both individuals and corporations have a lot to lose from the infringement of intellectual property rights. For example, music is a $40 billion worldwide industry. According to the Recording Industry Association of American (RIAA), the music industry loses approximately $4.2 billion each year to worldwide piracy. Although these facts bring to light the economic losses of industries and individuals from IP infringement, the global community …

Taiwan's Fair Trade Act: Achieving The Right Balance Symposium On Competition Law And Policy In Developing Countries, Pijan Wu, Caroline Thomas

Northwestern Journal of International Law & Business

Adopting competition laws is part-and-parcel of a global trend. Indeed, it is striking to see how many countries first implemented competition laws within the last twenty-five years. In 2000, Frederic Jenny commented that "today between 80 and 100 countries have a competition law or are in the process of adopting one whereas ten years ago no more than 50 countries had such a law." This compares to less than ten countries in 1960. Promulgated by a Presidential Order on February 4, 1991 and coming into force one year thereafter, Taiwan's Fair Trade Act ("FTA") must be interpreted in this context. …

Rule-Based Dispute Resolution In International Trade Law, Rachel Brewster

Faculty Scholarship

Why does the United States ever prefer to settle disputes under a system of rules rather than a system of negotiations? Powerful states are advantaged by negotiation-based approaches to settling disagreements because they have the resources to resolve individual disputes on favorable terms. By contrast, rule-based dispute resolution advantages weak states as a means to hold powerful states to the terms of their agreements. Then why did the United States want a rule-based system to settle international disputes in the WTO? To answer this question, we have to understand domestic politics as well as international politics. International constraints, particularly international …

The Cape Town Approach: A New Method Of Making International Law, Mark J. Sundahl

Law Faculty Articles and Essays

The use of multilateral treaties in the field of international commercial law has been in a state of steady decline. Traditional treaty law has been gradually replaced in recent years by softer methods of making international law, such as the use of restatements and model laws. Some scholars even claim that treaty law is dead or dying. This Article explains how the Cape Town Convention on International Interests in Mobile Equipment (which entered into force on March 1, 2006) provides an innovative approach to the creation of treaties that promises to revive the status of treaties in international law. The …

Bilateralism Under The World Trade Organization, Y.S. Lee

Northwestern Journal of International Law & Business

The establishment of the World Trade Organization ("WTO"), which replaced the five decades of the General Agreement on Tariffs and Trade ("GATT") regime,' has significantly reinforced multilateral control over international trade on a global scale. As of October 2005, membership in the WTO has reached 148 nations, including the majority of former Soviet bloc and other communist countries,2 making the WTO the "United Nations of International Trade.",3 WTO disciplines have significant impact on world trade today; they have been enforced by the monitoring activities of various WTO bodies and by strengthened dispute resolution mechanisms. In addition, a significant number of …

Educating Lawyers For Transnational Challenges–The Globalization Of Legal Regulation, Steven Freeland

Journal of Legal Education

No abstract provided.

The Wto Constitution: Tertiary Rules For Intertwined Elephants, Joel P. Trachtman

ExpressO

Constitutions have many dimensions. These dimensions include at least the following:

• an economic constitution in the sense of a set of rules for exchange of value and authority,

• an interfunctional constitution that allows for the integration of various social values,

• a political constitution that reflects the cultural and democratic integrity of a group of people,

• a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules,

• a human rights constitution that limits the sphere of governmental authority, and

• a …

A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity

ExpressO

This Article proposes a conceptual foundation for the field of international tax law. The Article refers to this foundation as the institutional competence of nations in global economic development. A nation’s institutional competence is its discretion to make decisions in pursuit of our collective goal of global economic development, discretion that is subject to a number of standards and limitations.

The Article constructs the institutional competence of nations in global economic development from institutional economics, simple game theory, and the literature on social norms. The Article expresses the institutional competence of nations through standards and limitations that reduce the abuse …

The Customary International Law Game, Joel P. Trachtman, George Norman

ExpressO

Structural realists in political science and some rationalist legal scholars argue that customary international law cannot affect state behavior: that it is “epiphenomenal.” This article develops a game theoretic model of a multilateral prisoner’s dilemma in the customary international law context that shows that it is plausible that states would comply with customary international law under certain circumstances. Our model shows that these circumstances relate to: (i) the relative value of cooperation versus defection, (ii) the number of states effectively involved, (iii) the extent to which increasing the number of states involved increases the value of cooperation or the detriments …

Bilateral Investment Treaties And The Possibility Of A Multilateral Framework On Investment At The Wto: Are Poor Economies Caught In Between, Victor Mosoti

Northwestern Journal of International Law & Business

The increased Foreign Direct Investment ("FDI") flows in the past few years have strengthened the belief among many developing countries, especially African countries, that such FDI flows could help in reducing the resource, technology and foreign exchange gaps that constrain their economic development. As a result, many developing countries have beendiligently working to attract foreign investment, for which these countries give some of the highest returns; in the process, these countries make concessions that they would have found unthinkable in the past, when autarchic economic policies were prevalent. For example, due to the liberalization of capital accounts, a foreign investor …

Historical And Social Perspectives On The Regulation Of The International Trade In Archaeological Objects: The Examples Of Greece And India, Neil Brodie

Vanderbilt Journal of Transnational Law

Two empirical studies of the trade in cultural material have shown that strong export controls work. Between 1820 and 1870, pre-unification Italian states with strong export controls in place retained more of their cultural heritage (measured in terms of paintings and antique books) than states with weak or no controls. Thefts from cultural institutions in the Czech Republic rose sharply after 1989, the year the "Iron Curtain" was raised; though this example also highlights the curtailment of civil liberties that might be necessary for strong export controls to work and that are probably unacceptable in a liberal society. '

This …

International Legal Compliance: Surveying The Discipline, William C. Bradford

ExpressO

No abstract provided.

Changing Notions Of Sovereignty And Federalism In The International Economic System: A Reassessment Of Wto Regulation Of Federal States And The Regional And Local Governments Within Their Territories, Edward T. Hayes

Northwestern Journal of International Law & Business

International trade liberalization increasingly addresses disciplines which fall within the constitutional competence of regional and local governments. Traditional notions of nation/state sovereignty are evolving to recognize the importance of regional and local actors on the international economic scene. The ongoing evolution of international trade and sovereignty incresasingly places regional and local governments in a unique position to influence world trade, positively and negatively.

This article explores the manner in which the World Trade Organization attempts to regulate regional and local behavior. Specifically, this Article explores the inherent constitutional tension and resulting ambiguities in the WTO's effort to regulate regional and …

The Spirit Of Trips And The Importation Of Medicines Made Under Compulsory License After The August 2003 Trips Council Agreement, Jessica J. Fayerman

Northwestern Journal of International Law & Business

The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement has changed prospects for access to necessary medications in the developing world. The use of compulsory licensing for pharmaceutical products embodied in Article 31 of TRIPS has been a contentious issue. Prior to 2003, countries with no manufacturing capacity of their own were not allowed to import medicines made under compulsory license, rendering the protections of Article 31 of little use to them. The 2003 Motta Agreement changed this. This expansion of the compulsory licensing power is both an impractical solution and it dilutes the premises upon which TRIPS was originally …

Trips' Rebound: An Historical Analysis Of How The Trips Agreement Can Ricochet Back Against The United States, Donald P. Harris

Northwestern Journal of International Law & Business

Recently, scholars and commentators around the world have reexamined the role intellectual property rights (IPRs) play in hindering or helping developing countries. These scholars have questioned the doctrine the IPRs help developing countries by promoting economic development, increasing foreign direct investment, stimulating domestic innovation, and improving access to new technologies, and have concluded that imposing "Western-styled" intellectual property regimes (e.g., the U.S. patent regime) on developing countries harms those countries. In particular, such regimes fail to bring any of the purported benefits, while they impose many costs, including preventing people from obtaining life-saving drugs. This Article argues that it is …

Test Of Multilateralism In International Trade: U.S. Steel Safeguards, Y.S. Lee

Northwestern Journal of International Law & Business

The highly publicized safeguard measures applied by the United States to an array of steel products in 2002 became one of the biggest and most controversial trade disputes in recent history. Virtually all major trading nations in the world, including the European Community, Japan , China , Brazil , Korea , New Zealand , Switzerland and Norway , were the direct parties to this dispute with the United States . The contentious legal grounds of the U.S. safeguard measures, as well as the lack of adequate consultations between the United States and its trading counterparts, have brought the international community …

Injury Investigations In "Material Retardation" Antidumping Cases, Prakash Narayanan

Northwestern Journal of International Law & Business

Despite the criticisms of economists to antidumping measures, they continue to be the most often used trade remedy measure. A new trend that may be observed is the use of the "material retardation" standard of injury to demonstrate injury to domestic industry that is one of the requirements for imposing antidumping duty. It is essential to be wary of this trend as unlike the other two types of injury, the WTO lacks specific guidelines for the use of this standard. The general rules in the Antidumping Agreement are unsuitable for the situations where the material retardation standard is relevant, and …

Building A Better Seating Chart For Sovereign Restructurings, Anna Gelpern

Georgetown Law Faculty Publications and Other Works

Every sovereign debt restructuring in recent memory has wrestled with the problem of inter-creditor equity. Governments have discriminated among creditors in ways that were hard to predict and often were not revealed until after a debt default. In contrast, debts of firms, individuals and even localities are ranked in order of priority established by contract and statute. This ranking is known at borrowing, generally corresponds to the order of repayment in bankruptcy liquidation, and helps define the creditors' relative bargaining power in reorganization. Without a bankruptcy backstop, most debts of national governments are legally equal. Yet in practice, sovereign immunity …

Foreword, Stephen M. Schwebel

Vanderbilt Journal of Transnational Law

I was glad to return to Vanderbilt Law School to take part in this Symposium on International Commercial Arbitration. I came because Jon Charney telephoned me last autumn to ask me to come. Jon Charney was a superb international lawyer and a splendid human being. He became a reigning expert on the Law of the Sea. But his interests in international law were wider than that wide subject. He wrote, for example, on the proliferation of international tribunals and on the position of the persistent objector in international law with exceptional acuity and insight.

Jon's professional accomplishments were increasingly large. …