International Trade Law Commons^™

The Varied Policies Of International Juridical Bodies- Reflections On Theory And Practice, John H. Jackson

Michigan Journal of International Law

It can be seen that "fragmentation" can have several dimensions, and that the difference between juridical approaches as well as legislative approaches to treaty or other norm stating documents can result not only from different institutional settings, but also from different policy goals assumed for differing dispute settlement systems.

Reply To Joshua Meltzer, Joost Pauwelyn

Michigan Journal of International Law

A reply to Joshua Meltzer's comment on the author's paper Bridging Fragmentation and Unity: International Law as a Universe of Inter-Connected Islands

Investment Protection In Bilateral And Free Trade Agreements: Implications For The Granting Of Compulsory Licenses, Carlos M. Correa

Michigan Journal of International Law

Can the exercise of any of the key provisions in investment agreements lead to rights and practices that deviate from the terms of the TRIPS Agreement? This issue is specifically explored in relation to compulsory licenses, one of the "safeguards" contemplated in the TRIPS Agreement that developing countries have actively tried to preserve in order to mitigate the powers conferred to patent owners. Despite this attention and interest, no single compulsory license has been granted in a developing country after the adoption of the TRIPS Agreement. This article explores the extent to which investment protection may add another barrier for …

The New Codex Alimentarius Commission Standards For Food Created With Modern Biotechnology: Implications For The Ec Gmo Framework's Compliance With The Sps Agreement, Aaron A. Ostrovsky

Michigan Journal of International Law

This Note makes two assertions. First, despite the fact that the Codex guidelines do not specifically invoke the Precautionary Principle in name, it can indeed be read into the guidelines in the amount of deference given to states in how they assess risk. This in turn means that the E.C.'s Deliberate Release Directive should be enjoy a presumption of compliance with both the SPS Agreement and the GATT. The second assertion is that even if the adjudicating body of the WTO finds that the Deliberate Release Directive, in relying on the Precautionary Principle, prescribes a higher level of protection than …

Interpreting The Wto Agreements- A Commentary On Professor Pauwelyn's Approach, Joshua Meltzer

Michigan Journal of International Law

In his paper, Professor Pauwelyn argues that pursuant to Article 31(3)(c) of the Vienna Convention on the Law of Treaties (Vienna Convention), the Appellate Body should consider other rules of international law in the interpretation of the WTO Agreements, when that law reflects the "common intentions" of the parties to the WTO. He argues that this does not mean that "all the parties to the WTO treaty must have formally and explicitly agreed, one after the other, to the new non-WTO rule; nor even that this rule must be otherwise legally bind all WTO members; but rather, that this new …

Treaty Governance, Intellectual Property And Biodiversity, John Linarelli

Scholarly Works

When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework …

The Caspian Dispute: Is A Doctrinal Analysis Too Late Or Can We Turn Back The Hands Of Time, Houman Afshar

NYLS Law Review

No abstract provided.

Wto Compassion Or Superiority Complex?: What To Make Of The Wto Waiver For "Conflict Diamonds", Joost Pauwelyn

Michigan Journal of International Law

In May 2003, the WTO granted a waiver for trade restrictions imposed on WTO members not participating in the Kimberley Certification Scheme combating so-called "conflict diamonds." This Article examines the implications of this waiver decision. It argues that GATT/TBT provisions may already excuse the trade restrictions at issue, especially now that the UN Security Council has explicitly supported them. The waiver, therefore, risks sending out the wrong signals, confirming a WTO "superiority complex." At the same time, by excluding restrictions between Kimberley participants from its scope, the waiver implies that WTO members considered the Kimberley scheme to be a non-WTO …

Assessing Clashes And Interplays Of Regines From A Distributive Perspective: Ip Rights Under The Strengthened Embargo Against Cuba And The Agreement On Trips, Robert Dufresne

Michigan Journal of International Law

This Article examines the clash of the two regulatory frameworks from the angle of distributive justice. By doing so, I suggest that in addition to the important issues of legitimacy, substantive norms, and hierarchy of legal orders, clashes between potential regulatory frameworks should also be conceptualized in the way in which they allocate goods (here the rights associated with IP) or recognize claims to or interests in such goods. The reasons for being concerned with distributive justice are threefold.

Labor Standards And The Generalized System Of Preferences: The European Labor Incentives, Anthony N. Cole

Michigan Journal of International Law

This Note offers an introduction to the history of the GSP system, and critiques India's claim that the particular GSP scheme enacted by the EC is unacceptable under WTO law. It ultimately concludes that while the EC’s GSP scheme does indeed raise issues not raised by the GSP scheme of any other country, it is nonetheless not inconsistent with the EC's WTO obligations. Part 2 discusses the development of the international GSP regime, as incorporated into the legal structure of the WTO, and thereby establishes what originally was and was not seen as permissible within such schemes. Part 3 then …

Inordinate Chill: Bits, Non-Nafta Mits, And Host-State Regulatory Freedom- An Indonesian Case Study, Stuart G. Gross

Michigan Journal of International Law

A number of structural factors, which are beyond the immediate scope of this Note, may influence less wealthy countries to cave in to investor threats of arbitration, as Indonesia appears to have done here. However, their hesitancy to fight may also be based, in part, on an inadequate understanding of the applicable law, which allows investors to inordinately influence host-State decisions through threats of arbitration that have little or no chance of success. In regard to the mining companies' threat, this at least appears to be the case. As this Note will demonstrate, the GOI could have likely beaten the …

Further Thoughts On The Role Of Regulatory Purpose Under Article Iii Of The General Agreement On Tariffs And Trade: A Tribute To Bob Hudec, Donald H. Regan

Articles

My topic in this article is the role of regulatory purpose under Article III of the GATT, and I regard Bob [Hudec] as the patron saint of efforts to establish the relevance of purpose. His famous "Requiem for an 'Aims and Effects' Test" may have been called a requiem, but it was reluctant and sceptical. Bob thought dispute settlement tribunals ought to consider the regulator's purpose, and he thought they would do so, whatever they said. As decisions on Article III accumulate, we are in the process of learning that he was right on both counts.

The Precautionary Principle: Development Of An International Standard, Sonia Boutillon

Michigan Journal of International Law

This Note characterizes and evaluates the current status of the precautionary principle in international law and suggests how it could be more effectively incorporated into bodies of law such as trade law. Much of the literature focuses on whether the principle is a legal rule. This Note shows that precaution need not necessarily fit into the traditional categories of international legal sources' but may derive its legal force from being interpreted as a standard. While the theme-and thesis-of this Note will strike some as provocative, it will appear as an understatement to others, thereby reflecting the ongoing controversy about the …

(How) Should Trade Agreements Deal With Income Tax Issues?, Joel Slemrod, Reuven S. Avi-Yonah

Articles

What is the relationship between the international tax regime, as embodied in bilateral international tax treaties, and multilateral free trade agreements like the General Agreement on Tariffs and Trade (GATr)?' Are their fundamental goals consistent or inconsistent? If they are inconsistent, should the tax treaties or the GATT be changed to remedy the inconsistency? If they are consistent, should the scope of either be expanded to include the other?

Regulatory Purpose And 'Like Products' In Article Iii:4 Of The Gatt (With Additional Remarks On Article Ii:2), Donald H. Regan

Articles

In European Communities-Measures Affecting Asbestos and Asbestos-Containing Products (EC-Asbestos) the Appellate Body has told us that (1) in interpreting Article 111:4 of the General Agreement on Tariffs and Trade (GATT), we must take explicit account of the policy in Article 111:1 that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In Chile--Taxes on Alcoholic Beverages (Chile--Alcohol) the Appellate Body has told us that (2) in deciding whether a measure is applied "so as to afford protection", we must consider "the purposes or objectives of a Member's legislature and …

Labor Rights, Globalization And Institutions: The Role And Influence Of The Organization For Economic Cooperation And Development, James Salzman

Michigan Journal of International Law

This Article has four sections. The first recounts the history of the OECD, from its creation as the overseer of the Marshall Plan to its current prominence as global economic analyst, and explains its operations. The second section explores its influence on the development of labor rights, examining the well-known OECD Guidelines for Multinational Enterprises, publications on trade and labor by the Employment, Labor and Social Affairs Directorate, and the events surrounding South Korea's accession to the OECD. Each of these activities, though quite different from one another (and, in combination, very different from the activities of other IGOs), provided …

The Product/Process Distinction - An Illusory Basis For Disciplining 'Unilateralism' In Trade Policy, Robert L. Howse, Donald H. Regan

Articles

It has become conventional wisdom that internal regulations that distinguish between products on the basis of their production method are GATT-illegal, where applied to restrict imports (although possibly some such measures might be justified as 'exceptions' under Article XX). The aim of this article is to challenge this conventional wisdom, both from a jurisprudential and a policy perspective. First, we argue there is no real support in the text and jurisprudence of the GATT for the product/process distinction. The notion developed in the unadopted Tuna/Dolphin cases that processed-based measures are somehow excluded from the coverage of Article III (National Treatment) …

Women's Rights And The Public Morals Exception Of Gatt Article 20, Liane M. Jarvis

Michigan Journal of International Law

The public morals exception in Article XX of the General Agreement on Tariffs and Trade (GATT) could and should be interpreted in accordance with evolving human rights law on women's rights. This clause provides an exception to the general rule that members of the World Trade Organization (WTO) cannot take measures against other Members that would restrict trade. Under Article XX, WTO members may restrict trade for a variety of social reasons, including protecting the environment, preventing prison labor, and otherwise promoting "public morals.” This Note will argue in particular that a nation should be allowed to invoke the public …

The Desirability Of Agreeing To Disagree: The Wto, Trips, International Ipr Exhaustion And A Few Other Things, Vincent Chiappetta

Michigan Journal of International Law

This Article proposes a procedural and substantive approach specifically designed to achieve this result. Concerning process, interim national and regional decisionmaking and the multilateral debate must expressly broaden and clarify the values and interests at stake. Three basic operational principles advance this objective. First, comparisons based on IPR labels (patent, copyright, and the like) confuse rather than illuminate. Instead, focus must be on the actual underlying policy justifications and objectives. Second, the full range of implicated justifications (economic and otherwise), including those outside the decision-makers' own norms, must be expressly identified and considered. Finally, any position taken or decision reached …

Trade And Inequality: Economic Justice And The Developing World, Frank J. Garcia

Michigan Journal of International Law

This Article attempts to lay the foundation for such a framework in the area of international trade law. More specifically, this Article develops the argument that the principle of special and differential treatment, a key element of the developing world's trade agenda, plays a central role in satisfying the moral obligations that wealthier states owe poorer states as a matter of distributive justice. Seen in this light, the principle of special and differential treatment is more than just a political accommodation: it reflects a moral obligation stemming from the economic inequality among states.

The Settlement Of Investment Disputes Between States And Private Parties - An Overview From The Perspective Of The Icc, Horacio A. Grigera Naón

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Getting Along: The Evolution Of Dispute Resolution Regimes In International Trade Organizations, Andrea Kupfer Schneider

Michigan Journal of International Law

In the face of the remarkable growth of international organizations in the last fifty years, scholars in multiple disciplines have sought to explain why and how states cooperate. Dispute resolution is one of the most crucial components of international cooperation. Examining the dispute resolution regimes of international organizations in light of these theories can inform and help reform these evolving regimes.

Reflections On The Mjil Special Issue, John H. Jackson

Michigan Journal of International Law

A reflection on this special issue of Michigan Journal of International Law and its subject by Professor John H. Jackson.

Environmental Disputes In The Gatt/Wto: Before And After Us-Shrimp Case, Dukgeun Ahn

Michigan Journal of International Law

This paper aims to present the legal analysis of the rulings by the Panel and, with more emphasis, the Appellate Body in US-Shrimp. Section I briefly reviews general dispute settlement mechanisms provided in international environmental conventions. Section II summarizes the practices regarding Article XX of the GATT in the GATTIWTO dispute settlement systems prior to US-Shrimp. Section III presents the factual background of US-Shrimp case and the legal analysis of several procedural and substantive issues specifically addressed in the Appellate Body report. Section IV examines the remaining issues to be addressed in trade disputes with environmental implication after …

An Examination Of The Developments In Chapter 19 Antidumping Decisions Under The North American Free Trade Agreement (Nafta): The Implications And Suggestions For Reform For The Next Century Based On The Experience Of Nafta After The First Five Years, Kenneth J. Pippin

Michigan Journal of International Law

This paper describes the themes in the Chapter 19 antidumping panel decisions that have developed over the first five years of NAFTA. Part I provides a brief overview of the Chapter 19 panel process and the method of antidumping determinations for each NAFTA party. Part II presents statistics on the number and types of antidumping panel decisions made under the first five years of NAFTA. Finally, Part III explores the most significant themes in the antidumping Chapter 19 panel decisions and discusses their implications for reforming the Chapter 19 panel process.

The European Union's Common Foreign And Security Policy: It Is Not Far From Maastricht To Amsterdam, Daniel T. Murphy

Vanderbilt Journal of Transnational Law

The radical shift in and expansion of the concepts of European law wrought by the now more than five-year-old Treaty on European Union (TEU) are not fully appreciated in the United States. Until the TEU of 1992, European law was bounded by the reasonably well-defined and understood contours of the Treaty of Rome and its amendments. The expressly political TEU added new dimensions to European law, the relationships among the Member States, and the scope of activities to be pursued by the European Union. This expansion was accomplished through, among other provisions, (1) the TEU's monetary union provisions; (2) its …

Indigenous Nations And International Trade, Robert Berry

Librarian Publications

In an era where economic policy must be increasingly fashioned in global terms, the economies of Indigenous Nations in present-day Canada and the United States remain isolated from international commerce.These nations--once independent, now governed by a supervising state --in most cases cannot be said to enjoy evenan unhindered access to commerce within the states that surround them. Indeed, the insularity of the North American Indigenous Nations is a fundamental feature of their existence and, too, a formidable barrier to these nations' ability to establish vibrant and diversified economies.

This Note examines the central role that trade played in relations …

Reflections On Certain U.S. Law Specificities That Constitute Obstacles To The Free Trade Area Of The Americas: A Brazilian Perspective, Durval De Noronha Goyos

University of Miami Inter-American Law Review

No abstract provided.

Trade Policy Harmonization: Too Much Of A Good Thing?, Alexander W. Sierck

Michigan Journal of International Law

Review of Fair Trade and Harmonization: Prerequisites for Free Trade? by Jagdish N. Bhagwati & Robert E. Hudec

Securing The Peace Dividend In The Middle East: Amending Gatt Article Xxiv To Allow Sectoral Preferences In Free Trade Areas, David R. Karasik

Michigan Journal of International Law

How should Middle East nations structure their future economic relationships to secure their peaceful reconciliation while simultaneously fulfilling their WTO obligations? This note suggests two solutions to this quandary. First, the newly emerging bloc of peace-declaring nations in the Middle East should consider establishing a regional free trade area. However, instead of reducing the tariffs of "substantially all" of the region's products as would normally be required by Article XXIV of the General Agreement on Tariffs and Trade (GATT) 9-the authoritative provision regulating free trade areas-this note argues that a Middle East free trade area should reduce trade barriers only …