International Trade Law Commons^™

The China-Africa Factor In The Contemporary Icsid Legitimacy Debate, Won Kidane

Faculty Articles

The International Centre for the Settlement of Investment Disputes (ICSID), affiliated with the World Bank, was created at a time when most African countries had just gained independence and foreign investment required a more legitimate protection in the former colonies. The ICSID Convention, which set up the Centre, came into force on October 14, 1966. The majority of the ICSID cases involved Africa, Western Europe, and North America. Today, Africa's largest infrastructure financier is no longer the World Bank—it is China. China does not have as much experience with ICSID as Africa, although it has shown interest in pursuing investment …

Tarrification Of The Coastwise Trade Laws, Keith E. Diggs

Michigan Law Review

The coastwise trade laws prohibit foreign vessels and mariners from transporting goods or passengers between American ports. These anticompetitive laws punish American producers and consumers yet barely sustain a dwindling merchant marine. Every attempt to repeal the laws encounters insurmountable political resistance. Reformers of the coastwise trade laws, then, should instead try to convert the prohibition on foreign involvement into a tariff.

Transnational Business Governance Interactions: Conceptualization And Framework For Analysis, Burkard Eberlein, Kenneth W. Abbott, Julia Black, Errol Meidinger, Stepan Wood

All Faculty Publications

This article demonstrates the value of studying interactions in transnational business governance (TBG) and proposes an analytical framework for that purpose. The number of TBG schemes involving non-state authority to govern business conduct across borders has vastly expanded in a wide range of issue areas. As TBG initiatives proliferate, they increasingly interact with one another, and with state-based and other normative regimes. The key challenge is to understand the implications of TBG interactions for regulatory capacity and performance – the most fruitful initial focus – and ultimately for the impacts of regulation on social and environmental problems. To gain purchase …

Supplying Compliance: Why And When The United States Complies With Wto Rulings, Rachel Brewster, Adam Chilton

Faculty Scholarship

In studies of compliance with international law, the focus is usually on the “demand side” – that is, how to increase the pressure on the state to comply. Less attention has been paid, however, to the consequences of the “supply side” – who within the state is responsible for the compliance. This Article is the first study to systematically address the issue of how different actors within the United States government alter national policy in response to the violations of international law. The Article does so by examining cases initiated under the World Trade Organization (WTO) Dispute Settlement Understanding (DSU). …

The Margin Of Appreciation In International Investment Law, Julian Arato

Articles

Investment treaties tend to say nothing, or only very little, about the appropriate standard of review for arbitrating disputes between sovereign states and foreign investors. Most treaties do not address whether states should be afforded any deference in their own assessment of their treaty obligations. Neither do they specify the converse, that state action must be strictly reviewed. They are simply silent – and their silence has been interpreted in innumerable ways by different tribunals. This interpretive chaos has generated calls for a unified approach – one that would resolve the uncertain and fragmented status quo, while being sufficiently flexible …

Unasur: The Newest 'Global Player' Or Neo-Boliverian Fantasy?, Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The Union of South American Nations (Unasur) presents the most recent vision for trade liberalization and political, economic, and social integration amongst South American countries. Unasur has set 2019 as the year by which it hopes to accomplish many of its goals, such as full regional integration and tariff elimination. But, as 2019 slowly approaches, it remains to be seen whether Unasur will in fact be able to reach these goals. While Unasur’s future is certainly compelling, before heralding Unasur as the long-awaited panacea for pure regional integration, important lessons can be drawn from previous attempts at and iterations of …

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

Publications

In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

The Capture Of International Intellectual Property Law Through The U.S. Trade Regime, Margot E. Kaminski

Publications

For years, the United States has included intellectual property ("IP") law in its free trade agreements. This Article finds that the IP law in recent U.S. free trade agreements differs subtly but significantly from U.S. IP law. These differences are not the result of deliberate government choices, but of the capture of the U.S. trade regime.

A growing number of voices has publicly criticized the lack of transparency and democratic accountability in the trade agreement negotiating process. But legal scholarship largely praises the 'fast track" trade negotiating system. This Article reorients the debate over the trade negotiating process away from …

Book Review, Anna Spain

Publications

No abstract provided.

Declaration On Patent Protection: Regulatory Sovereignty Under Trips, Reto Hilty, Matthias Lamping, Dan L. Burk, Carlos M. Correa, Peter Drahos, N. S. Gopalakrishnan, Henning Große Ruse-Khan, Annette Kur, Geertrui Van Overwalle, Jerome Reichman, Hanns Ullrich

Faculty Scholarship

As a framework regulation for innovation markets, the patent system needs to be tailored to the innovation process, which it is supposed to serve, and to the competitive environment, within which it must operate. In order to ensure an efficient functionality of the patent system as an innovation policy tool, patent rights ought to be defined, justified and continually reconsidered by reference to their socio-economic benefits and costs.

Sovereign states should retain the discretion to adopt a patent system that best suits their technological capabilities as well as their social, cultural and economic needs and priorities, with the proviso that …

The Domestic And International Enforcement Of The Oecd Anti-Bribery Convention, Rachel Brewster

Faculty Scholarship

International corruption law is a growing, if understudied, area of international economic law. This Article examines two aspects of governments' enforcement of the OECD's Anti-Bribery Convention. The first aspect is the member state's efforts to enforce its own national legislation prohibiting foreign corruption within its territory and with regards to its nationals doing business abroad. The OECD Treaty's obligation concerning member states' enforcement of their own national legislation is somewhat ambiguous. While the obligation to pass particular national legislation is quite clear and specific, the treaty does not specify what resources that a state must dedicate to internally enforcing these …

Export Controls: A Contemporary History, Bert Chapman

Libraries Faculty and Staff Presentations

Provides highlights of my recently published book Export Controls: A Contemporary History. Describes the roles played by multiple U.S. Government agencies and congressional oversight committees in this policymaking arena including the Commerce, Defense, State, and Treasury Departments. It also reviews the roles played by international government organizations such as the Missile Technology Control Regime, export oriented businesses, and research intensive universities.

A Technological Approach To Reforming Japan's Consumption Tax, Richard Thompson Ainsworth

Faculty Scholarship

Significant change has been forecast for the Japanese Consumption Tax. Revenue needs are pressing, and the Consumption Tax appears to be underutilized. Should the rate be doubled from 5% to 10%, or more? If so, will rate increases necessitate further structural changes – recasting this annual credit-subtraction levy into a European style credit-invoice VAT? These options have not proven to be politically palatable, but they are directions that have been under active consideration.

On October 1, 2013 the Japanese Cabinet Office announced that the Consumption Tax would rise from 5% to 8% effective April 1, 2014. The rate will increase …

Good Vibrations: The Push For New Laws And Industry Practices In American Instrument Making, Patrick Genova

William & Mary Environmental Law and Policy Review

No abstract provided.

The Three-Step Test Revisited: How To Use The Test’S Flexibility In National Copyright Law, Christophe Geiger, Daniel Gervais, Martin Senftleben

Joint PIJIP/TLS Research Paper Series

The first version of the three-step test emerged at the 1967 Stockholm Conference for the Revision of the Berne Convention. With the inclusion of versions of the test in the TRIPS Agreement of April 1994, the two WIPO “Internet” treaties of December 1996, the more recent Beijing Treaty on Audiovisual Performances of June 24, 2012, and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (VIP Treaty) of June 27, 2013, the test has taken on the central function of allowing and enabling tailor-made solutions at the national level. …

Virotech Patents, Viropiracy, And Viral Sovereignty, Peter K. Yu

Faculty Scholarship

Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa.

The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the …

Symposium - The U.S.-Iranian Relationship And The Future Of International Order

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

2012-13 Jlia Masthead

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

Protecting Shareholders From Themselves: How The United Kingdom’S 2011 Takeover Code Amendments Hit Their Mark, Matthew Peetz

Penn State Journal of Law & International Affairs (2012 - Present)

Kraft’s takeover of Cadbury in 2011 caused considerable uproar in the United Kingdom. The political outcry caused significant amendments to the United Kingdom’s regulatory framework over mergers and acquisitions, the so-called, Takeover Code. These changes to the Takeover Code were made to help relieve pressure on target companies during takeover situations, and to correct the imbalance of power in favor of bidding companies that the political community had perceived during the Kraft-Cadbury takeover. After the changes were made, but before they were implemented, the business community expressed concern that these added regulations would be detrimental to the M&A market as …

The Case Of Christmas Island: How International Law Affects The Australian-Malaysian Refugee Deal, Ria Pereira

Penn State Journal of Law & International Affairs (2012 - Present)

In July 2011, Australia and Malaysia entered into an arrangement in which Australian asylum seekers would be removed to neighboring Malaysia to have their asylum claims processed. Following widespread criticism in the media, Australia’s High Court ruled that such a deal violated Australia’s refuges protection laws. While this ruling should have put an end to the deal, Australia’s Immigration Minister indicated that the agreement might nevertheless be feasible. Policy makers proposed amending Australian domestic immigration laws to allow the deal to go forward unencumbered. A bill to amend Australia’s Migration Act was subsequently introduced. As it currently stands, Australian law …

The Cost Of Fear: An Analysis Of Sex Offender Registration, Community Notification, And Civil Commitment Laws In The United States And The United Kingdom, Kate Hynes

Penn State Journal of Law & International Affairs (2012 - Present)

Sex offenders are often seen as a notorious group in both the United States and the United Kingdom. The public opinion of the masses has often found its way into the laws which restrict the privacy and freedoms of many sex offenders. This comment will examine the often divergent trends in lawmaking and judicial authority in both countries in regard to sex offender registration, community notification, and civil commitment. Further, the comment will study the lasting effects on the sex offender population and potential civil rights implications.

How Precipitous A Decline? U.S.-Iranian Relations And The Transition From American Primacy, Hillary Mann Leverett

Penn State Journal of Law & International Affairs (2012 - Present)

This essay is grounded in two basic propositions. The first is that the greatest strategic challenge facing the United States is extricating its foreign policy from a well-worn but deeply counterproductive quest for hegemonic dominance in critical areas of the world, especially the Middle East. The second is that Washington’s handling of its relations with the Islamic Republic of Iran constitutes a crucial test of America’s capacity to put its foreign policy on a more productive and realistic trajectory. Since the Islamic Republic’s founding in 1979, Washington has refused to understand and accept the basic model underlying its political order—the …

The Prohibition On The Use Of Force For Arms Control: The Case Of Iran’S Nuclear Program, Mary Ellen O'Connell, Reyam El Molla

Penn State Journal of Law & International Affairs (2012 - Present)

International law does not permit the use of military force against Iran to attempt to end its nuclear program. The resort to military force in international relations is covered first and foremost by Article 2(4) of the United Nations Charter. Article 2(4) is a general prohibition on resort to force that includes resort to military force for arms control, including nuclear weapons control. The Charter has two express but limited exceptions to the ban on military force. A state that is the victim of a significant armed attack may use force in necessary and proportional self-defense; the United Nations Security …

Caroline Revisited: An Imagined Exchange Between John Kerry And Mohammad Javad Zarif, James W. Houck

Penn State Journal of Law & International Affairs (2012 - Present)

In 1837, sailors of Great Britain's Royal Navy sank the American ship the Caroline over Niagra Falls. Great Britain justified the incident the preemptive strike as an act of self-defense. Diplomats of the two nations negotiated a legal framework to guide future preemptive uses of force. In the face of twenty-first century nuclear weapons, however, the Caroline framework seems outdated and impractical. To date, Iran continues to develop their nuclear program, while refusing international inspectors full access to their centrifuges. The United States is committed to keeping a nuclear weapon out of Iran's hands. The United States and Iran …

Iran's Nuclear Program And International Law, Daniel H. Joyner

Penn State Journal of Law & International Affairs (2012 - Present)

In this article, Professor Daniel Joyner analyzes the legal arguments on both sides of the Iran nuclear issue. The article address what the sides regard as the relevant sources of international nuclear law, and their respective interpretations of these sources law. Professor Joyner argues that Iran’s case illustrates warped and incorrect legal interpretations of the Nuclear Nonproliferation Treaty and other sources of law, and a prejudicial and inconsistent application of the law by the West and by the International Atomic Energy Agency. The article posits that this warped interpretation of NPT obligations has led to a bleak future for the …

Npt: A Pillar Of Global Governance, Richard Butler

Penn State Journal of Law & International Affairs (2012 - Present)

The NPT is regarded as the cornerstone of nuclear arms control. It is the sole, widely agreed commitment in international law, to a world free of nuclear weapons. This fact and its operational mechanisms, establish NPT as a pillar of global governance. Any breakout from it, such as the development of nuclear weapons by Iran, a non-nuclear weapons state party to NPT, would jeopardize the future of the treaty and deeply harm the structure of contemporary global governance. If it chooses to do so, Iran cannot be prevented from taking such action by threatening it with the use of force, …

The Iranian Nuclear Issue, The End Of The American Century, And The Future Of International Order, Flynt L. Leverett

Penn State Journal of Law & International Affairs (2012 - Present)

How the U.S.-Iranian competition for influence in the Middle East plays out will have profound consequences not just for the Middle East, but also for the legal frameworks, rules-based regimes, and mechanisms of global governance that shape international order in the 21^st century. This is particularly true with regard to U.S.-Iranian disagreements over the Islamic Republic’s nuclear activities. Strategic competition between America and Iran and its implications for international order play out against a backdrop of the progressive diminution of U.S. leadership in world affairs. Relative decline challenges the United States to share the prerogatives of global governance, especially …

Foreword, Amy C. Gaudion

Penn State Journal of Law & International Affairs (2012 - Present)

No abstract provided.

The Undersigned Attorney Hereby Certifies -- The Washington Supreme Court Rule On Standards And Its Implications, Justice Sheryl Gordon Mccloud, Justice Susan Owens, Marc Boman, Joanne Moore

Seattle Journal for Social Justice

No abstract provided.

G Forces: Gideon V. Wainwright And Matthew Adler's Move Beyond Cost-Benefit Analysis, Janet Moore

Seattle Journal for Social Justice

No abstract provided.