Organizations Law Commons^™

The Wto And The Anti-Corruption Movement, Padideh Ala'i

Scholarly Articles in Law Reviews & Journals

This article explores the role of the World Trade Organization (WTO) in promoting good governance while placing WTO within the larger framework of the ongoing global anti-corruption movement. Governmental policies aimed at fighting corruption are part of the good governance criteria set forth by the World Bank and other donor agencies. An important element of good governance is transparency, which has also been one of the pillars of the multilateral trading system. This article argues that from the perspective of the post-Cold War anti-corruption movement, the WTO is an important institution because it provides a comparatively successful forum for the …

A Gambling Paradox: Why An Origin-Neutral 'Zero-Quota' Is Not A Quota Under Gats Article Xvi, Donald H. Regan

Articles

In US-Gambling, the Appellate Body held that an origin-neutral prohibition on remote gambling (which is how they mostly viewed the United States law) was "in effect" a "zero-quota", and that such a "zero-quota" violated GATS Article XVI:2. That holding has been widely criticized, especially for what critics refer to as the Appellate Body's "effects test". This article argues that the Appellate Body's "in effect" analysis is not an "effects test" and is not the real problem. The real mistake is regarding a so-called "zero-quota" as a quota under Article XVI. That is inconsistent with the ordinary meaning of the word …

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

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

Book Chapters

In EC-Asbestos the Appellate Body has told us that (l) in interpreting Article III:4 of the GATT, we must take explicit account of the policy in Article III: l that measures should not be applied "so as to afford protection to domestic production" [hereafter just "so as to afford protection"]. In 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 government as a whole"- in other words, the regulatory purpose of the measure. Chile- Alcohol …

Offshore Outsourcing And Worker Rights, Theodore J. St. Antoine

Articles

For the workers in the Rust Belt of the United States, concentrated in Southern New England, Western New York State, Pennsylvania, Ohio, Michigan, Indiana, and Illinois, it doesn't make much difference whether their jobs are outsourced or lost to North Carolina or Mexico or China. In any event the sources of income that have existed for generations are gone and the economic and psychic pains are much the same. Nonetheless, for purposes of national policy it plainly matters whether the work is moving to another part of the country or is leaving the United States entirely. I am going to …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

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 …

A Question Of Justice: The Wto, Africa, And Countermeasures For Breaches Of International Trade, 38 J. Marshall L. Rev. 1153 (2005), Nsongurua J. Udombana

UIC Law Review

No abstract provided.

Balancing Judicial Economy, State Opportunism, And Due Process Concerns In The Wto, Ana Frischtak

Michigan Journal of International Law

This Note will focus on an aspect of the dispute settlement proceeding that has not been officially proposed for reform: the withdrawal of and amendments to measures being challenged by a complaining Member during the course of the proceedings. This aspect raises issues of judicial economy, state opportunism, and due process. In particular, this practice, where the respondent country to a dispute withdraws or amends the measure being challenged during the course of proceedings, threatens to undermine the legitimacy of the dispute settlement system as a fair and transparent adjudicating body.

The Sutherland Report And Dispute Settlement, Mark L. Movsesian

Faculty Publications

Ten years after the organization's founding, an air of disappointment surrounds the WTO. The great promise of a global trade regime, dedicated to the principle of comparative advantage, seems to have stalled. The Doha Development Round, launched in 2001 in an attempt to redeem the disastrous Seattle Ministerial Conference of 1999, has been stymied by familiar disputes between North and South, mostly with respect to agricultural issues, but with respect to nonagricultural market access and services as well. Frustrated by impasses at the WTO, members have increasingly bypassed the organization in favor of discrete "preferential trade agreements", or PTAs, that …

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

Against Global Governance In The Wto, John O. Mcginnis, Mark L. Movsesian

Faculty Publications

In "Global Governance and the WTO," Professor Andrew Guzman has done an impressive job of articulating a vision of the World Trade Organization (WTO) that many international lawyers share. In this vision, the WTO's mission should be expanded beyond its present task of facilitating tariff reductions and preventing covert protectionism. Rather, the WTO should take on substantive authority in a wide variety of non-trade areas, including the environment, labor, human rights, and public health. Unlike many people who share this vision, Guzman takes the time to describe how it might best be accomplished. He advocates specialized WTO departments and periodic …

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Do World Trade Organization Dispute Settlement Reports Affect The Obligations Of Non-Parties? -- Response To Mcnelis, Donald H. Regan

Articles

In the June 2003 issue of this Journal, Natalie McNelis argued that when a World Trade Organization (WTO) dispute is settled by a Dispute Settlement Body (DSB) report, even Members who are not parties to the dispute have an obligation to conform their behaviour to legal principles laid down in the report. 1 Although I am generally sympathetic to McNeis's conclusion-and although I think she does a great service by directing our attention to the question of how Members, as opposed to later tribunals, should respond to DSB reports-I think her argument cannot stand as she presents it. After explaining …

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.

Enforcement Of Wto Rulings: An Interest Group Analysis, Mark L. Movsesian

Faculty Publications

The WTO's Dispute Settlement Understanding ("DSU") provides that disputes are to be resolved in adversarial proceedings before impartial panels of experts. These panels have authority to decide whether members' laws conform to WTO requirements; members may appeal rulings to a permanent Appellate Body within the organization, which has the final say on questions of law and legal interpretation. Under the DSU, if a member fails to comply with a final ruling in a dispute, the prevailing party may retaliate by suspending trade concessions that it owes the offending member. This retaliation can continue until the offending member implements the WTO's …

Foreign Direct Investment In Latin America Overview And Current Status, Reuven S. Avi-Yonah, Martin B. Tittle

Other Publications

More firms than ever, and in more industries and countries, are expanding abroad through [foreign] direct investment [FDI]. Although FDI in 1980 was equivalent to only 5% of world GDP, by the end of the 1990's, that percentage had more than tripled to 17%. In 1993, the total US dollar value of world FDI was only US$ 200 billion, but by the year 2000, it had risen to US$ 1.3 thousand billion. Developing countries received around 25% of these inflows, mostly in the form of "greenfield" investments, where a new enterprise is essentially created from scratch.

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 …

Cross-Examining Expertise In The Wto Dispute Settlement Process, Christopher T. Timura

Michigan Journal of International Law

Part I of this Note surveys some of the recent contributions that social theorists and social scientists have made to our understanding of the role of experts in society, and also the structure of expert communities. Experts are everywhere in modern life, and individuals are with increasing frequency asked to extend their trust to experts and bodies of knowledge that they have little or no opportunity to question. Part II highlights how the WTO Agreement deals with experts, using recent WTO panel reports to illustrate the ways in which the DSB has operationalized its various provisions. Part III suggests two …

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 …

The Asbestos Case And Dispute Settlement In The World Trade Organization: The Uneasy Relationship Between Panels And The Appellate Body, Sydney M. Cone Iii

Michigan Journal of International Law

This article deals with the working-level dispute-settlement apparatus of the World Trade Organization ("WTO"). In particular, it discusses the work of the Appellate Body and, functioning below it, panels established by the WTO to conduct proceedings in individual cases. It focuses on the relationship between the Appellate Body and panels, and on the responsibilities of the Appellate Body in the context of that relationship.

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 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 …

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) …

The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian

Faculty Publications

Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …

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.

Budweiser Or Budweiser, 32 J. Marshall L. Rev. 1251 (1999), Jitka Smith

UIC Law Review

No abstract provided.