International Trade Law Commons^™

The Efficient Breach Theory In International Investment Law, Sangwani Patrick Ng’Ambi

Northwestern Journal of International Law & Business

When a State unilaterally abrogates its contractual obligations, it is under a duty to compensate the investor. The aim of the compensation regime under International Investment Law is to restore the investor to a position he or she would have been in had the breach not taken place. Thus, the award of compensation should not only include sunk costs (damnum emergens) but also lost future profits (lucrum cessans).

In this article it is argued that the rules relating to compensation promote efficiency, as per the ‘efficient breach theory’ because they dissuade governments from unilaterally abrogating concession agreements, unless they can …

Trade Integration In Turbulent Times, Petros C. Mavroidis

Faculty Scholarship

The WTO has been going through an existential crisis, from which it is like that it will not exit unscathed. If it is to remain an organization of universal membership, it will have to content itself to shallow integration. Its continuing policy relevance, will largely depend on the choices it will make about the nature of its own integration process. The good news is that no one can simply walk away from globalization. The downside (for the WTO) is that globalization is being increasingly administered through bilateral contracts.

Harry Potter And The Gluttonous Machine, Jason A. Beckett

Faculty Journal Articles

In this paper, I outline the colonial structure of international law, and examine the short decline or suppression of its coloniality in the so-called ‘era of decolonisation’, then illustrate its resurgence in the modern neo-colonial order. PIL has split into two separate systems. One includes, and is justified by, the heroic tales of human rights and ‘Humanity’s Law’. The other is the actualised system of International Economic Law (IEL), an order driven by the need of the over-developed states to plunder the under-developed states’ resources and labour, to subsidise the luxury to which we have grown accustomed. One purports to …

Credit Supports For Italian Specialty Products: The Case Of Prosciutto And Long-Aged Cheese, Jorge L. Esquirol

FIU Law Review

No abstract provided.

Rethinking China Trade Policy: Lessons Learned And Options Ahead, Henry S. Gao

Research Collection Yong Pung How School Of Law

Looking back at the China trade policy of the Trump administration, the biggest lesson is that unilateralism simply doesn’t work, at least not against a major power like China. Despite the tumultuous two-and-half-year trade war and the Phase 1 deal hailed as an “unprecedented” deal promising “a more balanced trade relationship and a more level playing field for American workers and companies,” there has been little progress on the issues U.S. businesses and the Trump administration objected to in China’s trade and economic policies. It is not only the U.S. government that needs a more viable approach. Many companies would …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Vanderbilt Journal of Transnational Law

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments-—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …

Tales Of Economic Warfare: The Plunder Of Venezuela, Dr. Mohsen Al Attar, Alexander Reay

Indian Journal of International Economic Law

In most treatises, International Economic Law (IEL) is presented as a neutral set of doctrines, principles, and rules. Actors may compete against one another and vie for economic success, but the rules are indifferent towards the outcome. It is this notion of an apolitical IEL that we challenge throughout this article. Using a case study of Venezuela, we illustrate how the rules of the international economic order are leveraged by the UK, the EU, and the United States to engineer preferred political outcomes. We examine three interconnected assaults perpetrated against Venezuela by the English Courts, the United States, and

the …

Law, Institution And State Industrial Promotion, Yong Shik Lee

Indian Journal of International Economic Law

This article examines state industrial promotion from legal and institutional perspectives. Economists have argued since the 18th century on the economic efficiency of government involvement in the economy. While state-led development policies in some of the most successful development cases, such as South Korea, Taiwan, Hong Kong, Singapore, and more recently, China, have been effective, many have doubted the wisdom of government involvement in the economy. Where the availability of information is limited and the financial market is imperfect (which are the inherent conditions of less-developed countries), the government can provide beneficial initiatives in productive industrial pursuits, as demonstrated by …

Global Trade-Enabling Law, Panagiotis Delimatsis

Indian Journal of International Economic Law

Trade regulation may never have been in more flux than it is nowadays. Apart from the emergence of ‘megaregionals’ (more recently, the Regional Comprehensive Economic Partnership – RCEP, or the Comprehensive and Progressive Trans-pacific Partnership–CPTPP) and the difficulties in pursuing the objectives of the Doha Development Agenda, the increased heterogeneity of interests within the World Trade Organization (WTO) puts into question its ability to achieve its central objective of free(r) trade. While internally rethinking the future of the WTO, it seems opportune to discuss, and factor in the realities of everyday global trade. To this end, this Article argues that …

Mandatory Investor-State Conciliation Before Arbitration In Asia-Pacific Treaties: New Developments And Implications For India And Australia, James Claxton, Luke Nottage, Ana Ubilava

Indian Journal of International Economic Law

India’s 2016 Model Bilateral Investment Treaty (BIT) was partly prompted by the 2010 investor-state arbitration award for White Industries against India under the latter’s BIT with Australia, terminated by India in 2017 along with many other older BITs. India’s Model BIT is decidedly more pro-host-state in substantive commitments towards foreign investors, although still retains circumscribed investor-state arbitration provisions, and it may be complicating India’s negotiations for new Free Trade Agreements (FTAs). Australia is also reviewing its own older BITs, although its recent FTA investment chapters mostly retain a more conventional format. However, Australia’s FTA with Indonesia signed in 2019 includes …

A Constitutional Moment In Cross-Border Taxation, Steven Dean

Faculty Scholarship

The complex pattern of formal and informal rules that governs the taxation of cross-border transactions tends to be thought of as rigidly path dependent. (Rixen, 2011) In truth, the Classification and Assignment Constitution has repeatedly undergone sudden changes initiated by influential actors. A failure to acknowledge the power wielded by a handful of states and organizations nurtures an evolutionary myth of cross-border taxation, but a close examination reveals traces of intelligent design, with repeated interventions altering the course of its development.

A century ago a material constitution coalesced around an elegant but flawed algorithm providing for the "classification and assignment …

The Paris Agreement Compliance Mechanism: Beyond Cop 26, Jessica Owley, Imad Antoined Ibrahim, Sandrine Maljean-Dubois

Articles

Without an international tribunal or tools like trade sanctions, there is little to coerce or encourage adherence with environmental treaties. The Paris Agreement, the governing global agreement to address climate change, relies on voluntary global cooperation. Countries determine their own commitments by setting nationally determined contributions of greenhouse gases emissions. The main mandatory elements of the agreement are reporting requirements. The success of the agreement turns on whether countries comply with these requirements. Article 15 of the Paris Agreement establishes a Compliance Committee and sets forth the mechanisms to ensure and facilitate compliance with the agreement. Yet, as with the …

Artificial Intelligence And Trade, Anupam Chander

Georgetown Law Faculty Publications and Other Works

Artificial Intelligence is already powering trade today. It is crossing borders, learning, making decisions, and operating cyber-physical systems. It underlies many of the services that are offered today – from customer service chatbots to customer relations software to business processes. The chapter considers AI regulation from the perspective of international trade law. It argues that foreign AI should be regulated by governments – indeed that AI must be ‘locally responsible’. The chapter refutes arguments that trade law should not apply to AI and shows how the WTO agreements might apply to AI using two hypothetical cases . The analysis reveals …

Governing Science And Technology Under The International Economic Order: Regulatory Divergence And Convergence In The Age Of Megaregionals By Shin-Yi Peng, Han-Wei Liu And Ching-Fu Lin, Henry S. Gao, Weihuan Zhou

Research Collection Yong Pung How School Of Law

Trade and technology have a long history of interdependence. It was the trade along the ancient silk road that helped to spread the technologies of China – such as paper-making, gun power, compass, and moveable type printing – to Europe. These technologies helped to launch the Renaissance, the Reformation, and the Great Discoveries, which in turn set in motion globalization as we know today. As we enter the third decade of the twenty-first century, the role of science and technology grows even stronger in international trade. For example, the advancement of information and communications technology (ICT) has greatly facilitated the …

Are Digital Services Taxes Imposed By Other Countries Creditable Under Irc Section 903? Yes. But, What If The Opposite Is True?, Charles Edward Andrew Lincoln Iv

Touro Law Review

No abstract provided.

Shifting Contour Of Data Sharing In Financial Market And Regulatory Responses: The Uk And Australian Models, Han-Wei Liu

Research Collection Yong Pung How School Of Law

Starting from Directive 2015/2366 on Payment Services in the Internal Market — known as PSD II in the European Union (EU) — countries across the world have or are contemplating a new framework to govern data sharing among different players in the financial market. “Open Banking,” as this trend is called, requires or encourages — depending on the regulatory models adopted in different jurisdictions — banks to share consumer-permissioned banking data with third parties securely, in a form that facilitates its use. The Open Banking initiatives have diffused from the EU, and the UK, to elsewhere. The current Open Banking …

China’S Bilateral Investment Treaties, Heng Wang

Research Collection Yong Pung How School Of Law

This chapter focuses on the changes and trends in Chinese bilateral investment treaties and relatedly investment rules of China’s free trade agreements. It analyzes a number of questions: what is the changing context of China’s bilateral investment rulemaking? How to understand the evolution of China’s bilateral investment treaties? What are the major features in China’s recent practice? What are the shifts on investment dispute settlement?

Trade, Economy, And Work: A Shared Agenda For A Stronger Economic Future, Alvaro Santos, Christopher Wilson

Georgetown Law Faculty Publications and Other Works

The economies of the United States and Mexico have become inextricably linked. For both countries, the other is their top trading partner, with an annual value of $616.38 billion in 2019. Beyond cross-border trade, however, our global competitiveness is linked due to the depth of manufacturing integration. As a result, job creation and export growth are largely regional enterprises. Well over a billion dollars in commerce crosses the border each day, and the GDP of the six Mexican and four U.S. border states is larger than the GDP of all but the three largest countries in the world.

The new …

Para-Ethnographic Study: The Project And Its Methodology, Gregory Shaffer

Georgetown Law Faculty Publications and Other Works

This paper explains the methodology that I use for my work, and it comes from the Preface of my book Emerging Powers and the World Trading System: The Past and Future of International Economic Law. This approach has an important ethnographic dimension when ethnography is viewed in a broad (but non-traditional) sense of participant observation of a field. The object of the study is the flow of norms and institutional practices in the field of international trade law, and, to a lesser extent, the related fields of international investment and intellectual property law. It is not a traditional ethnography …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Faculty Scholarship

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …