GJIL Recent Volumes
Richard J. Peltz-Steele, The New American Privacy
Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking that is not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.
Yuliya Guseva, Cross-Listings and the New World of International Capital: Another Look at the Efficiency and Extraterritoriality of Securities Law
This Article examines the cumulative welfare effect of the application of the U.S. regulatory regime on foreign private issuers (FPI) and whether the extraterritorial reach of U.S. law creates unnecessary risks deterring cross-listings. To assess the deterrence effect and optimality of regulations, the research designs a simplified model explaining decision-making processes of control persons and applies the model to the FPI regulatory regime and case law analysis. The Article assembles a sample of seventy-five cases, interprets the application of the conduct and effects test and recent Supreme Court decisions, examines deregistration forms filed in 2001–2011, and juxtaposes statistical data with recent law reforms in the United States, the European Union, and a number of other jurisdictions. The research concludes that the U.S. policies are not uniformly value maximizing for all categories of FPI. The current single-modal policies of indiscriminate incremental deregulation fail to properly address the concerns of issuers from developed economies and may be socially wasteful and unnecessary for FPI from emerging markets. To solve this dilemma, the Article suggests three solutions premised on the policy of regulatory granularity.
Charles B. Rosenberg, The Intersection of International Trade and International Arbitration: The Use of Trade Benefits to Secure Compliance with Arbitral Awards
This Article examines a recent example of the intersection of the two related fields of international trade and international arbitration: the suspension of international trade benefits to secure compliance with international arbitral awards. On May 28, 2012, the United States suspended Argentina’s preferential trade status under the Generalized System of Preferences (GSP) due to Argentina’s purported failure to comply with the International Centre for Settlement of Investment Disputes (ICSID) arbitral awards in Azurix and CMS Gas. This was the first time in the history of the GSP that the United States has suspended a state’s preferential trade status for failing to pay an arbitral award. This Article endorses the United States’ novel approach as it would seem to further compliance with international arbitral awards, thereby strengthening the legitimacy of international arbitration, particularly ICSID arbitration, as a meaningful form of alternative dispute resolution.
Sergio Puig, Emergence & Dynamism in International Organizations: ICSID, Investor-State Arbitration, & International Investment Law
Near the fiftieth anniversary of the International Centre for Settlement of Investment Disputes (ICSID), the international organization of the World Bank Group specializing in international investment dispute settlement, the organization has become nearly synonymous with the field of international investment law. But how and why this confluence developed is a gap in the rich literature on ICSID. In an attempt to breach this gap, this Article traces ICSID’s past and present, relying on a rich variety of sources with three broad objectives in mind: First, it offers a corrective to the prevailing view among international lawyers and legal scholars that ICSID is simply another arbitration facility and that its role in developing modern international investment law has been limited to enabling investor-state arbitration proceedings. Second, it provides evidence contradicting claims among practitioners and scholars that ICSID is experiencing an unprecedented crisis. Finally, it assesses the dynamics that have impacted ICSID’s emergence and long-term development with the broader aim of contributing to the theoretical understanding of the evolution of international organizations. The Article reveals ICSID’s deep roots and far-reaching impact, and argues that while the challenges of the organization are serious and merit action, most are not unprecedented, and much can be learned from corrective measures taken in the past.
Erdem Buyuksagis & Willem H. van Boom, Strict Liability in Contemporary European Codification: Torn Between Objects, Activities, and Their Risks
Many national legislative frameworks in Europe limit the scope of strict liability to the specific sources of danger listed by statute. This in itself causes disparate treatment of seemingly similar dangers, since legislatively mandated instances cover some inherently dangerous situations but not others. Hence, European scholars call for the introduction of a “general clause” in the area of strict liability. A balance is sought between two opposites: restricting the application of statutory sources of strict liability on the one hand, and allowing unrestricted judicial policymaking to shape strict liability by referring to a “general clause” on the other hand. This Article aims to determine an adequate balance, taking into account fundamental prerequisites such as legal certainty, foreseeability (and therefore insurability), and equal treatment of equal sources of danger. It also addresses the scope of application of such rules. Should they be limited to the pursuit of abnormally dangerous activities, as many drafts propose, or to the control of abnormally hazardous objects? This Article argues that an ideal solution would be based on a legal standard that takes “object” rather than “activity” as the central criterion.
Andrea Conzatti, The Recognition of U.S. "Opt-Out" Class Actions in China
The question underlying this Article is whether judgments entered by a U.S. court in an “opt out” class action may be recognized and granted preclusive effects in China. More specifically, this Article seeks to investigate whether Chinese corporations and individuals investing in the United States may enjoy the benefits of a favorable class action judgment by merely choosing not to “opt out” or whether, in light of possible procedural and substantive rules under Chinese law, they might be required to take further action in order to do so. To answer such query, this Article proceeds by analysing Federal Rule of Civil Procedure 23(b)(3), and by reviewing three securities fraud cases filed with the District Court for the Southern District of New York that touch on issues relating to “opt out” class action recognition outside the United States. The doubts shared by a majority of scholars in continental Europe as to the likelihood of “opt out” class action recognition by EU courts are then addressed, and a description of the key reasons grounding such broadly held opinion is furnished. This Article then goes on to compare the current Chinese legal system to continental European jurisdictions, tracing possible similarities and distinctions between the two and re-framing the question at issue under a Chinese law perspective. This Article concludes that, in light of the legal framework currently in place in the People’s Republic of China, it seems that Chinese courts would unlikely grant res judicata effects to a decision entered by a U.S. court in an “opt out” class action judgment and that—as a consequence of the posture recently adopted by the New York Southern District in such regard, and in the absence of any further action on their part—Chinese corporations and individuals would unlikely be able to benefit from the outcome of a similar lawsuit.
Nobuo Hayashi, Military Necessity as Normative Indifference
What does it mean to say that international humanitarian law (IHL) “accounts for” military necessity? According to one theory, unqualified IHL rules exclude not only military necessity pleas but also humanity pleas in support of deviant behavior. Three propositions underpin this view. They are, first, that military necessity generates imperatives; second, that the imperatives emanating from military necessity inevitably conflict with those emanating from humanity; and third, that all positive IHL rules embody the military necessity-humanity interplay in the process of their norm-creation. In lieu of what may be termed an “inevitable conflict” thesis, this Article proposes and develops a “joint satisfaction” thesis. In the process of IHL norm-creation, military necessity does not furnish the law with reason to obligate or forbid given conduct. Rather, it only generates permissions. It not only robustly permits pursuing military necessities and avoiding non-necessities; it also permits, albeit moderately, forgoing success and inviting failure. In other words, military necessity is normatively indifferent. By acting as non-indifferently exhorted or demanded by humanity, the belligerent never acts in a manner affirmatively contrary to what military necessity indifferently permits. Where both humanitarian exhortations or demands and military necessity’s indifferent permissions are at stake, one always jointly satisfies them by acting in accordance with the former. When the framers of IHL validly posit an unqualified rule regarding given conduct, the rule does two things. First, it unqualifiedly obligates the pursuit of joint military necessity-humanity satisfaction with respect to the conduct in question. Second, this rule extinguishes any indifferent permission, including that emanating from military necessity, not to pursue the said satisfaction. It is for this reason, rather than the empirically troublesome claim that every positive IHL rule embodies the military necessity-humanity interplay, that unqualified IHL rules admit no military necessity and other de novo indifference pleas. The same does not necessarily hold for non-indifference considerations. It is possible that these latter considerations may survive the process of IHL norm-creation. The mere fact of an IHL rule being validly posited may not resolve the relatively rare, yet genuine, norm conflict that arises where the said rule unqualifiedly obligates certain action while humanity exhorts or demands contrary action.
Larkin Kittel, Trying Terrorists: The Case for Expanding the Jurisdiction of Military Commissions to U.S. Citizens
The Military Commissions Act violates equal protection under U.S. and international law because it blatantly discriminates against non-U.S. citizens without legitimate justification. Military commissions provide fewer procedural protections to noncitizen defendants in the name of national security. This Note argues that any alleged benefits provided by the use of a procedurally inferior forum are unconnected to the citizenship of the defendant. Rather, those benefits are derived from the procedural deficiencies of military commissions. If—as proponents of military commissions argue—these deficiencies are necessary to protect U.S. national security interests, concern for those interests should be reflected in the jurisdictional rules of the forum. The current regime not only fails to adequately address national security concerns, but it also fails to comply with domestic and international law. This Note explores the ways in which the Military Commissions Act could be reformed to resolve the equal protection issues that arise under domestic and international law while balancing national security interests. Ultimately, this Note proposes that jurisdiction under the Military Commissions Act should be extended to U.S. citizens to provide the government with an alternative forum to prosecute terrorists regardless of their citizenship. This proposed solution, despite being controversial, would resolve the equal protection issues arising under domestic and international law and would preserve the integrity of the American judicial system.
Kevin A. Klock, The Soft Law Alternative to the WHO's Treaty Powers
As a recent decision of the World Health Assembly makes clear, many in the global health movement advocate mobilizing the World Health Organization’s (WHO) treaty-making powers to address the world’s great health challenges. The hard lawmaking power granted to the WHO in the 1940s was unprecedented, but is antiquated now given contemporary international relations and global health concerns. This Note argues that the WHO can better facilitate the development of global health ‘law’ by promulgating soft law instruments containing specific, concrete provisions. These mechanisms are different from treaties because the instruments are soft, but distinguished from ‘mere declarations’ because their contents are hard. Practitioners in other fields have deployed such instruments effectively when (1) sovereignty costs are intractable and yet normative experimentation is needed, (2) agreements are meant to coordinate rather than constrain, perhaps through a centralizing international institution, (3) non-state actor participation is essential, and (4) agreements will require constant updating to keep current with substantive developments in the subject matter. Finally, durable soft law provisions may harden into binding customary international law, thus achieving the status so desired by hard law enthusiasts. Consequently, this form of soft law instrument provides a useful and modern means to craft agreements that, while not binding legally, may have relatively more power to affect conduct and help achieve global health’s social justice ends.
Andrew W. Hartlage, Europe's Failure to Prepare for the Next Financial Crisis Affects Us All
Policy makers in both the United States and Europe have worked to address the regulatory weaknesses exposed by the 2007-2008 financial crisis. Though U.S. legislators have engineered a set of bank and nonbank resolution mechanisms that together can defuse systemic threats from insolvent or illiquid firms anywhere in the financial system, European leaders have left unaddressed many weaknesses of the EU system. Instead, European policymakers have sought to strengthen prophylactic prudential regulation internationally. This Note argues that the European approach has not only done little to mitigate Europe’s vulnerability to systemic threats, but also threatens to impose costs on the rest of the world by means of overly prescriptive regulation, and may undermine international coordination in financial-firm regulation.
Judge Richard K. Eaton, Forward
Daniel B. Pickard & Alexandra E. Landis, The U.S. Court of International Trade in 2011: Appeals from the U.S. International Trade Commission and Department of Labor
In 2011, the U.S. Court of International Trade reviewed eight antidumping and countervailing duty determinations issued by the U.S. International Trade Commission (ITC) as well as one trade adjustment assistance eligibility determination issued by the U.S. Department of Labor. This Article briefly revisits the Court’s decisions in all of these cases. It further focuses on two ITC appeals that highlight the tension connected with the deferential standard of review and the Court’s ability to meaningfully affect legally inadequate determinations by the ITC.
Mark David Davis, Doug Campau, Irene Chen, Mark B. Lehnardt, Nithya Nagarajan, & Steven Yu, U.S. Court of International Trade Overview: Non-Market Economy Cases in 2011
In this Article, the authors review the decisions of the Court of International Trade issued during 2011 arising from antidumping duty (and to some extent, countervailing duty) enforcement efforts of the Department of Commerce (Commerce) with regard to non-market economy countries, i.e., the People’s Republic of China and Vietnam. The Court’s opinions covered a number of procedural issues, regarding both Commerce’s procedures and the Court’s own procedures. Various substantive issues were also addressed, including the selection of mandatory respondents, the scope of antidumping orders, qualification for separate rates, selection of appropriate surrogate values, and the imposition of adverse facts available in case of non-cooperative respondents.
Peter C. Alfano & Peter J. Koenig, U.S. Court of International Trade 2011 Opinions on Commerce Market Economy Trade Remedy Decisions
This Article discusses notable 2011 opinions of the U.S. Court of International Trade as to U.S. Department of Commerce (Commerce) dumping and subsidy margin decisions involving market economies. In 2011, the Court issued opinions on a wide range of antidumping and countervailing duty issues, such as the use of adverse inferences, companies reviewed, expense allocation, zeroing, model match criteria, successor-of-interest, product scope, selling, general, and administrative (SG&A) allocation, level-of-trade, etc. From these opinions, practitioners are well advised to carefully consider the Court’s review standard in their advocacy before the Court. And, in particular, parties are going to have a difficult time appealing Commerce’s factual decisions to the Court. Although the Court reversed some key Commerce decisions, it upheld many others and showed general continued deference to Commerce decisions. The Court also had mixed views as to Commerce claims of resource constraints to justify its actions, perhaps noteworthy in today’s more resource-constrained times.
Jason M. Kenner, Beverly A. Farrell, & Barbara S. Williams, The U.S. Court of International Trade's Broadening View: A Review of the Court's 2011 Jurisprudence Arising Under 28 U.S.C. § 1581(a)
This Article focuses on several pivotal decisions issued by the Court of International Trade in 2011, which seem to reveal a trend in the Court’s jurisprudence to focus on pragmatic considerations in rendering its opinions. However, this trend towards pragmatism does not trump the Court’s adherence to requiring importers to satisfy statutory jurisdictional predicates.
Neil R. Ellis & Jill Caiazzo, Court of International Trade Decisions During 2011 Under 28 U.S.C. § 1581(i) Residual Jurisdiction
As in years past, the dispositive decisions issued in 2011 by the U.S. Court of International Trade pursuant to 28 U.S.C. § 1581(i) tested the bounds of the Court’s residual jurisdiction. More than half of these decisions grappled with jurisdictional challenges, brought by the government and, in an unusual twist, one plaintiff. The Court asserted jurisdiction in only a handful of these cases, once again demonstrating the constrained nature of the Court’s residual jurisdiction. The statute of limitations proved to be an additional barrier to relief for several plaintiffs, with the Court’s judges adopting differing views of the jurisdictional implications of this time constraint. Indeed, relief proved elusive even for the few section 1581(i) plaintiffs who managed to convince the Court to reach the merits of their cases, which dealt with perennially controversial aspects of U.S. trade remedies law. Despite the poor showing for section 1581(i) plaintiffs in 2011, the Court’s residual jurisdiction likely will remain attractive to plaintiffs whose claims are seemingly ill suited for the Court’s more traditional jurisdictional bases.
Joel R. Junker, U.S. Court of International Trade Cases in 2011 in Penalty and Liquidated Damages Collection Actions Under 28 U.S.C. § 1582 and Its First Government Procurement Country of Origin Case Under 28 U.S.C. § 1581(e)
This Article surveys the new jurisprudence under 28 U.S.C. § 1581(e) and those cases under 28 U.S.C. § 1582 with a review of the facts and reasoning of the U.S. Court of International Trade. In 2011, the Court issued for the first time a decision within its exclusive jurisdiction under section 1581(e) over challenges to determinations pursuant to section 305(b)(1) of the Trade Agreements Act of 1979. The Court’s opinion took care to protect the scope and exercise of its jurisdiction under section 1581(e) in a manner more assertive than for some of its other jurisdictions. In addition, the Court rendered in 2011 six decisions that refined substantive and procedural holdings under its jurisdiction in section 1582 over certain types of collection actions brought by the United States against importers and sureties. The Article observes that the Court’s decisions in these cases were unusual and counterintuitive in several respects.
Ryan Farha, A Right Unexercised is a Right Lost?: Abolishing Antidumping in Regional Trade Agreements
This Note considers the six regional trade agreements (RTAs) in which antidumping is prohibited: the Australia-New Zealand Closer Economic Relations Trade Agreement, Canada-Chile Free Trade Agreement, European Free Trade Association (EFTA)-Singapore Free Trade Agreement, EFTA-Chile Free Trade Agreement, and the Closer Economic Partnership Arrangements between China and Hong Kong and China and Macau. Using these agreements as case studies, the Note argues that, although antidumping provisions generally serve an important role in RTAs, in certain extraordinary cases, antidumping is neither necessary nor useful. These cases arise where the RTA parties have a very limited trading relationship, simply do not use trade remedies, or have an otherwise extraordinary relationship. In any case, antidumping has become an unexercised right as between the parties. The Note thus rejects alternative theories that look to decreased opportunities for arbitrage, trade “attrition,” or a “broader push for integration” to explain the parties’ willingness to prohibit antidumping. Finally, in these cases, competition law, although seldom utilized, serves an important function by serving as a backstop against potential future dumping activity.
David Ryan, The Effects of Section 201 Safeguards on U.S. Industries
This Note presents evidence on the effectiveness of temporary trade barriers, known as safeguards, implemented under section 201 of the U.S. Trade Act of 1974. Despite significant debate regarding the political and legal challenges posed by section 201, little research exists to determine how domestic industries—the intended beneficiaries of safeguards—perform after safeguards terminate. This study examines the performance of three domestic industries that recently received safeguard protection. The Note finds that none of the three industries were restored to sustained competitiveness. The Note then introduces policy recommendations for reforming section 201 to enhance its effectiveness.
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Aaron I. Young, Deconstructing International Organization Immunity
In the United States, public international organizations derive privileges and immunities from a variety of sources of law. In particular, the International Organizations Immunities Act of 1945 (IOIA) grants certain international organizations “the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” When the IOIA was enacted, those organizations had few legal protections but foreign sovereigns generally had “absolute immunity” from civil suits in U.S. courts. Over time, the international community, including the United States, clarified exceptions to foreign sovereign immunity, allowing some suits against foreign states. This rule of “restrictive immunity” was codified in the United States by the Foreign Sovereign Immunities Act of 1976 (FSIA). However, some courts, like the D.C. Circuit, have continued to grant absolute immunity to international organizations covered by the IOIA—exceeding the level of protection enjoyed today by foreign governments—while others, such as the Third Circuit, have not. This Note discusses what privileges and immunities public international organizations have in the United States based on the IOIA, the FSIA, and recent Supreme Court jurisprudence. It concludes that the text and the legislative history of those statutes do not demonstrate congressional intent to incorporate developments in the law of foreign sovereign immunity into the privileges and immunities of international organizations. Moreover, the Supreme Court’s recent decisions in Dole Food and Samantar help clarify which entities U.S. courts should consider covered by the FSIA, and international organizations do not appear to be included under that statute. International organizations may also benefit from other sources of law, including international agreements, other congressional or administrative action, and common-law doctrines. However, there is probably no customary international law yet that defines the boundaries of privileges and immunities of international organizations.