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GJIL Recent Volumes

Volume 48

Issue 4

ARTICLES

Robert D. Anderson and Anna Caroline Müller, The Revised WTO Agreement on Government Procurement (GPA): Key Design Features and Significance for Global Trade and Development

The World Trade Organization’s (WTO’s) plurilateral Agreement on Government Procurement (GPA or “the Agreement”) is an important ongoing success story for the Organization. In the spring of 2012, the GPA Parties completed a full revision of the Agreement, with regard to both its text and market access commitments under it. Since then, the revised GPA has entered into force, and its membership has gradually broadened. These developments are of importance not only in themselves, but also for the international trading system and its potential future evolution.
The GPA’s successful renegotiation, the continuing growth of its membership, and its vitality as an instrument of public policy were not achieved through happenstance. This Article discusses a number of specific design features of the GPA that clearly facilitated the successful conclusion of the renegotiation and that, as such, may in the future be relevant to other areas of global trade liberalization. In addition to the Agreement’s plurilateral nature, of particular interest are the approach taken with respect to application of the most-favorednation treatment (MFN) principle in the Agreement; the GPA’s continuing strong emphasis on principles of reciprocity in market access concessions; and its approach to special and differential treatment for developing countries, in all of which it differs from approaches which are widely used in other WTO Agreements.
Apart from the above, the GPA revision is important for the merging of trade and good governance concerns that it exemplifies. As discussed in this Article, the themes of governance and the sound management of public resources that are treated in the revised Agreement were not afterthoughts to the renegotiation. Rather, they permeate the revised text and received focused attention from the Parties in their own right. As well, the GPA has direct implications for investment policy and for domestic economic reforms, and is an important tool of e-commerce. Moreover, the revision has made possible very significant synergies between the GPA and other international instruments and activities in reducing barriers to participation and strengthening governance in public procurement markets. For all these reasons, the revised Agreement is likely to have a wider impact than meets the eye, and well merits the support and attention that it has received from the participating WTO Member governments.
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Leonardo Borlini and Francesco Montanaro, The Evolution of the EU Law Against Criminal Finance: The “Hardening” of FATF Standards Within the EU

This Article examines the recent evolution of the EU anti-money-laundering (AML) and counter-terrorist financing (CTF) legislative framework, focusing on the relationship between the main international standards in the field and the newest EU legislation. It suggests that international soft law norms—in particular, the Financial Action Task Force (FATF) Recommendations—have had a decisive influence on the latest development of legislation at the EU level and within its member states. It further argues that mainly the preventive component of the AML/CTF legislation will be strengthened by the EU instruments adopted in mid-2015. However, this Article concludes that the adoption of global soft standards has posed significant challenges to the EU legislative framework. The arguments are developed in four parts. The Article first highlights the main regulatory prescriptions that stem from the study of the phenomenology and the economics of AML/CTF regulation and underpin the current international regulatory paradigm. Second, it explores the evolution of the main international instruments in the field with a special focus on the role played by the FATF Recommendations. It also illustrates the relation between these instruments and the adoption of the new EU AML/CTF legislation from two different, but complementary, angles: (1) noting that the current international AML/CTF framework has a multidisciplinary approach, the Article focuses on the framework’s repressive component and assessing the limits of the EU criminal approach against money laundering and terrorist financing; and (2) examining the recent EU preventive legislation and addressing the main challenges posed to the EU legislative framework when attempting to accommodate global standards, especially regarding tensions with fundamental freedoms and human rights protected within the EU.
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Chien-Chih Lin, Autocracy, Democracy, and Juristocracy: The Wax and Wane of Judicial Power in the Four Asian Tigers

Recent decades have witnessed the expansion of judicial power not only in advanced democracies, but also in nascent democracies and even semi-authoritarian regimes. Conventional wisdom has long held that political competition is the major cause of this trend. Albeit persuasive, this argument cannot explain the nuanced differences between countries in which political powers are equally fragmented or concentrated. Focusing on the development of judicial power in the four Asian Tigers—Hong Kong, Singapore, South Korea, and Taiwan—this Article contends that the judicialization of politics can be better understood through the lens of historical institutionalism. This explains why the judicial power is more progressive in Korea than in Taiwan despite the two countries’ political and institutional similarities. It also elucidates why the judiciary in Hong Kong is more active than its counterpart in Singapore.
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Leon Trakman, Enhancing Standing Panels in Investor-State Arbitration: The Way Forward?

This Article evaluates the perceived value of standing panels in investor-state arbitration (ISA) through a review of literature and a survey of recent investment treaties contained in the Appendix. It considers recent developments, such as the China-Australia Free Trade Agreement (ChAFTA), which establish provisions for an internal standing panel chosen by the state parties. While external standing panels—like those under the Rules of the International Center for the Settlement of Investment Disputes (ICSID)—are often presented as a solution to deficiencies associated with ISA, their development is frequently limited. This Article proposes developing an empirically verified framework to support standing panels in ISA, including the selection of arbitrators for inclusion on panels, their appointment as ISA arbitrators, and the manner in which they reach decisions. It examines the development of in-house standing panels in the ChAFTA compared to external standing panels, such as those under the ICSID Rules, and the ad hoc appointments of arbitrators. It contends that institutional biases in selecting and appointing panelists from both internal and external lists, and decisional biases attributed to arbitrators, are not reasons to avoid relying on standing panels. It proposes that both internal and external panels are often preferable to ad hoc appointments made by disputing parties. It concludes by considering how to address institutional biases in devising an effective structure for standing panels, transparent procedures to regulate the selection and appointment to panels, and the management of those panels.
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NOTES

Marcus P.L. Gustafsson, Compliance and Membership Value in International Economic Law

This Note seeks to present a unified theory of compliance in international economic law. In its first part, it suggests that states and other international actors adhere to international rules and norms because of a set of distinct benefits they obtain by doing so, grouped under the label of membership value. These include, first, the substantive and explicit aims promoted by international agreements, rules, and norms, and, second, a set of ancillary benefits inherent to the activity of international cooperation itself in the forms of reputation, coordination, participation, and global standing. In addition, the Note develops the related concept of system value to explain why global or regional hegemons may sustain multilateral regimes at great direct cost in order to reap the rewards offered by greater international stability and predictability. Furthermore, the Note develops the concept of legal regimes, widening the Note’s scope of analysis beyond the traditional notions of law and legal systems to include highly informal and market-based groupings of rules at the international level. In the second part, the Note looks at how legal architecture and enforcement can enhance compliance with these regimes. The Note identifies four means by which this can be achieved: conditionality, risk-weighting, reciprocity, and penalization. The paper then concludes by offering some suggestions of how these means can be employed when designing future international agreements and organizations within international economic law. In particular, it is suggested that financial market access can be leveraged to induce compliance, similar to how markets for goods are used today, and that, overall, participation gains should be used more readily by international organizations to promote compliance.
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Kirsten Leube, Can the EU be Held Accountable for Financing Development Projects that Violate Human Rights?

The European Union (EU) is one of the largest providers of development cooperation worldwide. The EU proclaims that poverty reduction and the furtherance of individuals’ human rights are among the primary goals of its development aid. However, how does the EU ensure that these goals are actually met? Moreover, what mechanisms does the EU provide in order to address adverse effects its development cooperation might trigger? Given that the EU often provides funds for countries with already weak state structures and often times deplorable human rights records, the possibility that further human rights violations will occur is not far-fetched. For example, from 2007-2010, grave human rights offenses, such as torture, arbitrary detentions, and other forms of mistreatment occurred in Ukrainian detention centers funded through the EU’s Neigbourhood Policy.
This Note will focus on the individual and the means the individual has to hold the EU accountable for funding development aid projects that have adverse effects. The starting point for this analysis involves the framing of the EU’s responsibility for funding human rights violations from both the perspective of the law of international responsibility and of international human rights law. Given the legal uncertainties in these areas, the possibilities of judicially holding the EU accountable for funding development projects resulting in human rights violations are very limited. There is huge disparity between the EU’s broadly stated commitments and its obligations towards human rights and the fact that in its development aid efforts, the EU does not have mechanisms in place to ensure that these standards are actually met. Hence, it is high time for the EU to provide for an individual complaints mechanism for affected individuals.
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Jeongho Nam, Model BIT: An Ideal Prototype or A Tool for Efficient Breach?

In today’s global economy, there are approximately 2,329 Bilateral Investment Treaties in force. The primary purpose of a Bilateral Investment Treaty (BIT) is to provide some level of protection to the investors making a foreign direct investment. BITs namely provide protection against situations where the host state takes discriminatory action against investors, including expropriation of investor property or property rights infringement. Because BITs are primarily “investor-favored,” a substantial number of BITs are based on various versions of Model BIT, a pre-drafted contract template that is often formulated by a state with the most investors and capital. While the rationale behind creating a Model BIT is often said to be for the promotion of efficiency and consistency, the actual reason for the signatory states to enter into a BIT based on the Model BIT is the inequality in contractual bargaining power between the investors and host countries who have a need to attract foreign capital. However, a truly effective BIT should be one that is drafted and negotiated on a case-by-case basis, taking into consideration the parties’ circumstances, including factors such as politics, economy, culture, and geography. No matter the extent of investment protection a Model BIT may offer, a state, regardless of its wealth or status, has inherent sovereign rights that it can exploit to breach the terms of a BIT. Therefore, a more reasonable approach to promoting foreign direct investment should not be to simply proliferate the number of BITs across the globe, but instead to adopt BITs that are formulated with due diligence and aimed at minimizing the likelihood of breach by the host state.
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Rutuja Pol, Proposing an International Instrument to Address Issues Arising out of International Surrogacy Arrangements

This Note introduces the two kinds of surrogacy arrangements prevalent internationally, with a focus on commercial international surrogacy arrangements (ISAs). The Note discusses issues of stateless and parentless children arising from ISAs due to a web of conflicting national laws that creates loopholes and the absence of effective international regulations governing ISAs. The Note then analyzes domestic and international laws of various countries in four categories viz. nations that prohibit surrogacy arrangements, nations where surrogacy is largely unregulated, nations where surrogacy is expressly permitted, and nations with a permissive approach toward surrogacy including commercial surrogacy arrangements. The Note also explains the different ways by which countries determine parentage and nationality of their citizens. Finally, to resolve issues arising out of ISAs and to control the confusion and ambiguity created by various domestic laws, this Note proposes an international instrument and includes draft provisions of the same to streamline the various stands countries have on ISAs and to address both the ethical and legal issues arising out of them.
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Michael Press, Of Robots and Rules: Autonomous Weapon Systems in the Law of Armed Conflict

In September 2016, hoping to quiet fears about “killer robots,” then-Defense Secretary Ashton Carter promised that whatever weapons systems the United States might develop in the future, “there’s always going to [be] human judgment and discretion.” Carter’s policy assurance on the future development of autonomous weapons systems (AWS) was clearly informed by ethical considerations, but it also had a distinct basis in the law of armed conflict (LOAC), embodied in various international treaties. This Note will conduct an analysis of the legal regime surrounding the construction and use of these AWS. In order to do so, it will examine similar weapons systems utilized by the U.S. military in various operations across the globe and current U.S. doctrine on the use of robotic autonomy in weapons, as well as the arguments for and against their fielding. An overview of LOAC and international humanitarian law (IHL) principles will also be explored through a clearly articulated legal review that should be undertaken before any weapon is legally allowed to operate in a battlespace. Subsequently, that legal review will be applied to AWS to investigate whether these weapons systems should be legally prohibited and how certain uses should be restricted. This Note asserts that there is nothing from a legal perspective that fundamentally prohibits the use of AWS in combat situations. However, similar to other weapons, it is the implementation of AWS that could come into conflict with LOAC and IHL. Recommendations for creating and using AWS in line with international legal principles will be interspersed throughout the Note and summarized in the conclusion. Key recommendations include limiting the use of AWS to situations where a system can reliably and predictably abide by the core principles of LOAC, as well as establishing standards and guidelines to ensure that AWS are fielded in such a manner.
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Issue 3

International Justice: Where We Stand, Where We Fall, and Where We Need to Be

FOREWORD

Shannon Togawa Mercer, International Justice

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ARTICLES

Lovisa Bådagård & Mark Klamberg, The Gatekeeper of the ICC: Prosecutorial Strategies for Selecting Situations and Cases at the International Criminal Court

The Office of the Prosecutor (OTP) of the International Criminal Court (ICC) has a unique role in the proceedings before the Court. It is the organ primarily tasked with choosing among the numerous situations and cases under the Court’s jurisdiction. The legal criteria for situation and case selection, provided in the Rome Statute and related regulations, are relatively open as to allow the Prosecutor a considerable degree of discretion. In order to guide this discretion, the Office of the Prosecutor has developed certain policies and strategies. Prosecutorial policy and strategy stands, almost by definition, at a crossroads between law and politics. This Article identifies strategic choices of the OTP in situation and case selection and analyzes them in relation to the ICC’s objectives. There are tensions between the need for predictability and legal certainty on the one hand and for pragmatism and case-by-case flexibility on the other hand. The Article finds that the OTP is downplaying its own discretion by emphasizing the legalistic and apolitical character of its decision-making and bringing the objectives of ending impunity, preventing crimes, and providing redress to victims to the fore. The objectives of restoring peace and security and of contributing to a historical record have been secondary to the OTP’s strategic choices.
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Eric Talbot Jensen, The Tallinn Manual 2.0: Highlights and Insights

Malicious cyber activities are pervasive in the lives of individuals and in the national security discussions of national governments across the globe. It is rare for a day to pass without some cyber event reaching the national news. These malicious cyber activities are attributed to both state and non-state actors such as transnational criminal groups, terrorist organizations, and individuals.
In response to this widespread phenomenon, including a specific major cyber incident in Estonia in 2007, the Cooperative Cyber Defense Center of Excellence in Tallinn, Estonia hosted a multi-year process designed to provide the views of a group of renowned experts on the application of international law to cyber activities. The first Tallinn Manual dealt with the law applicable to armed conflict. The second, and recently published, Tallinn Manual (known as Tallinn 2.0) deals with a much broader type of cyber operations—those both in and out of armed conflict.
This Article briefly summarizes the key points in the Tallinn Manual 2.0, including identifying some of the most important areas of non-consensus among the Experts who wrote the Manual. The Article then offers some insights into where international law on cyber operations will need to go in the future.
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NOTES

Christine Anderson, Sanctions, Transparency, and Accountability: The Missing Links in Natural Resource Anti-Corruption Efforts

When natural resource governance breaks down, corrupt exploitation of those resources often fills the management void. International demand for rare minerals has long turned a blind eye to the negative effects of natural resource corruption. Yet, as human rights abuses and harmful effects of failed governance have become more internationally recognized, international coalitions and individual countries have sought solutions to the natural resource curse. These efforts have found varying degrees of success. This paper argues that, through sanctions, voluntary reporting mechanisms, and mandatory reporting programs, governance of our world’s most corruption-filled natural resource sectors is greatly improved but not yet poised to stop natural resource corruption in its tracks. To ensure accountability in the natural resource sectors, international and domestic programs should increase enforcement muscle through tools such as criminal sanctions and fines.
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Caroline D. Kelly, Contextual Complementarity: Assessing Unwillingness and “Genuine” Prosecutions in Colombia’s Special Jurisdiction for Peace

The November 2016 peace agreement in Colombia is an historic achievement for the country after a fifty-year conflict. One crucial aspect of this deal is the Special Jurisdiction for Peace–the accountability framework established by the parties to prosecute violations of international criminal law. The situation in Colombia is still under a preliminary examination by the International Criminal Court (ICC). While the ICC is precluded from prosecuting individuals in Colombia for Rome Statute violations if the country is willing to genuinely prosecute them, the ICC makes the determination of whether or not the prosecutions are “genuine.” This Note analyzes the ICC’s complementarity assessment to determine whether the Special Jurisdiction for Peace will be considered a “genuine” prosecution. It then considers the range of goals and accountability mechanisms that a country emerging from conflict may pursue in its transitional justice process and how those may differ from those of the ICC. This Note concludes that the Office of the Prosecutor of the ICC should consult with Colombian actors, provide clearer guidance on sentencing, and exercise its prosecutorial discretion to provide countries flexibility in pursuit of a transitional justice process that best fits the context of the transition and the goals of the country.
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Christopher Vail, The Legality of Nuclear Weapons for Use and Deterrence

After World War II, a new set of treaties concerning the laws of war—the Geneva Conventions—established the standards of international humanitarian law (IHL). Under Additional Protocol I of the Geneva Conventions, the nuclear bombing of Japan would have violated IHL. In fact, using nuclear weapons in any situation would likely violate international law. Due to its potential for utter destruction, nuclear weapons should not exist in our current world and should not be used in any circumstance. But, even today, international law does not ban nuclear weapons. This Note advocates for implementing a stricter amendment to the Non-Proliferation Treaty (NPT)’s disarmament provisions so it can achieve total nuclear disarmament of nuclear-weapon states. The actual use of nuclear weapons—which is a per se violation of current international law—is closely tied to the principle of deterrence under the mutually assured destruction (MAD) doctrine. As a result of maintaining nuclear weapon stockpiles for deterrence purposes under MAD, the United States—a nuclear-weapon state—has had the opportunity to seriously consider using those stockpiles for a nuclear attack in times of conflict. Maintaining nuclear weapon stockpiles for deterrence purposes does not violate current international law or the NPT under the NPT’s current language. However, the fact that nuclear-weapon states have the ability to commit what would inevitably be a violation of international law should they choose to deploy nuclear weapons is sufficient justification for banning nuclear weapons entirely. The NPT should therefore be amended to require complete nuclear disarmament by nuclear-weapon states.
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Alexis Wilpon, Floating Armories: A Legal Grey Area in Arms Trade and the Law of the Sea

In response to maritime piracy concerns, shippers often hire armed guards to protect their ships. However, due to national and international laws regarding arms trade, ships are often unable to dock in foreign ports with weapons and ammunition. As a response, floating armories operate as weapons and ammunition storage facilities in international waters. By operating solely in international waters, floating armories avoid national and international laws regarding arms trade. However, there is a significant lack of regulations governing floating armories, and this leads to serious safety concerns including lack of standardized weapon storage, lack of records documenting the transfer of weapons and ammunitions, and lack of regulation from flags of convenience. Further, there is no publically available registry of floating armories and so the number of floating armories operating alongside the quantity of arms and ammunition on board is unknown. This Note suggests several solutions that will increase the transparency and safety of floating armories. Such solutions include requirements that floating armory operators register their vessels only to states in which a legitimate relationship exists, minimum standards that operators must follow, and the creation of a publically available registry. Finally, it concludes by providing alternative mechanisms by which states may exercise jurisdiction over foreign vessels operating in the High Seas.
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TRANSCRIPTS

General Counsel of the FBI, James Baker, in Conversation with Professor Mary DeRosa on the FBI and International Justice

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John B. Bellinger, III, International Law and the Foreign Affairs Challenges for the Next Administration*

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Professor Rosa Brooks, Friends Don't Let Friends Drive Drunk: The Role of U.S. Allies in Keeping the U.S. Honest

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Michel Paradis, Constitutionality of Religious and Alienage Discrimination in the Terrorism Context

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Benjamin Wittes, Cyber Sextortion and International Justice

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Issue 2

FOREWORD

Sonia E. Rolland, Making International Economic Law Work: Integrating Disciplines and Broadening Policy Choices

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ARTICLES

Lilian V. Faulhaber, Beyond Apple: State Aid as a Model of a Robust Anti-Subsidy Rule

In 2016, the European Commission ordered Ireland to recover over €13 billion in back taxes from Apple. This decision was met with outrage in the United States, where many lawmakers and academics were unfamiliar with the European Union’s prohibition on state aid. This prohibition, which has existed since the founding of the European Coal and Steel Community in the early 1950s, aims to uphold competition within the European Union by preventing EU Member States from providing subsidies to specific undertakings.
This Article uses Apple and other recent state aid investigations to illustrate the broad scope and strong enforcement provisions of the EU prohibition on state aid. In response to calls for a more robust anti-subsidy regime at the WTO level, this Article sets out state aid as a model of one such regime. This Article does not argue that the WTO needs a more robust anti-subsidy regime but instead points to the EU’s state aid prohibition as an example of such a regime for reformers who have themselves called for greater international prohibitions on subsidies.
This Article also argues that, for reformers who want stronger anti-subsidy rules, the WTO is in many ways a more appropriate space for anti-subsidy rules than the European Union. Imposing the state aid prohibition at the WTO level could remove many of the legitimacy concerns that are at the root of the recent criticisms of the state aid prohibition. Because the European Union and its Member States are WTO members, this could also obviate the need for a state aid prohibition at the EU level. These conclusions do not mean that the prohibition on state aid is without its weaknesses, and this Article does not suggest that all elements of the prohibition should be adopted by other jurisdictions. But the European Union takes a very different approach to policing subsidies than does the WTO, and the differences between the state aid prohibition and the WTO’s anti-subsidy rules illustrate how the latter could be strengthened by choosing some elements of state aid doctrine and leaving the rest.
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Mira Burri, The Regulation of Data Flows Through Trade Agreements

Cross-border data flows are essential to the contemporary digital economy. While states are eager to seize the opportunity of digitization as the fourth industrial revolution, they also often impose borders in the digital space, so as to protect vital interests, such as national security or privacy. Free trade agreements have gained new value in the last decade and shape the regulatory environment for digital data by overcoming some of the problems and inconsistencies of the multilateral regime of the World Trade Organization (WTO) and by active norm-creation in discrete fields of digital trade. The Article maps these developments by looking first at the legal foundations laid by the WTO and then at the many free trade agreements that regulate digital trade beyond the older multilateral rules. The Article examines their design and evolution with a particular focus on the models that the United States and the European Union have developed. The Article contextualizes and assesses the impact of free trade agreements for the burgeoning digital economy by highlighting the positive as well as the many negative sides such a proactive, power-driven norm-setting may have, in particular in an environment as fluid as the digital space.
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Julian Scheu, Trust Building, Balancing, and Sanctioning: Three Pillars of a Systematic Approach to Human Rights in International Investment Law and Arbitration

The aim of the present contribution is to develop a conceptual framework which gives guidance on how, under which circumstances, and to which extent human rights considerations should be taken into account in international investment arbitration. To this end, investment law is considered a legal instrument fulfilling international economic policies rather than a rigid framework whose sole purpose is to protect foreign investments from host state actions. To lay the groundwork, investment law’s object and purpose are clarified before different scenarios of interaction between investment law and human rights are identified, analyzed, and linked to the arbitral tribunal’s interpretative powers pursuant to Article 31(1) and (3)(c) of the Vienna Convention on the Law of Treaties. It is shown that human rights considerations are on the one hand raised by investors in order to reinforce their claim, which reflects their legitimate expectation to be treated in a human rights compliant manner by the host state. By taking these arguments seriously, tribunals can build additional trust in the system of international investment protection. On the other hand, host states bring up human rights as a defense in order to illustrate that investment protection conflicts with the obligation to promote or protect non-investment rights and interests. In light of investment law’s purpose, arbitrators have the authority to deal with this conflict by balancing investment protection and human rights. Moreover, states can, by referring to investor misconduct adversely affecting human rights, substantiate why investment protection is being abused. As a result, it is suggested that arbitrators should react differently to each of these three scenarios by ‘trust building,’ ‘balancing,’ or ‘sanctioning.’ In light of arbitral practice, it is shown that each of the three pillars of a systemic approach to human rights in investment arbitration has the potential to influence the arbitral process in the context of jurisdiction, admissibility, the interpretation of substantive investment protection standards, the assessment of damages, or the allocation of costs.
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Otabek Ismailov, Interaction of International Investment and Trade Regimes on Interpreting Treaty "Necessity" Clauses: Convergence or Divergence?

This Article attempts to look into the question of whether the less restrictive means test used by WTO dispute settlement bodies to examine the “necessity” of state measures under WTO instruments can be imported into the investor-state arbitration regime for the purpose of interpreting the non-precluded measures clause of the U.S.-Argentina BIT. In this respect, it argues that WTO jurisprudence on the interpretation of necessity clauses cannot be imported directly to investment arbitration regime for the purpose of interpreting this treaty clause, but rather it may serve as a valuable source for identifying the development of state practice on examining whether a state had other alternative means to safeguard its essential interests in necessity circumstances.  The interpretation of the “only means” element of customary necessity by investment arbitration tribunals in the Argentine cases sparked an academic debate and some scholars considered such interpretation as “ill-suited” in the context of economic emergencies. In this Article, I contend that state practice found in WTO jurisprudence on the “reasonably available” nature of alternative means reflects the development of a customary rule on necessity as it represents a more progressive and practicable approach to interpreting the “only means” requirement of customary necessity, and thus should be incorporated into interpretation of the “only means” requirement of the customary necessity defense by future investment arbitral tribunals.
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David A. Gantz, The Spaghetti Bowl Revisited: Coexistence of Regional Trade Agreements Such as NAFTA with the Trans-Pacific Partnership

The rule governing the Trans-Pacific Partnership’s (TPP’s) relationship with earlier trade agreements, to which at least two of the TPP Parties are also party, is “coexistence.” “Coexistence” requires that when a TPP Party believes there is a conflict between the TPP and another trade agreement, a consultation process between Parties to the earlier trade agreement commences, with possible resort to state-to-state dispute settlement under TPP Chapter 28. Coexistence differs from the approach taken by Canada and the United States when both ratified the North American Free Trade Agreement (NAFTA), which directed the Canada-United States Free Trade Agreement be “superseded” except where otherwise explicitly specified. Whether the corresponding lack of explicit conflict rules in the TPP regarding the “coexistence” protocol (except as to government procurement) exists because the TPP Parties were unable to agree on language for a clarifying agreement, for lack of sufficient attention, or simply because the TPP provisions that would override NAFTA provisions conflict with a NAFTA Party’s interests (such as those related to investment, labor, or the environment), is unclear. Regardless of the reasons, this lack of clarity could lead to endless litigation or arbitration among the NAFTA Parties and with their stakeholders when and if TPP enters into force for all of them.
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NOTES

Mina Miljevic, Eradicating Corruption: Mission (Im)Possible? How Ethical Corporations Can Combat Corruption through Foreign Direct Investment

Several efforts to end corruption have been too narrowly focused on petty corruption and lacking in enforcement mechanisms or long-term sustainability. This paper argues for a new approach to combat grand corruption: engaging in corporate foreign direct investment in corrupt countries in order to systemically deal with corruption. The goal is to break the cycle of corruption by helping honest companies operate in an honest way. The question that follows from this recommended approach is, how does one encourage corporations to invest in traditionally corrupt nations? After all, plenty of academic research concludes that corruption deters investment. This paper proposes several positive incentive strategies to encourage corporate investment by minimizing the risk or cost of doing so in hopes of making ethical foreign direct investment possible even in corrupt nations. Because this is a global problem, this paper will primarily focus on corruption at an international level.
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Joseph DiPiero, The Common Law of Rebellion

This Note traces the lineage of the natural right to rebel against tyranny and oppression from its ancient and medieval roots to its modern enshrinement in the Universal Declaration of Human Rights. While the right to rebel has played an enormous role in the political evolution of the world, especially in Western societies, over the last several decades the right to rebel’s continuing vitality can be legitimately called into question due in large part to inattention from the international community. This Note attempts to counteract this trend by identifying existing sources of international law that bolster the notion that there does in fact exist a set of principles and guidelines that governs the international community’s approach towards rebels and rebellions, i.e., a common law of rebellion. This common law of rebellion dictates when individuals may legally—from an international standpoint—rise up and foment insurrection against their government and when they must resort to alternative means.
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Issue 1

FOREWORD

Judge Claire R. Kelly

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ARTICLES

Shara L. Aranoff, Sonam Patel, and Molly J. Doggett, A Review of the Court of International Trade's 2015 Decisions Addressing Trade Remedy Determinations of The U.S. International Trade Commission and the Court's Decisions Pursuant to 28 U.S.C. § 1581(i)

In 2015, the United States Court of International Trade (CIT or court) issued seven opinions involving anti-dumping and countervailing duty injury determinations by the U.S. International Trade Commission (Commission or ITC). In addition, the court decided seven cases which touched on the court’s residual jurisdiction under 28 U.S.C. § 1581(i). This Article summarizes and assesses the significance of both groups of cases. With respect to appeals from the ITC, the court showed considerable deference to the agency, affirming its choice of methodology for analyzing record data relating to a variety of statutory injury factors. The court also supported the ITC’s interpretation of the “by reason of” causation standard, an area left ambiguous by several Federal Circuit decisions. In cases involving the court’s residual jurisdiction, the court continued to set a high bar for when invoking section 1581(i) is appropriate. In cases involving Customs’ application of deemed liquidation and its enforcement of antidumping and countervailing duties, the court agreed to hear only those cases where no action by the plaintiff could have qualified it to bring its claim under another jurisdictional provision.
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Thomas M. Beline and Allison Hollander, 2015 in Review: Procedural and Scope Matters Before the U.S. Court of International Trade

This Article summarizes the 2015 U.S. Court of International Trade (CIT) opinions addressing questions of procedure and whether imported products fall within the scope of antidumping and countervailing duty orders. It includes an analysis of the Icdas case in relation to recent questions surrounding jurisdiction and claims-processing rules in the federal courts. This Article also discusses the effects of three recent cases on the exhaustion doctrine at the CIT, who may be a party to the appeal and when, and the Court’s resolution of the tension between Commerce’s practice in determining country of origin and the statute’s anticircumvention proceedings in Bell Supply and Peer Bearing.
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Maureen E. Thorson, 2015 Cases Involving Adverse Inferences and Surrogate Values at the U.S. Court of International Trade

The use of adverse inferences in calculating anti-dumping and countervailing duty margins and the selection of surrogate values in non-market economy cases and are areas of perennial contention in litigation before the U.S. Court of International Trade. In this Article, Maureen Thorson describes how the court’s 2015 opinions provide agencies and practitioners alike with new guidance on these issues. Refining prior case law with respect to the impact of corroboration and “commercial reality” on the use of adverse inferences, the Court of International Trade’s 2015 opinions place renewed emphasis on properly determining the circumstances under which such inferences are warranted. In the arena of surrogate valuation, the court also provided significant clarifications regarding the legal standards for selecting surrogate countries, while dealing with increasingly complicated issues arising from the selection—and adjustment—of surrogate financial statements.
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Patricia M. McCarthy, Court of International Trade Decisions Issued During 2015 Concerning 28 U.S.C. § 1582

Charged by Congress with responsibility for protecting the revenue, U.S. Customs and Border Protection has long struggled with imports of merchandise that are subject to special duties intended to remedy unfair trade practices. Often the importers of this type of merchandise default on Customs’ bills for these duties, leading Customs to demand additional security for the imports and the United States to initiate litigation to collect on these customs bonds. In 2015, the United States Court of International Trade issued an unusually large number of decisions resolving collection issues ranging from Customs’ ability to impose enhanced bonding requirements on importers, to the types of interest to which a surety may be subject in a collection action brought by the United States, to the standards the United States must satisfy to obtain a judgment for duties and civil penalties. Although generally providing clarity, the court also exposed certain areas of tension in the customs civil penalties statute.
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Robert A. Shapiro, Review of 2015 Customs Cases Before the Court of International Trade

This article discusses the decisions of the U.S. Court of International Trade in 2015. The article focuses on the hurdles that must be observed for the court to assert jurisdiction over the issue. The article then discusses the identification of customs rulings, interpretive decisions and treatments that trigger statutory procedural rights and the enforceability of those rights. Finally, two classification decisions of the CIT are examined because of their potential impact on the classification of devices that are connected to automatic data processing machines.
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Shana Hofstetter and Bernd Janzen, 2015 Court of International Trade Review: From Targeted Dumping to Differential Pricing

This Article summarizes the 2015 U.S. Court of International Trade cases concerning the U.S. Department of Commerce’s calculations of dumping margins under its evolving regimes of targeted dumping and differential pricing. By reviewing how the U.S. Department of Commerce implemented its change in practice, and how the U.S. Court of International Trade viewed this implementation, practitioners will gain a better understanding of the two institutions’ roles and interactions.
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NOTES

Brittany Cohan Baclawski, Re-Thinking the WTO's Relationship to International Labor Standards: Is it Finally Time for a Global Approach?

This Note explores the World Trade Organization’s (WTO’s) relationship to labor standards. It considers the possibility of WTO adoption of international labor standards, analyzing the arguments in favor of and against this approach. It then analyzes the use of free trade agreements as an alternative mechanism for both the setting and enforcement of labor standards, using previous free trade agreements and the Trans-Pacific Partnership Agreement as vehicles through which to explore the pros and cons of this approach. It concludes with recommendations regarding how the WTO can amend its organizational documents in order to adopt international labor standards.
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Sherri J. Deckelboim, Consumer Privacy on an International Scale: Conflicting Viewpoints Underlying the EU-U.S. Privacy Shield Framework and How the Framework Will Impact Privacy Advocates, National Security, and Business

Despite differing standards for online privacy and data transfers, the United States and the EU exchange vast amounts of personal data every day as part of the transatlantic economy. However, recent revelations from Edward Snowden concerning U.S. data surveillance practices have led to distrust of the United States among its trade partners, including the EU. As a result, the two parties have negotiated new guiding principles for data transfers in the form of the EU-U.S. Privacy Shield Framework. The Privacy Shield reportedly accounts for modern developments in EU human rights law and modifications to U.S. surveillance practices following the Snowden revelations and subsequent backlash. Through this instrument, the United States attempts to provide for greater privacy protections and recourse methods as compared to prior trade instruments, yet strong similarities to prior instruments will likely draw backlash against the Privacy Shield from privacy advocates. In addition, the voluntary nature of the Privacy Shield presents businesses with a choice of whether to comply with the contentious Privacy Shield or to pursue alternative options that may result in challenges for national security, such as encryption. This Note evaluates the potential impact of the Privacy Shield through the lens of the differing historical backgrounds of U.S. and EU privacy practices. It also traces the trajectory of attempts by the United States and EU to bridge the gap between privacy practices for the purpose of data privacy in trade.
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Michael Flynn, China: A Market Economy?

This Note analyzes China’s status as a nonmarket economy from the perspectives of both the World Trade Organization (WTO) and U.S. law. The Note begins by providing background information about nonmarket economies and how nonmarket economy status impacts international trade. The Note then discusses and analyzes the controversial topic of how to interpret certain provisions in China’s Protocol of Accession to the WTO. The analysis of China’s Protocol of Accession, from the perspectives of both a textual analysis and under WTO law, concludes that WTO members can treat China as a nonmarket economy, both currently and in the future, regardless of a sunset provision included in China’s Protocol of Accession. Finally, the Note reviews the U.S. statutory framework for nonmarket economy treatment of China under applicable U.S. law and concludes that the relevant factors do not present a finding of a market economy in China.
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Sean M. Topping, Defying Schengen Through Internal Border Controls: Acts of National Risk-taking or Violations of International Law at the Heart of Europe?

Despite recently celebrating its thirtieth anniversary, the Schengen Area—with its free movement of people across twenty-six European states— has drawn renewed notoriety and criticism following the Syrian refugee crisis. Despite beginning as ad hoc cooperation amongst states, the Schengen Protocol has become part of the foundation of the European Union and of what it means to be “European.” Following the massive influx of Syrian refugees into Europe in the fall of 2015, however, some states implemented temporary border checks along internal Schengen boundaries and past crises indicate a willingness to go further in years to come. While states could conceivably achieve internal consensus in order to erect permanent or semi-permanent controls as a matter of politics, border controls would have negative political, economic, and social consequences across borders. While states may defend advanced border controls as a necessity, such actions are ripe for legal challenge from other states or individuals whose rights would be infringed. Following “Brexit” and other states threatening withdrawal from the European Union—in part a response to fears of unchecked migration—Schengen’s fate remains uncertain but will undoubtedly remain a prominent feature of law and politics in the future.
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