GJIL Vol. 46
This article argues against the idea that successful transitions can be created in the context of transformative belligerent occupations. It explains that given the prevailing interests of occupying powers and their tendency to ignore or underestimate the needs and political participation of the local population in the transition process, military occupations are ill suited for applying precepts of transitional justice. Instead, it calls for the implementation of either international or multilateral approaches to transition both in the form of international administration of territories or the operationalization of good practices and jus post bellum concepts. In the end, however, the paper recognizes that the political situation in today’s world makes these alternatives difficult to implement in practice, even if they are desirable lege ferenda.
Ian M. Kysel, Domesticating Human Rights Norms in the United States: Considering the Role and Obligations of the Federal Government as Litigant
There is a large and ever-growing body of scholarship that considers how and whether the United States does or should incorporate international law and standards into domestic law and practice. A significant strain of the commentary and debate focuses on the domestic consequences of U.S international human rights treaty obligations. Remarkably, there has been little distinct consideration of the role of the United States as a litigant in this literature. This Article fills that gap, considering the domestic implications of U.S. international law obligations under both the International Covenant on Civil and Political Rights and the Convention to Eliminate All Forms of Racial Discrimination in the context of federal government enforcement of individual constitutional and civil rights protections. This Article argues both that the United States has distinct obliga- tions and interests in domesticating human rights treaty law— even law that is not formally binding on courts—when it engages in litigation. This Article concludes by recommending a set of actions that could be taken by the executive and legislative branches of the U.S. federal government to clarify and enhance the role of the federal government in advancing compliance with international human rights law when defending U.S. interests in domestic courts.
Chris Mahony, The Justice Pivot: U.S. International Criminal Law Influence From Outside the Rome Statute
International criminal prosecutions have become more common since 1993, both domestically and at international courts and tribunals. Where the United States government is unable to control how and when international criminal law is enforced, prosecutions may confront realist U.S. self-interest. This Article considers the extent to which post-Cold War international justice case selection has become more independent of U.S. pressure, or more captured by it. By considering both the jurisdictional and functional elements of case selection independence, I consider changes in U.S. capacity to influence international criminal law enforcement. This Article examines case selection independence at the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone and the International Criminal Court. Drawing on the jurisprudence, literature, field interviews and experience working in international justice, I observe increasing capture by state self-interest, entrenchment of U.S. definitional preferences, emergence of unintended precedent, and a pivot in how and the extent to which the United States shapes International Criminal Law enforcement. The research observes a combination of factors affecting U.S. influence, including shifts in power dynamics between and among weak and powerful states, increasing state sophistication in international court engagement, a shift in jurisdiction triggering actors and forums, and realist state co-option of norm entrepreneurs via endearing explanation of independence-diminishing policies.
Lelia Mooney, Promoting the Rule of Law in the Intersection of Business, Human Rights and Sustainability
The relationship between business and society has expanded to incorporate both profitable, social, environmental, governance, and human rights concerns. Meeting the bottom line requires that companies behave responsibly and are well versed with the importance of integrating international hard and soft law standards as part of their policies and field operations. Lawyers advising different industries and sectors need to incorporate a comprehensive approach in order to also be able to address social, environmental, governance, and human rights concerns beyond traditional corporate law matters.
Thomas Weatherall, Jus Cogens and Sovereign Immunity: Reconciling Divergence in Contemporary Jurisprudence
The International Court of Justice considered sovereign immunity and jus cogens to be distinctly procedural and substantive rules: ships passing in the night. In practice, this dichotomy is not so clear: one distinctly procedural aspect of jus cogens is its relationship to universal jurisdiction, while a court’s subject-matter jurisdiction cannot be completely divorced from substantive considerations. To avoid harmonizing these issues, the European Court of Human Rights recently held that the relationship between sovereign immunity and jus cogens is in a “state of flux.” However, a careful analysis of the interaction of jus cogens and sovereign immunity reveals not a state of flux, but a matrix of consistent procedural postures dependent upon the form of immunity and subject of international law at issue. This Article unpacks the interrelation of jus cogens and sovereign immunity across three areas: immunity ratione personae, immunity ratione materiae, and the jurisdictional immunity of the State.
Stephen J. Kozey, The Hague Securities Convention: An Opportunity to Take the UCC Global
The United States is in a unique position to benefit from ratification of the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an Intermediary, commonly known as the Hague Securities Convention. The primary purpose of the Convention is to remedy the severe lack of legal certainty with respect to cross-border transactions in intermediated securities that results from the complex, cross-border holding structures utilized in the indirect holding system. By harmonizing the disparate approaches to choice of law for intermediated securities that currently exist in different legal systems around the world, the Convention would allow parties to easily determine the applicable law in any given transaction, thereby reducing legal risks and costs and increasing the efficiency and stability of international financial markets. Moreover, because the Convention’s choice of law rules are so similar to those of the UCC, the United States would reap benefits beyond those resulting from greater legal certainty. In particular, the United States could implement the Convention as a self-executing treaty without significantly interfering with the UCC choice of law regime adopted by the states, effectively providing a single choice of law regime for both domestic and cross-border intermediated securities transactions. U.S. practitioners and market participants would also be able to adapt to the Convention easily, giving them a competitive advantage over others if the Convention becomes widely adopted. In light of these benefits, the United States has an opportunity to take the UCC global by ratifying the Convention and encouraging others to follow.
Emily Merki, Why the Dollar Should No Longer Be the World Reserve Currency: Solving Global Account Imbalances Through Structural Reform
This Note’s premise is simple: the dollar should no longer be the world’s reserve currency. Because of the global imbalance of trade, the hoarding by “saving” countries of foreign currency, and the reliance on the Federal Reserve to set global monetary policy, the financial system is unacceptably unstable. To better regulate and manage the risks of global financial markets, some have proposed creating a global central bank—a “clearing union.” This paper proposes, by contrast, an 1) international reserve currency that would be 2) indexed to gold and 3) placed under the regulatory sweep of the WTO, an already stable and efficient regulatory body. This system would not be dissimilar from the “par value system” that emerged from the Bretton Woods Conference—a system that pegged all currencies to fixed exchange rates relative to the U.S. dollar, which in turn was fixed to gold. The original Bretton Woods system failed when the United States faced looming domestic trade deficits. Because growing deflation was unacceptable domestically, the United States abandoned the gold standard. A global currency would correct the problem, and might finally achieve much desired stability in global financial markets. For context, Part II of this paper describes the global financial crisis. Part III outlines the ways global account imbalances both contributed to, and then exacerbated, that crisis. It further discusses previous proposed solutions to global account imbalances that, in one way or the other, fail to provide adequate reforms. Part IV then defends, respectively, the three elements of this proposal: 1) an international currency 2) indexed to gold 3) regulated by the WTO. Finally, Part V argues why this model is, in fact, desirable and beneficial for the United States, no less than any other nation.
Mads Andenas, Reassertion and Transformation: From Fragmentation to Convergence in International Law
This Article explores how the International Court of Justice (I.C.J.) contributes to the convergence of international law and the strengthening of international law as a unitary legal system. The I.C.J. has reasserted its place at the center after the expansion of international law, including new courts and enforcement mechanisms, and makes an increasingly important contribution to the transformation of international law that is taking place in response to its expansion. The fear of fragmentation has been one driver in the gradual transformation of international law that is taking place. This fear contributes to the understanding of the I.C.J.’s departure from the traditional methods that had hardened over the years. The I.C.J. has clarified the criteria for the formation of customary law, and the canons of treaty interpretation. It cites case law from other international courts and from domestic courts as persuasive authorities. Old doctrinal restrictions have fallen as the I.C.J. has confirmed the binding effect of its judgments and the role of peremptory norms (jus cogens). The I.C.J. has made clear and important declarations on general principles and customary international law. It has become the main business of the I.C.J. to provide international courts and other bodies with the tools for applying international law and securing coherence and unity. The Article argues that further scholarship on the I.C.J. case law and fragmentation and convergence is called for, and that a new frontier in scholarship is the study of the effects of these recent I.C.J. contributions on other international and domestic courts.
Edward T. Canuel, The Four Arctic Law Pillars: A Legal Framework
Arctic law is an emerging legal discipline that transcends national boundaries, involves diverse stakeholders, and contends with multiple legal fields. This Article proposes that Arctic law is the complex intersection of four distinct “pillars”: international hard law, soft law, domestic law, and transboundary private law. The evolving first pillar, hard law, focuses on legal instruments, such as the United Nations Convention on the Law of the Sea, which cover issues affecting the Arctic. Additionally, legal instruments such as the 2011 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic suggest that the very definition of agreements considered “obligatory” may be broadening. The second Arctic legal pillar, soft law, refers to non-legally-binding international agreements and institutions such as the Arctic Council and the influence of associated international norms. Domestic law is the third Arctic pillar, providing insights into how an individual Arctic state’s legal systems function. The fourth pillar, transboundary private law, describes the legal challenges found in potential Arctic cross-border transactions, considering that contracts spanning different legal traditions may yield unanticipated results in practice. Objective pluralism is viewed as a useful tool to distinguish the effectiveness of commercial transactions extending across borders.
Carol McAusland And Nouri Najjar, The WTO Consistency of Carbon Footprint Taxes
Absent meaningful multilateral action on greenhouse gas emissions, countries wishing to combat climate change must decide whether to take or continue unilateral action. A significant obstacle facing many governments is how to maintain the competitiveness of domestic industries and minimize the leakage of carbon emissions through international trade without violating trade rules. One way to assuage these competitiveness and leakage concerns is to implement destination-based carbon pricing—carbon policy levied at the point of consumption, rather than production. This Article addresses whether one such form of climate policy—a consumption tax levied on the carbon footprint of goods consumed domestically—would be consistent with World Trade Organization (WTO) rules. Because a carbon footprint tax (CFT) would be levied at the point of consumption, goods would be treated equally regardless of whether they are imported or produced domestically. This Article analyzes the legal precedents for a footprint tax and identifies grounds upon which a CFT might possibly be challenged. Our assessment is that the most convincing challenge would be through the likeness criterion. Although the CFT would be a single-rate tax, the effective tax per-unit will vary across goods according to their carbon footprint. As a result, goods that are identical but for differences in their embodied emissions will face different tax burdens; if goods with different embodied carbon are deemed like goods, any variation in the per-unit tax could be interpreted as violating National Treatment. Recent precedents for treating goods as distinct because of consumer tastes and production externalities suggest that high- and low-carbon goods may not be deemed like in the event of a challenge. Nevertheless, we also outline an alternate policy—one which pairs a uniform tax on goods with a consumption subsidy for low-carbon goods—that may survive challenge even if low- and high-carbon goods are deemed like. With the possible exception of likeness, we feel there is sufficient precedent for a footprint tax.
David Wallach, The Irrationality of Universal Civil Jurisdiction
Thirty years ago, the federal courts transformed the Alien Tort Statute (ATS)—an obscure provision nearly as old as the United States itself—into the basis for an unprecedented experiment in universal civil jurisdiction. That experiment recently came to an end when the Supreme Court held in Kiobel v. Royal Dutch Petroleum Co. that the ATS does not apply extraterritorially. Thus, if universal civil jurisdiction has a future in the United States, it will need to be through legislative action. Courts and commentators have engaged in fierce debate over nearly every aspect of the ATS, but they only rarely and superficially have considered the purpose and potential justification for the universal civil jurisdiction that was being exercised. This Article takes that issue head on. It examines how universal civil jurisdiction works and shows that it differs in fundamental ways from the universal criminal jurisdiction that nominally served as its basis. Once these differences are understood, it becomes clear that universal civil jurisdiction accomplishes little, is rarely, if ever, justified, and should not be legislatively revived.
Devon Whittle, Peacekeeping in Conflict: The Intervention Brigade, Monusco, and the Application of International Humanitarian Law to the United Nations Forces
In recent years, a more aggressive form of United Nations (U.N.) peacekeeping has been developing in response to seemingly intractable conflicts. In March 2013, the Security Council created the Intervention Brigade within the MONUSCO peacekeeping operation in the Democratic Republic of the Congo. The Brigade was authorized to offensively engage with rebel combatants and “neutralize” armed groups. This represented a sharp departure from traditional peacekeeping operations with potentially serious implications for the law governing peacekeepers. This Article examines some of the legal implications of these developments. It argues that the lack of clarity in regard to the legal rules that apply make it difficult for peacekeepers to ensure they are fulfilling their legal duties and complicates the availability of certain legal rules that would otherwise protect peacekeepers in conflicts. Until greater clarity in the law is achieved, operations such as the Intervention Brigade must better distinguish themselves from the traditional peacekeeping elements of their deployment. The blurring of the line between peacekeeper and peacemaker could have dangerous implications for the safety of U.N. personnel and should not be embarked upon without due consideration of its full legal ramifications.
Kathryn Collard, Advantages of a Co-Regulatory OTC Derivatives Regime
Much attention has focused upon the apparent lack of regulation of the global OTC derivatives market as one of the major aggravators of the global financial crisis of 2009-2010. Thus, financial regulators worldwide have focused their attention upon these markets, and, in 2009, members of the G20 committed to implementing certain regulatory reforms that would reduce the systemic risk created by the OTC derivatives market. Under the framework envisioned by the G20, each state would implement these common commitments individually on the domestic level. This Note argues that this method of implementation will lead to a regulatory system that fails to achieve the goal of reducing the OTC derivatives market’s contribution to global systemic risk. Instead of relying solely on public regulators to implement the commitments, involving the private industry group ISDA in a co-regulatory framework would better enable public regulators to effectively implement the commitments they announced and to achieve the goal of reducing systemic risk.
Talya Levi, Russia and the Stolen Chabad Archive
The unprecedented levels of theft, destruction, and displacement of cultural property during World War II has led the international community to grapple with questions of restitution. Achieving complete restitution remains nearly impossible because much of the affected cultural property is dispersed and hidden throughout the world. Moreover, many governments refuse to return cultural property, even when the rightful owner or heir is known, asserting that such property is justly in their possession as a result of expropriation and nationalization. A prime example of such government action is Russia's decades-long refusal to return to the Jewish Chabad sect an archive of sacred books, manuscripts, and handwritten teachings (collectively, the “Archive”) that were seized by the Russians after World War II, and which continue to remain in Russian possession. Despite a ruling in Chabad’s favor by the U.S. Court of Appeals for the District of Columbia Circuit, Russia has maintained its position that the United States lacks jurisdiction and, that under Russian law, the Archive has been nationalized and is thus Russian property. This Note argues that Russia is obligated to return the Archive to Chabad because (A) Russian laws on cultural property violate international law; (B) Russia’s refusal to return the Archive is contrary to its own public policy with regard to cultural property; and (C) ultimately, the exception set forth for Jewish property requires that Russia return the Archive to Chabad.
Anna Sandor, Leveraging International Law to Incentivize Value-Added Shareholding: Why Foreign Sovereign Wealth Funds Still Matter and How They Can Improve Shareholder Governance and Firm Value
Rhetoric surrounding foreign sovereign wealth funds (SWFs) has reflected a swinging pendulum: from a fear of SWFs actively investing based on political motivations, to a fear of SWFs passively sinking into institutional apathy. This Note examines empirical information about SWF investment behavior in the post-financial crisis world and proposes a solution to yield a value-enhancing middle ground. This Note argues that when SWFs behave like responsibly active shareholders, their behavior is value-maximizing for the firm in which they invest. However, in order to ensure that SWF shareholders remain responsibly active, SWFs must be more transparent. Such transparency can be achieved by harnessing international law mechanisms to incentivize transparent SWF investment.
Daniel Behn, Legitimacy, Evolution, and Growth in Investment Treaty Arbitration: Empirically Evaluating the State-Of-the-Art
The legitimacy debates surrounding investment treaty arbitration are intensifying. At the same time, the number of claims filed continues on a growth trajectory. Some commentators believe that the practice of investment treaty arbitration will evolve over time; and as the regime evolves, many—if not all—of the its claimed legitimacy deficits will be resolved. This Article will test this evolutionary thesis by empirically evaluating investment treaty arbitration cases that have been fully or partially resolved in the last three years (September 2011 through September 2014) in order to assess the extent to which the regime is—in fact—evolving and whether the empirical evidence supports or contra- dicts many of the legitimacy critiques currently lodged against the regime. Special attention will be placed on assessing issues of diversity and the fair distribution of claims.
Gerlinde Berger-Walliser And Paul Shrivastava, Beyond Compliance: Sustainable Development, Business, and Proactive Law
Scholarly work shows that the existing legal framework for sustainable development is insufficient, cautious, incremental, and incomplete. Despite public and private efforts to address sustainable development, environmental and social problems and conditions continue to worsen. This Article posits that the status quo is a direct result of the systemic failure to recognize the potential for a synergistic relationship between the private and public sectors to create a comprehensive, yet effective, regulatory framework. Based on an analysis of the current national and international legal framework and alternative regulatory approaches in the “New Governance” literature, this Article aims to engage law, science, and sustainable business to determine the best way to develop a governance regime for sustainable development based on “Proactive Law.”
David A. Koplow, Nuclear Arms Control by a Pen and a Phone: Effectuating the Comprehensive Test Ban Treaty Without Ratification
This Article examines three crucial national security problems concerning the testing and proliferation of nuclear weapons, and offers three novel solutions. The three urgent problems are: (1) the fact that the Comprehensive Nuclear Test Ban Treaty (CTBT), the most important multilateral nuclear arms control agreement of the past forty years, may never enter into force; (2) the fact that without CTBT, the global non-proliferation regime is in trouble, too, as the fragile consensus underpinning the world’s efforts to restrict the spread of nuclear weapons threatens to unravel; and (3) the fact that the United States is peculiarly disabled, due to persistent internal political discord, from exercising the leadership necessary to address these difficulties.
In that dissonant environment, President Barack Obama has heralded his willingness to proceed with his progressive agenda “with a pen and a phone”—if Congress is irreconcilably deadlocked, he will use his pen to sign executive orders and other agency actions and his telephone to convene meetings of concerned stakeholders. The president has already proceeded with those tactics in numerous areas of domestic policy. Thus, this Article proposes cognate strategies in the international realm to rescue the CTBT and the global non-proliferation order.
The three innovative options presented here are: (1) the adoption of a legally binding resolution by the United Nations Security Council to declare nuclear weapons testing a “threat to the peace”; (2) the creation of a new norm of “customary international law” prohibiting such testing; and (3) the adoption by relevant states of legally binding “unilateral undertakings” to refrain from testing. Each of these options would promote U.S. national security and global stability by legally entrenching the current voluntary moratoria against nuclear testing. Each has precedents in international arms control practice, although none has ever been exercised regarding issues of this consequence. Each is, admittedly, inferior to prompt effectuation of the CTBT via a Senate vote of advice and consent, and would institute only a portion of what would be accomplished via formal entry into force of that treaty. But each option can be effectuated by the executive branch unilaterally, not being hostage to legislative branch stasis; if current political circumstances preclude, for the foreseeable future, the favored ratification option, the United States and other key players should seriously consider these alternative mechanisms to pursue preservation of the CTBT and the non-proliferation regime.
Gabrielle Gould, Red Lines: Filling the Gaps in International Law Enforcement
Roughly two years into the conflict in Syria, President Obama’s infamous red line inspired a wave of criticism and uncertainty when he pledged U.S. military intervention if there was movement or use of chemical weapons by any actor on the ground. The Syrian conflict had borne witness to egregious violations of international law, and yet multilateral enforcement of those laws had failed to materialize. This Note examines the potential for red lines to serve as legal mechanisms to circumvent international paralysis and enforce existing international law by proposing new legal standards that may eventually become binding customary international law. This Note proposes a framework for evaluating whether a red line may legitimately be proposed to fill a gap in international law enforcement and if so, what the threat of the red line may be. Using the cases of Syria, Iran, Ukraine, and the Russian intervention in Crimea, this Note then applies the proposed framework to evaluate whether President Obama’s red lines have contributed to greater consistency and legitimacy in international law enforcement.
Rebecca Salk, Strengthening the Responsibility to Prevent: Reforming the United Nations’ Genocide and Mass Atrocity Prevention Efforts Through Emphasis on Rule of Law
Since the end of World War II, the international community has vowed to “never again” sit back while genocide unfolds. Nevertheless, the international community has struggled to respond to humanitarian conflict and genocide in a timely manner, if it responds at all. The United Nations Responsibility to Protect Doctrine (RtoP) was adopted in 2005 in an effort to strengthen the international response to genocide and mass atrocities. However, whether the doctrine has actually improved international response is questionable. As such, this Note proposes a renewed focus on the prevention of genocide and mass atrocities within the framework of RtoP. Furthermore, this Note explores why and how rule of law initiatives should be used as a mechanism for prevention in conjunction with the U.N.’s current early warning regime. Thus, this Note argues for an explicit connection between rule of law and genocide prevention in a formal and institutionalized way. By connecting the two, the U.N.’s prevention mechanisms can move beyond rhetoric and further strengthen the legitimacy of RtoP itself.
Thomas C. Weatherall, The Status of the Prohibition of Terrorism in International Law: Recent Developments
This Note examines and assesses recent developments in the jurisprudence of the prohibition of terrorism in international law. Although the lack of consensus on a definition has long inhibited the emergence of a comprehensive universal norm in international law, key decisions by the Special Tribunal for Lebanon (STL) in 2011, the French Court of Cassation that same year, and the England Court of Appeal (invoking the STL judgment in 2012) indicate the crystallization of an international crime of terrorism in customary international law. From this baseline, this Note considers whether the prohibition against terrorism satisfies the elements of a norm belonging to jus cogens as per the formal source of peremptory norms delineated in the Vienna Convention on the Law of Treaties. Finding that it does, this Note then assesses the legal effects of jus cogens arising from the prohibition against terrorism as evidence corroborating the emergence of a peremptory norm.
Cindy S. Woods, “It Isn’t a State Problem”: the Minas Conga Mine Controversy and the Need For Binding International Obligations on Corporate Actors
After years of implacable neoliberal globalization, multinational corporations have moved from the periphery to the center of the international legal agenda. Human rights advocates have long called for greater corporate accountability in the international arena. The creation of the Global Compact in 2000, while aimed at fostering greater corporate respect for human rights, did not silence these calls. After multiple unsuccessful attempts to adopt a set of norms relating to the human rights responsibilities of transnational corporations, the United Nations succeeded in 2008 with the Guiding Principles on Business and Human Rights (Guiding Principles). The Guiding Principles, praised by some within the international human rights community for their recognition of an individual corporate responsibility to respect human rights, have not escaped their share of criticism. Many view the Guiding Principles to be toothless, failing to directly impose obligations upon corporations, and call for binding international obligations on corporate entities. After decades of attempting to promulgate human rights obligations for multinational corporations, the existing legal frameworks in place fall short of protecting individuals from the human rights abuses of multinational corporations. The Global Compact and Guiding Principles are proof of the United Nations’ unwillingness to impose international legal obligations on corporate actors. In June 2014, the Human Rights Council adopted a resolution to draft international legally binding human rights norms for business entities; however, key players in the international arena have already announced they will not cooperate with such efforts. This Note, through an overview of the existing corporate accountability frameworks and a study of Newmont Mining’s Minas Conga project in Peru, argues that binding international human rights obligations on corporations are necessary to fully protect human rights. Where states refuse to or simply cannot uphold their duty to protect individuals from transnational businesses’ human rights transgressions, there must exist mechanisms to pursue justice directly against the multinational corporation.
Judge Leo M. Gordon
Michael G. Hodes and Nina C. Mohseni, Classification Determinations In The United States Court of International Trade Brought Under 28 U.S.C. § 1581(A)
This Article discusses a number of decisions by the United States Court of International Trade in 2013, where litigants invoked the court’s jurisdiction pursuant to 28 U.S.C. § 1581(a). The decisions discussed herein are intended to illustrate the judicial decision-making process and to demonstrate the diversity of imported articles that come before the court for classification under the Harmonized Tariff Schedule of the United States.
Daniel Cannistra and Adeoye O. Johnson, 2013 in Review: Scope and New Shipper Review Matters Before the Court Of International Trade
In 2013, the United States Court of International Trade (CIT) saw increased litigation involving the United States Department of Commerce’s (Commerce) interpretation of the scope of antidumping and countervailing duty (AD/CVD) orders and the initiation of new shipper reviews. Scope interpretation and new shipper initiations are fact-intensive determinations with sparse analytical frameworks. Historically, scope litigation in particular, was relatively uncommon, with the CIT granting substantial deference to Commerce in interpreting the scope of AD/CVD orders. Two factors account for the increase in scope litigation. First, Commerce’s increased emphasis on preventing the circumvention of AD/CVD orders has resulted in broader scope language, making it more difficult for importers and Customs and Border Protection (CBP) alike to interpret AD/CVD orders. Second, Commerce is aggressively amending AD/CVD orders after their initial publica- tion, resulting in a constant need for importers to evaluate and reevaluate the scope of AD/CVD orders, while CBP tries to keep pace as goods enter the country. The 2013 CIT scope decisions reflect a less intensive focus on Commerce’s analytical framework in scope determination and more on Commerce’s ability to factually support its determinations. This framework will reverse in 2014, with the Court of Appeals’ decision in Mid Continent Nail Corp. v. U.S. mandating a focus on providing coherent and consistent guidance to regulated parties in scope determinations.
Jordan C. Kahn, 2013 In Review: CIT Opinions Resolving Challenges to Commerce AD/CVD Decisions on Products Imported from NMEs Jordan C. Kahn
The United States Court of International Trade (CIT) in 2013 affirmed countervailing duty liability for products imported from non-market economy countries, finding legislation constitutional and Commerce Department discretion to assess such duties. The antidumpting duty cases recognized limited Commerce latitude in responding to the uptick in import fraud through means including consideration of adverse facts available (AFA), while expressing skepticism over AFA rates in the non-fraud context. Judicial concerns as Commerce stopped using India as the surrogate for China will guide the agency with its surrogate selection for Vietnam. While Commerce was afforded wide discretion for surrogate valuation, remands involved labor and market economy inputs. Commerce further experienced setbacks in evaluating independence from government control, countering targeted dumping, and assigning separate rates. When the issues that the CIT confronted in 2013 are appealed, the United States Court of Appeals for the Federal Circuit should give Commerce flexibility to induce cooperation and deter import fraud—means critical to ensuring antidumping duty/countervailing duty (AD/CVD) rate accuracy and preserving administrative integrity.
Joshua E. Kurland, Emerging Trends in the Court of International Trade’s 2013 Market Economy Jurisprudence
The Court of International Trade’s 2013 jurisprudence in antidumping and countervailing duty cases involving goods from market economy countries reflects emerging trends in international trade litigation in the United States. This Article summarizes significant decisions, while analyzing their impact on and relationship with broader issues that have been the focus of intense litigation. The Article also highlights issue areas that are likely to be sources of future litigation.
Adams Lee, CIT 2013: A Review of Appeals from the International Trade Commission
In 2013, the United States Court of International Trade (CIT) issued six decisions involving the antidumping (AD) and countervailing duty (CVD) determinations of the U.S. International Trade Commission (ITC) in original investigations or sunset reviews. Although most of these decisions involved a remand order for further consideration by the ITC, all of the decisions highlight how a properly deferential review by the CIT can result in improved ITC determinations by establishing a more consistent and transparent standard for what constitutes substantial evidence in support of the ITC’s findings.
Elon A. Pollack, Developments in Customs-Related Litigation in the Court of International Trade in 2013
Looking back at cases decided by the United States Court of International Trade in 2013, an overwhelming number of them concern antidumping and countervailing duties. Yet, select cases in 2013 addressed the imposition of civil penalties against importers, an exporter, and a customs broker. The court also affirmed a decision by the Secretary of Labor to deny worker benefits and efforts by the United States to collect liquidated damages and duties under surety bonds. These non-trade cases are surveyed in this Article.
Daniel L. Porter and Claudia D. Hartleben, Court of International Trade Decisions Rendered in 2013 Under 28 U.S.C. § 1581(I) Residual Jurisdiction
In 2013, the United States Court of International Trade rendered 159 decisions. Of those decisions, the Court exercised jurisdiction under 28 U.S.C. § 1581(i), the so-called “residual jurisdiction provision,” over some or all claims in twenty-one decisions. This Article discusses the more substantive decisions rendered in 2013 under § 1581(i). Before addressing the 2013 decisions, the Article first provides a brief background of § 1581(i).
Genevieve Fox, A Future For International Investment? Modifying BITs to Drive Economic Development
Since the conception of Bilateral Investment Treaties (BITs) in the late 1950s, developed (home) and developing (host) states have signed on to BITs with two distinct desires: home states seek to establish BITs in order to protect their investors and their investments from deleterious host state action, while host states sign BITs pursuant to the notion that such action brings increased inflows of foreign direct investment (FDI) and related economic development. This Note intends to demonstrate that while current BITs do protect home state investors and their investments, BITs do not necessarily bring increased inflows of FDI to host states, nor do they effectively promote host state economic development. With this framework in mind, this Note asserts that BITs can, if re-imagined, be used as a vehicle for simultaneously fostering investor protection and economic development. Finally, this Note proposes a model BIT series, which consists of three different BITs and their respective proposed provisions, aimed at achieving this end.
Margie-Lys Jaime, Relying Upon Parties’ Interpretation in Treaty-Based Investor-State Dispute Settlement: Filling the Gaps in International Investment Agreements
International Investment Agreements (IIAs) were designed for the promotion and protection of foreign investors and their investments. The whole idea of negotiating IIAs was to attract foreign investors by enhancing security and creating a depoliticized environment, which includes the establishment of an impartial dispute settlement mechanism. Although IIAs focus primarily on investors’ rights and expectations, host countries also have legitimate expecta- tions when subscribing to an investment treaty, such as stimulating economic development within the limits of their public policy. Those expectations might be substantially diminished by the lack of clarity and/or gaps in the treaty text. Moreover, experience has shown the necessity of preserving host states’ regulatory space for taking public policy measures, which might not have been foreseen in the investment treaties. This situation generates unsteadiness in the investors’ and host states’ rights, appealing for the rebalance of the status quo. As IIAs are the applicable law in treaty-based investor-state dispute settlement (ISDS), arbitral tribunals have turned to the task of interpreting the text. Such interpreta- tion accomplished by arbitral tribunals might in fact surpass the tribunals’ legitimate power to settle the disputes, creating inconsistent and conflicting decisions. This Note advocates for states taking an active role in interpreting IIAs and filling the gaps during an ISDS, even in the absence of specific rules governing the intervention of non-disputing parties to the ISDS. In this sense, treaty parties’ intervention would be addressed from different perspectives as a mechanism to be used by arbitral tribunals during an ISDS. This Note concludes that the recourse to treaty parties’ interpretation by arbitral tribunals is essential for rebalancing investors’ and host states’ rights and preserving the legitimacy and credibility of the ISDS system.
Abraham Shanedling, Removing Weapons of Mass Destruction from the World’s Most Volatile Region: How to Achieve a WMD-Free Zone in the Middle East
Eliminating weapons of mass destruction (WMD) from the Middle East continues to be a pressing issue of both regional and global security concern. Several other regional state groups have already expanded on the Nuclear Non-Proliferation Treaty by establishing nuclear weapons free zone (NWFZ) treaties, however the proposal to establish a NWFZ or an expanded WMD free zone (WMDFZ) in the Middle East has long remained merely an aspirational goal. This Note examines the historical and present challenges facing the creation of a Middle East WMDFZ treaty and outlines various steps that regional parties should take to achieve such a zone. Drawing from the experiences of other regions in establishing NWFZs, the obligations of those regional treaties, and global non-proliferation treaties and resolutions, this Note recommends a series of short-term confidence-building measures to break the impasse in negotiat- ing a Middle East WMDFZ and presents a set of core components for a future zone treaty.