IIEL Issue Briefs

The demand for such a publication stems from broadly shared interest in clear and intelligible assessments of complex issues impacting the global economy—more analytically rigorous than most blog entries, but shorter than a law review article and of direct policy import.

IIEL ISSUE BRIEF SERIES:

Three Approaches to Fixing the World Trade Organization’s Appellate Body: the Good, the Bad and the Ugly?, December 2018

The very existence of the World Trade Organization (WTO) dispute settlement system is in peril, threatened by a decision of the Trump Administration to block the appointment of any new members to the dispute settlement system’s highest court, its Appellate Body.  Under the WTO rules, the Appellate Body is supposed to be comprised of seven people who serve a four-year term and who may be reappointed once to a second four-year term.  However, the Appellate Body is now down to just three members due to the United States’ blockage of any process to replace those whose terms have expired—and three is the bare minimum number of members necessary to rule on an appeal.  Moreover, the terms of two of those three remaining members will expire in December, 2019, leaving the Appellate Body unable to complete any appeals.  In the absence of a functioning Appellate Body, the WTO’s highly regarded dispute settlement system could grind to a halt.  Is the United States’ blockage of any process to appoint new members to the Appellate Body putting us at risk of turning every individual trade dispute into a “mini-trade war”?

Transition on the WTO Appellate Body: A Pair of Reforms, February 2018

World Trade Organization (WTO) Members have been unable to agree on the appointment of new members to the seven-person Appellate Body (AB) in a timely fashion, given the recent expiration of two members’ terms and another member’s resignation.  There has been no consensus to even begin a process to fill these posts, creating further problems for the selection and appointment of incoming Appellate Body Members (ABMs).  As a result, the WTO faces mirror issues over the transition from “outgoing” to “incoming” ABMs, threatening its very functioning and effectiveness.

This Issue Brief, a product of discussions between IIEL faculty, students and stakeholders, provides a solution to the problem without taking sides in the debate over whether the Appellate Body’s current practice of appointing hold-overs is or is not permissible under the current rules.  It proposes a single amendment to the DSU that represents a compromise—limiting the use of hold-overs while creating incentives for the timely replacement of ABMs whose terms of office are coming to an end.

Safeguarding Policy Space in Investment Treaties, by Simon Lester and Brian Mercurio, December 2017.

Critics of bilateral investment treaties and investment chapters in trade agreements have increasingly argued that these accords can undermine a state’s sovereign “right to regulate” and limit the “policy space” available to governments, undermining the public interest.  In this Issue Brief, Simon Lester and Bryan Mercurio argue that governments should veer from simple carve outs and adopt broader “general exceptions” strategies in order to better protect legitimate public welfare measures.

FinTech Innovation: Building a 21st Century Regulator

In May 2017, U.S. Commodity Futures Trading Commission (CFTC) Chairman J. Christopher (Chris) Giancarlo announced the launch of LabCFTC as part of an effort to modernize the agency and serve as a focal point for grappling with unprecedented waves of financial technology innovation impacting markets.  To lead the work, he appointed Daniel Gorfine the initiative’s Director and the agency’s Chief Innovation Officer.

In this Issue Brief, Director Gorfine outlines the CFTC’s Fintech Agenda, and shares a number of current and forthcoming projects that collectively provide a blueprint for the agency’s digital upgrade.  Mr. Gorfine’s remarks are accompanied by a prologue by IIEL Faculty Director Chris Brummer.

STRESSED IN AN AGE OF POPULISM: Recommended Changes in U.S. Trade Law and Policy

In this Issue Brief, delivered by Ambassador Alan Wolff as the 2017 Greenwald Lecture during Georgetown Law’s 2017 Annual International Trade Update, Alan Wolff examines the legal system governing trade—both the rules in international agreements and those by statute—and argues that the United States and the world should be prepared for current institutions, international arrangements and domestic processes, like large financial institutions under Dodd-Frank, to be “stress-tested” by unanticipated forces and developments.  But in contrast to financial regulatory stress tests based on stylized economic models, the tests facing trade may well be operationalized through the real world adoption of trade measures that depart significantly from longstanding norms and expectations.

Why the Ryan-Brady Tax Proposal Will Be Found to be Inconsistent with WTO Law

In this Issue Brief, Professor Jennifer Hillman argues that, as currently described, the plan’s taxes on imports are a clear violation of WTO rules and the rebates or exclusion from taxes for exports could pose challenges as well.  As a result, the plan risks significant litigation, retaliation from our trading partners, possible additional duties on U.S. exports, and carries the potential to start a trade war.  Therefore, reforms to the corporate tax system should be scrutinized and undertaken carefully.

Renminbi Internationalization and Systemic Risk

IIEL Faculty Director and Williams Research Professor Chris Brummer argues that China’s renminbi strategy introduces novel systemic risks to the global financial system, including a potentially inadequate provision of renminbi liquidity, a regulatory race to the bottom between offshore RMB-hubs, and significant transmission belts of financial risk to even non-renminbi markets.  To mitigate these risks, he argues for a policy recipe of stronger Mainland macroprudential oversight, transparent countercyclical capital account reforms and credible commitments on the part of the government to refrain from competitive currency devaluations.

IIEL’s inaugural Issue Brief on Shadow Banking was penned by Amias Gerety, then-Acting Assistant Secretary for Financial Institutions, U.S. Department of the Treasury.

If you are interested in having IIEL publish your analysis of international trade, monetary affairs, financial regulation, tax or any major area impacting the laws governing the global economy for our thousands of high-level readers, please email your submission of approximately 5,000 words to IIEL.  We are proudly nonpartisan and seek only outstanding ideas worthy of sharing with our intellectual and leadership community.