The following abstracts summarize articles appearing in Volume 25:
"Changing Notions of Sovereignty and Federalism in the International Economic System: A Reassessment of WTO Regulation of Federal States and the Regional and Local Governments Within their Territories"
By Edward T. Hayes
International trade liberalization increasingly addresses disciplines which fall within the constitutional competence of regional and local governments. Traditional notions of nation/state sovereignty are evolving to recognize the importance of regional and local actors on the international economic scene. The ongoing evolution of international trade and sovereignty incresasingly places regional and local governments in a unique position to influence world trade, positively and negatively.
This article explores the manner in which the World Trade Organization attempts to regulate regional and local behavior. Specifically, this Article explores the inherent constitutional tension and resulting ambiguities in the WTO's effort to regulate regional and local behavior, as emboddied in GATT Article XXIV:12. The Article concludes with an exploration of alternative options for improving regional and local compliance with international trade disciplines.
"Injury Investigations in ‘Material Retardation' Anti-dumping Cases"
By Prakash Narayanan
Despite the criticisms of economists to antidumping measures, they continue to be the most often used trade remedy measure. A new trend that may be observed is the use of the “material retardation” standard of injury to demonstrate injury to domestic industry that is one of the requirements for imposing antidumping duty. It is essential to be wary of this trend as unlike the other two types of injury, the WTO lacks specific guidelines for the use of this standard. The general rules in the Antidumping Agreement are unsuitable for the situations where the material retardation standard is relevant, and the current bifurcated method of injury analysis adopted by most countries is inappropriate and inaccurate. A shift to a unitary approach focusing not on the overall health of the domestic industry, but rather what impact unfair imports have had on that health, along with certain other reforms, would better address the issue.
"Test of Multilateralism in International Trade: U.S. Steel Safeguards"
By Y.S. Lee
The highly publicized safeguard measures applied by the United States to an array of steel products in 2002 became one of the biggest and most controversial trade disputes in recent history. Virtually all major trading nations in the world, including the European Community, Japan , China , Brazil , Korea , New Zealand , Switzerland and Norway , were the direct parties to this dispute with the United States . The contentious legal grounds of the U.S. safeguard measures, as well as the lack of adequate consultations between the United States and its trading counterparts, have brought the international community close to a full-scale trade war. This paper considers the important legal issues debated in U.S. Steel Safeguards and discusses how the multilateral framework in the in the international trading system affected resolution of this case. It also draws lessons for the future application of trade measures such as safeguards under the multilateral framework of the international trading system.
"TRIPS' Rebound: An Historical Analysis of How the TRIPS Agreement Can Ricochet Back Against the United States"
By Donald P. Harris
Recently, scholars and commentators around the world have reexamined the role intellectual property rights (IPRs) play in hindering or helping developing countries. These scholars have questioned the doctrine the IPRs help developing countries by promoting economic development, increasing foreign direct investment, stimulating domestic innovation, and improving access to new technologies, and have concluded that imposing “Western-styled” intellectual property regimes (e.g., the U.S. patent regime) on developing countries harms those countries. In particular, such regimes fail to bring any of the purported benefits, while they impose many costs, including preventing people from obtaining life-saving drugs. This Article argues that it is not simply IPRs that cause these problems but that it is the increased focus of intellectual property regimes on private interests rather than public interests. The Article examines the historical role that intellectual property has played in the United States and its contrasting role in the world community, as evidenced by the international intellectual property treaty (TRIPS).
The Article argues that the traditional role of U.S. patent policy was to advance the public interest, while the new role, now advanced by the United States , is to primarily advance private interests. This is perhaps understandable given the change in environment to a more advanced, interdependent global economy. Nevertheless, the new role severely distorts the traditional balance between public and private interests and should be reexamined to determine whether the intellectual property system still promotes the public good, i.e. is it good for society. The Article argues, as do the many scholars and commentators, that TRIPS and this new role harm developing countries; but, the Article goes further and argues that this new role also will have a rebound effect and harm the United States by, among other things, stifling innovation and withholding rather than disseminating knowledge. The rebound effect results from two factors. The first is that TRIPS will constrain the United States ' ability to tailor its intellectual property laws because TRIPS impinges upon U.S. sovereignty in this area. The second factor is that, as mentioned, TRIPS is inconsistent with traditional U.S. policy. The Article concludes by examining the harms caused to the United States and the reasons for such harms.
"A Road Map for Corporate Governance in East Asia"
By Chee Keong Low
Much has transpired since the inadequacies of corporate governance practices in East Asia were glaringly exposed by the Asian financial crisis. The crisis brought to the foreground numerous deficiencies, which had common roots in excessive over-leverage as well as the lack of transparency, disclosure and accountability. These issues have been explicitly recognized with the release of the White Paper on Corporate Governance in Asia by the Asian Roundtable on Corporate Governance in June 2003.
By responding in part to the White Paper, this article sets out a “roadmap” whose ultimate objective is the enhancement of the practice of corporate governance in three jurisdictions, namely Hong Kong , Malaysia and Singapore . These countries are selected as proxies for the region with the choice premised upon their common legal framework, which emphasizes the rule of law, the liquidity of their capital markets and the high mobility of capital without the imposition of any controls. By setting up a roadmap couched in broad principles as regards the roles and duties of directors, shareholders and regulators, this paper seeks to provide some ideas that have the distinct advantage of adaptability across jurisdictions thereby transcending the cultural divide of the East Asian region.
"Flores v. Southern Peru Copper Corporation: The Second Circuit Fails to Set a Threshold for Corporate Alien Tort Claim Act Liability"
By Lori Delaney
The Second and Ninth Circuit Courts have recently heard cases dealing with the application of the Alien Tort Claim Act (ATCA) against private, U.S. based multinational corporations (MNCs), and come to differing conclusions on the standards that should be used in applying this complicated law to suits by foreign nationals against U.S. based MNCs. The issue of private corporate liability under the ATCA was not definitively resolved by the Supreme Court in its recent decision in Sosa v. Alvarez-Machain , and thus the Circuits must continue to grapple with the application of the ATCA to U.S. based MNCs.
The Second Circuit, in Flores v. Southern Peru Copper Corporation , failed to set a threshold standard for private corporate liability under the ATCA, which would limit such liability to instances of egregious torts only. However, the Ninth Circuit set such a threshold in its panel decision in Doe v. Unocal Corporation , thus abiding by the case law of other Circuits and the legislative history of the ATCA and its sister statute the Torture Victims Protection Act (TVPA). The Unocal case's threshold analysis provides a much clearer, more workable standard that protects U.S.-based MNCs from double recovery, legal costs, forum shopping, endlessly evolving liability, uncertainty and reduced investment.
"Communication Breakdown: The Recording Industry's Pursuit of the Individual Music User; a Comparison of U.S. and E.U. Copyright Protections for Internet Music File Sharing"
By Ryan Bates
While music file sharing over the internet has become a common practice in recent years, record companies blame the illegal swapping for a 31% drop in compact disk sales since mid-2000. In an ever-evolving attempt to gain a stronghold on the distribution of digital music via the internet, the recording industry recently began filing lawsuits against the individual internet “file sharer” in both the United States the European Union.
This comment examines the development of copyright protections in the United States and the European Union, including recent legislation under each system, and argues that a balance of rights and technical development is needed to carry the music industry into the future. The comment also examines the repercussions of the recent Recording Industry Association of America lawsuits, proposals for other methods of embracing the technology are explored, and an argument is made for a United States and European Union to return to traditional private use protections on which initial copyright law was founded.
"The Spirit of TRIPS and the Importation of Medicines Made under Compulsory License after the August 2003 TRIPS Council Agreement"
By Jessica Fayerman
The Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement has changed prospects for access to necessary medications in the developing world. The use of compulsory licensing for pharmaceutical products embodied in Article 31 of TRIPS has been a contentious issue. Prior to 2003, countries with no manufacturing capacity of their own were not allowed to import medicines made under compulsory license, rendering the protections of Article 31 of little use to them. The 2003 Motta Agreement changed this. This expansion of the compulsory licensing power is both an impractical solution and it dilutes the premises upon which TRIPS was originally based, and there are other mechanisms for insuring access to necessary medicines in the developing world.
The Motta Agreement contains a number of provisions designed to ensure that importation of medicines made under compulsory license is not undertaken capriciously, including adequate remuneration and efforts to avoid the “grey market” problem. Compulsory licensing as embodied in the Motta Agreement, however, is an inadequate solution. Amir Attaran cautions that it was an extremely rarely-used practice even before the importation debate. The temporary nature of the Agreement will also invoke even more lengthy negotiations. More importantly, allowing compulsory licensing inherently dilutes the importance of intellectual property protection envisioned by TRIPS. Alternatives discussed in the literature such as price discrimination, pooled procurement plans, and even a variation on the US Orphan Drug Act are more viable solutions.