The following abstracts summarize articles appearing in Volume 26:
"Global Diseases, Global Patents and Differential Treatment in WTO LAW: Criteria for Suspending Patent Obligations in Developing Countries," 26 Nw J. Int'l L. & Bus. 1 (2005).
By Bradley Condon and Tapen Sinha
Special and differential treatment of member countries is a contentious issue at the World Trade Organization (WTO), especially with regards to pharmaceutical access and patent protection. In 2003, the WTO amended the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to further developing nations' access to essential medicines. However, there has not been much progress in developing criteria for the special and differential treatment, nor in defining developing countries. This article profiles several WTO mechanisms for implementing special and differential treatment, and offers a new framework for determining and applying special and differential treatment in the context of TRIPS. The article proposes balancing legal rights between producers and users of patents on a market-by-market basis, instead of on a global basis, to ensure an effective compromise. In addition to providing a solution, this article also presents measurable criteria by which the results could be measured.
"Beyond the Alien Tort Claims Act: Alternative Approaches to Attributing Liability to Corporations for Extraterritorial Abuses," 26 Nw J. Int'l L. & Bus. 43 (2005)
Whereas in the past a corporation's sole responsibility was to maximize profits, it is currently accepted that multinational corporations (MNCs) should be held accountable for human rights abuses. However, there is currently no mechanism that effectively holds MNC's accountable for violations. A number of alleged victims of corporate abuse have tried litigating claims in U.S. courts, most under the Alien Tort Claims Act (ACTA). However, these attempts have been mostly unsuccessful, and the ACTA's effectiveness in holding MNC's accountable has been severely weakened by the Supreme Court's decision in Sosa v. Alvarez as well as by executive orders. This paper examines solutions to this problem, first domestically, in the courts of specific countries, and then internationally, such as in the International Criminal Court and various other specialized tribunals. The article concludes by suggesting a two-part approach for most effectively holding corporations accountable- a multilateral treaty listing human rights obligations of corporations and the establishment of an institution to effectively enforce the treaty.
"Contractual Liability of Suppliers of Defective Software: A Comparison of the Law on the United Kingdom and United States," 26 Nw J. Int'l L. & Bus. 77 (2005)
By Stephen E. Blythe
The article compares United Kingdom and United States law pertaining to contractual liability for defective software. U.K. courts offer more automatic statutory protection when the buyer of software has significantly less bargaining power than the supplier. The U.S. , on the other hand, is more seller-oriented and focuses on whether the buyer had sufficient sophistication to understand the terms of the contract. Express warranties are difficult to disclaim in both countries but in the U.K. contractual disclaimers are subject to the buyer-protective reasonableness test. Both countries have statutes that create implied warranties for the quality for the software and its fitness for the buyer's purpose. However, U.S. law permits easy disclaimer of implied warranties whereas U.K. law does not. Contractual limitations on remedies are subject to the prevailing test in each country: the “reasonableness' test in the U.K. and the unconscionability test in the U.S. In addition, the U.K. is less tolerant of standard form contracts and exercises greater statutory control over contractual terms. The author recommends that the U.S. look to the U.K. as a model for protection of consumer rights and adopt some of the U.K.'s measures. Further, the U.K. should enact a statute that specifically deals with electronic contracting, one comparable to the U.S. Uniform Computer Information Transactions Act (“UCITA”).
"Bilateral Investment Treaties and the Possibility of a Multilateral Framework on Investment at the World Trade Organization: Are Poor Economies Caught In Between?" 26 Nw J. Int'l L. & Bus. 95 (2005)
By Victor Mosoti
The article explores the regulatory issues pertaining to foreign direct investment (“FDI”) in developing countries, specifically in Africa , which have increasingly adopted the notion that FDI is a necessary and crucial component to economic growth. The author argues that developing countries, in their effort to attract FDI, have signed BITs in which they have made commitments that are inconsistent with their stated reasons against a multilateral agreement on foreign investment. These BITs, therefore, may preclude the possibility of reasonably resisting such an agreement for much longer. Further, the BITs have resulted in a corresponding diminishment of the ability of developing countries to channel FDI inflows in a manner that corresponds to and meets their development needs. Their overwhelming desire to attract FDI has led them to agree to concessions which will further undermine their ability to resist a comprehensive multilateral agreement on investment.
"The Alien Tort Claims Act: Temporary Stopgap Measure of Permanent Remedy?" 26 Nw J. Int'l L. & Bus. 139 (2005)
By Borchien Lai
The article discusses the use of the Alien Tort Claims Act (“ATCA”) by foreign plaintiffs in U.S. federal district courts as the basis for the courts' jurisdiction over their human rights claims against multinational corporations. The author argues identifies five major problems with using the ATCA as a tool for dealing with human rights violations by multinational corporations: (1) federal courts are reluctant to grant causes of action under the ATCA; (2) federal courts are uncertain which standards to apply when determining the applicability of the ATCA; (3) rulings under the ATCA can impinge upon the constitutional duties of the executive and legislative branches; (4) ATCA claims enable U.S. courts to impose domestic policies on the international community; and (5) even if the plaintiff is successful, the actual perpetrators are not brought to justice. In addition, the author asserts that using ATCA litigation as a long-term mechanism for addressing human rights violations will create an inappropriate role for the United States court system as an international forum. Finally, he argues that an international tribunal should be created as a permanent platform for plaintiffs seeking redress for human rights violations by multinational corporations.
"The Legal Landscape of the International Art Market After Republic of Austria v. Altman," 26 Nw J. Int'l L. & Bus. 167 (2005)
By Sue Choi
The author discussed the grand scheme of artwork theft committed by Adolf Hitler during the Second World War, as well as the hardship experienced by the artworks' original owners or heirs thereof, in asserting their claim on the said artworks. It likewise focused on the protection granted to artwork owners who had allowed their artwork to be transported on loan arrangements under both federal and state laws. However, with subsequent amendments of the law, coupled with inconsistent application of state and federal law by American Courts, the ability of claimants of Nazi-looted artwork owners to reclaim lost property, as well as the stability of artwork loan or exchange have been seriously undermined. It is suggested that the public interest in the protection of loaned artworks should be balanced with the industry interest in seeing the rightful claimants recover the stolen artwork. In addition, the author observes that the setting of an artwork title registration system, a reformulation of the Court's Discovery Rules, adjustment of the present Statutes of Limitations specifically for Nazi looted artwork claims and the provision of tax incentives on quick resolution involving artwork claims may provide a closer means by which such a balance of interests may be achieved.
"Cross-Border Securitized Transactions: The Missing Link in establishing a Viable Chinese Securitization Market," 26 Nw J. Int'l L. & Bus. 201 (2005)
By Nick J. Faleris
The author explored the historical development of China's banking history, dating back to the early days of Communist takeover in 1949, until the present day China, wherein its banks are filled with non-performing loans granted in favor of poorly-performing state-owned enterprises. China today has been the attention of various economic reforms ranging from corporatization of state-owned enterprises, to securitization and limited privatizations. It is suggested that securitization of such state-owned enterprises may provide a solution for such non-performing loans. However, to be able to provide a successful securities market, China should first formulate a body of contractual laws guiding the evolution of cross-border transactions, then formulate statutes which shall foster direct investments in its securities. Her ability to address the aforementioned needs will be primordial in determining investors' faith in Chinese securities.
“Anticipating Regulation of New Telecommunications Technologies: An Argument for the European Model”
By Jessica Finley
Currently, the United States regulates each telecommunications sector independently under the Federal Communications Commission, despite the fact that this model no longer efficiently or effectively serves the realities of modern telecommunications modalities, such as broadband services, which tend to cross into multiple telecommunications sectors. This comment argues that the United States ought to change its telecommunications regulatory structure and follow the European model, which uses a single regulatory system for all telecommunications systems. This more flexible framework would enable the United States to better regulate a broader range of technologies.
“Merger Control Review in the United States and the European Union: Working Towards Conflict Resolution”
By Kathryn Fugina
As companies continue to expand internationally and merge with other companies, the conflicts between various nations' laws regulating competition in the global marketplace become more apparent. Many large mergers take place in multiple jurisdictions, and the laws often conflict. This comment analyzes the merger control laws of the United States and the European Union and suggests solutions to prevent future, merger control conflicts.
“Personal Jurisdiction for Internet Torts: Towards an International Solution?”
By Holger P. Hestermeyer
Internet torts have been prosecuted worldwide in various jurisdictions. This article examines the inherent problems in creating a set of international rules to determine when a state's courts should have jurisdiction over extraterritorially Internet torts. The article begins by looking at the Yahoo! case, the most divisive United States case on the issue recently, as well as other relevant decisions. It then gives an overview of the current law on Internet tort jurisdiction in two of the most important jurisdictions: the United States and Germany . The article concludes by advocating for an international convention on Internet tort jurisdiction that favors consistent application of a targeting approach.
“Bilateralism Under The World Trade Organization”
By Y.S. Lee
Since the implementation of the General Agreement on Tariffs and Trade (GATT) in 1947, later evolving into the powerful body of the World Trade Organization (WTO), the international arena has made unprecedented progress in promoting international free trade. However, despite these advancements, the proliferation of bilateral or regional trade agreements threatens to undermine these principles of free trade by promoting preferential treatment among party states. This article discusses the proliferation of such bilateral and regional agreements, including bilateral investment treaties, and assesses them for consistency with the WTO's free trade principles.
“A Comparative Analysis of Shareholder Protections in Italy and the United States : Parmalat as a Case Study”
By Lorenzo Segato
The collapse of the Italian company Parmalat highlighted the lack of protection Italian law offers minority shareholders of large, active-majority shareholder corporations. This article contrasts the legal and regulatory mechanisms in the United States and Italy , and concludes that minority shareholders in Italy would be better protected in cases of corporate fraud with the introduction of a private securities fraud class action provision similar to Rule 10b-5 of the U.S. Securities and Exchange Act.
“Fundamentally Conflicting Views of the Rule of Law in China and the West & Implications for Commercial Disputes”
By Benedict Sheehy
This paper is an examination of the notions of law, the Rule of Law, and commercial practice in the West and China. The paper outlines the basic philosophical principles and legal concomitants of the Rule of Law, and the corollary Chinese principles and concomitants. It examines the traditions, differences, and similarities in thinking about the issues in each tradition. It then examines the implications of these differences in commercial dispute resolution. After this discussion of traditions, similarities, and differences and their impact on commercial dispute resolution, the paper turns to address how the China-Australia Free Trade Agreement could deal with in these discrepancies.
“Enforcement of Arbitral Awards Against Foreign States or State Agencies”
By S.I. Strong
Though the Foreign Sovereign Immunities Act (“FSIA”) allows for the enforcement of arbitration awards against a foreign state or state agency, United States courts have traditionally expressed reluctance in finding personal or subject matter jurisdiction in those matters. However, recent case law has created a shift in this trend by relieving much of the due process concern behind enforcement of arbitration awards against a state or state agency. This article discusses this shift and analyzes its implication on the enforcement of international arbitration agreements.
“Choice of Law in Contracts: A Chinese Approach”
By Mo Zhang
Ongoing economic reform in China over the past two decades has led to remarkable progress in the previously undeveloped areas of conflict of law legislation and choice of law rules in contracts. Choice of law issues are complex and are handled differently in different courts. This article focuses on how choice of law issues in contracts are being solved in China , a country that has the fastest growing economy in today's world and has a legal system with which many from the west feel unfamiliar. This article analyzes the choice of law methodologies that are employed to deal with contract matters in China , and examines Chinese scholarship and practice in the courts. While bearing strong influences from western approaches, choice of law in China as applied to contracts is developing and will continue to develop in a uniquely Chinese way. Furthermore, such development in China may have broader influence and help resolve complex choice of law matters in contracts in the future.
“Competition Advocacy: Time For A Rethink?”
By Simon J. Evenett
This paper examines the conventional wisdom concerning competition advocacy, paying particular attention to the applicability of such wisdom to developing countries. The definition of competition advocacy, its evaluation, and the likelihood of its successful implementation are discussed in some detail. The paper concludes with a call for considerably more thought about what, hitherto, has been one of the relatively uncontroversial aspects of many competition authorities' activities.
“Competition Policy And Practice In South Africa: Promoting Competition For Development”
By Trudi Hartzenberg
South Africa 's new competition policy and law were drafted during the early years of South Africa 's new democracy, a period characterized by important domestic policy and regulatory reforms following years of apartheid and its resulting economic isolation. South Africa 's historically high levels of concentration in both its markets and in corporate ownership, as well as other features of the business environment, have important implications for the competition environment, investment, growth, and development prospects of the country. This paper reviews briefly the new 1998 Competition Act and the institutions established to enforce the new law, discussing both the current problems and future prospects of these institutions. The article further emphasizes the general need for a competition culture in South Africa , as well as the important role of sector regulators in the effective enforcement of the new competition law.
“Korea's Competition Law And Policies In Perspective”
By Youngjin Jung and Seung Wha Chang
Competition law and policy in Korea have been at the heart of Korea 's endeavor to transform its previously government-led economy into a more market-based one. Korea 's competition law and policy are tailored to meet the unique economic circumstances of Korea , including economic concentration and corporate governance issues involving Korean business conglomerates or chaebols. This article aims to provide an overview of competition law and competition policy in Korea and analyze their relationship with other important national economic policies. It provides a brief historical survey of the country's competition law and policy, and examines the major components of the law. It then discusses the extraterritorial application of Korea 's antitrust laws, and offers some policy suggestions for other Asian developing countries based on the Korean experience.
"Same Plant, Different Soil: Japan's New Merger Guidelines"
By Salil K. Mehra
Japan 's New Merger Guidelines may be a model for legal transplants in the future. Modeled after American antitrust law, the success of these Guidelines depends not only their borrowed text, but also Japan 's context of competition law and subtext of changes to existing norms of economic regulation. Because of the latter two factors, the Guideline's success in Japan would be of a different sort than success in the United States , but still may be significant.
"The Political Economy Of Competition Law: The Case Of Thailand"
By Deunden Nikomborirak
This paper addresses the political economy of competition law in Thailand , whose experience illustrates that having a competition law may prove futile if enforcement cannot withstand political hurdles and discriminatory and arbitrary implementation. The paper begins with a historical perspective of Thai Competition Law and a review of what went wrong with the law's implementation since its promulgation in 1999. The paper then assesses the implications of the lack of competition law enforcement on business conduct and the establishment of a competition regime in Thailand, and further summarizes major lessons learned in the Thai case that may be relevant to other developing countries considering adopting such a law or facing difficulties in its implementation. Finally, the paper draws conclusions on how a country can ensure successful enforcement of a competition law in the absence of a political will.
"Competition Policy In Developing Economies: The Case Of Brazil"
By Gesner Oliveira and Thomas Fujiwara
This article addresses the implementation of competition policy in Brazil through a historical perspective. While competition values and culture are already present in mature economies, they must be created and properly disseminated in developing countries. In Brazil , the very existence of antitrust was made possible by structural reforms of the 1990's, characterized by price stabilization, privatization, and trade opening. The article further details the international circumstances that made competition policy relevant. It then discusses the challenges and peculiarities of implementing competition policy in a developing country. The paper concludes by showcasing Brazilian competition policy as an instrument to promote institutions of its market economy.
“The Development Of Competition Law In Vietnam In The Face Of Economic Reforms And Global Integration”
By Alice Pham
This article analyzes the development of a competition law in Vietnam and discuses ways to overcome the hurdles of implementation and enforcement of the law. The ruling party in Vietnam , the Communist Party of Vietnam (“CPV”) tends towards neo-liberal economic reforms and has recognized the need to adopt law that safeguards competition in the new market economy. A unique regulatory system has been designed to accommodate the demands of the market economy while ensuring socialist ideology and overall state control. However, implementation and enforcement of the competition law faces challenges such as corruption, skepticism, apathy, business opposition and political economy constraints. Still, these hurdles are surmountable and a long-term dynamic vision should be adopted in the enforcement and implementation of competition law to ensure its success.
"Challenges To The Effective Implementation Of Competition Policy In Regulated Sectors: The Case Of Telecommunications In Mexico"
By Oliver Solano, Rafael del Villar, and Rodrigo García-Verdú
This article reviews Mexico 's competition law and policy, with particular emphasis on the challenges that the Federal Competition Commission ("CFC") has faced in implementing an effective competition policy. Some of the difficulties analyzed are the loopholes in the current laws, the lack of cooperation between the CFC and other sectoral regulators, and the regulatory arbitrage by market participants. These challenges are then illustrated by the developments in the telecommunications sector. This sector is particularly interesting in the case of Mexico given the overwhelming power of the dominant firm and the overlapping and even conflicting mandates of the different government authorities overseeing the sector. The article concludes with a series of specific policy recommendations aimed at improving the effectiveness with which the competition authority in Mexico implements competition policy.
"At The Crossroads: Making Competition Law Effective In Pakistan"
By Joseph Wilson
This article analyzes and prescribes a remedial course of action for the present shortcomings of Pakistani competition law. The paper first discusses the current anti-trust legal framework, the Monopolies and Restrictive Trade Practices Ordinance of 1970 (“MRTPO”) and its enforcing authority, the Monopolies Control Authority (“MCA”) in the context of their shortcomings. These shortcomings are a direct result of the social and legal structure in Pakistan , in addition to the staff's lack of expertise due to Pakistan 's developing and transitional economy. The article then concludes with a discussion of the proposed independent Competition Authority that will enforce a yet-to-be implemented Competition Act. The Competition Act will encompass government entities and provide a mechanism of redress for consumers. The Competition Authority will ensure that a uniform policy will be followed for bringing competition to the market, as well as taking on the roles of competition advocacy and consumer protection. These changes should make for a new competition regime in Pakistan that will be more efficient and effective.
"Taiwan's Fair Trade Act: Achieving The 'Right' Balance?"
By Pijan Wu & Caroline Thomas
Over the last twenty-five years, there has been a global trend in the adoption of competition laws. Competition policy tends to be part-and-parcel of deregulation and liberalization measures, and is just one tool used by governments to try to achieve maximum sustainable economic growth. Most experts agree that there is no “one size fits all” competition policy, so each country must balance various policies to match its individual needs. This article interprets Taiwan 's Fair Trade Act (FTA) in the context of this trend and identifies successes and challenges in the implementation of Taiwan 's competition law. This article examines the historical background, aims, structure, and effectiveness of the FTA.