Author name: Branden Loizides

Book Reviews, Print Archives

Book Review: Defending Interests: Public-Private Partnerships in WTO Litigation

Abstract:

Review of Defending Interests: Public-Private Partnerships in WTO Litigation. Gregory Shaffer. Brookings Institution Press: Washington, D.C., 2003. Pp. 227. $46.95 (cloth).

Much has been written about the increasing legalization of international trade relations, especially the development of the World Trade Organization (“WTO”) Dispute Settlement Mechanism (“DSM”). Professor Gregory Shaffer is at the forefront of this emerging field with his book Defending Interests: Public-Private Partnerships in WTO Litigation, which analyzes the vital role that ad hoc public-private networks play in litigation before the WTO. Shaffer explains that, although only WTO Member States can bring litigation before the WTO, private actors such as corporations and activists play an important role in states’ decisions about which cases to bring. Private actors may also provide states with the information and expertise needed to navigate the dispute settlement proceedings. Shaffer draws on over 100 interviews with critical actors to evaluate the public-private networks and partnerships that drive states’ decisions, primarily examining the networks in the United States and the European Union. Shaffer’s focus is on the actors, but his analysis necessarily includes a brief review of the system itself.

The WTO is unique among international institutions for its legalized dispute settlement with two levels of legal panels and effective enforcement mechanism. Member States can file complaints against any other Member State for actions they believe violate a provision of a WTO agreement. The first step in the procedure is a period of mandatory consultation between the opposing parties. Many disputes are settled at this stage, before actual litigation, due to strategic legal decisions, expediency, or political considerations. If the complaint is not settled during the consultation period, it is referred to a panel of experts for adjudication. The panel’s decision can then be appealed to the Appellate Body, which reviews the case much as an appellate court in the United States would. A decision that survives appellate review is considered final and enforceable. While neither the WTO nor a member country can force a country to change its offending laws or practices, the WTO can authorize the winning country to withdraw trade concessions, effectively imposing sanctions on the loser. The imposition of these sanctions is optional, and, frequently, the states negotiate an alternative settlement instead. This seemingly toothless enforcement mechanism has been remarkably effective in bringing about compliance with WTO agreements.

Print Archives

Anxiety and the Sidekick State

Abstract:

In a quirk of parallel evolution, the annual United Kingdom Materials on International Law (“UKMIL”) is organized according to Marx’s methodology, “rising from the abstract to the concrete.” For twenty years, however, for all the reams of material the government put out, nothing of substance could be found to fill the first section, the broadest philosophical category on the “nature, basis, [and] purpose” of “international law in general.”  Then, in 2003, the UKMIL found its jurisprudential voice.

British Foreign Secretary Jack Straw waxed descriptive and transformative, in a burst of middlebrow messianism:

Events since September 11 . . . raise very large questions about the underlying assumptions of international relations . . . since the Peace of Westphalia . . . that the best guarantor of peace and security was to respect the territorial integrity of sovereign states . . . [W]e have to begin a discussion about how those principles are revisited in the modern environment because of threats posed other than by normally functioning sovereign states, posed by rogue states, posed by international terrorism, posed by others who are acting in an extremely oppressive way.

Almost simultaneously with Straw’s statement, sixteen scholars of international law signed a letter in The Guardian expressing grave reservations about the soon-to-be-launched Iraq War. This then led to the writing of “We Are Teachers of International Law,” an extraordinary piece of critical self-examination by four of the original scholars.

In its ten and a half pages, the authors ask sixty-five questions, none of which they answer; indeed, they conclude by asking whether the most important questions are those that should go unanswered. In its critical precision, and in its very angst, this article is perhaps the key document for the understanding of contemporary British thinking in international law, particularly when considered in conjunction with the government’s enthusiastic if lumpen analysis, as represented by Straw’s speech.

In the United Kingdom, public interest in international law has soared. Paradigmatic of this moment is the tension between the passionate evocation of a “new” international law by perpetrators of a war widely denounced as illegal and the deep anxieties about the law expressed by scholars of the field. In what follows, I attempt to map the recent moves of British international law, into a putatively new paradigm and back out again, and to the center of political debate. Illustrating how we got where we are might suggest which of the current approaches to the field are the most fruitful and, hopefully, where we might go next.

Print Archives

Alternative Visions of Just World Order: Six Tales from India

Abstract:

This Article outlines six distinct visions of just world order reflected in recent academic and political discourse in India. These perspectives may be designated as establishment, left, Dalit, subaltern, anti-modernist, and spiritual. Each of these perspectives offers a certain understanding of the state, society, globalization, and international institutions. These different perspectives, in the absence of any systematic and concerted “new thinking” in the literature on international law and institutions, are germane to understanding the response of the Indian state and people to issues relating to globalization, international law, and international institutions. It is also important to turn to these perspectives because both the globalization process and the growing role of international law and institutions have compelled political forces and social thinkers to engage in discussion on issues such as sovereignty, trade, use of force, human rights, and the meaning of a just world order in general. Since these perspectives now address themes central to international law and institutions, they provide rich critical resources not only to think through alternative strategies to establish a just world order, but also to conceptualize its contours and content.

While five of the six perspectives are contemporary, the spiritual perspective of Sri Aurobindo was articulated primarily in the colonial period but has been included because it was among the first to deal with world-order issues and the creation of a world state. It has also been discussed to emphasize the need for ethical practices in any strategy of “complex internationalism” to create a just world order.

Print Archives

Volume 46, Issue 1

Articles:

The New Canon: Using or Misusing Foreign Law To Decide Domestic Intellectual Property Claims
By Edward Lee

Do BITs Really Work?: An Evaluation of Bilateral Investment Treaties and Their Grand Bargain
By Jeswald W. Salacuse & Nicholas P. Sullivan

The Shifting Public Order of the Oceans
By Michael A. Becker

The Moral Imperative: Toward a Human Rights–Based Law of War
David S. Koller

Recent Developments:

Opening the Courtroom Doors to Non-Citizens
Ehren Brav

The “Comity” of Empagran: The Supreme Court Decides that Foreign Competition Regulation Limits American Antitrust Jurisdiction over International Cartels
Sam Foster Halabi

Print Archives

The “Comity” of Empagran: The Supreme Court Decides that Foreign Competition Regulation Limits American Antitrust Jurisdiction over International Cartels

The equivocal language of the 1982 Foreign Trade Antitrust Improvements Act (“FTAIA”) has led to several disputes concerning when victims of international price-fixing can bring suit under U.S. antitrust law. The FTAIA vests federal district courts with subject matter jurisdiction over conduct that “has a direct, substantial and reasonably foreseeable effect” on U.S. commerce that “gives rise to a claim” under the Sherman Act. The FTAIA’s unique statutory language offers little guidance for district courts when an international cartel raises the price of a good or service in both domestic and foreign markets. In that case, does the FTAIA permit foreign plaintiffs injured in foreign markets access to U.S. federal district courts? Recently, the U.S. Supreme Court ruled in F. Hoffmann-La Roche, Ltd. v. Empagran S.A. (“Empagran”) that the doctrine of “comity among nations” limited the reach of U.S. antitrust law over foreign plaintiffs who claim injury in nations where other competition regulations exist. This decision left unresolved the split between the Courts of Appeals for the Fifth Circuit and the Second Circuit over the FTAIA’s language and history. Moreover, the Supreme Court’s resort to the existence of foreign regulatory schemes to limit Sherman Act jurisdiction ignored Congress’s intent to deter international cartels and protect American markets.

This Recent Development argues that Empagran misapplies the doctrine of comity. Part II traces the history of the FTAIA, which was passed to define the limits on participation by American businesses in anticompetitive conduct overseas. Part III narrates the factual and procedural history of Empagran. Part IV contrasts the Fifth and Second Circuits’ interpretations of the FTAIA. In Part V, the Recent Development analyzes the Supreme Court’s ruling in Empagran, and Part VI outlines the procedurally questionable application of the “comity among nations” doctrine. Finally, the Recent Development concludes that, by invoking comity, the Supreme Court added to the difficulties of interpreting the FTAIA.

Print Archives

The Moral Imperative: Toward a Human Rights–Based Law of War

The normative frameworks under which International Humanitarian Law (“IHL”) and human rights law each operate are in conflict with one another. The goal of this Article is to develop a new law of war that is based on human rights and is entirely consistent with the requirements of human rights law. The principle of discrimination, which provides that people may be attacked and killed simply because of the uniform they wear, is an ideal entry point into the conflict between IHL and human rights law. IHL ideally protects civilians from the horrors of war, but the principle of discrimination, one of the most important rules of modern warfare, is fundamentally inconsistent with the basic tenets of human rights law.

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