Student Features

Student Features

Judicial Diplomacy

The progress and future trend of the Common Market of the South (Mercosur) are under debate in political, economic, and commercial realms, among others. Less known, however, is the role of the Supreme Courts of Mercosur Member States in discussing and strengthening the bloc’s legal core in order to promote a region that is “politically stable, socially equal and economically prosperous.”

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Student Commentaries

China’s Proposed International Adoption Law

I. INTRODUCTION

China’s new international adoption law, set to take effect on May 1, 2007, will prohibit international adoption of Chinese children by single adults. International adoption is a popular avenue for prospective adoptive parents in the United States, and because China has been a major source of internationally adopted children, these new laws will significantly impact the steady trend of U.S. citizens adopting abroad. It is unlikely that China’s more stringent adoption requirements will affect U.S. domestic adoption policies even though the requirements will hinder adoption by some U.S. prospective parents. Accordingly, United States citizens who cannot meet the new Chinese adoption standards will have to adopt less “adoptable” children, look to other sender-countries, pursue options like reproductive technology, or decide to forego parenthood altogether.

I begin by examining the specifics of China’s proposed international adoption law and China’s international adoption policies. Next, I briefly consider China’s role as a significant sender-country to the United States. Finally, I explore the likely impact of the Chinese tightening adoption standards on potential U.S. adoptive parents, looking specifically at the alternatives that the parents who will no longer be able to adopt from China can pursue.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Article Responses

Substituted Compliance

Introduction*

The “forces of change” affecting the U.S. regulatory environment described in Ethiopis Tafara’s and Robert Peterson’s article A Blueprint for Cross-Border Access to US Investors: A New International Framework (“the Blueprint”) are challenging regulators across the world. The Australian Securities and Investments Commission (“ASIC”) has been developing an approach to regulating cross-border trade in financial services, and this has found expression in a number of ASIC policy statements. This commentary, which explores possible approaches to such “forces of change,” is therefore given from the perspective of a regulatory authority that has articulated a position on regulating cross-border trade and is grappling with implementing that policy.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Article Responses

The Emperor Has Unsuitable Clothes (and by the Way, He Is No Longer the Emperor)

Introduction*

The first car I owned was produced in 1934, as was the Securities Exchange Act. I hasten to add that the car was quite used before it came into my hands, again, like the ‘34 Act. It was a good car for the needs of its day, and so were the Exchange Act and its companion, the Securities Act of 1933. But, while the federal securities laws have been the subject of numerous modernizations over the past seventy-two years, they look and function more like the original model than current automobiles look like my 1934 Ford.

From this perspective, it is a great pleasure to read and have the privilege of commenting on the seminal work that Mr. Tafara’s and Mr. Peterson’s article, A Blueprint for Cross-Border Access to U.S. Investors: A New International Framework (“the Blueprint”), represents. In the gentlest of ways, the authors have suggested that the robes of the Securities and Exchange Commission (“SEC”) are not non-existent, as in the Hans Christian Andersen fable, but less than fully suitable for today’s needs. And with even greater care, they have reminded us that the U.S. capital markets are not alone in the world; the SEC is no longer the emperor of global market activity.

My first and strongest reaction to the Blueprint is a blend of admiration for the authors’ insight and appreciation that individuals of their stature at the SEC have the freedom to speak so clearly of the need for new tailoring of the U.S. regulatory wardrobe. It is also a pleasure to recognize how deftly they suggest that this wardrobe needs only a few nips and tucks to facilitate the healthy global marketplace that will best serve the interests of U.S. investors in the rapidly shifting conditions they describe.

Put in more traditional terms, Mr. Tafara and Mr. Peterson offer suggestions for how the United States can enable the creation of “a new international framework.” They recognize that the United States will be unable to dominate global capital markets activity in the 21st century as it has done in the past, but they posit that it can legitimately aspire to lead one global marketplace. In addition, they make a convincing case that competing through collaboration will further the interests of U.S. investors and commerce.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

Book Reviews, Print Archives

Book Review: The Dark Sides of Virtue: Reassessing International Humanitarianism

Review of The Dark Sides of Virtue: Reassessing International Humanitarianism. David Kennedy. Princeton University Press: Princeton, N.J., 2004. Pp. 400. $29.95 (cloth).

In The Dark Sides of Virtue: Reassessing International Humanitarianism, Professor David Kennedy asks how the many devoted, resourceful, and well-intentioned individuals who make up the international humanitarian community can so often fail in their most basic goals. According to Kennedy, humanitarianism has many unintended costs stemming from the failure of humanitarians to acknowledge their increasing influence on international policymaking. Government officials and political actors recognize that they ultimately bear responsibility for the consequences of their policies, and, therefore, they pragmatically consider the risks and potential costs of their actions as well as the benefits. Humanitarians have traditionally seen themselves as outsiders with respect to global “rulership” and thus do not feel the same accountability for their actions. In addition, humanitarians often mistakenly assume that because their actions are well-intentioned, they will have only benefits. Kennedy argues that if humanitarians identified with their power in global governance, they would engage in pragmatic cost-benefit analysis more often and avoid many of the dark sides of humanitarianism. Although Kennedy offers few concrete solutions, his broad exploration of the problem through his own experiences is thought provoking and compelling. Kennedy’s goal is to provoke the human rights community to engage in the type of self-critical, pragmatic thinking that might reduce, if not eliminate, the costs of humanitarian action. The result is a challenging, engaging, and complicated book that may well have the desired effect.

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.

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