Shrimp-Turtle II – WTO Appellate Body – 2001 (857-58) Finds for US
Can’t require multilateral agreement because any country would then have veto over whether US could fulfill WTO obligations
In light of good faith efforts, Section 609 now not applied unjustifiably/arbitrarily
Distinction between conditioning market access on adoption of SAME program and on adoption of program comparable in effectiveness
Development of Dispute
Attempts at voluntary domestic compliance; domestic regulations; domestic hesitation to enforce; NGO calls of accountability; COURT enforcement; enforcement of those regulations on other countries; international consideration; compromise court decision; win for US
Old GATT panels, non-binding, WTO panels/Appellate body
But US shows – not a legal regime which forces it to switch course
SELF-CONTAINED LEGAL REGIMES
Should be interpreted by itself, and not with range to broader int’l law principles
Entirely different set of issues, comprehensive rules, etc.
Biggest example – TRADE LAW. Others?
European Community law
Human rights law – some argue it’s “different”
International lawyers distrust, but here it made re: trade law still.
BUT, WTO AB – increasingly brought general int’l law principles into decisions.
because int'l law lacks formal, centralized decisionmaking structure, what has occurred is the evolution of a range of different regimes, forums, etc. which are not necessarily consistent with one another (and, at the extreme, are not put into any hierarchy)
problem if range of bodies interpreting the same norm very differently.
Session 23 – Investment Dispute Resolution (World Economy, Part Two) Development of Foreign Direct Investment
Remember – dealt with FDI and development of “soft law”
Want to invest in other countries, but need to be protected from their legal regimes
Set up separate external legal framework for the resolution of disputes, outside of their national legal system
Current FDI is different from past FDI
Focus on manufacturing (60s), oil (70s), SERVICES
Growth in cross-border mergers and acquisitions
Canadian funeral service provider. Purchased MS funeral homes. MI insurance company owner had contracted with MS funeral home to provide only their insurance. After Canadians purchased, discontinued.
MS state court – breach of contract. Then added fraud, tortious interference, breach of good faith, unfair trade. Counsel portrayed Canadians as racist foreigners
Verdict for P – HUGE awards (well in excess of Loewen value).
MS requires appellants to post bond of 125% of the judgment. Loewen couldn’t post it – asked for it to be reduced. MS law permits reduction for “good cause” but motion was denied.
Loewen settled “under extreme duress”
Files claim under Chapter 11
testimony introduced at trial violated “national treatment” obligation