International Law Outline



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Shrimp-Turtle II – WTO Appellate Body – 2001 (857-58)

  1. Finds for US

  2. Can’t require multilateral agreement because any country would then have veto over whether US could fulfill WTO obligations

    1. In light of good faith efforts, Section 609 now not applied unjustifiably/arbitrarily

  3. Distinction between conditioning market access on adoption of SAME program and on adoption of program comparable in effectiveness

  • Development of Dispute

    1. 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

    2. Old GATT panels, non-binding, WTO panels/Appellate body

      1. But US shows – not a legal regime which forces it to switch course

  • SELF-CONTAINED LEGAL REGIMES

    1. Should be interpreted by itself, and not with range to broader int’l law principles

    2. Entirely different set of issues, comprehensive rules, etc.

      1. Biggest example – TRADE LAW. Others?

        1. European Community law

        2. Human rights law – some argue it’s “different”

    3. International lawyers distrust, but here it made re: trade law still.

    4. BUT, WTO AB – increasingly brought general int’l law principles into decisions.

  • FRAGMENTATION

    1. 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)

      1. problem if range of bodies interpreting the same norm very differently.

  • Session 23 – Investment Dispute Resolution (World Economy, Part Two)

    1. Development of Foreign Direct Investment

      1. Remember – dealt with FDI and development of “soft law”

      2. Want to invest in other countries, but need to be protected from their legal regimes

        1. Set up separate external legal framework for the resolution of disputes, outside of their national legal system

      3. Current FDI is different from past FDI

        1. Focus on manufacturing (60s), oil (70s), SERVICES

        2. Growth in cross-border mergers and acquisitions

    2. Loewen Group

      1. 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.

        1. MS state court – breach of contract. Then added fraud, tortious interference, breach of good faith, unfair trade. Counsel portrayed Canadians as racist foreigners

        2. Verdict for P – HUGE awards (well in excess of Loewen value).

          1. 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.

        3. Loewen settled “under extreme duress”

      2. Files claim under Chapter 11

        1. Claims

          1. testimony introduced at trial violated “national treatment” obligation

          2. Trial proceedings – substantive denial of justice, procedural denial of justice, and denial of “fair and equitable treatment”

          3. Verdict- expropriation.

        2. Tribunal – trial judge’s conduct so flawed “manifest injustice”

          1. No due process

          2. BUT rejected Loewen’s claim – under local remedies rule – had obligation to exhaust reasonably available domestic remedies

            1. Did not pursue appeal to state supreme court or SCOTUS

        3. Also failed – filed for bankruptcy and it was reorganized as US corp

          1. NAFTA claim now held by US entity

            1. “continuous nationality” rule – continuous national identity from events through resolution

    3. NAFTA CHAPTER 11

      1. Five key principles

        1. National treatment and most favored nation (MFN) treatment

          1. Treat foreign investors no less favorable than its own investors

          2. Treat foreign investors no less favorable than investors of any other party/non-party

        2. Minimum standard of treatment – fair and equitable treatment, full protection and security

          1. Customary int’l law norms regarding minimum standard of treatment of foreign investment

        3. Prohibition on performance requirements

        4. Free transfers

        5. Int’l standards on expropriation and compensation

      2. Extensive provisions re: dispute settlement

        1. Right to file direct actions against host gov’ts to enforce their rights and NAFTA obligations

      3. Case Examples – US wins them all


        1. Directory: sites -> default -> files -> upload documents
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