Showing papers in "Berkeley Journal of International Law in 1998"

Precedent and Principles of WTO Panel Jurisprudence

Abstract: The central pillar of the GAT1/WTO multilateral trading system is the dispute settlement mechanism codified in the WTO Agreement. However, forty-five years after the adoption of the first GAT panel report, the legal status of GATT interpretations underlying panel decisions remains controversial. In light of the substitution of legal for political legitimacy in the Dispute Settlement Understanding, this issue has assumed importance for the credibility of the W1O system. This paper examines these implications and addresses the legal status of panel interpretations from constitutional, political and practical perspectives. It illustrates the legal effect of panel decisions with a critical analysis of the panel-created competitive conditions principle and its related rules.

Understanding the Presumption against Extraterritoriality

Abstract: What does the presumption against extraterritoriality mean? There are at least three possibilities. First the presumption might mean that acts of Congress should apply only to conduct that occurs within the United States, unless a contrary intent appears, regardless of whether that conduct causes effects in the United States. This is the traditional view of the presumption that Justice Holmes articulated in American Banana. Second, the presumption might mean that acts of Congress apply only to conduct that causes effects within the United States, unless a contrary intent appears, regardless of where that conduct occurs. Judge Bork adopted this view in Zoelsch v. Arthur Anderson & Co. Third, the presumption might mean that acts of Congress apply to conduct occurring within or having an effect within the United States, unless a contrary intent appears. This is how Chief Judge Mikva read the presumption in Environmental Defense Fund v. Massey. I argue that only the notion that Congress generally legislates with domestic concerns in mind is a legitimate basis for the presumption against extraterritoriality. This leads me to agree with Judge Bork that under the presumption, acts of Congress should presumptively apply only to conduct that causes effects within the United States regardless of where that conduct occurs. I further argue that, if this is the basis for the presumption against extraterritoriality, then the presumption should not be considered a clear statement rule and should be deemed rebutted when there is good reason to think that Congress was focused on something other than domestic conditions.

From Extended Jurisdiction to Privatization: International Law, Biology, and Economics in the Marine Fisheries Debates, 1937-1976

Abstract: 1. Scheiber is the Stefan Riesenfeld Professor of Law and History, Boalt Hall School of Law, University of California, Berkeley. Carr received his J.D. from Boalt Hall in 1994 and is an associate at Beveridge & Diamond, LLP. He is also a Ph.D. candidate in the Jurisprudence and Social Policy Program at the University of California, Berkeley. This article is dedicated to Professor Stefan A. Riesenfeld on the occasion of his 90th birthday. Funding for this research was provided by a grant from the United States Department of Commerce (NOAA) and the State of California through the California Sea Grant College Program, to the Ocean Law and Policy Program, Center for the Study of Law and Society, University of California, Berkeley. Agencies of the United States Government may reprint or distribute without restriction. The authors wish to acknowledge research contributions in the project's early phase by Noah Baum, J.D., graduate student in the Jurisprudence and Social Policy Program, University of California, Berkeley, during the period of his service as a Sea Grant Trainee on the project; and to thank Professors James Wilen (UC Davis), Bonnie McCay (Rutgers University), Gfsli Pdlsson (University of Iceland), and other participants in the conference on ITQ policies at which a shorter (and preliminary) version of the present paper was first presented. The conference paper was published in a proceedings volume sponsored by the Nordic Council, see note 73, and portions are reprinted with copyright permission from the Council. We are also indebted to members of the Ocean Governance Study Group, especially Professors Biliana Cicin-Sain and Robert Knecht (University of Delaware), Richard Hildreth (University of Oregon), Jon Van Dyke and Casey Jarmon (University of Hawaii), David D. Caron (UC Berkeley), and, above all, William T. Burke (University of Washington) and Lee Anderson (University of Delaware) for provocative and insightful discussions of fishery policies at the annual OGSG meetings. We are also indebted to Ms. Kitty Simonds, Executive Director, Western Pacific Regional Fisheries Management Council, Honolulu, HI, for giving us access to the Council's extensive library collection; and to the late Prof. Kenneth Pitzer, College of Chemistry, UC Berkeley, for his advice on sources and his enthusiastic encouragement of the project.

All Fall Down: The Treaty Power in the Clinton Administration

Abstract: For the United States to play an optimum leadership role in an increasingly interdependent world, the President must prevail over the conservative, isolationist minority in the Senate that has plagued U.S. participation in world affairs throughout this century. Yet in less than two months last year, the Clinton administration made four significant concessions of constitutional principle that, if repeated in the future, could significantly alter the constitutional balance between the President and the Senate affecting treaties. The presidential foreign relations powers affecting international agreements are among the most important executive branch powers, and the globalization of economic and political relations has increased their importance. The Treaty Power is a presidential power. Article II of the Constitution places the power to \"make\" treaties in the President, subject to the advice and consent of the Senate by a vote of two-thirds of the Senators present. Under the Constitution, the role of the Senate ends when it consents to the President's making of a treaty. Moreover, under the Vesting Clause of Article 11 and the implied foreign relations power2 the President has the power to interpret and administer the operation of treaties. Historically, the executive branch has concluded treaty amendments of a technical, administrative or minor substantive nature on the basis of its own constitutional authority, and has likewise adjusted treaty relations to take account of the break-up of states and state succession. In addition, the executive branch has historically exercised its prerogative to determine whether to seek required legislative support for international agreements through the Article II procedure or, alternatively, an act of Congress. In its interaction with the Senate over adjustment of two major arms control treaties,

Sources of Funds and Risk Management for International Energy Projects

Abstract: This paper examines how energy companies can take advantage of new opportunities to develop projects in emerging economies using the project finance mechanism. In particular, this paper looks at the various sources of funding available to multinational corporations for international projects as well as ways to control the risks inherent in such projects in order to fashion the best possible financing package.