Showing papers in "University of Pennsylvania Journal of International Law in 2001"

Managerial Opportunism and Foreign Listing: Some Direct Evidence

Abstract: To what extent do private interests of managers, controlling shareholders, and other insiders affect corporate actions and the structure of the legal system? This Article presents evidence that such interests (hereinafter “managerial opportunism,” for brevity) have a significant effect on both aspects in the growingly important context of foreign listing. Modern analyses of the corporate form invariably revolve around the agency problem,1 and “corporate governance” is widely understood today to constitute the means for coping with this problem.2 Shleifer and Vishny, for instance, provide a thorough review of the theoretical and empirical literature on the relations between corporate governance and the agency problem.3 In particular, they discuss the interplay between legal rules and shareholding structures as alternative means for curbing adverse

Who Will Raise the White Flag--The Battle between the United States and the European Union over the Protection of Geographical Indications

Abstract: \"[R]enaming [Champagne, Burgundy, or Chablis] the Napa Valley Champagne, Burgundy, or Chablis would be of no avail to California wine-growers, [yet] a soothing prospect for the French producers.\"' This statement captures the essence of the debate between the United States and the European Union (\"EU\") regarding the legal treatment and protection of geographical indications, which have been a long term source of international controversy. Geographical indications have been given various definitions, but the Agreement on Trade-Related Aspects of Intellectual Property Rights (\"TRIPS\") defines geographical indications as \"indications which identify a good as originating in the territory of a [member [country], or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.\"2 Exam-

The Fit between Changes to the International Corruption Regime and Indigenous Perceptions of Corruption in Kazakhstan

Abstract: 1. The Nature of Corruption .......................................................... 867 1.1. Corruption and Bribery ........................................................ 867 1.2. The Extent of Corruption and Bribery ............................... 875 1.3. General Objections to the Hypothesis that Corruption is A cceptable .......................................................................... 876 2. The Need for an Understanding of Indigenous Attitudes Tow ard Corruption ..................................................................... 882 2.1. Corruption as a Structural Component That Must be Taken Into Account ............................................................... 882 2.2. Changes in the Global Legal Regime ................................. 887 2.2.1. Regime Changes ............................................................. 887 2.2.2. Theories of the Change ................................................. 893 2.3. The Need to Understand Other Attitudes ......................... 898 3. K azakhstan ................................................................................... 898 3.1. The Culture and Laws of Kazakhstan ................................ 899

The WTO's Reading of the Gatt Article XX Chapeau: A Disguised Restriction on Environmental Measures

Abstract: This article presents a detailed critique of the WTO Appellate Body's Shrimp-Turtle interpretation of the Article XX chapeau. It asserts as a premise that Article XX is itself an integral part of the GATT meant to preserve national prerogatives with respect to certain policy realms, and is thus not subordinate to other GATT objectives. Shrimp-Turtle's interpretations of Article XX(g) have clearly erased certain mistaken interpretations that blocked use of Article XX in the past, but the Appellate Body has reinstated equivalent obstacles through its erroneous interpretation of the "arbitrary or unjustifiable discrimination" test of the chapeau. Conceding that the U.S. embargo was applied in certain minor ways (since corrected) that were discriminatory, the article notes that these aspects were the least important to the Appellate Body's analysis. On the major points of the report, the article first questions whether there was "discrimination" at all in the U.S. embargo. But even if there was discrimination, it was neither arbitrary nor unjustifiable. The Appellate Body analysis was overly broad, lacked textual basis, and departed from the interpretation of the same test in the SPS context. The keys to the Appellate Body's conclusion of unjustifiable discrimination - the intended and actual coercive effect of the embargo and the failure of the U.S. to pursue multilateral negotiations - have nothing to do with "discrimination." Moreover, they touch on national environmental policy choices of the precise type Article XX was meant to shield from trade-based discipline. As a matter of its own legitimacy and as a means toward its own goal of supporting sustainable development, it is vital for the WTO to loosen the constraints on Article XX.

The Shifting Contours of Global Derivatives Regulation

Abstract: This article considers efforts to regulate (and to prevent the regulation of) the $100 trillion-plus global market for financial derivatives. It divides the universe of derivatives regulation into four categories of rule making - statutory, judicial, private, and arbitral - and proposes changes within each category.

Japan's Regulation of Large Retail Stores: Political Demands Versus Economic Interests

Abstract: One of the most visible and hotly debated Japanese trade barriers in the 1990s was the Large-Scale Retail Stores Law ("LSL").1 For years, no list of impediments to Japan's market was complete without a reference to the LSL. It was a leading topic in bilateral talks between Japan and the United States under the Structural Impediments Initiative. The LSL was also a key element in the U.S.-initiated film dispute in the World Trade Organization ("WTO"). In 1998, with little advance notice, Japan finally repealed the LSL, and enacted a replacement. This Article examines the tight control that the Ministry of Economy, Trade and Industry ("METI")2 has exercised over retail-

Insider Trading, Selective Disclosure, and Prompt Disclosure: A Comparative Analysis

Abstract: This article focuses on regulation of insider trading and company affirmative disclosure in developed securities markets. First, the U.S. regime is discussed. Thereafter, the securities laws of selected developed markets are addressed in order to provide contrasts to the U.S. approach. Last, the article focuses on a number of significant issues that merit exploration.

Intelligent TRIPs Implementation: A Strategy for Countries on the Cusp of Development

Abstract: The TRIPS Agreement is an attempt to harmonize national standards for intellectual property protection into an international norm based primarily on the standards utilized by developed countries. In the area of patents, the Agreement generally provides that patents shall be available for any inventions . . . in all fields of technology, provided they are new, involve an inventive step, and are capable of an industrial application. This Article argues that by intelligently implementing the Agreement, that is, by administratively and judicially implementing the patent provisions with an eye to creating both strong patent protection and a robust body of subpatentable information, developing member nations may establish a comparative competitive advantage over developed nations in the Life Sciences industries. The Article explains particularly the factors a developing country should consider when implementing the Agreement in light of current U.S. patent law concerning Life Sciences subject matter. The article also introduces the notion that TRIPS presents a unique opportunity for developing countries to establish and exploit comparative differences between their patent law and U.S. patent law to wrest not only the moral high ground, but also R&D investment, infrastructure, and ultimately technological leadership in an industry previously dominated by developed countries' concerns.

Towards Gatt Integration: Circumventing Quantitative Restrictions on Textiles and Apparel Trade under the Multi-Fiber Arrangement

Abstract: The history of textiles and apparel trade in the global system evidences the persistent institutionalization of protectionist policies, despite the principal purpose of the General Agreement on Tariffs and Trade (\"GATT\") of moving the global trading system towards liberalized trade. The textiles and apparel industry has stood as an exception to GATT principles, although currently, under the Agreement on Textiles and Clothing (\"ATC') negotiated under the 1994 Uruguay Round, the Multi-Fiber Arrangement (\"MFA\"), the regime regulating this sector through unilateral and bilateral quantitative restrictions, is to be phased out by 2005. But decisive steps toward liberalization are not apparent from the continued protectionism on the part of the developed importing countries of the European Union and the United States. Indeed, even as the 2005 deadline for phasing out quantitative restrictions approaches, Europe and the United States have not taken any positive steps toward dismantling the protectionist regime that has been in place since the 1960s. History shows that each agreement renewing the protectionist agenda since the 1960s had initially been purported to be \"temporary.\" However, the past four decades of protectionism in the textiles and apparel trade cast into doubt the commitment of developed importing countries to integrate this sector under GATT's auspices.

Implementation of International Disclosure Standards

Abstract: The International Organization of Securities Commissions ("IOSCO") is a voluntary association of securities commissions from around the world that was formed in 1974.1 It has an international membership, with securities commissions and other organizations from many countries participating as members. IOSCO is not an organization of countries and was not formed on the basis of a treaty, unlike the European Union ("EU"), which is constituted upon the basis of the Treaty of Rome.2 IOSCO has no law-making authority under international law and cannot bind its members. Still, it is probably the most important organization in the world currently working on securities regulation from a global perspective.3 As of May 2000, there were 165 members, although in some cases this includes more than one member for a country. In September 1998, IOSCO adopted new disclosure standards entitled International Disclosure Standards for Cross-Border Offerings and Initial Listings by Foreign Issuers ("IDSs" or "Disdo-

Are the Woolf Reforms an Antidote for the Cost Disease--The Problem of the Increasing Cost of Litigation and English Attempts at a Solution

Abstract: The ever-increasing cost of litigation and the perceived effects of this cost on limiting access to justice is a perennial concern in modem society. The rising cost of legal services in general, and litigation in particular, is often seen somewhat ominously as at least "a barrier to some and a problem for all litigants."' At first glance, this emphasis on the cost of legal services seems well placed. After all, simple intuition tells us that increases in the cost of legal services seem destined to price low income citizens out of the market and lead to a decrease in the ability of those citizens to secure access to justice. However, this Comment will show that the belief that a relative increase in the price of legal services will necessarily cause citizens to lose access to legal services is, in fact,