JournalTOCs

Northwestern Journal of International Law & Business
Journal Prestige (SJR): 0.107

Number of Followers: 5

This is an Open Access Journal

Open Access journal
ISSN (Print) 0196-3228
Published by Northwestern University

[6 journals]

Reds, Whites, and Sulfites: Examining Different Organic Wine Regulation
Practices in the United States and the European Union
- Authors: Ryan Puszka
  Abstract: :This note examines the history of regulation within the organic wine industry in the U.S. and the E.U. and explores the motivations behind the production of organic wine in these two regions. The variance in the historical significance of wine between these two regions is reflected in the contemporary differences between the two regions’ rules for organic wine certification. In 2012, the U.S. and the E.U. entered into a comprehensive organic equivalency agreement that covered nearly all organic agricultural products but due to significant differences in the two regions’ regulatory schemes concerning the inclusion of added sulfites in wine, the equivalency agreement did not extend to wine. This lack of organic equivalency between two of the world’s largest producers and consumers of wine has resulted in a number of labeling difficulties in the international wine market and consequentially, has resulted in economic inequities, which disincentivize organic viticulture. These difficulties have trickled down to the consumer and resulted in both confusion and a general distrust for organically certified wines, further harming the reputation of organic wines. This article proposes the creation of a private international agency for certifying organic wine, mirroring the Demeter Standard for biodynamic products. This private certifying agency would provide greater transparency to consumers and a more economically attractive and streamlined regulatory process for wine producers who are considering organic viticulture.
  PubDate: Tue, 03 Mar 2020 09:15:22 PST
Do You Accept These Cookies' How the General Data Protection
Regulation Keeps Consumer Information Safe
- Authors: Jayne Chorpash
  Abstract: :This note examines the General Data Protection Regulation implemented in the EU in 2018. The GDPR was the result of a long history of data privacy laws that have been met with varying levels of success. While the GDPR has retained many characteristics that have made past privacy laws successful, it has also made some important changes. Most notably, the GDPR gives generous rights to consumers to guard and protect their data, which is of growing concern in light of how easy it is to share information in our modern age. Additionally, the GDPR has a much broader territorial scope, covering data processing activities related to either the offering of goods or services to EU data subjects or the monitoring of their behaviors within the EU. As a result, the hefty fines imposed for violating the GDPR have forced many companies to comply quickly. This note continues by comparing the GDPR’s regulations with those of the United States and concludes that, although there may be more upfront barriers and costs to adopt regulations as stringent as the GDPR, overall, the GDPR is superior to privacy laws in the United States. Finally, this note concludes by briefly examining the future of the GDPR, as well as the potential for GDPR-like regulations to be adopted in the United States.
  PubDate: Tue, 03 Mar 2020 09:15:20 PST
The Indian Securities Fraud Class Action: Is Class Arbitration the
Answer'
- Authors: Brian T. Fitzpatrick et al.
  Abstract: :In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other hand, the 2013 law enacted a public financing regime for securities fraud class actions and it is possible third-party financing will be permitted; these mechanisms may make up some of the loss in effectiveness caused by the lack of contingency fees. It is still too early to tell.Yet, commentators are very pessimistic that the Indian securities fraud class action will do much good because the Indian court system is glacially slow. For example, it takes over six years on average to resolve some civil appeals.The solution to this problem in the 2013 law was to channel the securities fraud class action to a special tribunal, the National Company Litigation Tribunal (“NCLT”). Yet, this type of solution has been tried before in India: special tribunals tend to quickly take on the negative characteristics of the general courts. This may be why very few securities fraud lawsuits have been filed since the 2013 law was enacted.We propose a different solution to the problem of the Indian court system: class arbitration. As we explain, although class arbitration is not perfect, it may better facilitate robust private enforcement than the Indian court system.
  PubDate: Tue, 03 Mar 2020 09:15:17 PST
Alibaba, Amazon, and Counterfeiting in the Age of the Internet
- Authors: Daniel C.K. Chow
  Abstract: The advent of e-commerce marketplaces such as Alibaba and Amazon in the new millennium has led to the proliferation of the sale of counterfeit goods around the world through the Internet. Brand owners find that Internet counterfeiters operating in the digital world present even more challenges than those using only brick-and-mortar operations. Internet counterfeiters have unprecedented access to consumers. They use false identities and addresses and vanish into cyberspace at the first sign of trouble. Brand owners seeking help from Alibaba and Amazon to remove listings of counterfeits have become frustrated by their convoluted and labyrinthine notice and take-down procedures. Even when these procedures are used successfully, brand owners find that the process can take months only to have the counterfeiter reappear in short order using a new false identity. Many brand owners find that dealing with Alibaba and Amazon only adds to their misery and believe that both tolerate counterfeits as they earn revenue from all sales, including sales of counterfeit goods.This Article sets forth for the first time how brand owners can use a set of currently available information technology tools to help create an effective deterrent to counterfeits on the Internet. Using these tools, brand owners can force counterfeiters to abandon the subterfuge and disguise that they rely on so that brand owners can—without the assistance of e-commerce platforms—directly pursue counterfeiters in civil and criminal actions in China where most of the counterfeiters are located and in the United States. The proposed approach should help deter counterfeiters who always work in secrecy and disguise by exposing them to what they fear and loathe the most: transparency and accountability for their illegal actions.
  PubDate: Tue, 03 Mar 2020 09:15:14 PST
Western Corporate Fiscal Citizenship in the 21st Century
- Authors: Alex Freund
  Abstract: For the Western world, the challenges of the 21st Century are numerous, from climate change’s effects on food production and coastal cities to underfunded social safety nets to automation’s impact on the middle class. To handle such costly problems, government intervention will be required. Government intervention, however, always comes at a cost to either individuals or corporations. To determine who should bear these costs, scholars and experts should turn to notions of fiscal citizenship – the social contract between the state and private parties through taxation and the provision of goods and services. By applying principles of individual fiscal citizenship to corporations, which have traditionally not been included in notions of fiscal citizenship, a strong case emerges for corporations to bear the costs of these impending 21st century harms.
  PubDate: Mon, 09 Dec 2019 14:16:50 PST
How Countries Seek to Strengthen Anti-Money Laundering Laws in Response to
the Panama Papers, and the Ethical Implications of Incentivizing
Whistleblowers
- Authors: Carmina Franchesca S. Del Mundo
  Abstract: The Panama Papers is currently the world’s largest whistleblower case that involved 11.5 million leaked documents and over 214,000 offshore entities. It all linked back to one Panamanian law firm, Mossack Fonseca. In 2016, over 400 investigative journalists collaboratively and simultaneously published stories that exposed the money laundering and tax-evading schemes committed by the rich and powerful. This included political figures and heads of states, celebrities, sports figures, criminal organizations, and terrorist groups.This article aims to dissect the innerworkings of Mossack Fonseca’s asset-shielding strategy and investigate how the Panamanian law firm was able to circumvent the tax and anti-money laundering laws of over 50 countries. We will also examine the global responses to the Panama Papers, the proposed reforms and strategies, and the obstacles to moving forward. Finally, this article explores the ethical duties of lawyers, the significance of attorney-client privilege, and the implications of monetarily incentivizing whistleblowers.
  PubDate: Mon, 09 Dec 2019 14:16:47 PST
Corporate Social Responsibility versus Shareholder Value Maximization:
Through the Lens of Hard and Soft Law
- Authors: Min Yan
  Abstract: Even with a significant increase in the number of firms around the world engaging in corporate social responsibility (“CSR”), many people still perceive CSR as a voluntary commitment and shareholder value maximization (“SVM”) as a mandatory requirement. This paper borrows the concept of hard law and soft law in terms of coerciveness and overturns the stereotype that SVM is a hard-law constraint and CSR a soft-law constraint. The paper first demonstrates that directors of the board are not obliged to maximize shareholder value even in the Anglo-American jurisdictions where shareholder primacy culture is more dominant. Next, the paper critically discusses an enforceable regulatory regime for CSR. After studying various countries’ practices, this paper highlights three main forms of the hard-law approach for CSR: namely through (i) enacting mandatory CSR laws to directly promote socially responsible behavior; (ii) defining minimum standards for corporate behavior to deter socially irresponsible behavior, and/or (iii) mandatory disclosure of CSR-related issues. The conventional (economic) justification for CSR is subsequently challenged, i.e., why we should align CSR with SVM after the above misunderstandings are corrected. More importantly, in addition to overcoming the weakness of soft law’s non-coerciveness, the hard-law approach will also provide additional grounds for furthering CSR.
  PubDate: Mon, 09 Dec 2019 14:16:44 PST
A Critical Reassessment of the Role of Neutrality in International
Taxation
- Authors: David Elkins
  Abstract: Neutrality plays a central role in the literature on international taxation. In its most prevalent form, the concept of neutrality posits that in order to maximize aggregate global welfare, capital needs to flow to where it would produce the highest pretax return. The thesis of this Article is that neutrality is ordinarily inapplicable in the field of international taxation.When considering neutrality in the international arena, the problem that one encounters is that the term “international taxation” is commonly used to describe a number of very different types of tax regimes (what the Article refers to as “intranational taxation,” “supranational taxation,” and “inter-jurisdictional taxation”). Although the literature tends not to distinguish among them, the different types of international tax regimes are conceptually distinct and require radically dissimilar guiding principles. The Article argues that neutrality is an appropriate principle with regard to only one type of international taxation: a hypothetical non-Pigouvian supranational tax. With regard to intranational taxation, neutrality has no role to play, as a rational country will exploit its tax system to promote the welfare of its own constituents without regard to which investments it would have attracted in a no-tax world. With regard to a hypothetical Pigouvian supranational tax and in particular with regard to the much-scrutinized field of inter-jurisdictional taxation, neutrality is irrelevant, as here it is the after-tax return and not the pretaxreturn that is determinative of allocative efficiency. Promoting neutrality would undermine the very goals that the principle of neutrality purports to serve.The Article concludes by noting that the current discourse with regard to international taxation is fraught with conceptual confusion. First, there is a tendency to rely upon concepts that were developed within the context of domestic taxation without a thorough examination of their applicability to the international arena. Second, there is a tendency to lump together a number of very distinct types of tax regimes under the overbroad category of international taxation, and to ignore the fact that due to the fundamental dissimilarities among them, the principles of tax theory relevant to each will also be different.
  PubDate: Mon, 09 Dec 2019 14:16:41 PST
"Hash"ing Out Inequality in the Legal Recreational Cannabis
Industry
- Authors: Maya Rahwanji
  PubDate: Sun, 13 Oct 2019 11:22:12 PDT
The Next Global Disruptive Innovation: Can Mobile Money Make the Journey
Upmarket to Disrupt the Financial Services Industry'
- Authors: David Myerson
  PubDate: Sun, 13 Oct 2019 11:22:03 PDT
Reforming WTO Rules on State-Owned Enterprises: SOEs and Financial
Advantages
- Authors: Yingying Wu
  Abstract: State-owned enterprises (SOEs) are pervasive worldwide nowadays, particularly in the emerging countries. SOEs are currently more active in global markets than decades ago, engaging in cross-border trade and investment. Concerns, hence, have arisen, that there are negative effects on global markets associated with SOEs usually receiving various advantages, particularly, such as financial advantages. Meanwhile, SOEs often act as the givers of financial advantages. Current WTO rules are not sufficient to address the problem of SOEs as givers of financial advantages, and the problem of SOEs as recipients of financial advantages. This article tries to push the current WTO rules to their limits, and to find potential approaches to address those problems. The efforts, however, failed to some degree.Hence, the article makes recommendations to improve them by three types of proposals, i.e., trade remedies proposals, trade rules proposals, and a competition rules proposal within the framework of the WTO. In the end, the author also engages with other academic articles on SOEs, and where they support the author’s position or differ from it. Explanations are also given on how proposals made by the author are similar to or differ from what was proposed in the Trans-Pacific Partnership (TPP) and why the author’s approach is better.
  PubDate: Sun, 13 Oct 2019 11:21:55 PDT
Embracing Non-ICSID Investment Arbitration' The Chinese Perspective
- Authors: Meng Chen
  Abstract: This article introduces and examines Chinese arbitration institutions’ recent movements to expand non-ICSID investment arbitration services, which could potentially contravene existing relevant Chinese laws and judicial practice, and it explores the prospects for non-ICSID investment arbitration in China. The article first compares ICSID and non-ICSID investment arbitration to determine the differences between them and their respective selling points for stakeholders in investment disputes. Next, the article examines the diverse mechanisms involved and highlights the different rules that govern non-ICSID arbitration, including the rules established by Chinese arbitration institutions in recent years. The article then further analyzes the obstacles in existing Chinese legislation and judicial practice that have impeded the use of non-ICSID investment arbitration in China. Finally, after briefly introducing proposals to remove these obstacles, the article examines the future prospects for Chinese non-ICSID investment arbitration.
  PubDate: Sun, 13 Oct 2019 11:21:46 PDT
Why the MLI Will Have Limited Direct Impact on Base Erosion Profit Sharing
- Authors: Joseph Morley
  PubDate: Mon, 09 Sep 2019 15:32:14 PDT
The 'Wild West' of Medicine: An Argument for Adopting the United
Kingdom's 'HFEA' Framework, to Improve the Market for
Assisted Reproduction in the United States
- Authors: Ellen S. Fischer
  PubDate: Mon, 09 Sep 2019 15:32:05 PDT
Investor-State Dispute Settlement in the Digital Economy: The Case for
Structured Proportionality
- Authors: Robert Ginsburg
  Abstract: The surge of economic nationalism and cross-border technology investments foreshadows disputes between inbound investors and host governments. While cross-border technology transfer is essential for economic development in many countries, host governments retain the right to safeguard citizens against potential consequences of such investments. The tension between these two concepts provides a significant challenge to the future of foreign direct investment and the global economy. For these reasons, legislators and arbitrators must develop and enforce regulations that protect public interests while enabling investors to successfully operate in the host country. In anticipation of these disputes, this article will explain how arbitral tribunals can use structured proportionality to accomplish this objective. More specifically, this article explains the causes of upcoming disputes, introduces a proportionality analysis of the government’s right to regulate and the degree to which the investor’s rights are threatened, and demonstrates how the consistent implementation of a structured proportionality test will maximize the chances that regulators and arbitrators will find balanced solutions that account for the interests of all stakeholders of FDI projects.
  PubDate: Mon, 09 Sep 2019 15:31:53 PDT
An Institutional Theory of Corporate Regulation
- Authors: Iris H-Y Chiu
  Abstract: The regulation of corporate behavior has persisted in spite of peaks of neo-liberalism in many developed jurisdictions of the world, including the U.K. This paradox is described as “regulatory capitalism” by a number of scholars. Of particular note is the proliferation of corporate regulation to govern “socially responsible” behavior in recent legislative reforms in the EU and U.K. In seeking to answer the broader question of whether corporate regulation indeed effectively governs and moderates corporate behavior, this paper focuses on the nature of corporate regulation. Although different pieces of corporate regulation purport to achieve different objectives and impose different types of obligations, this paper offers an institutional account of corporate regulation, specifically in relation to the U.K.’s regulatory capitalism, as the U.K. is typically held up as having a liberal market economy (which is broadly similar to the U.S.). In this article, I argue that the nature and effectiveness of corporate regulation crucially depends on the nature of regulatory capitalism in the type of economic order under discussion. Hence the study of the U.K.’s economic order and its efforts in introducing corporate regulation to change corporate behavior holds lessons more generally for corporate regulation in economies that share similar features. The examination in this article provides an overarching framework for distilling the achievements and limitations of corporate regulation in such economic contexts.First, the paper clarifies that regulatory capitalism in the U.K. is characterized by three key tenets that reflect the spirit of the liberal market economy embraced here. Over time, gaps have been revealed in the achievements of these tenets of regulatory capitalism, particularly in relation to social expectations of the regulation of corporate behavior. These gaps have become the subject of debates in the realm of “corporate social responsibility” (CSR), where business, civil society, and the state frame the expectations of corporate behavior in contested ways: in relation to the scope of responsibility, the motivations for corporate behavior, the theoretical premises, and business practices. In the aftermath of the global financial crisis in 2007-2009, we observe increasing legalization in the EU and U.K. of CSR issues, framed in “new governance” regulatory techniques. They hold promise for change in corporate conduct through deeper forms of corporate engagement and accountability, but they appear at the same time relatively undemanding and susceptible to cosmetic compliance. By discussing key examples in new corporate regulation reforms in the EU and U.K., we seek to understand why recent corporate regulation reforms seem to offer mixed and, in some cases, relatively limited achievements in governing corporate behavior. We argue that the institutional account of corporate regulation continues to be able to explain regulatory weaknesses and limited achievements, in spite of the deployment of “new governance” regulatory techniques. This is because new governance regulatory techniques are implemented within the ethos of regulatory capitalism which limits their potential to introduce paradigm shifts. However, the limitations of these regulatory reforms highlight more sharply the institutional shifts that are needed in order to connect the efficacy of corporate regulation with meeting social expectations.
  PubDate: Mon, 09 Sep 2019 15:31:44 PDT
The Circumvention of UEFA's Financial Fair Play Rules Through the
Influx of Foreign Investments
- Authors: Patrick J. Sims
  Abstract: European football is undergoing rapid changes spurred on by enormous investments from around the globe. Although regulations exist to curtail teams buying their way to success, foreign investors have become ingenious at circumventing Financial Fair Play rules. The European football governing body needs to reevaluate existing rules and strengthen them by looking to outside examples. This article analyzes the current regulations established by the governing bodies of European football and details how foreign investors are able to circumvent these regulations. Further, this article articulates potential solutions to the current Financial Fair Play rules and how the spirit of the current rules can be ultimately realized.
  PubDate: Mon, 28 Jan 2019 08:28:05 PST
The Tipping Point – Reevaluating the ASNEF-EQUIFAX Separation of
Competition of Data Privacy Law in the Wake of the 2017 Equifax Data
Breach
- Authors: Olivia Altmayer
  Abstract: Contrary to the Court of Justice for the European Union’s decision in the Asnef-Equifax case, in a world of big data, it is inefficient and ineffective to treat EU competition law and EU data protection law as entirely separate legal considerations. Reevaluating this stance is critical in sectors where customer data is highly sensitive, and therefore highly valuable to those who steal it, particularly for the financial and healthcare sectors. Looking forward, companies that store and use biometric data will have to be similarly scrutinized. To correct this problem, the EU has numerous paths it can take: (a) continue as is, treating competition and data protection as separate legal considerations, (b) enact a new body of regulatory law to specifically deal with data protection and competition, or (c) begin using existing competition law, specifically Article 101 of the TFEU, to address data protection concerns. This paper will argue that to best serve the interests of all relevant players – government, businesses, and consumers – option (c) is the optimal choice. Additionally, in implementing this change, the EU can use the FRAND patent and competition law precedence in devising a new data protection and competition framework.
  PubDate: Mon, 28 Jan 2019 08:27:56 PST
Mending the Wound or Pulling It Apart' New Proposals for International
Investment Courts and Fragmentation of International Investment Law
- Authors: Jaemin Lee
  Abstract: Robust discussions on standing investment courts are currently taking place at various fora. In particular, negotiations to include bilateral investment courts in IIAs are in full swing and leading to the creation of such courts. On the other hand, negotiation for a multilateral investment court has yet to start. Even if negotiation begins, it is not clear how long it will take and whether it will indeed lead to a successful conclusion. As such, for a significant amount of time in the future, it is bilateral investment courts that states administer to resolve investment disputes. Bilateral investment courts, however, will further deepen the already existing fragmentation of international investment law. They will be unable to issue harmonized and consistent jurisprudence for similar or essentially the same legal issues. In addition, they will more easily stoke sovereignty infringement claims by domestic critics. If legitimacy enhancement is the ultimate objective of the present ISDS reform discussions, it will only be achieved through a multilateral court. This is the only alternative to address the basic concern that has prompted the ISDS reform debates in general and the court proposals in particular. Global efforts should be mobilized to initiate and conclude negotiations for the establishment of a multilateral court as promptly as possible. In the interim, current negotiations to create and adopt bilateral courts should be suspended.
  PubDate: Mon, 28 Jan 2019 08:27:46 PST
A “Silk Road” for Capital: Trade Policy and Foreign Investment Laws of
China’s Neighbors
- Authors: Zachary Strom
  Abstract: This article presents a comparative study of the foreign investment laws and treaties of two of China's neighbors, Pakistan and Mongolia. As China moves forward in implementing a "One Belt, One Road" policy of major investments in trans-national infrastructure projects, leaders of neighboring countries including the two discussed here have demonstrated eagerness for its plans. The laws governing foreign trade and investment in each jurisdiction may be crucial to the success of Chinese investment efforts. The article discusses the evolution of both Pakistan's and Mongolia's laws and policies–Pakistan, as an enthusiastic partner and linchpin in China's "Belt," and Mongolia, as a resource economy that has, at times, struggled to draw the line on overwhelming Chinese influence. When examined, the laws and treaties of each nation show both reflections of and reactions to China's grand ambitions.
  PubDate: Thu, 12 Jul 2018 22:47:42 PDT