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.
{"title":"The WTO's Reading of the Gatt Article XX Chapeau: A Disguised Restriction on Environmental Measures","authors":"S. Gaines","doi":"10.2139/SSRN.301404","DOIUrl":"https://doi.org/10.2139/SSRN.301404","url":null,"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.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"56 1","pages":"739"},"PeriodicalIF":0.5,"publicationDate":"2002-02-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85244723","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2002-01-01DOI: 10.1017/CBO9780511609800.058
K. Brown
{"title":"Critical Tax Theory: Missing Africa: Should U.S. International Tax Rules Accommodate Investment in Developing Countries?","authors":"K. Brown","doi":"10.1017/CBO9780511609800.058","DOIUrl":"https://doi.org/10.1017/CBO9780511609800.058","url":null,"abstract":"","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"23 1","pages":"45"},"PeriodicalIF":0.5,"publicationDate":"2002-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89531166","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Corporate law in Korea has undergone a dramatic transformation in recent years. In an effort to revamp Korean corporations, the Korean government made sweeping reforms to Korea's Commercial Code (sang-bup) three times in the past four years -- in 1995, 1998, and 1999. These newly amended provisions have set in motion unprecedented changes for the Korean corporate environment. Korean management is finally beginning to be monitored and challenged in a more meaningful manner, while at the same time, directors and auditors have gained both renewed authority and responsibilities. Shareholder rights have been strengthened to levels previously unimaginable by Korean standards.
{"title":"Recent Amendments to the Korean Commercial Code and Their Effects on International Competition","authors":"Joongi Kim","doi":"10.2139/SSRN.248818","DOIUrl":"https://doi.org/10.2139/SSRN.248818","url":null,"abstract":"Corporate law in Korea has undergone a dramatic transformation in recent years. In an effort to revamp Korean corporations, the Korean government made sweeping reforms to Korea's Commercial Code (sang-bup) three times in the past four years -- in 1995, 1998, and 1999. These newly amended provisions have set in motion unprecedented changes for the Korean corporate environment. Korean management is finally beginning to be monitored and challenged in a more meaningful manner, while at the same time, directors and auditors have gained both renewed authority and responsibilities. Shareholder rights have been strengthened to levels previously unimaginable by Korean standards.","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"21 1","pages":"273"},"PeriodicalIF":0.5,"publicationDate":"2000-12-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82878339","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
From the time of the ancients through the middle ages, the Chinese were among the most prolific inventors in the world, but their voluntary insularity prevented most of these inventions from dissemination beyond China. Many of them did not become known outside China until they were "reinvented" elsewhere. Another characteristic of early Chinese attitudes toward products of the intellect was the prevailing view that such belonged to the community as a whole, including creations that would be within the modern realm of copyright and inventions that would be within the modern realm of patent. Creating property-type protection for the inventor was not, therefore, within the mainstream thinking of Chinese culture. Although these attitudes extended to what we view as copyrightable works and trademarks, our focus in this paper is on discovery and invention, that is, intellectual accomplishments that traditionally have been within the purview of patent laws. Previous efforts by foreign nations to impose systems of intellectual property protection failed because such systems ran counter to a deeply embedded cultural mindset derived first from Confucianism and later reinforced by communist socialism. In the post-Mao era, however, the Chinese government has undertaken a widespread restructuring of its legal and economic systems because its leaders (1) foresaw the critical need to attract foreign investment, and (2) recognized that movement toward free-market principles in many economic sectors would be essential to the long-term health of the Chinese economy. To be successful ultimately, an economy based in significant part on free-market principles must provide legal protection for property interests, including intangible property in the form of functional ideas and original expressions. The post-Mao adjustment has included the enactment of a wide array of laws to serve as a foundation for the new economy. For our purposes, the self-evidently most important law is China's pre-adolescent patent law, first effective in 1985, with substantial amendments effective in 1995 that created a patent system closely resembling those of most of the world's economically developed nations. The major elements of the new Chinese patent system are explained and compared with their U.S. counterparts. A patent system cannot properly perform its role, however, without an effective court system, legal profession, and serious attention to the rule of law. For much of the post-Mao period the Chinese have equated enactment with implementation. Fortunately, during the past several years the Chinese have begun to recognize and attempt to remedy this disconnect. Although today's China has a legal system far more well developed than before, a great deal remains to be done. A functional court system and legal profession are developing, with a substantial number of new law schools having been opened and those closed during the Cultural Revolution reopened, a serious commitment to greatl
{"title":"The Evolution of Chinese Attitudes Toward Property Rights in Invention and Discovery","authors":"J. Allison, Lianlian Lin","doi":"10.2139/SSRN.222539","DOIUrl":"https://doi.org/10.2139/SSRN.222539","url":null,"abstract":"From the time of the ancients through the middle ages, the Chinese were among the most prolific inventors in the world, but their voluntary insularity prevented most of these inventions from dissemination beyond China. Many of them did not become known outside China until they were \"reinvented\" elsewhere. Another characteristic of early Chinese attitudes toward products of the intellect was the prevailing view that such belonged to the community as a whole, including creations that would be within the modern realm of copyright and inventions that would be within the modern realm of patent. Creating property-type protection for the inventor was not, therefore, within the mainstream thinking of Chinese culture. Although these attitudes extended to what we view as copyrightable works and trademarks, our focus in this paper is on discovery and invention, that is, intellectual accomplishments that traditionally have been within the purview of patent laws. Previous efforts by foreign nations to impose systems of intellectual property protection failed because such systems ran counter to a deeply embedded cultural mindset derived first from Confucianism and later reinforced by communist socialism. In the post-Mao era, however, the Chinese government has undertaken a widespread restructuring of its legal and economic systems because its leaders (1) foresaw the critical need to attract foreign investment, and (2) recognized that movement toward free-market principles in many economic sectors would be essential to the long-term health of the Chinese economy. To be successful ultimately, an economy based in significant part on free-market principles must provide legal protection for property interests, including intangible property in the form of functional ideas and original expressions. The post-Mao adjustment has included the enactment of a wide array of laws to serve as a foundation for the new economy. For our purposes, the self-evidently most important law is China's pre-adolescent patent law, first effective in 1985, with substantial amendments effective in 1995 that created a patent system closely resembling those of most of the world's economically developed nations. The major elements of the new Chinese patent system are explained and compared with their U.S. counterparts. A patent system cannot properly perform its role, however, without an effective court system, legal profession, and serious attention to the rule of law. For much of the post-Mao period the Chinese have equated enactment with implementation. Fortunately, during the past several years the Chinese have begun to recognize and attempt to remedy this disconnect. Although today's China has a legal system far more well developed than before, a great deal remains to be done. A functional court system and legal profession are developing, with a substantial number of new law schools having been opened and those closed during the Cultural Revolution reopened, a serious commitment to greatl","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"112 1","pages":"735"},"PeriodicalIF":0.5,"publicationDate":"2000-04-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87831062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1997-01-01DOI: 10.1515/9783110806540-022
Sheila M. Puffer, D. J. McCarthy
Russia's economic transition in the past decade from a centrally-planned to a market-oriented economy has occurred within a dramatically changing political, social, and cultural context. The biggest shift occurred in late 1991, when more than seven decades of communist rule came to a swift end, the former U.S.S.R. was dissolved, and Russia started on a new course toward a more democratic political system and a market-oriented economy. With these changes, many new ideas, attitudes, and practices have emerged; yet, numerous influences from the past continue to affect the thoughts and behavior of most Russians.' These converging forces have evoked much uncertainty regarding the interpretation of what constitutes ethically acceptable behavior for Russians, including those involved in business. In this confusing
{"title":"Business Ethics in a Transforming Economy: Applying the Integrative Social Contracts Theory to Russia","authors":"Sheila M. Puffer, D. J. McCarthy","doi":"10.1515/9783110806540-022","DOIUrl":"https://doi.org/10.1515/9783110806540-022","url":null,"abstract":"Russia's economic transition in the past decade from a centrally-planned to a market-oriented economy has occurred within a dramatically changing political, social, and cultural context. The biggest shift occurred in late 1991, when more than seven decades of communist rule came to a swift end, the former U.S.S.R. was dissolved, and Russia started on a new course toward a more democratic political system and a market-oriented economy. With these changes, many new ideas, attitudes, and practices have emerged; yet, numerous influences from the past continue to affect the thoughts and behavior of most Russians.' These converging forces have evoked much uncertainty regarding the interpretation of what constitutes ethically acceptable behavior for Russians, including those involved in business. In this confusing","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"15 1","pages":"1281"},"PeriodicalIF":0.5,"publicationDate":"1997-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90256185","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Two important legal documents have emerged that will govern the future of Hong Kong after sovereignty over the existing British Colony reverts to the People's Republic of China. They are (1) the Joint Declaration of the Government of the United Kingdom and the People's Republic of China on the Question of Hong Kong;1 and (2) the Basic Law of the Hong Kong Special Administration Region of the People's Republic of China.2 The former document is a bilateral treaty entered into between the Government of Great Britain and the Government of the People's Republic of China. The latter document is an enactment of the People's Republic of China. The
{"title":"A Review of “Constitutional Confrontation in Hong Kong: Issues and Implications of the Basic Law”","authors":"Mark Tung","doi":"10.5860/choice.28-1791","DOIUrl":"https://doi.org/10.5860/choice.28-1791","url":null,"abstract":"Two important legal documents have emerged that will govern the future of Hong Kong after sovereignty over the existing British Colony reverts to the People's Republic of China. They are (1) the Joint Declaration of the Government of the United Kingdom and the People's Republic of China on the Question of Hong Kong;1 and (2) the Basic Law of the Hong Kong Special Administration Region of the People's Republic of China.2 The former document is a bilateral treaty entered into between the Government of Great Britain and the Government of the People's Republic of China. The latter document is an enactment of the People's Republic of China. The","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"7 1","pages":"173"},"PeriodicalIF":0.5,"publicationDate":"1991-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75630446","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In its one hundred ninety-eight page A Review of the Licensing Provisions of the Securities Industry Act and Codes (Review) published in October 1985,1 the Australian National Companies and Securities Commission, upon reviewing the licensing provisions of the Securities Industry Act of 1980 Commonwealth and Codes, stated what many had long felt, that "the present licensing system is not working adequately to provide adequate investor protection."'2 The Review considers, instead, a move to the United States/Canadian model of supervised self-regulation by self-regulatory organizations (SROs) in combination with the maintenance of the existing method of regulation by the Commission.3 This article endeavors to address the Australian proposals and to compare them with the North American experience. In particular, the article will initially review the various theories of occupational licensure.4 Next, it will discuss the ramifications of self-regulation by
{"title":"Regulation of Securities Industry Intermediaries--Australian Proposals","authors":"P. Latimer","doi":"10.2139/ssrn.3124591","DOIUrl":"https://doi.org/10.2139/ssrn.3124591","url":null,"abstract":"In its one hundred ninety-eight page A Review of the Licensing Provisions of the Securities Industry Act and Codes (Review) published in October 1985,1 the Australian National Companies and Securities Commission, upon reviewing the licensing provisions of the Securities Industry Act of 1980 Commonwealth and Codes, stated what many had long felt, that \"the present licensing system is not working adequately to provide adequate investor protection.\"'2 The Review considers, instead, a move to the United States/Canadian model of supervised self-regulation by self-regulatory organizations (SROs) in combination with the maintenance of the existing method of regulation by the Commission.3 This article endeavors to address the Australian proposals and to compare them with the North American experience. In particular, the article will initially review the various theories of occupational licensure.4 Next, it will discuss the ramifications of self-regulation by","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"1 1","pages":"1"},"PeriodicalIF":0.5,"publicationDate":"1987-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88630364","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1987-01-01DOI: 10.4324/9780203168219-49
J. Lee
{"title":"Internationalization of the Korean Capital Market","authors":"J. Lee","doi":"10.4324/9780203168219-49","DOIUrl":"https://doi.org/10.4324/9780203168219-49","url":null,"abstract":"","PeriodicalId":43790,"journal":{"name":"University of Pennsylvania Journal of International Law","volume":"32 1","pages":"703"},"PeriodicalIF":0.5,"publicationDate":"1987-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89932046","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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