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Part 2 book “Part 1 book “International business law - text, cases, and readings “ has contents: Trade in goods, services and labor, intellectual property, sales, transportation, financing, the negotiation and transfer of bills and notes, maritime insurance.
www.downloadslide.net Chapter Trade in Goods Chapter Outline A History of Contemporary International Trade Law Protectionism The Bretton Woods System The 1947 General Agreement on Tariffs and Trade Multilateral Trade Negotiations The Uruguay Round B The World Trade Organization The WTO Agreement Membership of the WTO Structure of the WTO Decision Making within the WTO Waivers Dispute Settlement Trade Policy Review C The 1994 General Agreement on Tariffs and Trade Direct Effect Nondiscrimination Protection Only Through Tariffs Transparency Regional Integration Commodity Arrangements Escape Clause Exceptions Export Controls Other Multilateral Export-Control Programs D Multilateral Trade Agreements Customs Valuation Preshipment Inspection Technical Barriers to Trade Sanitary and Phytosanitary Measures Trade-Related Investment Measures Import-Licensing Procedures Anti-dumping Subsidies and Countervailing Measures Safeguards Agriculture www.downloadslide.net Chapter 7 • Trade in Goods 359 Textiles and Clothing Rules of Origin Chapter Questions Relevant Internet Sites A History of Contemporary International Trade Law International trade has grown dramatically in the past 60 years In great measure, this is because the world’s nations have cooperated in eliminating protectionist domestic legislation and in promoting the free exchange of goods.1 Indeed, one of the most remarkable trends in international law during the past six decades has been the steady movement away from tariffs and quotas and toward free trade among the nations of the world Where once most nations maintained laws to promote and protect their own businesses and producers, since the 1940s there has been a continual shift toward multilateral efforts to reduce tariffs and other trade barriers As is described below, the several GATT treaties, the EU, the WTO, and many other international agreements and organizations have resulted in a dramatic lowering of tariffs—each nation giving up a little in order to get reciprocal reductions—and a tremendous increase in international trade Business now operates in a truly global economy However, we may have reached a point where future trade liberalization will be more difficult to achieve As discussed below, the World Trade Organization has been trying since 2001 to reach agreement on further tariff cuts, subsidy reductions, and other issues as part of the Doha Development Program, but success has not yet been achieved Within the past few years, many voices have been raised in protest of globalization It is now clear that there are both winners and losers as trade becomes more free and more global It appears that large multinational firms and large, powerful nations have received more benefits from the removal of trade barriers than smaller businesses, farmers, and nations “The rich get richer” has become a battle cry for anti-globalization protesters at most large international economic and trade meetings Furthermore, the worldwide financial crisis of the last several years has exacerbated many of these anti-globalization feelings, as each nation, and indeed each individual, has been looking for ways to survive economically Those of us living in the United States have seen a massive loss of jobs, significant loss of home equity and savings, and other serious negative consequences from the “Great Recession” of the past 3–4 years As this chapter is being edited, several European nations are struggling to keep from defaulting on financial obligations—during the first half of 2012 Greek protestors have conducted violent demonstrations against austerity measures proposed by the European Union, the International Monetary Fund, and the government of Greece, as preconditions for extending billions of dollars in additional loans and credit Other European nations, including Italy and Spain, also face serious economic problems National leaders are concerned about their nations’ own well-being and wary of extending “free trade” and additional economic benefits to other countries Certain public interest and labor groups have complained that “free trade” ignores important environmental and labor issues, with dire consequences for the environment and workers in developing countries In addition, employee organizations in developed nations—Europe and the United States in particular—argue that free trade and globalization have led to the loss of thousands of good jobs, as manufacturing plants are moved and work is outsourced to lower-wage nations Corporate profits in developed nations have increased in recent years, while wages in the developed world have stagnated And as globalization moves forward, the trade deficit of the United States jumped, reaching a record $763 billion in 2006 as Americans purchased more and more goods manufactured abroad, particularly from China and other low-cost nations (see Figure 7.1) The U.S trade deficit decreased from 2007–2009, but rose to slightly more than $500 billion in 2010 The United States imported $645,857 billion more in goods than was exported in 2010, but that deficit was somewhat For a brief history of developments leading up to the establishment of the World Trade Organization, see “Understanding the WTO” at www.wto.org/english/thewto_e/whatis_e/tif_e/tif_e.htm www.downloadslide.net 360 Chapter 7 • Trade in Goods 90% China’s Growing Share of the Overall U.S Trade Deficit 2000 to May 2009 (Non-Oil Goods) 80% Source: http://www.uscc.gov/ annual_report/2009/annual_ report_full_09.pdf Share of U.S non-oil goods trade deficit Figure 7.1 83% 69% 70% 60% 54% 50% 45% 40% 40% 30% 26% 27% 28% 31% 35% 20% 10% 0% 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 ytd offset by a positive balance in the sale of services of $145,830 billion The U.S had a deficit of $273 billion in trade with China alone in 2010 Americans have become more skeptical of “free trade” in recent years A survey published in fall 2010 indicated that 53 percent of the respondents thought that free trade agreements had hurt the United States, and this percentage had increased sharply from 46 percent in 2007 and 32 percent in 1999.2 Some 83 percent of American blue-collar workers surveyed felt that outsourcing of manufacturing jobs to countries with lower wages was a reason the U.S economy was struggling and people were not being hired The pollster who conducted the survey noted an important change as very well-educated and upper-income people had shifted positions in the last five years and were now expressing significant concern about free trade.3 As the Wall Street Journal noted a few years ago in one article describing the topics and agenda of the World Economic Forum meetings in Davos, Switzerland, just before the world financial crisis: Globalization isn’t working for everyone Stagnating wages and rising job insecurity in developed countries are creating popular disenchantment with the free movement of goods, capital and people across borders If unchecked, popular fears could turn into a political backlash that could lead to protectionism—or at least make broad free-trade agreements harder to achieve in the future.4 Nevertheless, despite the protests, it seems clear that globalization is here to stay The clock cannot be turned back The technical, social, and political developments of the past 60 years cannot be reversed—we now live and business in a global marketplace (see Figure 7.2) So, now let us turn our attention to the long, steady series of events, treaties, agreements, and organizations that have created—and set the rules governing—the free trade world Protectionism The Great Depression of the 1930s in many ways was a direct consequence of protectionism When the United States raised tariffs on more than 900 items with the Hawley-Smoot Tariff Act of 1930, the other major trading nations of the world reciprocated with similar increases The United Kingdom, for one, enacted its first major protective trade legislation of the twentieth century in 1931 That same year, the League of Nations tried to cool what had become a tariff war by convening a Tariff Truce Conference, but the effort failed By 1932, world trade had fallen 25 percent from its 1929 level, and the world’s industrial production had fallen 30 percent In 1933, the last major prewar multilateral conference on trade, the World Monetary and Economic Conference, adjourned Sara Murray and Douglas Belkin, “Americans Sour on Trade,” Wall Street Journal, October 2, 2010 Id Marcus Walker, “Just How Good Is Globalization?” Wall Street Journal, January 25, 2007, p A10 www.downloadslide.net Chapter 7 • Trade in Goods 361 Figure 7.2 Business Is Now a Global Phenomenon Source: Iofoto/Fotolia without results because the participants refused to relax their trade restrictions Not until 1936 did industrial production return to its 1929 level, and not until 1940 did international trade return to its pre-Depression level Recovery from the Great Depression was U.S President Franklin Roosevelt’s main goal upon his election in 1932, and liberalization of international trade was at the heart of his program for achieving that end Beginning in 1934, the United States entered into bilateral trade negotiations with its major trading partners to reduce tariffs on a reciprocal (instead of a unilateral) basis The United States kept up this program until, during, and after World War II The idea that tariffs should be reduced through bilateral and multilateral negotiations became part of the Atlantic Charter, the declaration issued by President Roosevelt and British Prime Minister Winston Churchill in 1941 as a rallying cry for nations opposing the military and economic aggression of fascist Germany, Italy, and Japan See Figure 7.3 showing the two leaders in conference In addition to calling for the permanent renunciation of territorial aggrandizement and the disarmament of all aggressor states, the charter set out goals for the postwar era, many of which were based on international economic cooperation Among these was the assertion that every nation has the right to expect that its legitimate trade will not be diverted or diminished by excessive tariffs, quotas, or restrictive unilateral or bilateral practices During World War II, the protectionist sentiments of the 1930s were rejected as destructive, and they were swept aside in a rush to arrange a comprehensive network of multilateral agreements to settle the world’s political and economic problems The nations fighting Germany, Italy, and Japan Figure 7.3 U.S President Franklin Roosevelt Conferring with British Prime Minister Winston Churchill Source: Photos 12/Alamy www.downloadslide.net 362 Chapter 7 • Trade in Goods allied themselves as the United Nations, and in 1943 they called for the creation of a permanent international organization to replace the League of Nations and an integrated international system to encourage trade liberalization and multilateral economic cooperation Both efforts began the following year A first draft of a United Nations Charter was agreed to at a conference at Dumbarton Oaks (a mansion in Georgetown, Washington, D.C.) and an international conference on economic relations convened at Bretton Woods, New Hampshire A final draft of the United Nations Charter was approved and adopted at San Francisco in 1945 The Bretton Woods System The negotiators who met for the United Nations Monetary and Financial Conference in Bretton Woods in July 1944 were determined to create a system that would promote trade liberalization and multilateral economic cooperation The Bretton Woods System was meant to be an integrated undertaking by the international community to establish a multilateral institutional framework of rules and obligations As originally planned, the Bretton Woods System was to have had at its core three major international organizations: the International Monetary Fund (IMF), the International Bank for Reconstruction and Development (IBRD or World Bank), and the ill-fated International Trade Organization (ITO) (See Figure 7.4.) Together they were to collectively administer and harmonize world trade The IMF was to ensure monetary stability and facilitate currency exchange The World Bank was to assist war-ravaged and developing countries to reconstruct or upgrade their economies The ITO was to administer a comprehensive code governing the conduct of world trade This code was to be broad and encompassing, dealing with a wide range of issues, including trade and trade barriers, labor and employment, economic development, restrictive business practices, and intergovernmental commodity agreements The Articles of Agreement of the IMF were adopted at Bretton Woods and ratified in 1945 The World Bank was organized and its Agreement ratified in 1945 as well Not until 1946 did the United Nations Economic and Social Council (ECOSOC) appoint a Preparatory Committee to draft an agenda and set up a conference to create the ITO The strongest advocate of an ITO was the U.S government, which produced a “Suggested Charter” for consideration by the committee that met in London in October 1946 After a second session in Geneva in 1947, the ITO Charter was adopted in a “Final Act” and its contents were agreed to by the 53 countries participating in a UN-sponsored Conference on Trade and Employment in Havana in 1948 But the American government, which had worked hard to create the ITO in 1946, withheld support in 1948 President Harry Truman, fearing that the ITO Charter (or Havana Charter) would be rejected by an opposition Congress that had become conservative and protectionist and that American foreign policy would be adversely affected, did not submit the ITO Charter to the Senate for ratification All but two of the other participants at the Havana conference had waited to see if the United States would ratify the charter, and when it did not, no further effort was made to establish the organization It would be nearly 50 years before the idea would come to fruition with the establishment of the World Trade Organization (WTO) Figure 7.4 The Original Plan for the Bretton Woods System, Showing the Ill-Fated International Trade Organization International Monetary Fund (IMF) International Trade Organization (ITO) International Bank for Reconstruction and Development (IBRD or World Bank) www.downloadslide.net Chapter 7 • Trade in Goods 363 The 1947 General Agreement on Tariffs and Trade Instead of creating an ITO, the developed market-economy countries entered into an accord in 1947 called the General Agreement on Tariffs and Trade (GATT 1947).5 The original contracting parties were the same states that had formed the Preparatory Committee that had drafted the ITO Charter, and they borrowed liberally from that document in drafting GATT 1947.6 GATT 1947 was a multilateral treaty that set out the principles under which its contracting states,7 on the basis of “reciprocity and mutual advantage,” were to negotiate “a substantial reduction in customs tariffs and other impediments to trade.” With the addition of other states in subsequent years, GATT 1947 came to govern almost all of the world’s trade The main principles of GATT 1947 were as follows: (1) Trade discrimination was forbidden Each contracting state had to accord the same trading privileges and benefits (or most-favorednation status) to all other contracting states equally; and, once foreign trade goods were imported into one contracting state from another, the foreign goods had to be treated (according to the national treatment principle) the same way as domestic goods (2) With some exceptions, the only barriers that one contracting state could use to limit the importation of goods from another contracting state were customs tariffs (3) The trade regulations of contracting states had to be transparent, that is, published and available to other contracting states and their nationals (4) Customs unions and free trade agreements between contracting states were regarded as legitimate means for liberalizing trade so long as they did not, on the whole, discriminate against third-party states that were also parties to GATT (5) GATT-contracting states were allowed to levy only certain charges on imported goods: (a) an import tax equal in amount to internal taxes, (b) anti-dumping duties to offset advantages obtained by imported goods that were sold below the price charged in their home market or below their actual cost, (c) countervailing duties to counteract foreign export subsidies, and (d) fees and other proper charges for services rendered.8 The legal framework established at Geneva in 1947 remained essentially unchanged until the creation of the World Trade Organization (WTO) in 1994 Even under that agreement, the substantive provisions of GATT 1947 live on, becoming one of the annexes to the Agreement Establishing the WTO (under the name GATT 1994).9 Multilateral Trade Negotiations To keep GATT 1947 up-to-date, the contracting parties regularly participated in multilateral trade negotiations (informally called rounds) Including the Geneva Round in 1947, when GATT was originally adopted, eight rounds of MTNs were held Most were held at Geneva, the location of the GATT headquarters.10 The current “round,” begun at Doha, Qatar (the “Doha Round”), has dissolved into a number of long-standing disputes, primarily over U.S and EU subsidies for their own agricultural industries and increased market access in less-developed countries for the manufactured products of developed nations The Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations (1994) refers to the original GATT as GATT 1947 to distinguish it from the GATT annexed to the Agreement Establishing the World Trade Organization, which it calls GATT 1994 The same nomenclature will be used here For a history of GATT through the completion of the Tokyo Round (1973–1979), see Frank Stone, Canada, the GATT and the International Trade System (1984) and “Understanding the WTO” at www.wto.org See also Jeffrey J Schott and Johanna W Buurman, “The Uruguay Round: An Assessment” (1994) and “What Is the WTO?” at www.wto.org/english/thewto_e/ whatis_e/whatis_e.htm#intro There were 23 original contracting states parties to GATT 1947 At that time they accounted for 80 percent of the world’s trade There are now 153 members, who account for 97 percent of world trade GATT 1947, in addition to these basic principles, contained various exceptions that could be invoked in special situations These included balance-of-payments disequilibriums, serious and unexpected damage to domestic production, the need to promote economic development, the need to protect the production of domestic raw materials, and the need to protect domestic national security interests The provisions of GATT 1947 are carried forward to GATT 1994 with few changes Essentially, only the Protocol of Provisional Application was not readopted 10 The eight rounds were Geneva (parallel with the negotiation of GATT 1947); Annecy, France (1949); Torquay, England (1950–1951); Geneva (1955–1956); the Dillon Round in Geneva (1961–1962); the Kennedy Round in Geneva (1964–1967); the Tokyo Round in Geneva (1973–1979); and the Uruguay Round in Montevideo, Geneva, Montreal, and Marrakesh (1986–1994) General Agreement on Tariffs and Trade (GATT) 1947 Multilateral agreement that set out the rules under which the contracting states parties were committed to negotiate reductions in customs tariffs and other impediments to international trade in goods most-favored-nation status When a GATT member nation sets a favorable tariff rate on a particular type of goods imported from one GATT member, that member nation may not assess a higher tariff on the particular type of goods being imported from any GATT nation national treatment Once goods are legally imported, they must be treated the same way as domestic goods (no additional requirements) transparent Trade regulations of GATT members must be published and available to all other GATT nations and their nationals round A meeting of the contracting parties of GATT to participate in MTNs www.downloadslide.net 364 Chapter 7 • Trade in Goods Kennedy Round GATT MTNs held from 1964 to 1967 that established the practice of setting an agenda for and defining the techniques to be used during GATT negotiations Tokyo Round GATT MTNs held from 1973 to 1979 that produced six nontariff codes Since one of the main purposes of the GATT agreement was to reduce tariffs, the first five rounds were devoted almost exclusively to tariff reductions, while the last three completed rounds (the Kennedy, Tokyo, and Uruguay Rounds) expanded their agendas to nontariff matters Negotiations in the early rounds were generally carried on bilaterally, on a product-by-product basis That is, the two states most interested in a particular product would negotiate a bargain through the time-honored process of offer, counteroffer, and agreement Agreed-upon concessions in the form of bound tariff rates were then extended to all other GATT contracting parties as a consequence of the most-favorednation principle More comprehensive negotiating techniques were proposed and used for the first time in the Kennedy Round (1964–1967) At a plenary session of the contracting parties held immediately prior to this MTN, the contracting states issued a declaration defining the agenda and the negotiation techniques to be used The declaration also called for two kinds of across-the-board tariff reductions One was a uniform percentage reduction in tariffs among all contracting parties The other was the use of various mathematical formulas to make the various tariff schedules more consistent; that is, higher tariffs were reduced more and lower tariffs less Fifty-four states participated in the negotiations and 400,000 tariff headings were covered The result was an average 35 percent reduction in duties levied on industrial products, a reduction that was phased in over a five-year period In addition to the negotiations on tariffs, the Kennedy Round dealt with the problems of nonreciprocity for developing states and with nontariff obstacles The developing states parties successfully added a new part to the General Agreement entitled “Trade and Development,” which called for stabilization, as far as possible, of raw material prices; reduction or elimination of customs duties and other restrictions that unreasonably differentiate between products in the primary (or raw) state and the same products in their finished form; and renunciation by the developed states of the principle of reciprocity in their relations with developing states In the area of nontariff barriers to trade, the Kennedy Round produced an agreement on anti-dumping (popularly called the Anti-dumping Code) The next multilateral trade negotiations, known as the Tokyo Round (1973–1979), were characterized by an ambitious agenda and the participation of non-GATT states In all, 102 states participated As with the Kennedy Round, formulas for negotiating tariffs were again applied, but with less success For a variety of political reasons, tariff rates for some items (e.g., agricultural products and exempt industrial products) were not cut at all, and the cuts on other items were larger or smaller than they would have been if the formulas had been applied Nevertheless, the tariffs on industrial products were cut, again, an average of 35 percent, to an overall range of to percent among the developed states parties Also, following the example of the Kennedy Round, the Tokyo Round produced several special agreements (popularly known as codes) to regulate nontariff matters as well as several sectoral agreements to promote trade in particular commodities These codes, which were sponsored but not administered by GATT, were multilateral treaties open to ratification by any state Six codes were completed: (1) customs valuation, (2) subsidies and countervailing measures, (3) anti-dumping, (4) standards, (5) import licensing, and (6) government procurement In addition, three sectoral agreements were concluded on trade in civil aircraft, dairy products, and bovine meat The Uruguay Round Uruguay Round GATT MTNs held from 1986 to 1994 that resulted in the establishment of the World Trade Organization The Uruguay Round (1986–1994)11 brought about a major change in the institutional structure of the GATT, replacing the informal GATT institution with a new institution: the World Trade Organization.12 The round concluded on April 15, 1994, when representatives of 108 states Calls for a new round of MTNs were made soon after the Tokyo Round was completed GATT set up a preparatory committee in 1982 to create an agenda for a new round, but it was not until 1986, after much debate, that the GATT members formally began negotiations 12 For a historical overview of the Uruguay Round, see “Understanding the WTO: The Uruguay Round” at www.wto.org/ english/thewto_e/whatis_e/tif_e/fact5_e.htm The introduction to this WTO Web page discussing the Uruguay Round begins, “It took seven and a half years, almost twice the original schedule By the end, 123 countries were taking part It covered almost all trade, from toothbrushes to pleasure boats, from banking to telecommunications, from the genes of wild rice to AIDS treatments It was quite simply the largest trade negotiation ever, and most probably the largest negotiation of any kind in history.” 11 www.downloadslide.net Chapter 7 • Trade in Goods 365 signed its Final Act13 at a ceremony in Marrakesh, Morocco, and committed their governments to ratify the results of the round.14 Again, as it had with the ITO Charter, the world waited to see if the U.S Congress would approve of the new institution This time, after much delay, including time out for an election, Congress convened in an extraordinary session and ratified the Final Act on December 8, 1994 Moments after the vote was announced in Washington, the representatives of the old GATT convened an Implementation Conference in Geneva and agreed that its successor institution, the World Trade Organization, would officially come into existence on January 1, 1995.15 The Uruguay Round Final Act is made up of three parts that together form a single whole The first part, the formal Final Act itself, is a one-page “umbrella” that introduces the other two parts Most importantly, this first part provides that its signatories agree to (1) submit the Agreement Establishing the World Trade Organization (WTO Agreement) and its annexes (with the exception of four Plurilateral Trade Agreements) to their appropriate authorities for ratification and (2) adopt the Ministerial Declarations, Decisions, and Understandings agreed to during the course of the negotiations The second part of the Final Act is made up of the WTO Agreement and its annexes, of which there are two kinds: Multilateral Trade Agreements and Plurilateral Trade Agreements Multilateral Trade Agreements are “integral parts” of the WTO Agreement and are “binding on all members” of the WTO.16 They consist of (1) 14 Agreements on Trade in Goods (including GATT 1994), (2) the General Agreement on Trade in Services (GATS), (3) the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), (4) the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and (5) the Trade Policy Review Mechanism (TPRM) The four Plurilateral Trade Agreements are also part of the WTO Agreement, but they are only binding on those member states that have accepted them They “do not create either obligations or rights for members that have not accepted them.”17 The third and final part comprises the ministerial declarations, decisions, and understandings just mentioned.18 See Figure 7.5 B The World Trade Organization The World Trade Organization (WTO) is best described as an umbrella organization under which the agreements that came out of the Uruguay Round of MTNs are gathered.19 As the WTO Agreement states, the WTO is meant to provide the “common institutional Its full title is the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations The European Community (now the European Union) and 108 states signed the Final Act at Marrakesh Bureau of National Affairs, International Trade Reporter, vol 11, p 610 (April 20, 1994) At the conclusion of the Uruguay Round, 125 states were participating in the negotiations John Kraus, The GATT Negotiations: A Business Guide to the Results of the Uruguay Round, p (1994) 13 14 GATT 1947 was itself to continue to function “in tandem” with the WTO until the end of 1995 so that the business then being carried on by GATT could gradually be turned over to the WTO GATT state parties became free to withdraw from GATT 1947 at the end of 1995 Bureau of National Affairs, International Trade Reporter, vol 11, p 1925 (December 14, 1994) 15 Agreement Establishing the World Trade Organization, Article II, para (1994) The requirement that the member states of the WTO have to participate in the Multilateral Trade Agreements (which include updated versions of many of the Tokyo Round codes) “ends the free ride of many GATT members that benefited from, but refused to join, new agreements negotiated in the GATT since the 1970s.” Many states, especially developing states, must now adopt trade rules to bring themselves into compliance In this respect, the WTO Agreement requires a higher degree of commitment from its members than the old GATT, which had allowed its contracting states to decline participation in its ancillary agreements Jeffrey J Schott and Johanna W Buurman, The Uruguay Round: An Assessment, p 133 (1994), quoting Professor John H Jackson 16 Agreement Establishing the World Trade Organization, Article II, para (1994) The Final Act, the WTO Agreement, and a selection of the annexes and ministerial decisions and declarations are reproduced in International Legal Materials, vol 33, pp 1–152 (1994) They are also available at www.wto.org/english/docs_e/legal_e/ legal_e.htm#wtoagreement 17 18 19 The WTO home page is www.wto.org For the WTO’s own description of what it does, see “What Is the World Trade Organization?” at www.wto.org/english/thewto_e/whatis_e/whatis_e.htm#intro World Trade Organization (WTO) Intergovernmental organization responsible for (1) implementing, administering, and carrying out the WTO Agreement and its annexes; (2) acting as a forum for ongoing MTNs; (3) serving as a tribunal for resolving disputes; and (4) reviewing the trade policies and practices of WTO member states www.downloadslide.net 366 Chapter 7 • Trade in Goods Figure 7.5 I FINAL ACT II AGREEMENT ESTABLISHING THE WORLD TRADE ORGANIZATION (WTO AGREEMENT) Outline of the Final Act Embodying the Results of the Uruguay Round of MTNs Annex 1A: Agreements on Trade in Goods 10 11 12 13 14 General Agreement on Tariffs and Trade 1994 Uruguay Round Protocol to the General Agreement on Tariffs and Trade 1994 Agreement on Agriculture Agreement on Sanitary and Phytosanitary Measures Agreement on Textiles and Clothing Agreement on Technical Barriers to Trade Agreement on Trade-Related Investment Measures Agreement on Implementation of Article VI [concerning anti-dumping] Agreement on Implementation of Article VII [concerning customs valuation] Agreement on Preshipment Inspection Agreement on Rules of Origin Agreement on Import Licensing Procedures Agreement on Subsidies and Countervailing Measures Agreement on Safeguards Annex 1B: General Agreement on Trade in Services Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights Annex 2: Understanding on Rules and Procedures Governing the Settlement of Disputes Annex 3: Trade Policy Review Mechanism Annex 4: Plurilateral Trade Agreements Annex 4(a): Agreement on Trade in Civil Aviation Annex 4(b): Agreement on Government Procurement Annex 4(c): International Dairy Agreement a Annex 4(d): International Bovine Meat Agreement b III MINISTERIAL DECISIONS AND DECLARATIONS framework” for the implementation of those agreements 20 The WTO thus serves four basic functions: To implement, administer, and carry out the WTO Agreement and its annexes,21 To act as a forum for ongoing multilateral trade negotiations,22 To serve as a tribunal for resolving disputes,23 and To review the trade policies and practices of member states.24 Additionally, the WTO is to cooperate with the IMF and the World Bank in order to achieve greater coherence in global economic policymaking.25 Agreement Establishing the World Trade Organization, Article II, para (1994) Id., Article III, para 22 Id., para 23 Id., para 24 Id., para 25 Id., para 20 21 www.downloadslide.net Chapter 7 • Trade in Goods 367 The WTO’s Web site is at www.wto.org The WTO Agreement The Agreement Establishing the World Trade Organization (WTO Agreement) has been described as a “mini-charter”26 because it is much less complex than the ITO’s Havana Charter The Havana Charter, of course, was never ratified—GATT 1947 was adopted instead What the WTO Agreement does is to transform GATT 1947, which was a trade accord serviced by a professional secretariat, into a membership organization.27 The WTO Agreement, to reiterate, is not a reenactment of the stillborn Havana Charter Its provisions are exclusively institutional and procedural, unlike those of the Havana Charter, which contained substantive provisions of its own.28 The WTO Agreement in essence establishes a legal framework to bring together the various trade pacts that were negotiated under GATT 1947 Thus, the WTO was created as a unified administrative organ to oversee all of the Uruguay Round Agreements This unification solves two problems that hampered the old GATT First, because GATT 1947 dealt with trade in goods, there was no obvious mechanism for handling agreements relating to trade in services and the protection of intellectual property rights The WTO Agreement, which “separates the institutional concepts from the substantive rules,”29 eliminates this difficulty Second, because the ITO never came into existence, the old GATT had no formal institutional structure The establishment of the WTO rectifies this The WTO Agreement, however, is not substantially different either in scope or function from the old GATT It does not create a new supranational organization with the power to usurp the sovereignty of its members.30 In fact, the WTO is to be guided by the procedures, customary practices, and decisions of the old GATT.31 As Professor John Jackson, the author of an early draft of what was to become the WTO Agreement, told the U.S Senate Finance Committee about the WTO, it “has no more real power than that which existed for the GATT under the previous agreements.”32 Later in this chapter, GATT 1994 and the other multilateral agreements relating to trade in goods are examined in some detail The General Agreement on Trade in Services (GATS) is discussed in Chapter and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is explored in Chapter Membership of the WTO Cape Verde and the Ukraine joined the WTO in 2010, bringing its total membership to 153 During 2011, the WTO approved the membership of Montenegro, Russia, Samoa, and Vanuatu Before they become members of the WTO, the deals have to be ratified by their respective parliaments— which is expected to happen during 2012 In addition, a further 26 countries are seeking to join the WTO In order to join the WTO, a nation must complete an “accession agreement” which must be approved by all WTO members.33 The negotiations with the many nations and various groupings within the WTO are lengthy and complex Russia’s accession to the WTO is discussed in more detail below 26 Jeffrey J Schott and Johanna W Buurman, The Uruguay Round: An Assessment, p 133 (1994), quoting John H Jackson 27 Id Thomas J Dillon, Jr., “The World Trade Organization: A New Legal Order for World Trade,” Michigan Journal of International Law, vol 16, p 349 at p 355 (1995) 28 Uruguay Round Legislation, March 23, 1994, Hearings before the Senate Finance Committee, 103rd Congress, Second Session, p 195 at p 197 (testimony of John H Jackson) 29 Thomas J Dillon, Jr., “The World Trade Organization: A New Legal Order for World Trade,” Michigan Journal of International Law, vol 16, p 349 at pp 355–356 (1995) 31 Agreement Establishing the World Trade Organization, Article XVI, para (1994) 30 Uruguay Round Legislation, March 23, 1994, Hearings Before the Senate Finance Committee, 103rd Congress, Second Session, p 195 at p 197 (testimony of John H Jackson) 33 See the WTO Web site for accession information at: http://www.wto.org/english/thewto_e/acc_e/cbt_course_e/signin_e.htm 32 www.downloadslide.net Topical Index 719 mixed sales of goods and services, applicability to, 568 opting in or out of, 562–567 parties to, 560, 561 performance, general standards of, 587–588 personal injury actions, exclusion of, 569, 570 plain meaning rule, 573 preemption of domestic law where CISG applicable, 570–572 private international law rules as source for interpreting, 574 sales, defined, 567 third-party claims, exclusion of, 569, 570 transactions covered by, 560–569 travaux préparatoires, 573 Convention on Insider Trading, 296 Convention on Nomenclature for the Classification of Goods in Customs Tariffs, 386 Convention on Stolen or Illegally Exported Cultural Objects, 396 Convention on the Contract for International Carriage of Goods by Road (CMR), 622 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property, 395 Convention on the Protection of the Archaeological, Historical, and Artistic Heritage of the American Nations, 395 Convention on the Settlement of International Disputes between States and Nationals of Other States, 62 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 140 Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite (Satellite Transmission Convention), 530 Coordinating Committee on Multilateral Export Controls (COCOM), 396 copyrights, 490–504 compulsory licenses, 557 defined, 490 distribution rights, 492 doctrine of exhaustion, 492 duration of, 504 exceptions to, 504 expression, 501 formalities, 503 moral rights, 497–498 neighboring rights, 502 original works, 501 pecuniary rights, 491 performance rights, 493 reproduction rights, 491–494 scope of, 503 works covered by, 498 Corpus Juris Civilis, 65, 66 correspondent banks, 343 corruption, at World Bank, 326 Cosmopolitans, 22 cost and freight (CFR), 616 cost, insurance, and freight (CIF), 616 COTIF See Convention Concerning International Carriage by Rail (COTIF) Council for Trade in Services, GATS, 436–437, 438 Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS Council), 526 Council of Europe, 58 worker rights, protection of, 466–468 Council of the European Union, 54 counterterrorism conventions, 77–78 countertrade, 699–700 countervailing measures Agreement on (See Agreement on Subsidies and Countervailing Measures (SCM Agreement)) defined, 420 country of origin of goods, 425 Court of Common Pleas, 68 Court of Exchequer, 68 Court of King’s Bench, 68 courts Court of Common Pleas, 68 Court of Exchequer, 68 Court of King’s Bench, 68 European Court of First Instance, 57 European Court of Justice, 56 International Court of Justice (ICJ) (See International Court of Justice (ICJ)) municipal (See municipal courts) pepoudrous, 66 credit tranche, 323–324 creditors of subsidiaries, protections for, 276–277 creeping expropriation, 108 cross-licensing agreements, 542 cross-ownership of shares, 293 culpa (fault), 87 cultural property, export controls for protection of, 395–396 currency See also money basket (See currency basket) cash forward contracts, 346 convertibility guarantees, OPIC, 108 exchange mechanisms (See currency exchange) hard, 343 intermediary, 343 soft, 343 support function, of IMF (See currency support, by IMF) currency basket defined, 305 Special Drawing Right (SDR), 305–307 currency exchange enforcement of exchange control regulations, 314–319 enforcement of general obligations, 322–323 exchange contracts, defined, 313–314 exemptions for new members, 323 obligations of IMF member states, 313–314 par value system, 313 Second Amendment system, 313–314 currency support, by IMF, 323–324 compensatory financing facility, 324 concessional facility, 324 conditionality, 324 contingent credit lines, 324 credit tranche, 323 extended fund facility, 323 facilities available to member states, 323–324 Poverty Reduction and Growth Facility, 324 reserve tranche, 323 special facilities, 324 standby arrangements, 324 supplemental reserve facility, 324 current international transaction, 322 custom, 27–28 defined, 27 opinio juris sive necessitates, 27 persistent objections to, 27–28 usus, 27 Custom of Paris, 67 Customs Cooperation Council (CCC), 386, 425 customs unions, 60, 386 customs valuation, 399 www.downloadslide.net 720 Topical Index Customs Valuation Code See Agreement on Implementation of Article VII of Gatt 1994 (Customs Valuation Code) D damages for breach of contract, 606 compensatory damages, 103 foreseeability test, 606 mitigate losses, duty to, 606 dead freight charge, 646 debt funding, 696 declaratory doctrine, 33 deductive value method of customs valuation, 399 delicts, 171 delivered ex ship (DES), 614 delivery of goods, sales contracts by carrier, 598–599 means of, 598–599 place for, 589 time for, 589 trade terms (See trade terms) without being transported, 599 demurrage, 646 denial of justice, 93–96 dependent states, 32–33 depository receipts, 287 Depository Trust Company Corporation (DTCC), 286 derived value method of customs valuation, 399 DES See delivered ex ship (DES) design patents, 506 destination contracts, 599 development banks, 324–333 financing of foreign operations, 697–698 International Fund for Agricultural Development (IFAD), 325 regional development organizations, 325 World Bank (See World Bank) diplomacy, 127–129 defined, 127 inquiry, 128–129 mediation, 128 negotiation, 128 direct effect, of GATT 1994 provisions, 376 dirty hands, 103, 606–607 disclosure obligations, of subsidiaries, 274–276 dispositive treaties, 38 dispute settlement, 127–181 choice of law (See choice of law) by diplomacy (See diplomacy) International Labor Organization (ILO), 449 jurisdiction (See jurisdiction) in municipal courts (See municipal courts) Dispute Settlement Body (DSB), WTO, 136, 416 distinctiveness, of trademarks, 516 distribution rights, copyrighted works, 492–496 distributorships, 533 documents against acceptance, 682 documents against payment, 682 DSB See Dispute Settlement Body (DSB),WTO DTCC See Depository Trust Company Corporation (DTCC) Dumbarton Oaks conference, 361 dumping Anti-dumping Code, 409–410 defined, 409 duty-free zones See free retail zones E EAEC See European Atomic Energy Community (EAEC or Euratom) Eastern Caribbean Currency Authority (ECCA), 336 EC Treaty See European Community Treaty (EC Treaty) ECB See European Central Bank (ECB) ECCA See Eastern CaribbeanCurrency Authority (ECCA) Economic and Monetary Community of Central Africa (CEMAC), 337 Economic and Social Council (ECOSOC), United Nations, 41, 387 economic consultative associations, 61 ECOSOC See Economic and Social Council (ECOSOC), United Nations ECSC See European Coal and Steel Community (ECSC) Treaty effects test, subject matter jurisdiction, 199 EFTA See European Free Trade Association (EFTA) EMCC See Emerging Markets Clearing Corporation (EMCC) Emerging Markets Clearing Corporation (EMCC), 287 eminent domain, 89 employment law See labor laws and regulations EMU See European Monetary Union (EMU) endorsement of bills and notes agency, 670 blank, 667 for collection, 669 conditional, 669 defined, 669 effect of, under common law and ULB, 670 fictitious payee rule, 674 forged, 670–674 imposter rule, 671 prohibiting further endorsements, 669 qualified, 669 restrictive, 669 special, 666–667 enforcement of disclosure requirements for subsidiaries, 276 foreign investment laws or agreements, penalties for noncompliance with, 282 of foreign judgments, 181 of ICSID awards, 148 of IMF currency exchange regulations and general obligations, 314–323 of securities regulations, 295–298 of WTO dispute settlements, 137 environmental protection, 109–124 Conference on the Environment and Development (See United Nations Conference on the Environment and Development) liability for environmental damage, 124 natural resources protection, 123–124 nuclear materials, 123 pollution, regulation of (See pollution, regulation of) precautionary approach, 110 Stockholm Conference on the Human Environment, 109 toxic waste, regulation of, 123 EPZs See export processing zones (EPZs) equality of treatment doctrine See national standard of care equity, 68 equity funding, 697 escape clause, under GATT 1994, 388 ESCB See European System of Central Banks (ESCB) www.downloadslide.net Topical Index 721 estoppel, 38 Estrada doctrine, 34 EU See European Union (EU) EU Treaty See European Union (EU) Treaty Euratom See European Atomic Energy Community (EAEC or Euratom) euro, 338 Euroclear, 286 Eurocurrency deposits, 342 Eurodollars, 342 European Atomic Energy Community (EAEC or Euratom), 46 European Central Bank (ECB), 58, 337 European Coal and Steel Community (ECSC) Treaty, 46 European Commission, EU, 55 European Community Treaty (EC Treaty), 46, 206, 462–463 European Convention on Human Rights of 1950, 466–468 European Council, EU, 54–55 European Court of Auditors, EU, 58 European Court of First Instance, EU, 57 European Court of Human Rights, 59 European Court of Justice, EU, 47, 56–57 European Economic and Social Committee, EU, 57 European Free Trade Association (EFTA), 61 European Monetary Union (EMU), 337 European Parliament, EU, 55–56 European Social Charter, 467–468 European Space Agency, 59 European System of Central Banks (ESCB), 58, 337, 338 European Union (EU), 45–47 Berlin Declaration, 46 codecision procedure, 56 Council of the European Union, 54 Court of Auditors, 58 Court of First Instance, 57 Court of Justice, 47, 56–57 Economic and Social Committee, 57 European Central Bank (ECB), 58 European Commission, 55 European Council, 54–55 European Parliament, 55–56 European System of Central Banks (ESCB), 58 freedom of movement of workers, 462–465 freedom to provide services, 442 historical background, 46 institutions of, 54–62 labor laws, 462–465 member states, 45–46 passport requirements, 469 right of establishment, 441–442 Services Directive, 442 supranational powers, 47–53 trade in services, law on, 441–442 European Union (EU) Treaty, 46 ex works (EXW), 620 exceptions commercial activity exception to sovereign immunity, 159–162 to GATT 1994, 388–389 to General Agreement on Trade in Services (GATS), 437–438 exchange contracts, defined, 314–315 exclusive licenses, 543–545 executive agreements, 29 Executive Board, IMF, 310–313 exhaustion-of-rights doctrine, 492, 536–539 export controls, 389, 395 Australia Group, 396 cultural property, protection of, 395–396 Missile Technology Control Regime, 398 Nuclear Suppliers Group (NSG), 397–398 United Nations sanctions, 398 Wassenaar Arrangement, 396 Zangger Committee, 397 export processing zones (EPZs), 267 export restrictions, on intellectual property licenses, 539 Export-Import Bank, 698 Exporters Insurance Company of Bermuda, 107 exporting businesses, 184 expropriation, 89–93 constitutional provisions regarding, 268 creeping, 108 defined, 89, 268 guarantees related to, 268–269 insurance coverage for, 108 extended fund facility, 323 extraordinary rendition, 77 extraterritorial application of laws labor laws and regulations, 483–486 over foreign banks, by U.S subpoenas of foreign branches, 346–347 securities regulations,U.S., 295 EXW See ex works (EXW) F facilities of Bank for International Settlements (BIS), 334 of International Monetary Fund (IMF), 323–324 factor See agents, for multinational enterprises Fahd, King of Saudi Arabia, 69–70 false conflicts case, choice of law in, 175 FAS See free alongside ship (FAS) fault, and state responsibility, 87 FCA See free carrier (FCA) fictitious payee rule, 674 Field Code of New York, 69 Field, David Dudley, 69 field-of-use restrictions, on intellectual property licenses, 548–549 Final Act, Uruguay Round, 365, 366, 367 financial contagion, 324 financing, 657–701 bills of exchange (See bills of exchange) bills of lading (See bills of lading) countertrade, 699–700 foreign operations (See financing foreign operations) of foreign trade, 658 letters of credit (See letters of credit) promissory notes (See promissory notes) financing foreign operations, 697–699 debt funding, 697 development banks, 697 equity funding, 697 governmental sources of capital, 697–698 import and export financing agencies, 698 firm offers, 582 FOB See free on board (FOB) force majeure, 603, 606–607 Foreign Credit Insurance Association, 107 foreign exchange contracts (See foreign exchange contracts) defined, 343 market, 343 foreign exchange contracts, 344–346 forward contracts, 346 future contracts, 344 hedging contracts, 344–255 option contracts, 346 spot contracts, 344 www.downloadslide.net 722 Topical Index foreign investment, 238–299 applications (See applications, foreign investment) bilateral investment treaties (BITs) (See bilateral investment treaties (BITs)) business forms, 250–252 direct investment in India, 252–256 foreign equity limitations, 252 free trade areas (FTAs), 60, 263 free zones (See free zones) geographic limitations, 257–262 guarantees (See guarantees, for foreign investment) laws and codes, 238–299 modification of investment agreements, 271–274 national policies, 243–245 operational reviews, 270 penalties for noncompliance with laws or agreements, 281 protection of subsidiaries (See subsidiaries) regional policies, 245–246 sectoral limitations (See sectoral limitations, on foreign investment) securities regulations (See securities regulations) start-up standards, 270 supervision of, 270–274 foreign judgments, recognition of, 181 foreign priority sectors, 253 foreseeability test, damages, 606 forged endorsements, 670–674 forum, 148 forum non conveniens, 176, 224 forum selection clauses, 154–159 forward contracts, 346 Four Freedoms Speech (Roosevelt), 455 franchises and franchising, 185–186, 533–534 chain-style business arrangement, 533 defined, 533 distributorships, 533 license, distinguished, 533 manufacturing or processing plant, 533–534 fraud and letters of credit, 693–696 at World Bank, 326 Frederick the Great, 67 free alongside ship (FAS), 616 free carrier (FCA), 620 free city, 263 free on board (FOB), 615–616 free retail zones, 267 free trade areas (FTAs), 60, 263, 386 free trade zones (FTZs), 263 free zones, 262–268 activities allowed in, 267 bonded warehouses, 268 defined, 262–268 export processing zones (EPZs), 267 free city, 263 free retail zones, 267 free trade areas (FTAs), 60, 263 free trade zones (FTZs), 263 maquiladora program, 267 subzones, 263 freedom of movement of workers, EU, 462–463 freedom to provide services, in EU, 441 freight forwarders, 620 French Civil Code of 1804, 67 FTAs See free trade areas (FTAs) FTZs See free trade zones (FTZs) G GATS See General Agreement on Trade in Services (GATS) GATT See General Agreement on Tariffs and Trade (GATT) GEF See Global Environment Facility (GEF) General Agreement on Tariffs and Trade (GATT 1947), 363, 387, 399 codes, 364 Kennedy Round, 364 most-favored-nation status, 363 multilateral trade negotiations, 363–364 national treatment principle, 363 Tokyo Round, 364 transparency requirement, 363 Uruguay Round, 364–365, 367 General Agreement on Tariffs and Trade (GATT 1994), 136, 376–398 commodity arrangements, 387–388 contents of, 376–398 cultural property, protection of, 395–396 direct effect of, 376 escape clause, 388 exceptions, 388–389 export controls, 389, 395 Generalized System of Preferences (GSP), 380 most-favored-nation rule, 380 national treatment rule, 380 nondiscrimination principle, 380 safeguards, 388 South-South Preferences, 380 tariffs, use of, 385 transparency requirement, 386 General Agreement on Trade in Services (GATS), 136, 429–441 annexes, 436–437, 439–441 Council for Trade in Services, 436–437 Framework Agreement, 430 general exceptions, 437 general obligations of member states, 435–436 institutional structure, 438 most-favored-nation (MFN) treatment, 435 NAFTA provisions compared, 444 national treatment, 435–436 progressive liberation as goal of, 438 purpose of, 429–488 regional economic integration, 435 restrictions, requirements regarding, 435–436 Schedules of Specific Commitments, 438–441 scope and definitions, 430–434 security exceptions, 437 specific commitments to market access for sectors, 437–438 trade in services, defined, 430 transparency provision, 435 General Assembly, United Nations, 41 general average, in maritime ventures, 654 general exceptions to GATT 1994, 388–389 to General Agreement on Trade in Services (GATS), 437 general IGOs, 58–59 general principles of law, 28 Generalized System of Preferences (GSP), 380 genetically modified foods, 402 Geneva Conventions on the Unification of the Law Relating to Bills of Exchange (ULB), 659, 670, 675 Geneva Conventions on Unification of the Law Relating to Checks (ULC), 659 genuine link, lack of, 97 geographic limitations, on foreign investment, 257–262 German Civil Code of 1896, 67 Global Environment Facility (GEF), 325 Global Financial Stability Report, 309 global warming, 118–122 globalization, 359 glossators, 65 gold bullion standard, 307 gold standard, 307 www.downloadslide.net Topical Index 723 good offices, 128 goods conformity of (See conformity of goods to contract) defined, 567 delivery of (See delivery of goods, sales contracts) trade in (See trade in goods) governing law See choice of law governmental interest doctrine, 175 grant-back provisions, 551 gray marketing, 539 Great Depression, 307, 308, 360–362 Group of 77 (G-77), 61 Group of Eight (G-8), 240 GSP See Generalized System of Preferences (GSP) guarantees, for foreign investment, 268–270 nondiscrimination guarantees, 269 repatriation guarantees, 269 stabilization clauses, 270 H Hague Choice of Courts Agreement Convention, 24 Hague Rules See International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading Hague-Visby Rules, 623, 634 hard currencies, 343 Harmonized System (HS) of tariffs, 386 Havana Charter, ITO, 362, 367 Hawley-Smoot Tariff Act of 1930, 360 HDC See holder in due course (HDC) hedging contracts, 344–345 Henry II, King of England, 68 Himalaya clause, 644 Hobbesian view of international law, 22 holder, 675 holder in due course (HDC), 675 holding companies, 193 horizontal competition agreements, 542 HS See Harmonized System (HS) of tariffs human rights, 62–65 European Convention on Human Rights of 1950, 465–466 intergovernmental organizations (IGOs) and, 58–59 state responsibility compared, 62–65 of workers, 456–462 Human Rights Commission, 59 humanists, 66 I IAEA See International Atomic Energy Agency (IAEA) IASB See International Accounting Standards Board (IASB) ICANN See Internet Corporation for Assigned Names and Numbers (ICANN) ICC See International Chamber of Commerce (ICC); International Criminal Court (ICC) ICJ See International Court of Justice (ICJ) ICSID See International Center for the Settlement of Investment Disputes (ICSID) IDA See International Development Agency (IDA) IFAC See International Federation of Accountants (IFAC) IFAD See International Fund for Agricultural Development (IFAD) IFC See International Finance Corporation (IFC) IGOs See intergovernmental organizations (IGOs) ijtihad, and Islamic law, 70 ILO See International Labor Organization (ILO) ILO Convention No 87 See Convention Concerning Freedom of Association (ILO Convention No 87) ILO Convention No 98 See Convention Concerning the Application of the Principles of the Right to Organize and to Bargain Collectively (ILO Convention No 98) IMF See International Monetary Fund (IMF) immunity, 148 act of state doctrine, 167–169 defined, 148 sovereign (See sovereign immunity) import-licensing procedures, 408 importing businesses, 184 imposter rule, 671 imputability doctrine, 72 impute, 72 in personam jurisdiction, 149–150 in rem jurisdiction, 159 in-transit contracts, 599 incorporation, doctrine of, 29 Incoterms, 610 independent lines, 623 independent states, 32 India bilateral investment treaties (BITs), 242–243 foreign direct investment in, 253–256 industrial property, 490 inventions, 490 trademarks (See trademarks) injunctions, anti-suit, 180 inland carriage of goods, 621–622 inquiry, 128–129 insider, 291 insider trading, 287–292 Convention on Insider Trading, 296 defined, 287 material information, 291, 292 installment note, 662 instruction, money transfers, 346 insurance, 103–106 defined, 103 maritime (See maritime insurance) multilateral investment guaranty programs, 109 national investment guaranty programs, 107–109 private insurers, 107 types of international products, 103 Integrated Program for Commodities (IPC), 388 integration clauses, 575 intellectual property, 490 artistic property, 490 copyrights (See copyrights) creation of rights, 490–524 defined, 490 industrial property (See industrial property) international organizations protecting, 524 international transfer of, 533–534 know-how, 523–524 licensing of (See licensing of intellectual property) patents (See patents) treaties, 526–533 intentional tort liability, 210–213 Inter-American Commission on Human Rights, 59 interest, on bank deposits, 343 intergovernmental organizations (IGOs), 40–53 See also European Union (EU); United Nations; specific organizations defined, 40 general IGOs, 58–59 legal capacity of, 40 numbers of, 40 specialized IGOs, 59–61 www.downloadslide.net 724 Topical Index intermediary currency, 344 International Accounting Standards Board (IASB), 275 International Air Transport Association, 61 International Atomic Energy Agency (IAEA), 42, 123 International Bar Association, 61 International Bureau of Industrial Property, 40 International Bureau of Literary Property, 40 International Center for the Settlement of Investment Disputes (ICSID), 140–148, 239, 240 constituting a tribunal, 141–142 enforcement, 147 as exclusive remedy, 143 investment, defined, 142 jurisdiction, 143–144 NAFTA arbitrations under, 144–145 organizational structure, 140 place of arbitration, 142 provisional measures and awards, 147 purpose of, 140 rules for arbitration and conciliation, 141 selecting arbitrators, 142 unilateral withdrawal, effectiveness of, 142 International Chamber of Commerce (ICC), 62, 148 Incoterms, 599, 610, 614 Uniform Rules for Collections, 660 International Coffee Organization, 59–60 International Committee of the Red Cross, 61 International Convention for the Protection of Industrial Property (Paris Convention), 505, 524, 527, 531 International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations (Rome Convention), 529 International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (Hague Rules), 623 International Convention for the Unification of Certain Rules of Law Relating to Maritime Liens and Mortgages (Brussels Convention), 647 International Court of Justice (ICJ), 25, 129–134 advisory jurisdiction, 130, 132 composition of, 129–130 contentious jurisdiction, 130 functions of, 129 judgments, 132 jurisdiction of, 130–134 optional clause jurisdiction, 130–131 rule of reciprocity, 131 self-judging reservations, 132 International Covenant on Economic, Social and Cultural Rights, 455 International Criminal Court (ICC), 135 International Criminal Police Organization (INTERPOL), 60 International Development Agency (IDA), 325 International Federation of Accountants (IFAC), 275 International Finance Corporation (IFC), 325 International Fund for Agricultural Development (IFAD), 325 International Institute for the Unification of Private Law (UNIDROIT), 60, 389 International Labor Organization (ILO), 62, 445–462 Administrative Tribunal, 450 Commission of Inquiry, 449 Committee of Experts on the Application of Conventions and Recommendations, 448 Conference Committee on the Application of Conventions and Recommendations, 449 conventions, 446, 450 disabilities, report on workers with, 447 dispute settlement, 449 Fact-Finding and Conciliation Commission, 450 General Conference, 445 goal of, 445 Governing Body, 445 institutional structure, 445 International Labor Office, 445, 450 international labor standards, 446 recommendations, 447 reporting requirements for member states, 448 special list of defaultees, 449 international law, 21–70 Cosmopolitan view of, 22 defined, 21 Hobbesian view of, 22 in international tribunals, 28–29 jurisdiction (See jurisdiction) making of, 25 in municipal courts, 29–30 parties to, 32–62 Positivist view of, 22, 72 rights of individuals under, 62–65 scope of, in actual practice, 28–32 sources of, 25–28 International Monetary Fund (IMF), 307–313, 361 Articles of Agreement, 307, 308, 309 cooperation with World Bank, 332–333 currency exchange (See currency exchange) currency support (See currency support, by IMF) operations of, 313, 331–332 organization of, 312 origin of, 307–309 purpose and functions of, 309, 328–329 quotas, 310 recipients of funding, 330 size and structure, 328–329 sources of funding, 330 Special Drawing Right (SDR), 306, 307, 309 role of, 309 World Bank compared and contrasted, 328–333 international monetary system, 307–313 international multinational enterprises, 190–192 International Securities Clearing Corporation (ISCC), 287 international standard of care, 88–89 International Trade Organization (ITO), 362, 367 International Tribunal for the Law of the Sea, 112–116 Internet Corporation for Assigned Names and Numbers (ICANN), 526 INTERPOL See International Criminal Police Organization (INTERPOL) interpretation of sales contracts, 574–580 integration clauses, effect of, 575 negotiations, consideration of, 575 objective intent approach, 575 parol evidence rule, applicability of, 575 practices, 575–579 statements and conduct of parties, 575 subjective intent approach, 575 usages, 575–579 inventions, 490 inventive step, for patents, 507 www.downloadslide.net Topical Index 725 investment defined, for ICSID arbitrations, 144 foreign (See foreign investment) IPC See Integrated Program for Commodities (IPC) irrevocable letters of credit, 689, 690 ISCC See International Securities Clearing Corporation (ISCC) Islamic banking, 340–342 Islamic law system, 69–70 ITO See International Trade Organization (ITO) J Japan insider trading regulations, 292 product liability laws, 214–215 joint venture, 193 joint venture laws, 238–239 Joseph II, King of Austria, 67 judgments foreign, recognition of, 181 of International Court of Justice (ICJ), 132 juridical entities, 186 juridical person (persona ficta), 143, 149–150 jurisdiction bases for exercising, 24–25 in civil cases, 149–159 in criminal cases, 148–149 forum non conveniens as grounds for refusal to exercise, 176 forum selection clauses, 154–159 immunity from (See immunity) of International Center for the Settlement of Investment Disputes (ICSID), 144–145 of International Court of Justice (ICJ), 130–134 of International Criminal Court (ICC), 135 of municipal courts, 148–159 nationality nexus, 149 opposing exercise of, 176–180 personal (See in personam jurisdiction) in personam (See in personam jurisdiction) protective nexus, 149 reasonableness requirement, 149 refusal to exercise, 176 in rem, 159 subject matter (See subject matter jurisdiction) territoriality nexus, 148 universality nexus, 149 jurisdictional rule of reason test, 199 jus cogens, 28 jus commune, 66, 67 Justinian, Emperor, 65 K Kant, Immanuel, 497 Kennedy Round, GATT, 364 Keynes, John Maynard, 308, 309 Khomeini,Ayatollah, 70 know-how, 523–524 Kohler, Josef, 497 Kyoto Protocol, 119–122 L labor laws and regulations, 446 Council of Europe worker protections, 468 of European Union, 462–463 extraterritorial application of, 483–486 foreign workers, regulation of, 479–482 human rights of workers, 456–462 International Labor Organization (ILO) (See International Labor Organization (ILO)) Organization for Economic Cooperation and Development (OECD) standards, 465 transnational labor unions, 468 labor unions, transnational, 468 laches, 103 Land Record Management and Information System Project (LRMIS), 327 law administrative, 68 civil, 65–68 common, 68–69 comparative, 65 constitutional, 68 extraterritorial application of (See extraterritorial application of laws) international (See international law) Islamic, 69–70 municipal (See municipal law) proving foreign, 180–181 public, 68 supremacy of, 68 lay days, 646 League of Nations, 40, 360 legal capacity, of international organizations (IGOs), 40 legal dispute, 144 letters of credit, 682–697 account party, 682, 696 advising, 689 amendments, 693 application for, 685–689 banks obligations, 692 beneficiary, 682, 697 confirming, 689, 691 defined, 682 failure to obtain, consequences of, 685–689 form of, 689 fraud, effect of, 693–696 irrevocable, 689, 690 law governing, 683–685 revocable, 685 rule of strict compliance for documentation for, 692 standby, 697 types of, 683–685 waiver, 693 lex mercatoria, 66, 659 liability for environmental damage, 124 of parties to bills and notes, 675–678 licensing of intellectual property, 185–186, 534–553 anticompetitive effects of licenses, regulation of, 534 cartels, 542 common origin doctrine, 538–539 compulsory licenses (See compulsory licenses) cross-licensing agreements, 542 exclusive licenses, 543–545 exhaustion-of-rights doctrine, 492, 536 expiration of licensing agreement, restrictions after, 552 expiration of statutory rights, restrictions after, 550 export restrictions, 539–542 field-of-use restrictions, 548–549 franchising (See franchises and franchising) grant-back provisions, 551 gray marketing, 539 license, 533 multiple licensing agreements, 542 no-challenge clauses, 547 noncompetition clauses, 546 package licensing, 552 patent pools, 542 www.downloadslide.net 726 Topical Index licensing of intellectual property (continued ) price-fixing clauses, 546 quality control clauses, 550–551 quantity restrictions, 548–549 research and development, restrictions on, 550 sales and distribution arrangements, 545 territorial restrictions, 536–539 tying clauses, 547–548 London Court of International Arbitration, 148 long arm statutes, 198 LRMIS See Land Record Management and Information System Project (LRMIS) M Maastricht Treaty, 337 Madrid Agreement for the Repression of False or Deceptive Indications of Sources of Goods, 531 mailbox rule, 582 maintenance of value clause, 305 manufacturing or processing plant franchise, 533–534 maquiladora program, 267 marine pollution, regulation of, 111–118 maritime insurance, 650–654 maritime liens, 647–650 market access, 437 master nationality, 96 material information, 291, 292 mediation, 128 Memorandum of Association, 274 memorandums of understanding (MOUs), 295 Meng, K’ung, 62 MERCOSUR See Southern Cone Common Market (MERCOSUR) Merger Rule, 38 Merger Treaty, 46 MFA See Multi-Fiber Arrangement (MFA) MFN See most-favored-nation (MFN) treatment MIGA See Multilateral Investment Guaranty Agency (MIGA) minimum contacts test, personal jurisdiction, 199 minority shareholders of subsidiaries, protections for, 276 Missile Technology Control Regime, 398 missing specifications remedy for breach of contract, 604 mitigate losses, duty to, 594 MNEs See multinational enterprises (MNEs) modification of investment agreements, 271–274 monetary systems international, 307–313 national (See national monetary systems) regional, 336–338 money, 301–307 See also currency choice of, 302–304 defined, 301, 665 in international transactions, 302 maintaining monetary value, 302 monetary systems (See monetary systems) official, 301 private, 301 value of, 301–302 money of account, 302 money of payment, 302 moral rights, copyrighted works, 498 mortgage note, 662 most significant relationship doctrine, 171–175 most-favored-nation (MFN) treatment Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 498 GATT 1947 provisions, 363 GATT 1994 provisions, 382 General Agreement on Trade in Services (GATS) provisions, 435 MOUs See memorandums of understanding (MOUs) movement of workers, 468–487 foreign workers, regulation of, 479–482 passport requirements, 469 percentile legislation, 479 visas (See visas) Moving Boundaries Rule, 38 Multi-Fiber Arrangement (MFA), 425 Multilateral Investment Guaranty Agency (MIGA) (World Bank), 109 multilateral investment guaranty programs, 109 multilateral trade agreements, of WTO Agreement, 365, 398–426 agriculture, agreement on, 422 Anti-dumping Code, 409–410 customs valuation, 399 import-licensing procedures, 409 preshipment inspection (PSI), 400 regulatory agreements, 398–426 rules of origin, 425 safeguards, 421 sanitary and phytosanitary measures, 402 sectoral agreements, 398, 422 technical barriers to trade, 400–401 textiles and clothing, agreement on, 424–425 trade-related investment measures, 402 multilateral trade negotiations, GATT, 363–364 multilateral treaties, 25 multinational enterprises (MNEs), 62, 183–237 anti-suit injunctions, 208 blocking statutes, 207 branches, 184 bribery, 196 business forms, 186 (See business forms) common enterprise liablility, 231–232 corruption, 196 exporting, 184 home state regulation of, 196–231 host state regulation of, 231–236 importing, 184 insurance for (See insurance) international regulation of, 193–196 licensing and, 185–186 long arm statute, 198 multinational organization, 186–193 organization of (See organization of multinational enterprises) parent company, 186 product liability, 213 sharp practices, 224–225 subordinate structure, 192–193 subsidiaries, 184 unfair competition laws, 196–210 multiple licensing agreements, 542 municipal courts, 148–159 choice of law (See choice of law) immunity of states from jurisdiction of, 159–169 international law in, 29–30 jurisdiction of, 148–159 proving foreign law, 180–181 municipal law, 65–70 Anglo-American common law system, 68–69 as subservient to international law, 28 Islamic law system, 69–70 Romano-Germanic civil law system, 65–68 www.downloadslide.net Topical Index 727 N Nachfrist notice, 600, 604 NAFTA See North American Free Trade Agreement (NAFTA) national investment guaranty programs, 107–108 national monetary systems, 338–357 arbitrage, 346 bank deposits, 339 branch banking (See branch banking) central banks, 338 commercial banks, 339 Eurocurrency deposits, 342 foreign exchange contracts (See foreign exchange contracts) foreign exchange market, 343 interbank deposit market, 342 political agencies, 338 transfers of money, 346 national multinational enterprises, 189–190 National Securities Clearing Corporation (NSCC), 286 national standard of care, 88 national treatment rule Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 529 Berne Convention, 529 GATT 1947, 363 GATT 1994, 380 General Agreement on Trade in Services (GATS), 435–436 Paris Convention, 531 nationality defined, 96 lack of, as objection to state responsibility, 96–97 master, 96 nationality nexus, for criminal jurisdiction, 148 nationalization See expropriation natural person, 143, 149 natural resources, protection of, 123–124 naturalists See cosmoplitans Nederlandsche Credietverzekering Maatsschappij, 107 negligence, 214 negotiable instruments See bills of exchange; promissory notes negotiation as consideration in sales contract interpretation, 575 defined, 128 negotiation of bills and notes, 669 converting order to bearer paper and vice versa, 667 endorsements (See endorsement of bills and notes) order paper, 666, 669 newness requirement, for patents, 507 NGOs See nongovernmental organizations (NGOs) no-challenge clauses, 547 nominalism, 301–302 Non-Proliferation Treaty Exporters’ Committee See Zangger Committee non-self-executing treaties, 29 noncompetition clauses, 546 nonconditional protection principle, 529 nondiscrimination guarantees, 269 nonexclusive rights, in intellectual property license, 543 nongovernmental organizations (NGOs), 61–62 nonimputable acts, 72–77 nonmultinational enterprises, 186, 189 nonprofit NGOs, 61–62 North American Free Trade Agreement (NAFTA), 61, 387 ICSID arbitrations, 144–148 investor protection provisions, 245 trade in services, provisions governing, 444 notes See promissory notes NSCC See National Securities Clearing Corporation (NSCC) NSG See Nuclear Suppliers Group (NSG) nuclear materials, export controls related to, 397 Nuclear Suppliers Group (NSG), 397–398 O OAS See Organization of American States (OAS) objections to state responsibility complaints, 96–103 Calvo clauses, effect of, 97 dirty hands, 103 failure to exhaust remedies, 97–98 genuine link, lack of, 97 laches, 103 nationality, lack of, 96–97 standing, lack of, 96 waiver of rights, 97 objective intent approach to sales contract interpretation, 575 objective territoriality jurisdiction, 24 OECD See Organization for Economic Cooperation and Development (OECD) offer, 580 defined, 580 definiteness requirement, 580 effectiveness of, 582 firm offers, 582 mailbox rule, 582 pro forma invoice as example of, 580, 581 rejection of, 584 revocation of, 582 specific offerees, requirement for, 581 official money, 301 OMAs See orderly marketing arrangements (OMAs) OPEC See Organization of Petroleum Exporting Countries (OPEC) operational reviews, of foreign-owned enterprises, 270 OPIC See Overseas Private investment Corporation (OPIC) opinio juris sive necessitatis, 27 option contracts, 346 optional clause jurisdiction, 130–131 order bill of lading, 632 order paper, 666, 669 orderly marketing arrangements (OMAs), 421 Organization for Economic Cooperation and Development (OECD), 61 employment standards, 465 Guidelines for Multinational Enterprises, 465–466 securities regulations, 294 Organization of American States (OAS), 58, 389 organization of multinational enterprises branches, 184 parent company, 186 subsidiaries (See subsidiaries) Organization of Petroleum Exporting Countries (OPEC), 61 organizational documents, disclosure of, 274 Overseas Private Investment Corporation (OPIC), 107–109, 698 currency convertibility guarantees, 108 expropriation coverage, 108 political violence, insurance for losses due to, 108 www.downloadslide.net 728 Topical Index P package licensing, 552 Panama canal, 34 Pandectists, 67, 497 par value system, 313 Paris Convention See International Convention for the Protection of Industrial Property (Paris Convention) parol evidence rule, 575 particular average, in maritime industry, 654 partnerships defined, 186 passports, 469 Patent Cooperation Treaty, 532 patent pools, 542 patents, 504–512 of addition, 506 applications for, 510–511 capable of industrial application requirement, 506–507 compulsory licenses, 553–554 confirmation, 506 defined, 504 design, 506 duration of, 512 excluded inventions, 511 inventive step, 507 newness requirement, 507 petty, 506 plant, 506 precautionary, 506 private property justification for, 504–505 public-interest justification for, 505 publication requirement, 510–511 qualifications review, 510–511 scope of, 512 utility, 506 payment of price, sales contracts, 591–594 PCIJ See Permanent Court of International Justice (PCIJ) pecuniary rights, copyrights, 491 pepoudrous courts, 66 percentile legislation, 479 performance rights, copyrighted works, 493 Permanent Court of International Justice (PCIJ), 445–446 permanent visas, 475–476 persistent objection, to custom, 27–28 personal jurisdiction, 143 personalists, 497 petty patents, 506 place of payment, in international transactions, 302 plain meaning rule, 573 plant patents, 506 Plurilateral Trade Agreements, of WTO Agreement, 365 political violence, insurance for losses due to, 108 pollution, regulation of, 111–123 air pollution, 118–122 marine pollution, 111–118 Portalis, Jean, 67 Positivists view of international law, 22, 72 Poverty Reduction and Growth Facility, 324 practices, in sales contract interpretation, 575 precautionary approach to environmental protection, 110, 119 precautionary patents, 506 precedent, 68 preempt, 570 presentment, 676 preshipment inspection (PSI), 400 price reduction remedy, breach of contract, 602 price-fixing clauses, 546 primary commodities, 387 private insurers, 107 private international law, 21, 22 private money, 301 privity, 214, 696 product liability laws, 210, 213–224 product regulations, 122–123 promissory notes, 661–664 acquired in bad faith, 675 acquired through gross negligence, 675 assignment, 666 banks’ role in collecting and paying, 678–681 certificates of deposit (CDs), 339, 343, 662 collateral note, 662 definite sum or monetary unit, requirement for, 665 endorsements (See endorsement of bills and notes) examples of, 662 holder, 675 holder in due course (HDC), 675 installment note, 662 liabilities of parties to, 675–678 liability on the instrument, 677 limitations on excuses for not paying, 675 maker, 661 mortgage note, 662 negotiability of, 664–666 negotiation (See negotiation of bills and notes) parties to, 661 payee, 661 signature requirements, 666 time of payment, requirements regarding, 665 unconditional promise to pay, requirement for, 662–663 warranty liability, 678 property artistic, 490 cultural, export controls for protection of, 395–396 industrial (See industrial property) intellectual (See intellectual property) succession of states and, 38 prospectus, 284 protection independent of protection in the country of origin principle, 529 protectionism, 360–362 protective nexus, for criminal jurisdiction, 149 PSI See preshipment inspection (PSI) public international law, 21, 22 public law, 68 publication requirement, for patents, 510–511 Q qualified endorsements, 669 quality control clauses, 550–551 quantity restrictions, on intellectual property licenses, 548–549 quotas, IMF, 310 R recognition constitutive doctrine, 33 declaratory doctrine, 33 Estrada doctrine, 34 of intergovernmental organizations (IGOs), 40 of states or governments, 33–38 recommendations, by ILO, 447 red herring prospectus, 285 regional monetary systems, 336–338 registered securities, 282 www.downloadslide.net Topical Index 729 registration of securities, 285–286 of trademarks, 516 relief, 103 compensatory damages, 103 restitution in kind, 103 satisfaction, 103 remedies See also specific remedy for breach of contract (See breach of contract, remedies for) damages (See damages) failure to exhaust, 97–98 in state responsibility cases, 103–104 under Agreement on Subsidies and Countervailing Measures (SCM Agreement), 415 repatriation guarantees, 269 reporting requirements for ILO member states, 448 for subsidiaries, 274–275 representative office, 192 reproduction rights, copyrighted works, 491–494 res, 647 reserve currencies, 301 reserve tranche, 323 restitution in kind, 103 restrictive endorsements, 669 restrictive sovereign immunity, 159 revocable letters of credit, 685 revocation of offer, 582 right of establishment, EU, 442 right of priority, 531 Rio Conference See United Nations Conference on the Environment and Development (UNCED) Rio Declaration, 110 risk transfer, sales contracts, 594–599 Robinson-Patman Act, 197 Roman Catholic Church, 65 Romano-Germanic civil law system, 65–68 Rome Convention See International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations (Rome Convention) Rome Statute, 135–136 Roosevelt, Eleanor, 455, 456, 459 Roosevelt, Franklin D., 361, 455 Root, Elihu, 72 rule of reason, 196, 535 rule of reason determinations, restrictive trade practices, 535, 542 rule of reciprocity, 131 rule of strict compliance, as to documentation for letters of credit, 692 rules of origin, 425 S safeguards Agreement on, 421 under GATT 1994, 388 sales, 559–608 contracts (See sales contracts) defined, 567 sales and distribution arrangements, 545 sales contracts See also Convention on Contracts for the International Sale of Goods (CISG) breach of contract, remedies for (See breach of contract, remedies for) buyer’s obligations, 591–594 conformity of goods (See conformity of goods to contract) delivery of goods (See delivery of goods, sales contracts) dirty hands, 606–607 force majeure, 606–607 form of, 579–580 formation of, 580–587 fundamental breach of, 588 interpretation of (See interpretation of sales contracts) maintenance of value clause, 305 nonperformance, excuses for, 606–607 offer (See offer) passage of risk, 594–599 payment of price, 591–594 remedies for breach of (See breach of contract, remedies for) seller’s obligations, 589–590 trade terms (See trade terms) turning over of documents, by seller, 589 writing requirement, 579 sanctions, by United Nations, 398 sanitary and phytosanitary measures, 402 Satellite Transmission Convention See Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite (Satellite Transmission Convention) satisfaction, 103 Savary Code of 1673, 659 Savigny, Friedrich Karl von, 67 Schedules of Specific Commitments, GATS, 438–441 SDR See Special Drawing Right (SDR) sea, carriage of goods by, 622–645 bill of lading (See bills of lading) charterparties (See charterparties) commercial invoice, 625 common carrier, 622 conference lines, 623 dock receipt, 627 independent lines, 623 maritime insurance (See maritime insurance) packing list, 626 tramp vessels, 623 Second Amendment system, IMF, 313–314 Secretariat, United Nations, 41–42 sectoral limitations, on foreign investment closed sectors, 252 foreign priority sectors, 253 restricted sectors, 252 securities, 282–283 bearer, 282 bonds, 282 certificated, 283 defined, 282 registered, 282 regulation of (See securities regulations) stock (See stock) transfers of, 283, 293 uncertificated, 283 Securities and Exchange Act of 1934, 291, 292, 295 securities regulations, 282–294, 295 clearance and settlement (See clearance and settlement of securities) enforcement internationally, 294–298 exchanges, 285, 288 extraterritorial application of U.S laws, 295 insider trading (See insider trading) issuance of securities, 285–286 memorandums of understanding (MOUs), 295 OECD Code of Liberalization of Capital Movements, 294 registration requirements, 285–286 trading in securities, 283 Security Council, United Nations, 41 security exceptions to GATT 1994, 389 to General Agreement on Trade in Services (GATS), 435–436 security exchange, 283 www.downloadslide.net 730 Topical Index self-executing treaties, 29 self-judging reservations, 131 service marks, 512 service sectors, 430–431 Services Directive, EU, 442 Shari’a, 69–70 sharp practices, 224–225 Sherman Antitrust Act, 196, 197, 535, 542 shipment contracts, 598 sight bills, 661 soft currencies, 343 sole rights, in intellectual property license, 543 South-South Preferences, 380 Southern Cone Common Market (MERCOSUR), 61 sovereign immunity, 159–167 absolute, 159 defined, 159 restrictive, 159 waiver of, 160 Special Drawing Right (SDR), 301, 305–307 special endorsements, 666 specialized IGOs, 59–61 specific performance, 588, 600, 604 spread eagles, 346 SPS Agreement See Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) stabilization clauses, 270 standard of care, 88–96 denial of justice, 93–96 expropriation, 89–93 international standard, 88–89 national standard, 88 standards, TBT Agreement requirements, 400 standby arrangements, 324 standby letters of credit, 697 standing, lack of, 96 stare decisis, 134 start-up standards, for foreign investors, 270 state immunity See sovereign immunity state practice, 25 state responsibility, 62–65, 72–88 defined, 72 environmental protection (See environmental protection) fault and causation, 87 human rights compared, 62–65 imputable conduct, 72–77 insurance for MNEs (See insurance) nonimputable acts, 72–77 objections to claims of (See objections to state responsibility complaints) relief available, 103 standard of care (See standard of care) terrorism and, 77–78 state terrorism, 77–78 states, 32–39 defined, 32 dependent, 32–33 inchoate, 32 independent, 32 recognition of, 33–38 territorial sovereignty (See territorial sovereignty) statutory copyright license, 554, 557 stock See also securities defined, 282 regulatory schemes (See securities regulations) Stockholm Conference on the Human Environment, 109 Stockholm Convention See Convention Establishing World Intellectual Property Organization (Stockholm Conventon) Stockholm Declaration, 109 straddles, 346 straight bill of lading, 632 strict liability theory of product liability, 215 subject matter jurisdiction ICSID arbitration tribunals, 145 subjective intent approach to sales contract interpretation, 575 subrogation rights, of OPIC, 108 subsidiaries, 184, 192 annual reporting requirements, 274–276 creditor protections, 276–277 disclosure obligations, 274–276 minority shareholder protections, 276 organizational documents, disclosure of, 274 protection of, 274–281 tort victims of, protections for, 277 subsidies 1979 Subsidies Code, 414–415 Agreement on (See Agreement on Subsidies and Countervailing Measures (SCM Agreement)) Agreement on Agriculture provisions for reduction of agricultural export subsidies, 422 defined, 414–415 examples of, 415 U.S.-Chinese disagreement on, 420 subzones, 263 succession of states, 38 Suez canal, 34 supplemental reserve facility, 324 supranational powers, of EU, 47–53 supremacy principle, 47 supremacy, of the law, 68 suspension of performance remedy for breach of contract, 604–605 T takeovers, 292–294 City Code on Takeovers and Mergers, 294 cross-ownership of shares restricting, 293 restrictions on transfers of shares, effect of, 293 voting restrictions on shares inhibiting, 293 Williams Act, 293–294 Tariff Truce Conference, 360–361 tariffs, 385 Agreement on Agriculture provisions, 422 bound tariff rate, 385 Harmonized System (HS), 386 TBT Agreement See Agreement on Technical Barriers to Trade (TBT Agreement) technical barriers to trade, 400–401 technical regulations, 401 temporary visas, 472–475 tender offer, 293 territorial basis, for jurisdiction, 24 territorial restrictions, on intellectual property licenses, 536–539 territorial sovereignty changes in, 38–39 Clean Slate Doctrine, 38 defined, 34 Merger Rule, 38 Moving Boundaries Rule, 38 territoriality nexus, for criminal jurisdiction, 148 terrorism, 77–78 characteristics of, 77–78 counterterrorism conventions, 77–78 defined, 77 textiles and clothing, trade agreement on, 425 time bills, 661 time charterparties, 646 tippee, 291 www.downloadslide.net Topical Index 731 tipper, 291 Tokyo Round, GATT, 364 tombstone advertisement, 285 tort laws, 210 protections for tort victims of subsidiaries, 277 toxic waste, regulation of, 123 trade financing (See financing) in goods (See trade in goods) in services (See trade in services) trade acceptances, 659, 661, 662 trade in goods, 358–428 Bretton Woods system, 362 General Agreement on Tariffs and Trade (See General Agreement on Tariffs and Trade (GATT 1947); General Agreement on Tariffs and Trade (GATT 1994)) multilateral trade agreements (See multilateral trade agreements, of WTO Agreement) protectionism, 361 sales contracts (See sales contracts) transportation of goods (See transportation of goods) World Trade Organization (WTO) (See World Trade Organization (WTO)) trade in services, 429–488 European Union law, 441–444 General Agreement on (See General Agreement on Trade in Services (GATS)) North American Free Trade Agreement (NAFTA) law, 444–445 trade name, 512 Trade Policy Review Board,WTO, 376 trade secrets, 523–524 trade terms, 609–620 cost and freight (CFR), 616 cost, insurance, and freight (CIF), 616 defined, 609 delivered ex ship (DES), 614 ex works (EXW), 620 free alongside ship (FAS), 616 free carrier (FCA), 620 free on board (FOB), 615–616 free, defined, 615 Incoterms, 595, 610, 614 trade-related investment measures, 402 Trademark Law Treaty, 531 trademarks, 490, 512–523 acquiring, 515–516 certification marks, 512 collective marks, 512 common origin doctrine, 538–539 distinctiveness of, 516 functions of, 512 refusal of registration, 521–522 registration of, 516–521 review of registration, 522 service marks, 512 term of, 522 true, 512 usage requirements, 523 tragedy of the commons, 118 tramp vessels, 623 tranche, 323 transaction value method of customs valuation, 399 transformation, doctrine of, 29 transparency provisions Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 534 GATT 1947, 363 GATT 1994, 386 General Agreement on Trade in Services (GATS), 435 regional integration, 386–387 transportation of goods, 609–656 by sea (See sea, carriage of goods by) freight forwarders, 620 inland carriage, 621–622 liablility limits, 640–643 third-party rights, 644–645 time limitations, 643–644 trade terms (See trade terms) transshipment contracts, 599 travaux préparatoires, 573 treaties, 25–26 See also specific treaties bilateral, 25 changes in territorial sovereignty and, 38–39 constitutional, 29 defined, 25 dispositive, 38 executive agreements, 29 multilateral, 25 non-self-executing, 29 self-executing, 29 Treaty Establishing the European Community (EC Treaty) See European Community Treaty (EC Treaty) Treaty of Amsterdam, 46 Treaty of Nice, 46 Treaty on Intellectual Property in Respect of Integrated Circuits (Washington Treaty), 531–532 Treaty on the Non-Proliferation of Nuclear Weapons, 123, 397–398 TRIMs Agreement See Agreement on Trade-Related Investment Measures (TRIMs Agreement) TRIPS See Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) TRIPS Council See Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS Council) true conflicts case, choice of law in, 175 Truman, Harry, 362 Trusteeship Council, United Nations, 42 Twelve Tables, 65 tying clauses, 547–548 U UCC See Uniform Commercial Code (UCC) UCP See Uniform Customs and Practices for Documentary Credits (UCP) UEMOA See West African Economic and Monetary Union (UEMOA) ULB See Geneva Conventions on the Unification of the Law Relating to Bills of Exchange (ULB) ULC See Geneva Conventions on Unification of the Law Relating to Checks (ULC) UMCA See Central American Monetary Union (UMCA) UNCED See United Nations Conference on the Environment and Development (UNCED) uncertificated securities, 283 UNCITRAL See United Nations Commission on International Trade Law (UNCITRAL) UNCLOS See United Nations Convention on the Law of the Sea (UNCLOS) UNCTAD See United Nations Conference on Trade and Development (UNCTAD) UNEP See United Nations Environment Program (UNEP) UNESCO See United Nations Education, Scientific and Cultural Organization (UNESCO) www.downloadslide.net 732 Topical Index unfair competition laws anticompetitive behavior laws, EU (See anticompetitive behavior laws, EU) antitrust laws (See antitrust laws, U.S.) UNFCCC See United Nations Framework Convention on Climate Change (UNFCCC) UNIDROIT See International Institute for the Unification of Private Law (UNIDROIT) Uniform Commercial Code (UCC), 659 Uniform Customs and Practices for Documentary Credits (UCP), 683–685 Uniform Domain Name Dispute Resolution Policy, 526 Uniform Negotiable Instruments Law (UNIL), 659 Uniform Rules for Collections, 660 UNIL See Uniform Negotiable Instruments Law (UNIL) United Kingdom insider trading regulations, 287, 291–292 passport requirements, 469 takeover regulations, 292–294 United Nations, 40, 41–42, 361 Charter, 40, 41 Economic and Social Council (ECOSOC), 41 General Assembly, 41 goals of, 41 human rights, 455–456 International Court of Justice (See International Court of Justice (ICJ)) organs of, 41–42 sanctions to maintain international peace, 398 Secretariat, 41–42 Security Council, 41 specialized agencies of, exhibit listing, 43 Trusteeship Council, 42 United Nations Ad Hoc Intergovernmental Working Group of Experts on International Standards of Accounting and Reporting, 275 United Nations Climate Change Conference, 121 United Nations Commission on International Trade Law (UNCITRAL), 148 United Nations Commission on Transnational Corporations, 62 United Nations Conference on the Environment and Development (UNCED), 110–111, 123–124 Agenda 41, 110 Convention on Biological Diversity, 124 Rio Declaration, 110, 124 UNFCCC, 118 United Nations Conference on Trade and Development (UNCTAD), 240, 388 United Nations Conference on Trade and Employment, 362 United Nations Convention on Contracts for the International Sale of Goods See Convention on Contracts for the International Sale of Goods (CISG) United Nations Convention on the Law of the Sea (UNCLOS), 111–112 United Nations Education, Scientific and Cultural Organization (UNESCO), 395–396 United Nations Environment Program (UNEP), 110 United Nations Framework Convention on Climate Change (UNFCCC), 118–119 Conference of the Parties, 119–120 Kyoto Protocol, 119–122 objectives of, 119 United Nations Monetary and Financial Conference See Bretton Woods Conference United Nations System, 42 United Nations World Tourism Organization (UNWTO), 43 United States Alien Tort Claims Act (See Alien Tort Claims Act (ATCA)) antitrust laws (See antitrust laws) insider trading regulations, 291 passport requirements, 469 takeover regulations, 292–294 treaty negotiation and ratification, 29 visa regulations, 474 Universal Declaration of Human Rights, 455–456 legal effect of, 456–459 movement of workers, 468–469 rights listed in, 456 universality nexus, for criminal jurisdiction, 149 upper credit tranches, 323 Uruguay Round, GATT, 359, 364–365, 367 usage requirements, for trademarks, 523 usages, in sales contract interpretation, 575–579 usus, 27 utility patents, 506 V value, of money, 301–307 VERs See voluntary export restraints (VERs) vertical competition agreements, 542 vested rights doctrine, 171 Vienna Convention on the Law of Treaties, 26, 28 visas, 469–479 compliance with, 476 permanent, 475–476 temporary, 472–475 U.S regulations, 474 waiver program, 474 voluntary export restraints (VERs), 421 von Gierke, Otto, 497 voyage charterparties, 646 W waiver, 375 of conformity of goods, 590 letters of credit, 693 of sovereign immunity, 160 Warsaw Convention (Convention for the Unification of Certain Rules Relating to International Carriage by Air), 654 Washington Convention See Convention on the Settlement of Investment Disputes between States and Nationals of Other States Washington Treaty (Treaty on Intellectual Property in Respect of Integrated Circuits), 531 Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, 396 West African Economic and Monetary Union (UEMOA), 336 White, Harry Dexter, 308 William the Conqueror, 68 Williams Act, 293–294 WIPO See World Intellectual Property Organization (WIPO) Wolfowitz, Paul, 327 www.downloadslide.net Topical Index 733 workers labor laws (See labor laws and regulations) labor unions, transnational, 468 movement of (See movement of workers) World Bank, 62, 140, 325, 361 cooperation with IMF, 332–333 corruption and fraud at, 326 Global Environment Facility (GEF), 325 IMF compared and contrasted, 327–333 International Development Agency (IDA), 325 International Finance Corporation (IFC), 325 operations of, 330–331 purposes of, 328–329 recipients of funding, 330 size and structure, 329–330 sources of funding, 330 World Charter for Nature, 123 World Economic Outlook, 309 World Intellectual Property Organization (WIPO), 40, 524–526 Arbitration and Mediation Center, 525 Copyright Treaty, 530 ICANN Uniform Domain Name Dispute Resolution, 526 World Monetary and Economic Conference, 360–361 World Trade Organization (WTO), 42, 363, 367 Agreement, 365–367 Appellate Body, 137–138, 420 consultation, 136–137 Council for Trade in Goods, 369, 371 decision making by consensus, 372 Dispute Settlement Body (DSB), 136, 375, 416 Dispute Settlement Panel, 136–137 dispute settlement procedures, 136–140 enforcement of reports adopted by DSB, 137 establishment of, 365–367 functions of, 366 General Council, 369–371 membership of, 367–369 Ministerial Conference, 371 multilateral trade agreements (See multilateral trade agreements, of WTO Agreement) plurilateral trade agreements, 365 precedential effect of dispute settlement rulings, 137–140 structure of, 369–371 third party participation, 136–137 Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding), 136–140 waivers, 375 World Wildlife Federation, report on bluefin tuna fishery, 117 writs, 68 WTO See World Trade Organization (WTO) Z Zangger Committee, 397 ... 30% 26 % 27 % 28 % 31% 35% 20 % 10% 0% 20 00 20 01 20 02 2003 20 04 20 05 20 06 20 07 20 08 20 09 ytd offset by a positive balance in the sale of services of $145,830 billion The U.S had a deficit of $27 3... Conferences in Doha, Qatar, in 20 01, in Cancun, Mexico, in 20 03, in Hong Kong in 20 05, and Geneva in 20 09 and 20 11 At each conference (and at many other international economic and financial meetings)... the WTO Five standing committees deal with (1) trade and development; (2) balance-of-payments restrictions; (3) budget, finance, and administration; (4) trade and the environment; and (5) regional