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The Role of International Sustainability Law in International Accountability and Sustainable Development Goals

By Summer Lee, University of Colorado Boulder Class of 2023

January 1, 2024

As global development and industrialization has sparked an increase in the consumption of natural resources, environmental pollutants, and waste, both state actors and international organizations are increasingly concerned over its effects on the environment. Consequently, the push towards sustainable development has gained prominence. According to UN Secretary General António Guterres, extreme temperatures and weather have clearly indicated the presence of climate change in 2023, and international efforts to achieve the UN’s Sustainable Development Goals (SDGs) have been insufficient. The 2023 United in Science report also notes that only 15% of SDGs have made significant progress [1]. In an effort to address these issues, global leaders and organizations are looking for alternative ways to lower CO2 emissions and achieve SDGs.

The definition of international sustainable development is controversial. Following the 1992 UN Conference on the Environment and Development and the 2002 World Summit for Sustainable Development, discussions regarding sustainable development quickly gained traction. The World Commission on Environment and Development eventually defined sustainable development as the relationship between economic and environmental objectives. However, the Brundtland Report’s definition of sustainable development rejected this definition. Instead, the report defined sustainable development in terms of how economic development affects interactions between different ecosystems and the availability of natural resources [2]. In the context of international sustainable development law, however, sustainable development is generally defined as a form of development which promotes an improved quality of life for current generations and avoids harming the quality of life for future generations [3]. 

Generally speaking, international sustainability laws aim to promote the current and future generation’s quality of life by focusing on global environmental issues and environmental protection strategies [3]. The application of international sustainability laws towards sustainable development can be understood in two different ways: (1) as a dynamic, developing process, and (2) as a promotion of a legal norm which must equally consider the role of other legal norms relevant to the growth of the economy, social justice, and the protection of the environment. In the first view of international sustainability laws, legal norms, principles, and treaties found under international socioeconomic laws often overlap with those under international environmental laws. The interactions between the two results in gradual changes being made to international sustainability laws. In the second view, this legal norm can be legally binding or legally non-binding. International sustainability laws can be legally binding through relevant treaties or legal norms set by national governments and judicial branches, whereas non-legally binding legal norms can leave more room for negotiation between different parties and increased flexibility to changes in global socioeconomic issues and events [2]. 

Some questions have also been raised as to how international sustainability laws can hold state actors accountable to sustainable development goals. In regard to armed conflicts and international criminal law, the prosecution of social and political crimes has usually been prioritized over the prosecution of environmental ones. Violations of international sustainability laws usually result in fines for the infringing party. The infringing party can agree to pay these fines, but it will not necessarily disincentivize the infringing party from engaging in environmental crimes in the future.  Prosecution for environmental damages can also be difficult because the alleged infringer may not have been fully aware of the severity of the environmental damage caused by their actions. Domestic laws also have legal limitations because environmental disputes involve multiple countries [4]. In this way, holding infringing parties legally accountable under international sustainability laws can be a difficult and complex process. 

While issues of holding parties accountable for environmental crimes can be complicated, applications of the rule of law to environmental legal issues have strengthened state actor’s rights and responsibilities towards the environment. In 2013, the implementation of Decision 27/9, on Advancing Justice, Governance and Law for Environmental Sustainability introduced the legal concept of “environmental rule of law”, and Member States acknowledged its significance and role in achieving Sustainable Development Goals (SDGs). In this way, the UN Environment Programme proposes that environmental law can promote sustainable development goals by protecting the current and future generation’s access to natural resources and socioeconomic rights [5].  

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She graduated in the Fall of 2023 and is planning to pursue a J.D. in international law.

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[1] United Nations Environment Programme. (2023, September 14). Climate Change 

Undermines Nearly All Sustainable Development Goals. Press Release. 

https://www.unep.org/news-and-stories/press-release/climate-change-undermines-nearly-all-sustainable-development-goals

[2] Segger, M.-C. C., & Khalfan, A. (2011). Sustainable Development Law: Principles, 

Practices, and Prospects. University Press. 

[3] Hunter, D. (2021, January 5). International Environmental Law. Insights on Law and

Society. https://www.americanbar.org/groups/publiceducation/ publications/insights- on-law-and-society/volume-19/insights-vol--19---issue-1/international-environmental-law/ 

[4] Cordonier, M.-C., & Sébastien, J. (2013). Sustainable Development, International Criminal 

Justice, and Treaty Implementation. Cambridge University Press. 

[5] UN Environment Programme. (n.d.). Environmental Rule of Law. UNEP. 

https://www.unep.org/explore-topics/environmental-rights-and-governance/what-we-do/promoting-environmental-rule-law-0

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International Franchising Contracts 101 

By Summer Lee, University of Colorado Boulder Class of 2023

January 1, 2024

An international franchising contract is a bilateral agreement between two parties, the franchisor, and the franchisee. Under the contract, the franchisor agrees to give the franchisee permission to use its brand’s business model, goods, and services after the franchisee pays a fee [1]. The franchisor also agrees to give the franchisee permission to use the brand’s logo, color, and any additional services offered under the brand [2].  In exchange, the franchisee must agree to implement the franchisor’s business model,  build a strong reputation in the market(s) the brand is involved in, financially contribute to the franchisor’s marketing funds, assist in the sales of the franchisor’s goods and services, communicate business performance with the franchisor, and avoid publicizing the franchisor’s business model [1].To facilitate agreement between the franchisor and franchisee, both parties must also agree to communicate their obligations to each other and establish how the contract will mutually benefit both parties [2]. 

In general, the duration of the contract lasts between ten to twenty years, depending on the interests and goals of both the franchisor and franchisee. A franchisor may agree to a long-term contract as franchise fees can offer a stable source of income. Since franchising contracts are often associated with up-front costs (such as fees, startup, and transportation expenses), franchisees hope to maximize their rate of return by agreeing to a long-term contract [3]. 

International franchising contracts are important for franchisors who are interested in participating in the global market. They allow franchisors to increase the spread of their business across different regions and international markets without having to make prior investments. Franchisees can also benefit from the contract because the franchisor’s branding helps the franchisee gain knowledge and experience in regard to the business and the market it is involved in [2]. Before drafting an international franchising contract, however, the franchisor should research the legal structure, market conditions, and culture of the region they are interested in [4]. These factors will affect what terms and conditions can be established under the franchise contract, along with what kinds of rights and responsibilities both franchisors and franchisees can agree to. 

There are four ways franchisors can establish an international franchising contract. In a direct franchise, the franchisor works with a foreign beneficiary to create a contract, and both shareholders will usually negotiate based on private international laws. Direct franchises can be advantageous because they can lower economic costs, but they also have its disadvantages. If a franchisor is unfamiliar with the selected region’s geography, culture, and local policies, it may be difficult to negotiate and/or draft a contract. It can also be difficult for the franchisor to assist the franchisee based on the terms of the franchise contract. In addition, communication between the foreign beneficiary and the franchisor is not a permanent arrangement [2]. 

An alternative method is to open a branch in a different region. While the contract would still be based on private international law, the franchisor can provide more employee training, an elaboration on its business standards, and technological support to franchisees because the branch would be subject to local laws. If a franchisor is interested in promoting the expansion of the franchise within a particular region, they might also consider a main franchise contract. In a main franchise contract, the franchisor assigns a different party to a master-franchisor role and provides the information and training necessary to operate the franchise. Main franchise contracts may be useful since the master-franchisor is a local citizen of the region and understands its culture and societal interests [2]. Through the master-franchisor’s understanding of the region, franchises can offer different products and services that would catch the attention of local consumers in that region.

 Franchisors may also choose to use mixed companies to expand their franchise. By collaborating with an overseas company partner, the franchisor could oversee the sub-franchisor’s business decisions to make sure that the conditions of the contract are being met. On the other hand, franchising through mixed companies may lead to roadblocks such as issues of how franchisors can provide resources and assist franchisees [2]. 

By understanding the region’s local regulations and how international franchise agreements can be established, franchisors can plan ahead on how to draft a contract and negotiate with franchisees. Franchisors can also consider how local laws will impact the contract, and how it may influence the franchise’s business operations overseas [4]. 

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Summer Lee graduated with a B.A. in International Affairs at the University of Colorado Boulder in December 2023. She is planning to pursue a J.D. in international law in Fall 2025.

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[1] Cavalieri, R. R. (2018). Chapter 10: Franchise Contracts. In V. Salvatore (Ed.), An Introduction to International Contract Law (pp. 113–128). essay, Giappichelli. 

[2] Florea, D., & Galeş, N. (2022). Franchise Contract in International Trade Law. European Journal of Law and Public Administration, 9(2), 12–22. https://doi.org/10.18662/eljpa/9.2/178 

[3] Koldham. (2021, June 30). Franchise Agreement Term Lengths and Future Changes. https://www.franchisebusinesslawgroup.com/franchise-agreement-term-lengths-and-future-changes/ 

[4] Levitt, E. (2015, June). Drafting and Negotiating an International Franchise Agreement. Franchising world Ned Levitt Article - Dickinson Wright. https://www.dickinson-wright.com/~/media/Files/News/2015/07/Franchising%20World%20Ned%20Levitt%20Article.pdf 

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How Morrison v. National Australia Bank Set a New Legal Precedent Towards Anti-Fraud Regulations

By Summer Lee, University of Colorado Boulder Class of 2023

December 12, 2023

Morrison v. National Australia Bank is a landmark case that changed the legal precedent previously set by lower U.S. district courts regarding anti-fraud laws. The lawsuit began after National Australia Bank purchased Homeside Lending company in 1998. Following the purchase of Homeside Lending and write-downs on its assets, the value of National Australia Bank’s shares decreased. This caused the petitioner party, Australian purchasers of the National Australia Bank’s shares, to file a lawsuit against the company in 2001. The petitioner party filed the lawsuit on the grounds that the company inaccurately represented the value of its mortgage-servicing rights. For this reason, the petitioner party claimed that the write-downs violated two U.S. anti-fraud regulations:  Articles 10(b) and 20(a) of the 1934 Securities and Exchange Act, along with Rule 10b-5 of the SEC Rule. In response, the National Australia Bank appealed to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rule of Civil Procedure to argue that the case lacked subject-matter jurisdiction and should be dismissed by the Second Circuit of the U.S. District Court [1]. 

As a result, the District Court initially agreed that they did not have subject-matter jurisdiction and approved the respondent’s request to dismiss the case. The decision was made based on a conduct and effect test, which was used to determine whether subject-matter jurisdiction was applicable. During a conduct test, the court had to decide if domestic actions (i.e., the actions of U.S. companies) has caused direct losses to the petitioner parties. The court had to also consider if the U.S.’s jurisdiction in the case would help disincentivize instances of fraud towards the investors involved. The effects test was then used to decide if the fraud which occurred outside of the U.S. significantly impacted U.S. citizens or the market [2].  Despite the decision of the District Court, the petitioner party appealed the case, and it was eventually submitted to the U.S Supreme Court. 

Purchasers of National Australia Bank’s shares submitted an appeal to the District Court. They also argued that the conduct and effects test mentioned by the District Court in fact supported their claims. The party explained that since the Homeside Lending company is based in the U.S., the write-down of the company’s assets along with the purchaser’s financial losses does fulfill the conditions of the conduct test. In return, the Second Circuit District Court did not approve the appeal because the claims insufficiently supported the conduct test. The Second Circuit District Court argued that the claims were insufficient since the National Australia Bank’s purchase of Homeside Lending was a main contributing factor to the fraud that occurred, there were no claims regarding how the U.S. market or its citizens were affected, and the petitioner party had used a long series of causal claims that attempted to reinforce the relationship between domestic acts of fraud and the damages it has inflicted towards the petitioner party [2].

Following the U.S. Supreme Court’s review of the lower division court’s decision, they also declined the petitioner party’s requests in 2010. Contrary to the lower district court’s use of the conduct and effects test in their decision, however, the Supreme Court established a different legal precedent. In regard to the basis of the lower division court’s decision, the Supreme Court argued that the conduct and effects test was an unreliable interpretation of Section 10(b) Securities Exchange Act [3]. Alternatively, the Supreme Court introduced a new interpretation of the regulation through the transactional test, which sought to narrow the scope of Section 10(b) to exchanges on a domestic level. Through the transactional test, the Supreme Court also shifted the focus of the Securities Exchange Act from the origin of fraudulent conduct to U.S. transactions instead [4]. By setting these new legal precedents, the decision limited the number of protections available to investors. The new legal precedent meant that courts are not obligated to act upon other investment claims that involve the conduct and effects test, and that companies may take advantage of the limited fraud liabilities regarding overseas exchanges [2].

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023 and pursue a J.D. in international law.

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[1] Legal Information Institute. (2010, June 24). Morrison v. National Australia Bank Ltd. (No. 08-1191) 547 F. 3d 167, Affirmed. Supreme Court. https://www.law.cornell.edu/su pct/html/08-1191.ZO.html

[2] Geevarghese, N. M. (2011). A Shocking Loss of Investor Protection: The Implications of Morrison v. National Australia Bank. Brooklyn Journal of Corporate, Financial & Commercial Law, 6(1), 235–259. https://doi.org/https://brooklynwork s.brooklaw.edu/bjcfcl/vol6/iss1/9

[3] Gerber, J., Cooper, R., & Bernstein, A. (2020, October 12). Cleary Gottlieb Discusses the Morrison Decision, 10 Years On. The CLS Blue Sky Blog. https://clsbluesky.law.columbia.edu/2020/10/12/cleary-gottlieb-discusses-the-morrison-decision-10-years-on/

[4] Rotman, E. (2021). In Regulating Fraud Across Borders: Internationalised Criminal Law Protection of Capital Markets (pp. 48–52). essay, Bloomsbury Publishing.

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Overview: A Cost-Benefit Analysis of the Role of Artificial Intelligence in the Legal Field

By Summer Lee, University of Colorado Boulder Class of 2023

December 4, 2023

Given the recent rise in the use of artificial intelligence such as ChatGPT and OpenAI, many questions have been raised as to whether artificial intelligence can promote innovation and productivity in the legal field. Through algorithms, machine learning, and data, artificial intelligence can search through large amounts of information and data in a short amount of time. In addition, artificial intelligence can automate tasks, generate new content (e.g., documents, contracts, graphic design), and interact with human inquiries. As of late, some firms have utilized artificial intelligence to assist with legal research, review contracts, and draft documents [1]. 

On the one hand, some advocates argue that artificial intelligence can promote company productivity. Routine tasks, such as marketing, making payments, and the management of documents, can be automated by utilizing artificial intelligence. As a result, companies can reduce the amount of time spent on repetitive tasks and invest more time towards complex projects [1]. Artificial intelligence can also promote cost efficiency via the use of analytics. For instance, the technology has been used in the tax industry to identify non-compliant versus compliant taxpayers and provide services based on the taxpayer’s status. This can reduce the costs associated with hiring new employees and promote efficiency in the workplace

 [6]. Artificial intelligence can also help lawyers understand the strategies available to them during the litigation process. It can also promote access to relevant legal services and information [8]. 

Despite the general advantages of artificial intelligence, however, some critics claim that the application of artificial intelligence tools in the legal sector still presents unanswered questions. Although artificial intelligence has the ability to provide legal decisions and participate in the litigation process, both policymakers and scholars have questioned the legitimacy of these contributions. Unlike the decision-making process of attorneys and judges during litigation, artificial intelligence compiles legal data and information, and then performs algorithms and mathematical calculations to make a decision [2]. While artificial intelligence may be able to provide an accurate and fair decision through these processes, some lawyers have also noted that artificial intelligence’s access to factually inaccurate and skewed information can also hinder the legitimacy of its legal decisions [3].

 Policymakers have also approached the issue of artificial intelligence in legal settings carefully. This included the imposition of new regulations towards the accessibility of litigation data and other legal information. In 2019, French policymakers introduced Article 33 of the Justice Act, which sought to prevent the publicization of information that describes judges’ behavior when making legal decisions. The new policy would restrict artificial intelligence’s ability to access data on judges’ behavior and create a legal decision-making model based on the information [5]. The European Union has also proposed the Artificial Intelligence Act, which may be implemented sometime in 2025. It aims to minimize the negative impacts of artificial intelligence (e.g., behavioral manipulation, categorizing individuals and groups into different social statuses, facial recognition, etc.) [4].    

To address the uncertainties surrounding the use of artificial intelligence in the legal field, tech companies and firms might consider analyzing how the technology uses algorithms and data to generate a legal decision. However, a significant obstacle lies in the way of understanding the thought process of these technologies: the black box problem. When a legal decision is generated, the technology does not explicitly elaborate on what evidence and information was used to help make the decision. Without this transparency, it may be difficult to determine how the technology analyzed the law and how it was applied during litigation [2]. Understanding artificial intelligence’s thought process is further complexified by its inability to explain its logical reasoning behind its decision [6]. This stands in contrast to judges and lawyers, who can explain the justification behind their legal decisions and their thought processes to the parties involved in litigation.  

As artificial intelligence is becoming more prominent, scholars have proposed a couple of suggestions to address the challenges associated with the technology. In order to increase awareness of the role of artificial intelligence in the legal field, law schools can establish new academic programs that teach law students how to use the technology strategically. The programs can also increase awareness of its potential risks and benefits. To ensure that the quality and accuracy of artificial intelligence is maintained, others have proposed an audit or rating system that would give feedback about the performance of the technology. After reviewing the feedback provided, tech companies can determine what aspects of the artificial intelligence technology needs improvement. To address the black box problem in artificial intelligence, others have also suggested increasing the transparency of the technology and conducting further research on how artificial intelligence can openly explain its logical reasoning and thinking processes [8]. 

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023 and pursue a J.D. in international law.

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[1] Miller, S. (n.d.). Artificial Intelligence + Generative AI. AI @ Thomson Reuters. https://legal.thomsonreuters.com/en/insights/articles/ai-and-its-impact-on-legal-technology.

[2] Guitton, C., Tamò-Larrieux, A., & Mayer, S. (2022). Mapping the Issues of Automated Legal Systems: Why Worry About Automatically Processable Regulation? Artificial Intelligence and Law, 31(3), 571–599. https://doi.org/10.1007/s10506-022-09323-w

[3] Kell, J. (2023, November 8). AI is About to Face Many More Legal Risks. Here’s How Businesses Can Prepare. https://fortune.com/2023/11/08/ai-playbook-legality/

[4] European Parliament. (2023, August 6). EU AI Act: First Regulation on Artificial Intelligence. European Parliament. https://www.europarl.europa.eu/news/en/headlines/society/2023060 1STO93804/eu-ai-act-first-regulation-on-artificial-intelligence.

[5] Tashea, J. (2019, June 7). France Bans Publishing of Judicial Analytics and Prompts Criminal Penalty. ABA Journal. https://www.abajournal.com/news/article/france-bans-and-creates-criminal-penalty-for-judicial-analytics#google_vignette

[6] Bal, A. (2022). Black-Box Models as a Tool to Fight VAT Fraud. In Law and Artificial Intelligence (Vol. 35). essay, Springer.

[7] Yu, R., & Alì, G. S. (2019). What’s Inside the Black Box? AI Challenges for Lawyers and Researchers. Legal Information Management, 19(01), 2–13. https://doi.org/10.1017/s1472669619000021

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The Role of The Non Conveniens Doctrine in the Aguinda v. Texaco Case

By Summer Lee, University of Colorado Boulder Class of 2023

November 21, 2023

The Aguinda v. Texaco caseis an example of how applications of the non conveniens doctrine can contribute to complex litigation scenarios. While the motion to non conveniens was approved and Ecuador’s courts provided a final decision, the case was further complexified by a reassessment of Ecuador’s legal framework and the evidence that was used to provide the final decision. The lawsuit began in 1993 when the plaintiff, Aguinda, accused Chevron of producing environmentally harmful toxic waste and lacking sufficient environmental controls on pollution produced during the oil extraction process. The plaintiff also filed a lawsuit on the grounds that accidental oil spills during the extraction process have affected the local communities’ access to fresh, clean water [1].

After nine years of litigation in U.S. courts, there was a motion by the defendant party, Chevron, to apply the non conveniens doctrine to the case. The non conveniens doctrine is defined as a court's ability to transfer the case to the jurisdiction of another court if it would promote convenience and be adequate enough to conduct the legal process. While determining requests for non conveniens, courts perform a balancing test and an adequate alternative inquiry test to determine whether or not the request should be accepted. During a balancing test, a court considers the different and conflicting interests of the parties involved in the lawsuit. It takes into account private and public factors, such as the different, competing interests of the parties involved in the lawsuit, and how juries are relevant or connected to the case. In an adequate alternative inquiry test, the court considers the alternative courts that the defendant suggests, and whether or not the alternative court can provide legal remedies to the plantiff (e.g., injunction, equitable rescission, subrogation, etc.) [3, 6].

  In response to Chevron’s request to implement the non conveniens doctrine, the plaintiff argued that the case should remain under the jurisdiction of U.S. courts, and that the request for non conveniens should be rejected because Ecuador’s courts may not exercise legal impartiality [1]. The Southern District of New York also questioned the ability for Ecuador’s courts to engage in due process, arguing that the request for non conveniens should ultimately be rejected. Despite these objections, however, the U.S Courts viewed forum non conveniens as an appropriate next step because they argued that the motion to non conveniens passed the balancing test and that Ecuador’s courts were a sufficient alternative court to the U.S. District Courts [2].  In the context of Aguinda v. Texaco, legal scholars have also argued how the defendant’s use of the non conveniens doctrine was used as a way to obtain a strategic advantage during the case, rather than solely for the sake of convenience. As Ecuador’s government generates significant revenue from oil extracting industries, Chevron assumed that Ecuador’s final decision would rule in the company’s favor [2].  Other scholars have noted how Chevron possibly attempted to gain a strategic advantage through interactions with the local officials involved in the lawsuit [1]. 

Although Chevron's request to transfer the case to the jurisdiction of Ecuadorian courts was accepted, the company did not find the court’s final decision acceptable. In the final decision, Ecuador’s courts held Chevron liable for damages in the lawsuit [4]. In response, Chevron asserted that the court’s decision was unreliable because the evidence used during the case was obtained via fraud, coercion and bribery, which influenced the court’s final decision [2]. Chevron appealed to an international tribunal under the Permanent Court of Arbitration in The Hague to review the final decision and seek compensation for the damages it faced as a result of the decision [5]. Throughout the appeal process, Chevron’s expenditures on legal costs and compensation for damages were worth millions of dollars, and the company has requested the tribunal to further assess these damages [5]. On August 30, 2018, the international arbitration tribunal ruled in favor of Chevron and lowered the compensation amount for damages [7]  

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023 and pursue a J.D. in international law.

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[1] Kimerling, J. (2013). Lessons from the Chevron Ecuador Litigation: The Proposed Intervenors’ Perspective. Chevron Ecuador Litigation: The Proposed Intervenors’ Perspective, 1(2), 241–291. https://doi.org/https://law.stanford.edu/publications/lessons-from-the-chevron-ecuador-litigation-the-proposed-intervenors-perspective/ 

[2] Erichson, H. (2013). The Chevron-Ecuador Dispute, Forum Non Conveniens, and the Problem of Ex Ante Inadequacy. Stanford Journal of Complex Litigation, 1. 

[3] Cornell Law School. (n.d.). Forum Non Conveniens. Legal Information Institute. https://www.law.cornell.edu/wex/forum_non_conveniens 

[4] Chevron. (2014, March 14). U.S. Court Declares Ecuador Judgment Against Chevron Corporation Fraudulent. Unenforceable. Press Release . https://www.chevron.com/ecuador/press-releases/archive/u-s-court-declares-ecuador-judgment-against-chevron-corporation-fraudulent-unenforceable 

[5] Nagarkatti, K., & McWilliams, G. (2018, September 7). International Tribunal Rules in Favor of Chevron in Ecuador Case. Reuters: Environment. https://www.reuters.com/article/us-chevron-ecuador/international-tribunal-rules-in-favor-of-chevron-in-ecuador-case-idUSKCN1LN1WS/ 

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The EU-UK Trade and Cooperation Agreement’s Dispute Resolution Framework

By Summer Lee, University of Colorado Boulder Class of 2023

November 14, 2023

The EU-UK Trade and Cooperation Agreement (TCA) is a combined effort between the European Union and the United Kingdom to promote trade liberalization and cooperation. The agreement emphasizes the reduction of trade barriers such as tariffs and quotas. Signed on December 30, 2020, and later implemented on May 1, 2021, the agreement seeks to promote trade liberalization in a couple of areas, such as the exchange of goods and services, intellectual property, and digital exchanges. It also seeks to encourage cooperation in the energy, fishery, social security, and legal sectors [1].

The TCA plays a significant role in promoting the exchange of international legal services between the EU and the UK. It establishes new provisions that the European Union has not mentioned before in its previous free-trade agreements. The TCA allows its parties’ lawyers to consult their home country’s jurisdiction to provide legal advice regarding domestic and international laws [4]. For instance, in Section 7 of the TCA, lawyers and legal advocates in the UK can use their home professional titles to help clients in the EU understand their rights and responsibilities under the UK and international laws [2].

When there is a dispute related to the TCA, there are three legal processes that take place: consultation, arbitration, and enforcement. During the consultation process, the complainant must submit a complaint and a written request for an informal consultation with the other parties involved in the dispute. If the respondent party does not reply to the request within 10 days of the request or successfully holds consultations within 30 days of the request, then the complainant can write a request for arbitration. Once an arbitration request is submitted, the complainant and respondent parties must decide on the three members of the arbitration tribunal. The TCA requires that members of the tribunal have extensive knowledge and experience in practicing law and international trade. The three members are selected from a list compiled by the UK, and the EU, and from another list that includes non-citizens of both the EU and the UK [3]. The arbitration tribunal will be responsible for delivering a dispute resolution and communicating a final decision to the parties involved [3].

During the process of enforcement, the arbitration tribunal must decide whether the respondent party was in non-compliance with the provisions of the TCA. When the tribunal determines that the respondent party was non-compliant, the respondent party must communicate to the complainant within 30 days how it will plan to comply with the TCA moving forward. If the respondent party refuses to comply or respond by the deadline, the complainant party can request compensation from the respondent. If the compensation request is rejected or the complainant does not request any compensation, the complainant party can choose to non-comply with the provisions in the TCA that benefit the respondent party. One example of non-compliance includes the use of tariffs towards the respondent party’s exports. The respondent party could appeal to the arbitration tribunal if the harm caused by the complainant's non-compliance is disproportionate to the original complaint issued in the dispute. The complainant party must halt non-compliant activities within 30 days if the arbitration tribunal decides that the respondent party has started to comply with the TCA [3].

To promote legal clarity and precision, the TCA is an example of a horizontal legal framework. This legal framework emphasizes the principle of a level playing field, which emphasizes promoting legal cooperation between the two parties involved in the agreement. While the non-compliant party does not have to adhere to the arbitration tribunal’s recommendations, the complainant party can temporarily ignore its obligations under the TCA [3].  As the implementation of these dispute resolution mechanisms is legally binding, the legal framework intends to promote fair competition between businesses within the EU and the UK [1].

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023 and pursue a J.D. in international law.

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[1] European Commission. (n.d.). The EU-UK Trade and Cooperation Agreement. Relations with the United Kingdom. https://commission.europa.eu/strategy-and-policy/relations-non-eu-countries/relations-united-kingdom/eu-uk-trade-and-cooperation-agreement_en#:~:text=Free%20Trade%20Agreement,-A%20new%20economic&text=The%20agreement%20covers%20not%20just,protection%2C%20and%20social%20security%20coordination.

[2] UK-EU Trade and Cooperation Agreement Summary. (2020, December). https://assets.publishing.service.gov.uk/media/602cf3dbd3bf7f031ce1360e/TCA_SUMMARY_PDF_V1-.pdf

[3] Jack, M. T., Marshall, J., Kane, J., & Goss, D. (2023, September 21). Disputes Under the Trade and Cooperation Agreement. https://www.instituteforgovernment.org.uk/explainer/disputes-trade-and-cooperation-agreement

[4] Collins, D. (n.d.). Legal Services Provisions in the UK-EU Trade and Cooperation Agreement: Good but Incomplete. City Law Forum. https://blogs.city.ac.uk/citylawforum/2021/12/15/legal-services-provisions-in-the-uk-eu-trade-and-cooperation-agreement-good-but-incomplete/#:~:text=Under%20the%20home%20title%20principle,as%20arbitration%2C%20conciliation%20and%20mediation

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An Overview of Arbitration Agreements in International Commercial Law: What They Are and Why They Are Important

By Summer Lee, University of Colorado Boulder Class of 2023

November 6, 2023

In many international commercial contracts, arbitration and jurisdiction agreements are used to provide a dispute resolution framework in the case of a contract dispute. Some transnational contracting parties find arbitration and jurisdiction agreements beneficial because they are known to help offset transactional and economic costs, increase legal, procedural certainty, and clarify what courts or tribunals have jurisdiction during the dispute resolution process. Under arbitration agreements, disputes are handled outside of the courtroom through the jurisdiction of arbitral tribunals [1]. In general, arbitrator tribunals are made up of a group of arbitrators, such as retired judges, attorneys, or entrepreneurs that specialize in a specific field (e.g., intellectual property, international law, trade, and finance) [4]. Arbitrators are selected by the contracting parties involved in an international commercial contract, and the arbitrator tribunal’s scope of jurisdiction is determined by a couple of factors: the contracting parties’ application of specific ground rules, the terms, and conditions that each contracting party mutually agrees to, and where the arbitration process would take place at (i.e., the seat of arbitration) [3]. The ground rules specified in an arbitration agreement also play a significant role in determining the legal responsibilities and function of arbitral tribunals.  

The specific ground rules in arbitration agreements can be drawn from arbitration dispute resolution institutions, such as the International Centre for Settlement of Investment Disputes (ISCID) and the United Nations Commission on International Trade Law (UNCITRAL). Although the ICSID and UNCITRAL’s ground rules are both commonly used in arbitration agreements within international commercial contracts, they do differ from each other. In contrast to the arbitration rules and proceedings under the UNCITRAL, ICSID’s arbitration rules establish different transactional fees and legal procedures. While the fees associated with hiring arbitrators under the UNCITRAL are calculated by the tribunals themselves, the ICSID charges a flat fee of $500 USD per hour in addition to any food, incidental, and hotel costs that the arbitrator must pay during arbitration proceedings. If a scenario arises in which a party believes an arbitrator fails to express legal impartiality and independence, the ICSID and UNCITRAL’s procedural rules also allow a party to challenge the credibility of the arbitrator [5]. However, arbitrator challenges are handled differently and have different transactional costs associated with it.

 On the one hand, arbitrator challenges under ICSID’s arbitration rules are determined by other unchallenged members of the arbitral tribunal, whereas arbitrator challenges under UNCITRAL’s arbitration rules are determined by a sole appointing authority. When a final decision is made to challenge an arbitrator, the ground rules of the UNCITRAL require a $10,000 USD fee to be paid. The fee can only be waived if the ICSID is also considered as an administering institution during the process [5]. On the other hand, the ICSID’s arbitration rules do not require additional fees to be paid when a decision has been made to challenge the arbitrator. In regard to legal procedures, the ICSID’s arbitration rules suggest that the arbitral tribunal’s final resolution on a case is legally recognized by ICSID Contracting States. The arbitral tribunal’s final decision is also legally binding and is enforced in a similar fashion to a state’s national courts [5]. The ICSID’s arbitration rule runs counter to the UNCITRAL’s arbitration rule because the UNCITRAL requires an additional, formal process to recognize and enforce the arbitral tribunal’s decision. Unlike the ICSID’s rules, UNCITRAL’s rules can also be enforced and recognized through the New York Convention [5]. 

When arbitration agreements clearly outline a dispute resolution framework and the desired outcomes, it can promote an efficient and fair dispute resolution process. Contracting parties can draft an effective arbitration agreement when it clearly establishes the number of arbitrators involved, specifies the language that will be used in the arbitration dispute resolution process, identifies the location of the arbitration proceedings, and elaborates on the rules, forums, and state laws involved during the arbitration process. Conversely, arbitration agreements that are too vague, or do not thoroughly outline the legal framework of the dispute resolution process, can contribute to a complicated and less effective arbitration process that is difficult to implement [2]. In this way, contracting parties often need to review arbitration agreements carefully and consider the strength of the legal framework being proposed. 

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023 and pursue a J.D. in international law.

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[1] Tang, Z. S. (2016). Jurisdiction and Arbitration Agreements in International Commercial Law.Routledge. 

[2] Potts, R., & White, P. (2023, June 21). What Every Multinational Company Should Know About . . .

the International Arbitration Clause in its Contract. Foley & Lardner LLP.

https://www.foley.com/en/insights/publications/2023/06/multinational-company-intl-arbitration-clause 

[3] Cheung, K., & Chiu, R. (2023, June 19). Arbitral Tribunal. Investment Law and Arbitration.

[4] U.S. Bureau of Labor Statistics. (2023, September 6). Arbitrators, Mediators, and Conciliators:

Occupational Outlook Handbook. U.S. Bureau of Labor Statistics.

https://www.bls.gov/ooh/legal/arbitrators-mediators-andconciliators.htm#:~:text=They%20hold%20private%2C%20confidential%20hearings,decide%20disputes%20between%20opposing%20parties  

[5] World Bank Group. (n.d.). Comparing ICSID Convention and ICSID-administered UNCITRAL

Arbitration. International Centre for Settlement of Investment Disputes.

https://icsid.worldbank.org/sites/default/files/publications/Comparing_ICSID_and_UNCITRAL_Administered_Arbitration.10.2021.pdf 

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Legal Uncertainties Surrounding Taiwan’s Status Under the UN Convention on Contracts for the International Sale of Goods 

By Summer Lee, University of Colorado Boulder Class of 2023

October 30, 2023

In the context of Taiwan’s current international status and their prominence in the global chip manufacturing industry, many legal questions have been raised as to Taiwan’s status under the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is a crucial treaty which provides legal guidelines as to how international contracts are applicable to goods and services. The CISG outlines the legal obligations of the businesses involved in an international contract, considers the interests of purchasers and sellers, and provides recommendations when a party breaches the terms of the agreement outlined in the contract. [2]. The CISG helps businesses engage in international transactions and helps minimize barriers to transactions caused by domestic laws [3]. Businesses may also consider the CISG advantageous because it can decrease transaction costs and increase commercial certainty [2]. 

Currently, Taiwan’s status under the CISG has not been determined yet because the state has not officially declared itself as a member of the CISG. It is also not considered as a CISG Contracting State under the United Nations’ Treaty Section. Taiwan’s status under the CISG is further complexified by several court cases, such as Hummer Shoe Industry Co., Ltd. v. Specialty Fashion Group Ltd., Pulse Electronics, Inc. v. U.D. Electronic Corp., and Golden-Legion Automotive Corp. et al. v. LUSA Industries, Inc. 

In each case, the court’s decisions on whether the CISG is applicable to businesses in Taiwan have varied from each other. In the case of Hummer Shoe Industry Co., Ltd. v. Specialty Fashion Group Ltd., the court’s jurisdiction under the People’s Republic of China (PRC) referred to Article 1(1)(a) of the CISG without explicitly elaborating on the status of Taiwan. There was also a remaining question of whether the company that represented the Taiwanese business was relevant to the applications of the CISG during the case. In Pulse Electronics, Inc. v. U.D. Electronic Corp., The U.S. District Court of California suggested that Taiwan should be legally treated as a CISG Contracting territory, but the court did not provide an additional explanation to support this perspective. In contrast, the Golden-Legion Automotive Corp. et al. v. LUSA Industries, Inc. case suggested that the CISG is not applicable to Taiwan because it is not considered as a “signatory state” under the CISG [1].

 Due to these legal discrepancies presented in the application of the CISG, Taiwan’s legal status under the CISG has remained controversial. In legal scholar Ben Köhler’s view, he argues that Taiwan should be considered as a non-Contracting State and that the CISG should not apply to Taiwan. Instead, he argues that Taiwan’s legal status should be determined via other alternatives such as public international law [4]. Köhler refers to Article 93 of the CISG to support this viewpoint. In Article 93 of the CISG, it states: 

(1) If a Contracting State has two or more territorial units in which,

according to its constitution, different systems of law are applicable in

relation to the matters dealt with in this Convention, it may, at the time of

signature, ratification, acceptance, approval or accession, declare that this

Convention is to extend to all its territorial units or only to one or more of

them, and may amend its declaration by submitting another declaration at

any time.

(2) These declarations are to be notified to the depositary and are to

state expressly the territorial units to which the Convention extends.

(3) If, by virtue of a declaration under this article, this Convention

extends to one or more but not all of the territorial units of a Contracting

State, and if the place of business of a party is located in that State, this

place of business, for the purposes of this Convention, is considered not to

be in a Contracting State, unless it is in a territorial unit to which the

Convention extends.

(4) If a Contracting State makes no declaration under paragraph (1)

of this article, the Convention is to extend to all territorial units of that

State. (United Nations Convention on Contracts for the International Sale of 

Goods, opened for signature 11 April 1980, 1489 UNTS 3 (entered into force 1 

January 1988) art 93) [5].

Köhler’s view brings up an important question regarding how the interpretation of the territorial units clause in Article 93 of the CISG can be applied to Taiwan. The application of Article 93 of the CISG to Taiwan is complex because of the state’s history and relationship with the PRC, which has shaped its autonomy and statehood [4]. As Taiwan has been treated as a de facto state rather than a state with complete statehood, one interpretation of Article 93 suggests that Taiwan’s status as a de facto state disqualifies them from qualifying as a member of the CISG. Köhler also asserts that due to these factors, there is no widespread agreement among scholars and courts in regard to the application of Article 93 of the CISG to Taiwan, and because of this, Taiwan’s international legal status cannot be determined based on Article 93 of the CISG [4]. As there is no unanimous agreement or elaborate precedents surrounding the application of the CISG to Taiwan, the state’s international legal status under the CISG still presents itself as a very complex and controversial topic in the field of international commercial law. 

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023 and pursue a J.D. in international law.

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[1] University of Basel Faculty of Law. (n.d.). CISG By Jurisdiction: Taiwan. CISG-Online. 

[2] United Nations. (n.d.). International Sale of Goods (CISG) and Related Transactions. United

Nations Commission on International Trade Law. https://uncitral.un.org/en/texts/salegoods. 

[3] Rocket Lawyer. (n.d.). What is the CISG? https://www.rocketlawyer.com/business-and-contracts/business-operations/product-or-service-sales/legal-guide/what-is-the-cisg. 

[4] Köhler, B. (2023). Applicational Ambiguity? Taiwan’s Status in International Sales Law.International and Comparative Law Quarterly, 72(2), 545–563.

https://doi.org/10.1017/s0020 589323000106. 

[5] United Nations Commission on International Trade Law. (2010, November). United Nations 

Convention on Contracts for the International Sale of Goods. https://uncitral.un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/19-09955_e_ebook.pdf. 

[6] Lin, C.-F., & Wu, C.-H. (2022, October 18). Is Taiwan a State? The Creation of a State in Formosa through Quiet Revolution and Democratization. Verfassungsblog: On Matters Constitutional. https://verfassungsblog.de/is-taiwan-a-state/. 

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Constructing and Deconstructing the BRS Conventions: The Clemenceau Ship Dispute

By Summer Lee, University of Colorado Boulder Class of 2023

October 23, 2023

The Clemenceau dispute had raised important legal questions over international and environmental regulations regarding shipbreaking practices. In July 2004, the French government planned to send an aging aircraft carrier, Clemenceau, to a shipbreaking company in Alang, India for recycling. In one of the agreements made with the shipbreaking company, Shree Ram Scrap Vessels Pvt. Ltd., the French government agreed to remove 90% of the asbestos contained within the ship in Toulon, France, before the hull of the ship was shipped to India. The French government also agreed to keep the ship under their ownership until the ship was recycled. Despite these arrangements, however, there were disagreements over how much asbestos the ship actually contained prior to and following the work that was done in Toulon. These disagreements led to a multinational legal controversy that involved France, India, and Egypt.  India’s national government participated in the dispute because initial arrangements suggested that the ship would pass through India’s waterways and be broken down within its territory. Since the initial plans also involved transporting the Clemenceau through the Suez Canal, Egypt also participated in the legal dispute. The European Union (EU) also played a role in suggesting the international legality of dismantling the Clemenceau carrier [1]. 

Although the French government claimed that they removed the maximum amount of asbestos possible from the ship prior to transporting it to Alang, the amount of remaining asbestos on the ship led to widespread environmental and health concerns among environmentalists and non-governmental organizations (NGOs). Due to these concerns, the legal dispute was brought to the attention of the public through various media outlets, and it presented significant legal pressures and challenges towards the French government. Environmentalists and NGOs argued that the actions of the French government in regard to the treatment of the Clemenceau carrier violated the rules of the Basel, Rotterdam, and Stockholm Conventions (BRS Conventions) [1]. As the dispute progressed, the application of the BRS Convention to the process of deconstructing the Clemenceau was controversial.

Implemented on May 5, 1992, the BRS Conventions aimed to protect people and the environment from the detrimental effects of dangerous wastes and chemicals [2]. It also had four primary goals in mind: to cut down on the production of toxic waste, ensure that the disposal of toxic waste is conducted as near as possible to its original location, minimize the transport of waste across international borders, and to utilize environmentally sustainable methods to dispose of the waste. Not only did environmentalists and NGOs emphasize that the process of dismantling the Clemenceau did not comply with the BRS Conventions’ rules, but the EU also argued that the transport of the Clemenceau did not meet the requirements set forth by the BRS Conventions because it would also be illegal for France to export the Clemenceau to a developing (non-OECD) country, India [1]. The EU’s interpretation of the BRS Conventions was based on the economic intentions of the agreement, which aimed for fairness between the economies of both developed and developing countries [2]. The EU also asserted that under the BRS Convention’s legal framework, the French government should have obtained the written approval of India and other countries involved before the Clemenceau carrier left France [1]. As environmentalists, NGOs, and the EU made strong appeals to the BRS Conventions, the French government referred to the jurisdiction of other international laws to respond to the allegations. 

The French government claimed that the BRS Convention was not legally applicable to shipbreaking practices, and that legal applications of International Maritime Organization (IMO) rules would be more suitable for the case. The government also argued that since the Clemenceau carrier is classified as a warship and is owned by the French government, it offers legal protections from the jurisdiction of India’s national courts under the notion of sovereign immunity. The French government also asserted that they have removed the maximum amount of asbestos possible from the ship, arguing that if they removed any additional asbestos from the ship, it would pose a risk to the structural integrity and flotation capacity of the Clemenceau [1].

On February 15th, 2006, India’s national courts halted the transport of the Clemenceau carrier and moved the case to lower courts for further review. At the same time, the French government returned the carrier back to France. The French government made final arrangements to transport the carrier to Hartlepool, England for ship recycling. As the dispute highlighted the lack of international regulations surrounding shipbreaking, it increased international efforts to address the issue, propose new agreements, and negotiate over regulations regarding the international shipbreaking industry [1]. 

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[1] Springer, A. L. (2016). Voyage of the Clemenceau. In Cases of Conflict: Transboundary  Disputes and the Development of International Environmental Law (pp. 169–191). essay, University of Toronto Press. 

[2] World Trade Organization. (n.d.). Environmental Protection: Basel, Rotterdam and Stockholm Conventions. https://www.wto.org/english/res_e/booksp_e/int_exp_regs_part1_1_e.pdf.  

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Integrating Human Rights in Business Enterprises: Human Rights Due Diligence

By Summer Lee, University of Colorado Boulder Class of 2023

October 16, 2023

 In order to help enterprises incorporate human rights protections and uphold social obligations in their business practices, the United Nations Human Rights Council (UNHRC) unanimously endorsed the Guiding Principles on Business and Human Rights in 2011 [1]. Under the Guiding Principles on Business and Human Rights, the UNHRC introduced human rights due diligence in order to minimize enterprises’ potential or current negative impacts on people’s human rights [1]. Human rights due diligence seeks to address business enterprises’ impacts on human rights by (1) identifying how certain enterprises are currently or potentially affecting individuals’ human rights via certain business activities, products, services, or relationships (2) examining the current research on how companies have an impact on human rights, (3) assessing the effectiveness of current plans and initiatives to protect human rights, and (4) informing affected stakeholders how human rights issues are being addressed along with what legal frameworks and policies are available [1].

According to the Guiding Principles on Business and Human Rights, human rights due diligence involves both state and corporate actors. On the one hand, state governments must have an effective legal framework in place to address human rights violations. This includes having effective policies, regulations, and legal processes to manage and resolve disputes [3]. State governments are also strongly encouraged to set clear expectations that all domiciled business enterprises within state jurisdiction must acknowledge the human rights of people, but they are not obligated or prohibited from regulating business activities that occur outside of state jurisdiction [3]. However, some state governments do have strong incentives to regulate business activities abroad, such as maintaining their global reputation and consistency in business operations [3]. In addition to providing an adequate legal framework and a set of expectations for addressing human rights, the Guiding Principles on Business and Human Rights recommend state governments to make sure that other laws associated with business enterprises (e.g., corporate law) do not conflict with the acknowledgement of human rights. Instead, these laws ought to help business enterprises recognize the importance of human rights in their operations [3]. State governments are also strongly advised to help business enterprises acknowledge human rights and communicate how they plan to address their impacts on human rights [3]. On the other hand, business enterprises are legally responsible for addressing and preventing their impacts on human rights [3].  Business enterprises are also encouraged to incorporate and communicate policies that would support the protection of human rights and also comply with international and state laws regarding human rights [3]. 

The implementation of human rights due diligence is complex since many business enterprises vary in size, provide a particular range of goods and services, have established distinct business relationships, and operate differently. An evaluation of a business enterprise's impact on human rights also depends on the types of communities and/or individuals involved. Some populations are more vulnerable to the consequences of business operations than others, and the UNHRC suggests that business enterprises should take this into consideration while assessing human rights impacts. Due to these factors, each business enterprise impacts human rights to varying levels of complexity and severity, and the human rights due diligence process must accommodate these different circumstances accordingly [2]. 

Some scholars have also noted that while the implementation of the human rights due diligence process is a crucial step for helping businesses acknowledge and protect human rights, it is still a work in progress. Scholar Barnali Choudhury notes that while more state governments are creating more policies and regulations to accommodate the human rights due diligence process, it fails to address the root causes of human rights impacts, which are rooted in corporate law’s ability to grant business enterprises limited liability and a legal personality. Through these two facets, shareholders of business enterprises can be protected from liability, including human rights impacts, and business enterprise assets can also be protected from shareholder’s creditors [4]. Similarly, an analysis of the European Public Interest Entities (PIEs) suggests that European business enterprises’ efforts in the protection of human rights is not widespread yet, and that some European companies still hesitate to communicate their progress in regard to the human rights due diligence process [5]. Improvements in the human rights due diligence process could involve a closer inspection of how other laws associated with business enterprises, such as corporate law, influence business enterprise’s responsibility to protect human rights, or a closer analysis of business enterprises’ current implementation of human rights due diligence. 

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023.

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[1] Working Group on Business and Human Rights. (n.d.). Corporate Human Rights Due Diligence – Identifying and Leveraging Emerging Practices. United Nations Human Rights Office of the High Commissioner. https://www.ohchr.org/en/special-procedures/wg-business/corporate-human-rights-due-dil igence-identifying-and-leveraging-emerging-practices. 

[2] United Nations Development Programme . (n.d.). Human Rights Due Diligence - United Nations Development Programme. https://www.undp.org/sites/g/files/zskgke326/files/2022-10/HRDD%20Interpretive%20Guide_ENG_Sep%202021.pdf 

[3] United Nations. (n.d.-a). Guiding Principles on Business and Human Rights - OHCHR. United Nations Human Rights Office of the High Commissioner. https://www.ohchr.org/sites/default/files/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf 

[4] Choudhury, B. (2023). Corporate Law’s Threat to Human Rights: Why Human Rights Due Diligence Might Not Be Enough. Business and Human Rights Journal, 8(2), 180–196. https://doi.org/10.1017/bhj.2023.29 

[5] Principale, S. (2023). Human Rights Due Diligence and Corporate Governance: A European Analysis. In Fostering Sustainability in Corporate Governance: Analysis of the EU Sustainable Corporate Governance and Due Diligence Directives (pp. 63–76). essay, Springer. 

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The State of Connecticut’s Climate Dispute with Exxon Mobil Corporation

By Summer Lee, University of Colorado Boulder Class of 2023

October 9, 2023

In September 2020, the Connecticut State Court filed a lawsuit against Exxon Mobil Corporation for engaging in false advertising and misinformation campaigns regarding the relationship between fossil fuels and climate change.  The state court also claimed that Exxon Mobil failed to comply with the Connecticut Unfair Trade Practices Act (CUTPA), which prohibits the use of unfair or deceptive practices in commerce or trade [1].   

  Through Exxon Mobil’s internal research, the Connecticut State Court argued that the corporation’s leaders were already aware of how the combustion of fossil fuels is one of the major contributors to climate change. The court also argued that the corporation was incentivized to spread deceptive and false information via interviews, research papers, advertisements, and other public media outlets due to fears that these findings may lead to Exxon Mobil’s eventual loss of revenue and profit [1]. 

The state court also claimed that Exxon Mobil falsely depicted themselves as a corporation that pledges to help address issues of climate change, and that through the corporation’s use of deceptive information campaigns, many Connecticut consumers were misled to believe that the scientific research that supports climate change is flawed. The court also claimed that Exxon Mobil’s spread of misinformation has motivated consumers to purchase more gasoline and oil than they would have if they were accurately informed about the relationship between fossil fuel combustion and climate change [1]. 

To address Exxon Mobil’s alleged deceptive business practices, the court demanded: (1) a legal order that would restrict Exxon Mobil’s use of deceptive business strategies through the CUPTA, (2) a $5,000 penalty each time Exxon Mobil violates the CUTPA, (3) that Exxon Mobil should give up any revenue and profits they gained through violations of the CUTPA, and (4) that Exxon Mobil provides equitable relief to address any deceptive business practices and actions that contribute to the severity of climate change. This includes financially compensating the state of Connecticut for any expenses incurred by addressing the consequences of climate change associated with the Exxon Mobil corporation [1].  

In response, Exxon Mobil denied the state court’s allegations, stating that the claims were unfounded and lacked credibility [3]. The corporation also removed the case from state courts to federal district courts, requesting federal subject-matter jurisdiction under the federal-officer removal statute, federal-question statute, and Outer Continental Shelf Lands Act (OCSLA) [1].  Exxon Mobil referred to the OCSLA in order to emphasize that the corporation conducts oil and gas extraction on land rented from the federal government, thus warranting the need for federal jurisdiction [4]. In response, Connecticut requested the federal district courts to return the case back to the jurisdiction of the state courts. After a series of briefs and debates, the federal district court granted Connecticut’s request and rejected Exxon Mobil’s arguments that supported their requests for federal jurisdiction [1]. 

Ultimately, the corporation’s request to seek federal subject-matter jurisdiction for the case was denied. In a press release published on September 27, 2023, Connecticut’s Attorney General William Tong confirmed that the U.S. Court of Appeals for the Second Circuit joined the unanimous vote to keep the case within the jurisdiction of state courts because the case falls under claims to state law, not federal law [2]. At the same time, the Second Circuit also rejected Exxon Mobil’s appeals to the federal-officer removal statute and federal-question statute. 

According to the federal-officer removal statute, federal officers who are defendants of criminal or civil cases in state courts can remove it to federal courts [5]. With this in mind, the Second Circuit determined that since the Exxon Mobil corporation is not a federal officer and does not operate under one, the federal-officer removal statute is not applicable. The Second Circuit also ruled that Exxon Mobil corporation’s business ties with the federal government and oil sales on the open market are not sufficient to prove that the corporation operates under a federal officer. The Second Circuit then rejected Exxon Mobil’s appeals to the federal-question statute because the complainant party, Connecticut, did not appeal to any federal laws in the case. Generally speaking, the federal-question statute requires the complainant party to appeal to federal laws while proposing their claims. The Second Circuit also ruled that Connecticut’s claims regarding the CUTPA only referred to state law and not federal law [4]. Due to the complexity of the case, a settlement has not been reached yet. 

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023.

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[1] Connecticut ex rel. Tong v. Exxon Mobil Corp., No. 21-1446 (2d Cir. 2023). Justia Law. (n.d.). https://law.justia.com/cases/federal/appellate-courts/ca2/21-1446/21-1446-2023-09-27.html. 

[2] Benton, E. (2023, September 27). Attorney General Tong Statement on Second Circuit Win Affirming Connecticut Case Against ExxonMobil Belongs in State Court. Connecticut’s Official State Website. https://portal.ct.gov/AG/Press-Releases/2023-Press-Releases/Statement-on-Second-Circuit-Win-Affirming-Connecticut-Case-Against-ExxonMobil-Belongs-in-State-Court#:~:text=Attorney%20General%20Tong%20s ued%20ExxonMobil,undeniably%20contributes%20to%20climate%20change.

[3] Hawkins, M. (2020, September 16). Connecticut Sues ExxonMobil for Deceiving Consumers About Climate Change. Yale Daily News. https://yaledailynews.com/blog/2020/09/15 /connecticut-sues-exxonmobil-for-deceiving-consumers-about-climate-change/.

[4] Connecticut v. Exxon Mobil Corp.. Climate Change Litigation. (2023, September 29). https://climatecasechart.com/case/state-v-exxon-mobil-corp/. 

[5] Cornell Law School. (n.d.). 28 U.S. Code § 1442 - Federal Officers or Agencies Sued or Prosecuted. Legal Information Institute. https://www.law.cornell.edu/uscode/text/28/1442.

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An Overview of the Federal Trade Commission’s (FTC) Anti-Trust Lawsuit Against Amazon

By Summer Lee, University of Colorado Boulder Class of 2023

October 2, 2023

On September 26, 2023, the U.S. Federal Trade Commission (FTC) and seventeen states filed a lawsuit against Amazon.com, Inc. for engaging in monopolistic marketing practices and preventing other companies from competing in the market. The FTC claimed that Amazon has employed several anti-competition strategies to maintain its influence in the market, such as anti-discounting tactics, seller punishments and conditional contracts, along with the use of a price tracking and adjusting algorithm [1]. 

Appealing to Section 2 of the Sherman Act, 15 U.S.C. § 2, the FTC asserted that Amazon’s use of anti-discounting tactics is detrimental to other online retailers because it prevents them from offering goods at lower prices. By using marketing algorithms to track product discounts on the internet, Amazon penalizes its sellers that offer the same product at a higher price. When affiliated sellers sell their products for a lower price outside of Amazon.com, Amazon removes the “Buy Box” box display, which allows consumers to add a product to their shopping cart or purchase it right away. In addition, Amazon can also place sellers at the very bottom of the website’s search results to prevent consumers from viewing their products. The FTC stated how Amazon’s tactics of removing the “Buy Box” and placing sellers at the bottom of Amazon’s search results is detrimental to the seller because it causes their sales to significantly decrease. The FTC also argued that since the anti-discounting tactics set Amazon’s inflated prices as the new price floor for online shopping, consumers are paying higher prices for online goods and services offered by Amazon or other online retailers than they usually would [1].

The FTC also emphasized how Amazon’s use of coercive conditional contracts affects sellers’ competitiveness on the online market.  In order to have orders fulfilled by Amazon, Amazon requires sellers’ products to be eligible for Amazon Prime shipping. The FTC commented on how Amazon implements this policy to accommodate Amazon Prime members, who make up a majority of the company’s customer base. The FTC also referred to the antitrust investigations that were conducted by European and U.S. regulators in 2022 and 2019 to emphasize on Amazon’s past anti-competition policies [1].

 The FTC also claimed that Amazon’s use of an algorithm called Project Nessie does not comply with Section 5(a) of the FTC Act, 15 U.S.C. § 45(a), which prohibits acts of unfair competition [1]. Although the FTC has not publicly released additional information yet, author and journalist Jason Del Rey stipulates that Project Nessie could be an algorithm that collects data on prices from a variety of different online retailers and lowers the prices of goods on Amazon to match with its competitors [2]. 

In response to the FTC’s allegations, Amazon asserted that its business practices do support consumers and sellers alike. On Amazon’s news website, the company alleges that sellers can set their prices independently and that the company offers educational tools and resources to help them provide competitive prices [3]. Amazon then appeals to its relationships with its customers, arguing that the company only displays a list of sellers that can offer competitive prices to “maintain customer trust”. In response to the FTC’s complaints, Amazon also emphasized how advertising and Fulfillment by Amazon (FBA) services are completely optional [3]. 

Although the estimated settlement date for the case is unknown, George Washington University law professor William E. Kovacic states that the FTC’s ability to win the case will depend on how long it will take to go on trial [4]. 

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[1] Graham, V. (2023, September 26). FTC sues Amazon for illegally maintaining monopoly power. Federal Trade Commission. https://www.ftc.gov/news-events/news/press-releases/2023/09/ftc-sues-amazon-illegally-maintaining-monopoly-power

[2] Bishop, T. (2023, September 26). FTC Targets Alleged Secret Amazon Pricing Algorithm “Project Nessie” in Antitrust Complaint. GeekWire. https://www.geekwire.com/2023/ftc-targets-alleged-secret-amazon-pricing-algorithm-project-nessie-in-antitrust-complaint/

[3] David Zapolsky, S. V. P. (2023, September 26). The FTC’s Lawsuit Against Amazon Would Lead to Higher Prices and Slower Deliveries for Consumers-and Hurt Businesses. Amazon Company News. https://www.aboutamazon.com/news/company-news/amazon-ftc-antitrust-lawsuit-full-response. 

[4] Zakrzewski, C., Oremus, W., & Thadani, T. (2023, September 26). U.S., 17 States Sue Amazon Alleging Monopolistic Practices Led to Higher Prices. The Washington Post. https://www.washingtonpost.com/technology/2023/09/26/amazon-antitrust-lawsuit-ftc/

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Ukraine Requests Consultations with Hungary, Poland, and Slovakia Following Recent Bans on its Agricultural Products

By Summer Lee, University of Colorado Boulder Class of 2023

September 25, 2023

On September 15, 2023, Poland, Hungary, and Slovakia banned imports of agricultural products from Ukraine, such as wheat, corn, sunflower seeds, and colza seeds [2]. The three countries claimed that prior to the ban, the influx of agricultural imports from Ukraine had significantly reduced the domestic prices of oilseeds and grains. Due to this, the countries also claimed that profits and market competitiveness of local farmers have also decreased and that the bans were necessary to address these issues [1]. 

Consequently, the complainant party, Ukraine, filed a dispute with respondent parties Poland, Hungary, and Slovakia on September 21, 2023, to the World Trade Organization (WTO). Ukraine asserted that the importation bans were not in compliance with Articles 5, 10 and 11 of the 1994 General Agreement on Tariffs and Trade (GATT), along with Article 4 and Article 5 of the Agreement on Agriculture [2]. 

Article 5 of the GATT states that governments who have signed the agreement must allow goods to be freely transported through its territories, regardless of the origin of the product or trade routes used during the shipping process [4]. Appealing to Article 5, Section 2 of the GATT, Ukraine argued that the importation ban is unacceptable because it restricts Ukraine’s ability to freely transport agricultural products through Poland, Hungary, and Slovakia to other members of the European Union (such as France, Germany, Greece, Ireland, etc.) [2]. Ukraine then appealed to Article 10, Section 1 of the GATT, stating that the bans implemented by the respondent parties did not allow the Ukrainian government and trading companies to adapt to the new policies accordingly. The complainant party also mentioned how the restrictions on its agricultural imports to Poland, Hungary, and Slovakia is inconsistent with the requirements set forth in Article 11 of the GATT [3]. In accordance with Article 11, Section 1 of the GATT, countries under the agreement must not impose restrictions on imported goods besides taxes, duties, and other quantifiable charges [4]. With this in mind, Ukraine appealed to Article 11, Section 1 on the assumption that the ban on agricultural imports is not associated with quantitative restrictions such as taxes, fees, and duties. 

The complainant party used Article 4, Section 2 and Article 5 of the Agreement on Agriculture to indicate that (1) since the respondent parties’ method of implementing the importation bans has not been recognized as “ordinary customs duties”, the action is in non-compliance with the agreement, and (2) the import ban goes against the principle of economic non-discrimination because it only applies to Ukraine’s imports and not towards other member countries of the WTO [3]. 

 In addition, the complainant party also argued that the importation bans are detrimental to Ukraine’s economic well-being. On the pretext of the Russo-Ukrainian war, Ukraine emphasized how its economy has steadily declined. According to the World Economic Situation and Prospects, Ukraine’s economy has contracted over 30% in 2022, which indicates that Ukraine’s GDP growth has declined and unemployment rates have increased during the war [3]. Ultimately, Ukraine argues that the implementation of importation bans on its agricultural products will have a negative impact on its economic circumstances and trade mobility. 

In response to Ukraine, Poland emphasized that the importation ban was intended to protect its economic interests and local farmers. Similarly, Hungary’s government claimed that the ban was intended to help local farmers that were economically struggling due to the significant increases in Ukrainian agricultural imports [5].

To address these conflicts in interest, Ukraine is currently requesting a consultation with Hungary, Poland, and Slovakia under the World Trade Organization to discuss possible solutions. If the countries do not find a solution to the dispute after 60 days, Ukraine must request a panel of members from the WTO to help decide each countries rights and responsibilities under the WTO Agreement [6]. 

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023.

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[1] Thomson Reuters. (2023, September 18). Ukraine Says it Will Sue Poland, Hungary and Solvakia Over Food Import Bans. Reuters. https://www.reuters.com/markets/commodities/ukraine-pla ns-sue-poland-hungary-slovakia-over- food-import-ban-2023-09-18/#:~:text=Restrictions%20imposed% 20by%20the%20European,such%20cargoes%20for%20export%20elsewhere. 

[2] World Trade Organization. (2023, September 21). Ukraine Initiates WTO Dispute Complaints Against 

Hungary, Poland and Slovak Republic. WTO News: Dispute Settlement. https://www.wto.org/english/news_e/news23_e/ds619_620_621rfc_21sep23_e.htm.  

[3] United Nations. (n.d.). One Year of the War in Ukraine Leaves Lasting Scars on the Global Economy. United Nations Department of Economic and Social Affairs. https://www.un.org/en/desa/one-year-war-ukraine-leaves-lasting-scars-global-economy#:~:text=Ukraine%27s%20economy%20suffered%20heavy%20losses,remained%20steadfast%20over%20this%20period 

[4] World Trade Organization. (n.d.). The General Agreement on Tariffs and Trade (GATT 1947). Legal Texts: GATT 1947. https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm#articleV. 

[5] Keaten, J., & Novikov, I. (2023, September 19). Ukraine Complains to WTO About Hungary, Poland and Slovakia Banning its Food Products. AP News. https://apnews.com/article/ukraine- wto-complaint-europe-grain-ban-2bdecbd0d0c4e46f2f24f33d858bf8f1. 

[6] World Trade Organization. (2004). The Process--Stages in a Typical WTO Dispute Settlement Case. Dispute Settlement System Training Module. https://www.wto.org/english/tratop_e/disp u_e/disp_settlement_cbt_e/c6s3p1_e.htm. 

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In the Era of Global Warming, Small Islands are Seeking Assistance from the Law of the Sea Convention 

By Summer Lee, University of Colorado Boulder Class of 2023

September 18, 2023

As global warming is one of the main contributors to the continuous rise in international sea levels and pollution, governments of small islands such as Tuvalu and Barbuda share a growing concern over the possibility of its territories sinking underwater, marine pollution, and the gradual degradation of marine ecosystems. To address these issues, the Commission of Small Island States on Climate Change and International Law (COSIS) requested the International Tribunal for the Law of the Sea (ITLOS) to provide an advisory opinion [2]. 

On September 11, 2023, Prime Minister Kausea Natano and Gaston Browne participated in a meeting with the ITLOS to discuss what types of greenhouse gas emissions are contributing to marine pollution and how countries will be held accountable to protect the marine ecosystem. [1]. In addition,intra-governmental and non-governmental organizations have also provided a series of briefs examining the sources of greenhouse gas emissions and its relevance to Part 12 of the Law of the Sea Convention (LOSC), which stipulates specific duties that countries have to protect the marine environment [3]. 

In an amicus brief prepared by the World Wide Fund for Nature organization (WWF), the party argued that the ITLOS’s advisory opinion ought to consider how the relationship between the ocean and atmosphere is applicable to Part 12 of the LOSC, which highlights the protection of marine environments as one of its primary goals. The WWF also observed how interpretations of the LOSC are always evolving and changing to accommodate special circumstances and emphasized that climate change is no exception [3]. With respect to the LOSC’s adaptability to special circumstances, the WWF ultimately argued that the ITLOS must provide an advisory opinion that can take into account the effects of climate change and what it entails for the LOSC. 

Furthermore, other organizations such as Opportunity Green and the Advisory Committee on Protection of the Sea (ACOPS) have argued that because greenhouse gas emissions produced by vessels (e.g., fishing boats, cargo ships, ferries, etc.) do produce marine pollution, countries must act in accordance with Article 194 of the LOSC [3]. Article 194 of the LOSC outlines five different measures that countries must take to control, prevent, and reduce marine pollution: Countries must (1) take individual or collaborative measures to address the source(s) of marine pollution , (2) ensure that any marine polluting activities under their control do not spread and inflict damage on the marine environments of other countries, (3) focus on the complete minimization  of marine pollution produced by toxic substances and chemicals, watercraft, marine exploration tools and devices, (4) avoid interfering with other countries’ ability to carry out their rights and duties relevant to the LOSC, and (5) take necessary measures to protect fragile ecosystems and the habitats of rare or endangered marine life [4]. 

In addition to the obligations listed under Article 194 of the LOSC, Opportunity Green also proposed that countries should adhere to Article 202 of the LOSC in order to provide financial and technological assistance to other countries that are particularly vulnerable to the effects of climate change and greenhouse gas emissions from watercraft [3]. Similarly, the One Ocean Hub (OOC) organization has also argued that countries should provide assistance to the most climate vulnerable countries. In contrast to the Opportunity Green’s proposal, however, the OOC’s argument is founded on Principle 9 of the Rio Declaration, which states that countries must cooperate with each other in an effort to protect the environment and promote equitable relations [3]. 

The ITLOS will use its interpretations of the LOSC to provide an advisory opinion in accordance with the ITLOS Statute (Article 21) and ITLOS Rules (Article 138) [2]. During the jurisdiction process, the ITLOS will also take into consideration the arguments provided by intra-governmental and non-governmental organizations. Since the case will focus on how the ITLOS can provide a new interpretation of the LOSC, the ITLOS’s decision will heavily rely on the hearings and briefs that will take place from 2023 to 2024.  Other countries such as France, Saudi Arabia, Germany, and Australia will also participate in a series of hearings with the ITLOS to help determine these qualifications and obligations [1]. The ITLOS is expected to provide a finalized advisory opinion in 2024.

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023.

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[1] Volcovici, V., & Alkousaa, R. (2023, September 11). Island States Seek Climate Protection from Law of the Sea. Reuters. https://www.reuters.com/business/environment/island-states-seek-climate-protection-law-sea-2023-09-11/#:~:text=The%20prime%20ministers%2C%20representing%20the,including%20from%20greenhouse%20gas%20emissions.

[2] Rocha, A. (2023, April 12). The Advisory Jurisdiction of the ITLOS in the Request Submitted by the Commission of Small Island States. Climate Law Blog. https://blogs.law.columbia.edu/climatechange/2023/04/12/the-advisory-jurisdiction-of-the-itlos-in-the-request-submitted-by-the-commission-of-small-island-states/#:~:text=21%20of%20the%20ITLOS%20Statute,%5D%27%20(emphasis%20added).  

[3] Request for an Advisory Opinion Submitted by the Commission of Small Island States on Climate Change and International Law (Request for Advisory Opinion Submitted to the Tribunal). International Tribunal for the Law of the Sea. (n.d.). https://www.itlos.org/en/main/cases/list-of-cases/request-for-an-advisory-opinion-submitted-by-the-commission-of-small-island-states-on-climate-change-and-international-law-request-for-advisory-opinion-submitted-to-the-tribunal/.

[4] United Nations Convention on the Law of the Sea. United Nations. (n.d.). https://www.un.org/depts/los/convention_agreements/texts/unclos/unclos_e.pdf.

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The Implications of Soft Law for International Human Rights 

By Summer Lee, University of Colorado Boulder Class of 2023

September 12, 2023

The United Nations Human Rights Committee (HRC) and the United Nations Human Rights Council are two of the most important mechanisms used to implement and advocate for international human rights. Both intergovernmental bodies are responsible for (1) addressing human rights concerns and interests among different countries and (2) determining whether or not the actions of different countries are in compliance or non-compliance with international human rights treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights [1, 2]. In contrast to legally binding international agreements (e.g., the Biological Weapons Convention and the Geneva Protocol), interpretations regarding international human rights treaties are based on soft law in the form of guidelines, norms, or recommendations established by either the United Nations HRC, Human Rights Council, or another UN human rights legal mechanism [3, 4]. The general assumption is that countries and other stakeholders involved will use these guidelines and recommendations to help guide their decisions regarding human rights [5]. However, recent studies show that this may not always be the case. 

 Legal scholars have questioned how the notion of soft law embedded within these guidelines and recommendations will incentivize countries to comply with international human rights law. Vera Shikhelman, an Emile Noel Research Fellow at the New York University School of Law, notes that since international human rights is based on soft law, countries do not have a strong legal obligation to make decisions that would fully comply with the new recommendations, norms, and guidelines put forth by legal intergovernmental bodies. Furthermore, Shikhelman observes that countries are less likely to comply when their representatives are not convinced by the legitimacy of the legal mechanisms and institutions put in place to discuss human rights [4]. Since many legal mechanisms and decisions put in place to address international human rights law are non-legally binding, countries also have the option to opt out of discussions over complaints. The issue of institutional legitimacy also appears in the following human rights treaties: Article 28 of the CAT, Article 10 of the Optional Protocol to CEWDAW, Article 8 of the Optional Protocol to CRPD, etc. According to these treaties, countries can choose to opt out from addressing complaints from other shareholders by formally declaring that they do not recognize the legal intergovernmental bodies involved to be legitimate or competent [8]. 

Studies conducted by John Yoo and Eric Posner also indicate that the global average compliance rate with the International Court of Justice’s decisions regarding human rights is only 61.9 percent because there are not enough incentives for countries to comply with the recommendations and guidelines made by legal intergovernmental bodies [4, 6]. Due to these factors, “partial compliance is the most common form of compliance” among countries [4].  

Jurisdiction over international human rights law is further complicated by countries’ that have already violated currently existing human rights norms. In order to compensate for non-compliance with the current norms and guidelines set by international human rights law, a country may appeal to legal intergovernmental bodies and other shareholders involved to change the current legal norms regarding human rights. But since countries are not legally obligated to comply, there is no guarantee that they will implement the adjusted norms and guidelines they initially agreed to. Although the use of economic sanctions and restrictions on foreign aid can be used to persuade countries to comply with the new rules and norms, Jacob Cogan from the University of Cincinnati College of Law argues that without a strong legal framework and appropriate institutions set in place, countries can still choose to act in non-compliance with international human rights law regardless of economic or political restrictions [7]. 

With soft law underlying the international legal mechanisms and treaties used to address human rights concerns, interpretations and compliance with international human rights law is gradually changing based on the interactions between countries, legal intergovernmental bodies, and other shareholders.  

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023.

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[1] UN Human Rights Council. International Justice Resource Center. (2018, January 24). https://ijrcenter.org/un-human-rights-council/. 

[2] Human Rights Committee. (2023). Introduction to the Committee: Human Rights Committee. United Nations Human Rights: Office of the High Commissioners. https://www.ohchr.org/en /treaty-bodies/ccpr/introduction-committee.

[3] U.S. Department of Health & Human Services. (2018, February 15). International Agreements. Science, Safety and Security: Law & Policy. https://www.phe.gov/s3/law/ Pages/International.aspx#:~:text=Thus%2C%20the%20Geneva%20Protocol%20and,and%20consent%E2%80%9D%20of%20the%20Senate. 

[4] Shikhelman, V. (2019). Implementing Decisions of International Human Rights Institutions – Evidence from the United Nations Human Rights Committee. European Journal of International Law, 30(3), 753–777. https://doi.org/10.1093/ejil/chz047. 

[5] The European Center for Non-for-Profit Law Stichting (ENCL). (n.d.). Soft Law, Hard Consequences. Counter-Terrorism & Human RIghts: .https://www.ohchr.org/sites/default /files/Documents/Issues/Terrorism/SR/UNSRCTbrieferSoftLaw.pdf. 

[6] Posner, E. A., & Yoo, J. C. (2005). Judicial Independence in International Tribunals. California Law Review, 93(1), 1–74. https://doi.org/https://www.jstor.org/stable/3481389 

[7] Cogan, J. K. (2006). Noncompliance and the International Rule of Law . University of Cincinnati College of Law Scholarship and Publications. https://scholarship.law.uc.edu/cgi/vi ewcontent.cgi?article=1346&context=fac_pubs.  

[8] United Nations. (2023). Complaints About Human Rights Violations. United Nations Human Rights: Office of the High Commissioner. https://www.ohchr.org/en/treaty-bodies /complaints-about-human-rights-violations#interstate. 

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The US-Origin Marking (Hong Kong, China) Dispute 

By Summer Lee, University of Colorado Boulder Class of 2023

September 4, 2023

On February 22, 2021, the World Trade Organization (WTO) held a panel between the complainant party, Hong Kong, China, and the respondent party, the United States to dispute whether or not goods manufactured in Hong Kong should be labeled as a product of Hong Kong or as a product of China [1]. The WTO ruled that labeling goods exported from Hong Kong as “made in China” violated the international trade agreements put forth by the General Agreement on Tariffs and Trade (GATT) [1].  

The WTO’s rulings were primarily based on a new interpretation of Article 21 paragraph (b) and Article 9 of the GATT. Article 21 of the GATT agreement states: 

                                    Security Exceptions 

 ��          Nothing in this Agreement shall be construed 

to require any contracting party to furnish any information the disclosure of which it considers contrary to essential security interests 

to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests

relating to fissionable materials from which they are derived;

relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment; 

taken in time of war or other emergency in international relations; or 

to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security [2].

These provisions were drafted to ensure that WTO members can impose international trade restrictions in order to protect essential national security interests. Although the agreement does not specify what these essential security interests entail per se, the United Nations (UN) describes national security as a country’s ability to provide “for the protection and defence of its citizenry”, whether that be through economic, environmental, social, or political means [4]. While the phrase “which it considers” in paragraph (b) of Article 21 allows WTO members to make their own unilateral decisions for the “protection of its essential security interests'', the WTO panel stipulated that this phrase would no longer be applicable to the subparagraphs that follow paragraph (b) (such as subparagraph (i), (ii), and (iii) [1]. As a result, the new interpretation of GATT Article 21, paragraph (b) weakened WTO members’ ability to make unilateral decisions, and instead subjected the members’ decisions to review by panelists. The panel used the new interpretation to reject the U.S.’s requests to label imported products made in Hong Kong, China as a “product of China” [1]. 

During the panel, the U.S. appealed to Article 21 of the GATT to justify the origin marking requirement request, claiming that the Beijing government’s enforcement of national security laws towards Hong Kong in 2020 spurred a concern over maintaining the U.S. 's “essential security interests” [3]. Even though the WTO acknowledged how fragile geopolitical relations between the U.S. and Hong Kong played a role in the United States’ interpretation of the “essential security interests” mentioned in Article 21 of the GATT, the panel ruled that these security interests were not urgent enough to constitute as an “emergency in international relations” (as outlined in Article 21, paragraph (b), sub-paragraph (iii) [1]. 

The panel also ruled that the origin marking requirement request made by the respondent party did not align with Article 9, paragraph (1) of the GATT, which states: 

Article IX 

Marks of Origin

Each contracting party shall accord to the products of the territories of other contracting parties treatment with regard to marking requirements no less favourable than the treatment accorded to like products of any third country [5].

Since the origin marking requirement required Hong Kong produced products to be labeled under the name of a different WTO member (China), the panel ruled that the requirement made the treatment of products produced in Hong Kong less favorable than treatment towards products produced by third countries [1]. The panel also observed that since products from third countries are labeled with the country it was produced in, Hong Kong’s products are being treated differently and are being put at a competitive disadvantage in the U.S. market [1]. The panel ultimately ruled in the complainant’s favor on the grounds that the labeling requirement would negatively impact Hong Kong products because unlike products sourced and labeled from its corresponding third-world countries, Hong Kong cannot directly benefit from the products that it has produced [1]. The WTO notified the complainant and respondent parties of the finalized appeal decision on January 26, 2023. 

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Summer Lee is pursuing a B.A. in International Affairs at the University of Colorado Boulder. She is planning to graduate in the Fall of 2023.

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[1] World Trade Organization. (2023). US-Origin Marking (Hong Kong, China). WTO Dispute Settlement: One-Page Case Summaries: 1995-2022. https://www.wto.org/english/res_e /publications_e /dispu_settlement_e.htm.

[2] World Trade Organization. (n.d.). GATT 1994-Article XXI (DS Reports) . WTO Analytical Index. https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_e.htm.

[3] Afp, A. (2022, December 22). US Ban on “Made in Hong Kong” Label Breaches Trade Rules, WTO Rules. Hong Kong. https://hongkongfp.com/2022/12/22/us-ban-on-made-in-hong-kong-label-breaches- trade-rules-wto-rules/#:~:text=In%20the%20past%2C%20Washington%20treated,democracy%20protests%20in%20Hong%20Kong. 

[4] Osisanya, S. (n.d.). National Security versus Global Security. UN Chronicle. https://www.un.org/en /chronicle/article/national-security-versus-global-security.

[5] World Trade Organization. (n.d.). Article IX: Marks of Origin. Analytical Index of the GATT. https://www.wto.org/english/res_e/publications_e/ai17_e/gatt1994_art9_gatt47.pdf 

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Northwestern University Facing Lawsuits Alleging Hazing

By Dianna Foran, University of Colorado Boulder

July 26, 2023

Northwestern University is facing multiple lawsuits from former student athletes alleging that the university’s athletics department was based on intimidation, harassment, abuse, and discrimination both sexually and mentally [1]. A news conference held Monday July 24, 2023 announced the lawsuit filed that same day by former quarterback Lloyd Yates and his attorneys. Yates, who played on Northwestern’s football team from 2015 to 2017, stated that emotional, sexual, and physical abuse was normalized in the program. Yates’ claims involve players being held down and “dry-humped” as well as activities involving nudity [2]. Coaches and staff are accused of disregarding hazing when witnessed or heard. The announcement came shortly after former head coach of Northwestern football, Pat Fitzgerald, was fired due to allegations of hazing within the program. Fitzgerald has chosen to retain attorney Dan Webb for a possible wrongful termination lawsuit against the university. Northwestern University owes Pat Fitzgerald over $40 million and has allegedly breached an oral contract with Fitzgerald stating that a two-week suspension without pay is “all there would be” for the former coach. Fitzgerald alleges his reputation has been “damaged enormously” and that Northwestern University had breached their contract under Illinois law where “an oral agreement is a contract” [3].

The complaint includes two assistant football coaches being hazed in the same manner as the players, both of which being part of a forced sex act. The sexual abuse alleged by the lawsuit is in violation of the Illinois Gender Violence Act [4] and includes “naked drills” directed at the male players due to their sex in an “effort to break, punish, control, and get them in line” [5]. In a letter released by Northwestern University president Michael Schill, Fitzgerald is relieved of his duties due to “his failure to know and prevent significant hazing in the football program” [6]. Evidence found during a six-month independent investigation found that hazing has been systematically ongoing within the program for many years with 11 current or former football student-athletes acknowledging such. Although some student-athletes believe the hazing was light-hearted and not harmful, others viewed it as causing harm with long-term consequences. Yates is seeking $50,000 in damages and names Northwestern University as the defendant.

Although three of the four lawsuits being filed (as of July 24, 2023) allege hazing within the football program, the volleyball program is also facing a lawsuit from a former player. This lawsuit states that the person, listed as “Jane Doe”, sustained an injury in March 2021 as punishment for breaking the team’s Covid-19 protocols as well as having experienced “hazing, harassment, bullying, and retaliation” [5]. The injury warranted an investigation by the university which found that hazing had taken place after which the university instituted anti-hazing training and canceled two games. Following the investigation, Doe alleges she “never once played in a volleyball game at Northwestern” in retaliation for her role in the investigation. Seeking at least $50,000 in damages and a jury trial, Doe names her defendants as: Northwestern University, university president Michael Schill, former university president Morton Schapiro, the university’s board of trustees, university vice-president for athletics and recreation Dr. James Phillips, and head volleyball coach Shane Davis.

Ben Crump, the civil rights attorney representing Yates, explains that his legal team is “planning to file 30 more lawsuits in the days and weeks to come… from the softball program, from the baseball program, even mascots talk about the hazing that they had to endure” [5]. The two additional lawsuits alleging Northwestern University’s football team of hazing are anonymous. Attorneys say many more lawsuits are to be filed in the upcoming weeks. Northwestern University does not comment on pending litigation and although the incident predated his tenure, president Michael Schill wrote a message to the Northwestern community stating “the University is working to ensure we have in place appropriate accountability for our athletic department” [2] [5].

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[1] Hawley, Larry, and Julian Crews. “Ben Crump Discusses Hazing Lawsuit against Northwestern Monday.” WGN, 24 July 2023, wgntv.com/northwestern-hazing-allegations/ben-crump-discusses-hazing-lawsuit-against-northwestern-monday/.

[2]  Boyette, Chris, and Elizabeth Wolfe. “Former Northwestern University Athletes Allege ‘toxic Culture’ of Hazing and Sexual Assault in the Athletic Department, Attorneys Say.” CNN, 20 July 2023, www.cnn.com/2023/07/20/us/northwestern-university-hazing-athletics-allegations/index.html.

[3] Rittenberg, Adam. “Pat Fitzgerald Attorney Says Northwestern Fired Coach for Cause.” ESPN, 11 July 2023, www.espn.com/college-football/story/_/id/37996312/attorney-says-northwestern-fired-coach-pat-fitzgerald-cause.

[4] Gender Violence Act, Pub. Act. 93-416. 1 January 2004. https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2494&ChapterID=57

[5] Langmaid, Virginia, and Omar Jimenez. “2 More Former Student-Athletes Sue Northwestern over Alleged Hazing.” CNN, 25 July 2023, www.cnn.com/2023/07/24/us/northwestern-volleyball-player-lawsuit-hazing/index.html.

[6] Schill, Michael. “Decision to Relieve Head Football Coach Pat Fitzgerald of His Duties.” Northwestern University, 2023, https://www.northwestern.edu/leadership-notes/2023/decision-to-relieve-head-football-coach-pat-fitzgerald-of-his-duties.html.