The Reality of EU-Conformity Review in France

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts\u27 uniformly high rates of EU directive enforcement and similar willingness to refer questions to the ECJ for preliminary rulings demonstrate that, despite adopting dissimilar approaches to the supremacy of Communitarian law, French judges have flourished as Communitarian law judges. The article concludes by presenting an explanation for this high degree of convergence: French judges, responding to growing European integration and enabled by a changing constitutional landscape, adjusted their views to ensure they would have a role in molding the integration of national and EU law

Alternative Methods of Appellate Review in Trade Remedy Cases: Examining Results of U.S. Judicial and NAFTA Binational Review of U.S. Agency Decisions from 1989 to 2005

When the United States and Canada agreed to replace U.S. judicial review of trade-remedy cases with a new dispute mechanism under Chapter 19 of the Canada-United States Free Trade Agreement (now the North American Free Trade Agreement), the U.S. Congress and trade negotiators expected that the new dispute settlement panels would apply U.S. law and the standard of review in the same manner as U.S. courts. This requirement was embodied in the text of the agreement and has at least nominally been applied by Chapter 19 panels ever since. Empirical analysis of seventeen years of decisions now allows a conclusion with a high degree of confidence that this has not been the case. Chapter 19 panels are far more likely than U.S. courts to overturn U.S. agency decisions. Not only that, but Chapter 19 panels have produced outcomes more favorable to Canadian importers than have U.S. courts. This outcome illustrates that the facial legal terms of an international agreement may give a misleading impression of how it will actually be implemented, and suggests that greater attention must be paid to how it will be interpreted and by whom

A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 2007, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends Case Type, Party Identity, Income Level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators\u27 notorious decisions, that biased rule development explains this disparity. This Article then discusses the effect of biased rule development on perceptions of the WTO dispute settlement system\u27s democratic legitimacy and legality

The Dynamics and Global Implications of Subglobal Carbon-Restricting Regimes

The European Union and Australia have enacted comprehensive carbon-restricting reforms that will affect both domestic and foreign industries. After describing these reforms in detail, the article develops a microeconomic analytical model that explains the impact these regimes have on the dynamics of inter-firm competition in carbon-restricting nations and how they will also influence technology choices by certain industries in carbon-friendly nations. Specifically, exporters and producers operating in vertically-integrated industries in carbon-friendly nations will increasingly elect carbon-efficient technologies to minimize costs as they adjust to a changing international regulatory environment. The article hypothesizes that this shift in the carbon intensity of production will cause these industries to form coalitions with other pro-environment groups to pressure national governments for legislative and global carbon-restricting reforms that reduce carbon leakage and losses from trading with industries in carbon-laggard nations. Because these cumulative developments will eventually lead to a binding global emissions-stabilizing agreement, pursuant to which border measures will be taken, the article offers a few suggestions for reducing potential conflicts between the trade and climate change regimes

A Brief History of Brazilian Biofuels Legislation

Due to concerns with global climate change, Brazil\u27s long and diversified experience with biofuels has captured the attention of policymakers worldwide. Yet, little is known about the history and scale of the Brazilian biofuels program in the United States. This comment provides an introduction to the history of Brazil\u27s biofuels program and refers to the basic statutes that set it in place. Due to the unavailability of these enactments in English, an appendix provides the relevant portions of these statutes both in Portuguese and in the author\u27s English translation

The Limits of WTO Adjudication: Is Compliance the Problem?

Mainstream international trade law scholars have commented positively on the work of WTO adjudicators. This favorable view is both echoed and challenged by empirical scholarship that shows a high disparity between Complainant and Respondent success rates (Complainants win between 80 and 90 percent of the disputes). Regardless of how one interprets these results, mainstream theorists, especially legalists, believe more is to be done to strengthen the system, and they point to instances of member recalcitrance to implement rulings as a serious problem. This article posits that such attempts to strengthen compliance are ill-advised. After discussing prior empirical analyses of WTO adjudication involving primary rights and obligations under the WTO agreements (i.e., substantive adjudication), this article expands the empirical study into compliance disputes. It finds that enforcement proceedings do protect the pro-free trade interests so overwhelmingly supported in substantive adjudication. Because that is the case, this article investigates the extent to which current levels of noncompliance might constitute a threat to this regime, and theorizes that the observed level is not only acceptable but a necessary feature of the system. I conclude by arguing that compliance-related issues must be viewed in a broader perspective that transcends narrow legalistic views and accounts for the multifaceted interests of, and differences among, WTO members. (JEL: K 33, K 41

NAFTA\u27s Double Standard of Review

Chapter 19 of the North American Free Trade Agreement (NAFTA) replaced court review of U.S. antidumping and countervailing duties with binding review by special binational panels of trade experts. It requires these panels to apply the same standard of review that U.S. courts use in trade remedy cases. Despite the centrality of this requirement to the Chapter 19 panel system, these panels have not adhered to this mandate. Chapter 19 panels overturn U.S. agency rulings much more often than the courts. In fact, they apply two different standards of review: exacting scrutiny where foreign producers and governments appeal, and near-absolute deference to agencies when U.S. industries appeal. In contrast, panels have shown great deference to Canadian agency determinations (which almost invariably find dumping exists) and favor Canadian industries seeking duties as often as foreign producers seeking their reduction or elimination. Previously suggested explanations - that Chapter 19 appeals involve different facts, that U.S. courts are inept, or that U.S. industries have captured U.S. agencies - fail to explain these phenomena. Rather, these discrepancies result from conflicting views about trade laws within the U.S. government, the relatively greater incentive of the Canadian government to control the Chapter 19 process through panel appointments and political action, and a procedural structure that makes it easy for panelists to override the U.S. legislative process. Proponents of free trade have, with some reason, warmly received Chapter 19. These discrepancies, however, may reduce the credibility of international dispute settlement and impede negotiations of other agreements

The Evolving Domestic and International Law Against Foreign Corruption: Some New and Old Dilemmas Facing the International Lawyer

For over two decades, the Foreign Corrupt Practices Act (“FCPA”) and, more recently, the Organization for Economic Cooperation and Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (“OECD Convention”) have delineated to U.S. lawyers and their clients which international transactions are proscribed and punished as corrupt. However, like any other statute, the FCPA and the OECD Convention are unable to cover all the permutations of activity that would seemingly constitute transnational corruption. This Article explores what is prohibited and permissible under the FCPA and the OECD Convention, highlighting the tension between operating outside the coverage of these legal precepts while still complying with the rules of professional conduct. It concludes by demonstrating, by means of various scenarios, that there is no substitute for a lawyer\u27s reliance on her professional and ethical judgment. Reprinted by permission of the publisher

A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development

The positive theory of litigation predicts that, under certain conditions, plaintiffs and defendants achieve an unremarkable and roughly equivalent share of litigation success. This Article, grounded in an empirical analysis of WTO adjudication from 1995 through 27, reveals a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This disparity transcends case type, party identity, income level, and other litigant-specific characteristics. After analyzing and discarding standard empirical and theoretical alternative explanations for the systematic disparity in success rates, this study demonstrates, through an examination of patterns in WTO adjudicators\u27 notorious decisions, that biased rule development explains this disparity. This Article then discusses the effect of biased rule development on perceptions of the WTO dispute settlement system\u27s democratic legitimacy and legality