David A. Gantz

Evolving Relationship between Law, Offshoring of Professional Services, Intellectual Property, and International Organizations

This article covers four issues. First, it examines evolving international conventions to determine whether countries, especially developed countries, can take any steps to inhibit offshoring with the objective of protecting jobs in their respective countries. Second, it looks at statistics from independent sources to see if outsourcing exceeds insourcing, or vice versa, in the case of the U.S. Third, it looks at trends in outsourcing in the legal arena. Fourth, it looks at the intellectual property aspects of outsourcing and presents a long-term vision on how this ticklish issue is likely to be addressed in the long-term.

Interoperable Electronic Health Care Record: A Case for Adoption of a National Standard to Stem the Ongoing Health Care Crisis

Interoperable electronic health records (EHR) have the capacity to deliver health care at optimal costs and quality in the United States, but current private and public initiatives have delayed nationwide implementation by failing to overcome several obstacles. These obstacles include: widespread reluctance in adopting health information technology (HIT); differing technical and semantic standards for communication between vendor systems; and legal challenges, which are mainly based on liability, privacy, and security concerns. This paper examines these challenges and the inadequacies of current HIT-EHR implementation strategies, questioning in particular the validity of privacy and security-based concerns. A comparison with the U.S. finance industry and other nations facing similar challenges not only undermine these concerns, but also point to pursuit of revolutionary solutions when traditional approaches fail. To efficiently and effectively facilitate the development of interoperable EHRs and help stem the crisis of rising costs and discontent in the U.S. healthcare sector, this paper proposes enactment of federal legislation mandating uniform technical standards to maintain and transfer health records as a necessary first step and integral part of a successful solution.

Resolution of Investor-State Controversies in Developing Countries

Abstract The large volume of literature and commentary on resolution of investor-state disputes tends to focus primarily on the rights of the foreign investor and the process through which the investor may protect her interest through investor-state arbitration, either at the World Bank’s ICSID or in some other forum. Where issues relating to governments-as-respondents have been addressed, the emphasis has often been on nations such as the three NAFTA Parties and other relatively large and affluent nations such as Argentina. Until relatively recently, much less attention has been paid to challenges facing small developing respondents, such as the member nations of CAFTA-DR, Chile, Colombia or Ecuador. How, for example, should such governments respond to and manage claims, some of which in magnitude may represent a significant portion of the annual budget of the respondent government, when there is relatively limited in-house legal expertise and experience in such dispute resolution? Fortunately, UNCTAD and others have begun to take such challenges into account and to provide training for respondent government officials. Still, further actions are needed, including educating policy makers and the public as to the risks that arise in the investor-state dispute context and how best to address them. Changes in BITs and FTA investment provisions are also warranted. This article identifies the nature of the challenges presented to such governments and suggests practical means of dealing with them more effectively. It addresses, inter alia, coordination issues for the national administering authority; means of identifying and resolving such disputes before they reach the arbitration stage; effective use of outside legal advisers at various stages of the process; factors relating to the selection of arbitrators; administration of the arbitral process; and making current and future bilateral investment treaties more responsive to the procedural needs of respondent government. The article also draws on the history of a number of nations with experience in responding to and/or litigating investor state disputes.

The CETA Ratification Saga: The Demise of ISDS in EU Trade Agreements?

This article focuses on the frustrating, time-consuming and difficult legal and political process through which the Comprehensive Economic and Trade Agreement (CETA) is being put into force in the European Union. The CETA approach includes approval of the agreements initially by the EU Commission, EU Council and EU Parliament, but also unanimously by the approximately 38 national and regional EU Member State Parliaments. That unanimity requirement has raised doubts as to whether any future controversial trade agreement — and if CETA is controversial so much more so are all others — could effectively be put into force by the EU, whether or not it contains ISDS mechanisms. Fortunately, the EU Court of Justice decision on similar issues arising from the EU-Singapore FTA promises a more streamlined approval process within the EU alone for future trade agreements. However, there are two caveats: a) any ISDS and related investment provisions should be treated in a distinct agreement for separate EU and Member State approval; and b) notwithstanding the EU’s legal powers post-Court of Justice decision to conclude FTAs on its exclusive authority, EU politics may make it difficult or impossible for the EU to do so.

Liberalizing International Trade after Doha: Multilateral, Plurilateral, Regional, and Unilateral Initiatives

After ten years, the Doha Development Round is effectively dead. A broadly comprehensive round of trade negotiations reminiscent of the Doha agenda or the Uruguay Round will not likely be attempted again in the foreseeable future. Although some have suggested that Doha’s demise threatens the continued existence of the GATT/WTO system, even with some risks of increasing protectionism, the United States, the European Union, Japan, Brazil, China, and India, among others, have far too much to lose to make abandoning the WTO a rational option. If there is reason for cautious optimism post-Doha, it is because there are alternatives to a comprehensive package of new or amended multilateral agreements. In addition to likely consensus on a few noncontroversial multilateral elements of Doha, the alternatives include existing and future plurilateral trade agreements, new or revised regional trade agreements covering both goods and services, and liberalized national trade laws and regulations in the WTO member nations. This book discusses the alternatives, which, although less than ideal, may provide an impetus for continuing trade liberalization both among willing members and, in some instances, worldwide.

The Interplay of Offshoring of Professional Services, Law, Intellectual Property, and International Organizations

This paper covers four issues essential to understanding the interplay between law, the offshoring of professional services, intellectual property, and international organizations. First, this paper examines the extent to which evolving international conventions restrict the ability of countries, especially developed countries, to inhibit offshoring with the objective of protecting jobs at home. Second, it looks at statistics from independent sources to see if the U.S. ultimately benefits or loses when outsourcing occurs-i.e., whether offshoring exceeds insourcing, or vice versa, in the case of the U.S. Third, it cites specific examples to predict future legal trends in outsourcing. Fourth, it looks at the intellectual property aspects of outsourcing, and suggests equitable protection of intellectual property in an economy with increased offshoring.

Polyethylene Retail Carrier Bags : Non-Market Economy Status and U.S. Unfair Trade Actions Against Vietnam

Like China, Vietnam was required as a condition of WTO accession to accept that other WTO Members would be able to use non-market-economy methodology for an extended period (2018 in the case of Vietnam) when bringing antidumping actions against Vietnamese producers. Vietnam also agreed to the use of special non-national “benchmarks” for calculating the benefits derived from certain government subsidy programs when those programs were challenged under national countervailing duty actions. In 2009, the U.S Department of Commerce brought its first CVD action against Vietnam, Polyethylene Retail Carrier Bags.This article reviews the history of such actions against Vietnam (and to a lesser extent, China), with particular emphasis on the PRCB action and its implication for future U.S. unfair trade actions against Vietnam.