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American Law and Economics Review | 2010

The Economics of Injunctive and Reverse Settlements

Keith N. Hylton; Sungjoon Cho

This paper extends the economic literature on settlement and draws some practical insights on reverse payment settlements. The key contributions follow from the distinction drawn between standard settlements, in which the status quo is preserved, and injunctive settlements, w and under which reverse settlements will be observed among injunctive settlements. Reverse settlements are likely when the stakes associated with the injunction are large relative to damages and litigation costs. The analysis has broader implications for efficient remedies and legal rules. (JEL K10, K40, K41, D24, O34)


Virginia Journal of International Law | 2012

Are World Trading Rules Passé

Sungjoon Cho; Claire R. Kelly

This Article probes the previously underexplored failure of the world trading rules to keep abreast with the global marketplace. It argues that the global trading system, despite its well-documented contribution to the spectacular expansion of postwar trade, has never in fact fully moved away from the mercantilist past, its monolinear conception of production and trading patterns, and its state-centric, top-down paradigm of rule making. The inevitable anachronism precipitated by the out-of-date trading-rules structure is seriously ill suited to the contemporary nonterritorial international business transactions defined by global supply chains. Consequently, while the trading rules officially seek to help facilitate trade consistent with the theory of comparative advantage, they often entail diametrically opposite effects, that is, clogging the arteries of global commerce. This Article concludes that burgeoning “trade networks” can offer an answer to these problems as these networks vigorously co-opt relevant epistemic communities and devise practical tools to confront the complex challenges faced by global businesses nowadays.


ExpressO | 2012

Reconstructing World Politics: Norms, Discourse, and Community

Sungjoon Cho

This Article argues that the conventional (rationalist) approach to world politics characterized by political bargain cannot fully capture the new social reality under the contemporary global ambience where ideational factors such as ideas, values, culture, and norms have become more salient and influential not only in explaining but also in prescribing state behaviors. After bringing rationalism’s paradigmatic limitations into relief, the Article offers a sociological framework that highlights a reflective, intersubjective communication among states and consequent norm-building process. Under this new paradigm, one can understand an international organization as a “community” (Gemeinschaft), not as a mere contractual instrument of its contracting parties (Gesellschaft). The Article applies the new paradigm to the World Trade Organization (WTO) as it describes the WTO’s institutional evolution from a power-oriented, tariff-reducing contract to a norm-oriented world trade community.


Archive | 2008

Constitutional Adjudication in the World Trade Organization

Sungjoon Cho

Abstract: Although a court, as a judicial organ, usually fulfils its mission by resolving specific disputes brought to it, it occasionally goes beyond this simple dispute-resolving function and more actively engages in building policies which define, and constitute, the very polity to which the court belongs, as was seen in Brown v. Board of Education. If this constitutional adjudication is an integral function of any domestic high court, could (and should) an international tribunal, in particular the World Trade Organization (WTO) tribunal, also play such a distinctive role? This paper contends that the WTO tribunal has in fact assumed such role by having recently struck down a hoary antidumping practice called zeroing which tends to inflate dumping margins and thus is a central vehicle for contingent protection embedded in the antidumping mechanism. The paper observes that the recent proliferation of antidumping measures as a new protectionist instrument has motivated the AB’s hermeneutical departure from the past interpretation which had endorsed the practice. This, it argues, is a constitutional turn of the WTO which a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound. Critically, this turn originates from bold ideas which envision, and thus constitute, new institutional meaning and possibilities within the WTO. In other words, the AB’s exegesis is anchored firmly by a discernible purpose of cabining trade distortive/restrictive consequences from the use of zeroing which have long been left unchecked. Finally, WTO members, the paper maintains, must preserve the anti-zeroing jurisprudence as constitutional norms in the absence of extraordinary circumstances tantamount to a constitutional amendment. In particular, it must not be a subject of political bargaining in the trade negotiation.


Archive | 2014

Converging Divergences: A Common Law of International Trade and Investment

Sungjoon Cho; Jürgen Kurtz

This Article observes that the recent jurisprudence between international trade and investment law is converging in a way which the free market value and public interests are duly reconciled. The Article contends that such jurisprudential convergence is structurally preordained yet historically manifested. It is structurally preordained in the sense that commerce is inherently embedded in its surrounding social environment. It is historically manifested in the sense that both regimes, despite their unique past, nonetheless featured a common ontogenetic path reflecting the embeddedness. The Article eventually crystalizes the convergence thesis into a common law, which is justifiable on both constitutional and practical grounds.


Northwestern journal of international law and business | 2013

An International Organization’s Identity Crisis

Sungjoon Cho

Despite the contemporary prominence of international organizations (IOs), their ontological status largely remains nebulous. Traditional international relations (IR) theories tend to regard an IO mainly as an instrument created to serve powerful states’ interests (neorealism) or to facilitate interstate cooperation on certain regulatory areas (neoliberal institutionalism). Therefore, those theories hardly offer a satisfactory explanation of a distinctive mode of IOs’ identity-forming process, in which a particular IO, as a separate and autonomous organic entity, grows, evolves and eventually makes sense of its own existence. This Article offers a novel perspective that attempts to overcome the aforementioned theoretical deficiency. Drawing on the identity theory in psychology, this new perspective captures an IO’s internal normative development in which one can witness a dynamic process of identity formation. The Article argues that based on its autonomy qua organization, and not merely as an instrument of states, an IO forms its unique legal identity as it experiences a normative crisis in a similar way in which a human individual does. An IO discovers its genuine identity only after it achieves a necessary level of institutional maturity as a result of incessant legal interactions and communications with its environment. The Article tests this new framework by applying it to the World Trade Organization (WTO).


Archive | 2011

Globalizing of Administrative Law

Sungjoon Cho

What if the same international trade dispute is adjudicated both in a domestic court and in an international tribunal? The conventional view – dualism – may tolerate two conflicting legal conclusions in this situation. However, in the Habermasian postnational constellation, such legal dissonance appears not only normatively troublesome but also practically taxing to global business. Against the backdrop of the recent “double remedies” dispute between the United States and China, this Article seeks to offer a modest solution to this dilemma via a discursive engagement between a domestic court and an international tribunal. The Article argues that the WTO Appellate Body qua trade law adjudicator could have employed the same hermeneutical tool, such as “reasonableness,” adopted by the United States Court of International Trade (USCIT) when the latter reduced the Commerce Department’s discretion over the double remedies issue to null. The Article further views that as such an engagement between a domestic court and an international tribunal, as well as the resultant discursive connection between them, matures and deepens, both courts may form a broader interpretive community, in which they can establish an identifiable pattern of common administrative law principles. This visible, and thus accessible, trans-judicial practice in overlapping issue-areas, such as trade remedy, this Article submits, is a propitious step toward the reconciliation of domestic and international administrative law, and eventually the globalizing of administrative law. The Article concludes that this diffusive and osmotic global administrative law-making process offers a novel dimension of understanding transnational-international law.


Archive | 2011

The role of the G20 in WTO governance

Sungjoon Cho; Charlotte Sieber

Report by Professor Sungjoon Cho, Associate Professor of Law, Chicago-Kent College of Law (Chair), and Charlotte Sieber-Gasser, Doctoral Research Fellow, World Trade Institute, University of Bern, Session 27, WTO Public Forum 2010: The Forces Shapping World Trade, pp.29-33. In the course of the financial crisis, the global geography of power has shifted from G8 to G20. The latter, although representing roughly two thirds of global trade, consists of relatively a small number of global players and is consequently excluding many others from decision-making at the international stage. Nevertheless, the G20 has been successful in its reaction to the financial crisis and became therewith an important new player within the international community. When highlighting how the G20 might interfere with the WTO, the panel voiced concerns over the political legitimacy of the G20, given the limited number of members and the global impact of its decisions. It agreed on the impression that although the G20 intends to extend its debates from the financial sector to world economy in general, it has so far little achieved in this direction, particularly when it comes to moving the Doha agenda forward. It remains, thus, open how the G20 will evolve in the coming few years, and what mandates it will shed or adopt. So far, the G20 has complemented the WTO and international financial institutions in handling the financial crisis. Yet, even if there is little evidence pointing towards a less cooperative role in the future, the desirability of a G20 commitment in WTO trade negotiations has yet to be debated. The panel concluded by providing ideas on how the potential of the G20 might be used to serve global interests even better in the future. In their concluding remarks, the panellists agreed that it remains to be seen whether or not the G20 will further broaden its agenda. Given the ebbing away of the financial crisis there is even the question whether the G20 will remain an important international forum for financial collaboration, or whether it has already served its cause and will eventually disappear from the international stage. The Chair concluded the well attended and lively panel with voicing the hope that the two international bodies – the G20 and the WTO – will work in a positive way together in the future and face the challenges and opportunities in their collaboration to the benefit of everyone.


Archive | 2010

Reconstructing an International Organization: A Paradigm Shift in the World Trade Organization

Sungjoon Cho

This article argues that the old paradigm on international organizations (IOs) (Gesellschaft) characterized by realist political bargain cannot fully capture new social realities around contemporary IOs in which ideational factors, such as ideas, values, culture and norms, have become more salient and influential not only in explaining but also in prescribing state behaviors. In an attempt to address the old paradigm’s blind spots, the article offers a new paradigm informed by constructivism that highlights a reflective, intersubjective communication among IO members and consequent norm-building process. Under this new paradigm, one can understand an IO as a “community” (Gemeinschaft), not a mere contractual instrument of its contracting parties. The article applies the new paradigm to the WTO as it describes the WTO’s institutional evolution from a power-oriented, tariff-reducing contract to a norm-oriented world trading community. Critically, this article does not attempt to replace the old paradigm (realism) with the new one (constructivism) proposed here. Instead, the article endeavors to highlight the old paradigms’ structural weaknesses and offers a complimentary, rather than alternative, paradigm. Thus, an IO’s reality embraced jointly by these two paradigms may feature a “double helix” structure under which any single paradigm might not claim its disciplinary monopoly.


Archive | 2010

Amicus Brief: United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China

Sungjoon Cho

The panel’s interpretation has two fundamental flaws. First, the panel disregards the general illegality of double remedies under the WTO norms, which is manifest under GATT Article VI and SCM Article 19:4. As a result, the panel validates the U.S.’ concurrent imposition of countervailing duties after the previous imposition of antidumping duties under the non-market economy (NME) methodology. Second, the panel, blatantly disregarding SCM provisions, such as Article 12.8, shifts the burden of proof from the investigating authority (the United States Department of Commerce (DOC) in this dispute) to the respondents. Although the investigating authority is required under the Article to fully demonstrate the non-existence of double counting when it employs the NME methodology, the panel nonetheless imposes on respondents the burden of establishing that there existed actual double counting, and therefore “duties in excess of the subsidy.”

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Richard Warner

Chicago-Kent College of Law

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