Tomer Broude

Do You Mind If I Don't Smoke? Products, Purpose and Indeterminacy in US - Measures Affecting the Production and Sale of Clove Cigarettes

The AB Report in US-Clove Cigarettes confirmed the Panel’s conclusions that imported clove cigarettes were ‘like’ US menthol cigarettes, and accorded ‘less favourable treatment’ for the purpose of national treatment under Article 2.1 TBT, but it employed significantly different logic. The AB’s reasoning extends earlier GATT jurisprudence into the TBT, applying competition-oriented analysis to the question of product definition, while reserving consideration of regulatory purpose to the comparison of treatment. We consider this emphasis from the perspectives of legal and economic indeterminacy, which we find run in parallel to each other. In the particular questions of the appeal, the AB’s decisions are sensible from both perspectives, but ultimately do not add significantly to determinacy. We find it impossible to ignore regulatory purpose in discrimination cases, and we provide a novel economic model for analyzing regulatory utility in this respect. In our view, there is not much economic difference in analyzing regulatory purpose separately from more observable market considerations, but this sequencing does add political logic, analytical focus and formal transparency, all of which may enhance the legitimacy of WTO dispute settlement rulings, although ideally, further specification from the WTO Membership regarding the methodological content of the national treatment discipline would be preferred.

Outsourcing and Insourcing Crime: The Political Economy of Globalized Criminal Activity

This Article presents a novel theory of the political economy of transnational crime control, answering three consecutive questions. First, why does crime travel across national borders? The Article demonstrates that in the globalized economy, profit-driven crime (e.g., money laundering, drug trafficking, gaming and the sex trade) responds - much like legitimate economic activity - to local regulation, by shifting to the territorial jurisdictions in which it incurs lower expected sanctions, making it most profitable for criminals. Second, how do governments react to the international mobility of criminal activity? The Article argues that the crime control policies adopted by individual states influence the global distribution of transnational crime, and that they subsequently impact upon the crime control policies adopted by other states. More specifically, it demonstrates how in a dynamic setting states engage in two types of regulatory crime control races, depending on differential national attitudes towards the activity involved. The first is the outsourcing race, in which increasingly strict policies cause crime to shift to other states. The second is the insourcing race, in which increasingly lenient policies attract crime to the state. In each of these races, states impose externalities upon each other, and inefficient levels of both enforcement and crime arise, in what may be seen as a global collective action problem. Finally, how should global crime control be designed to enhance global welfare? Building on theories of public choice and international relations, the Article offers a critique of existing policies in the area, and explores innovative crime control policies.

The WTO/GATS Mode 4, International Labour Migration Regimes and Global Justice

This paper asks whether the model of international labour migration regulation found in the WTOs General Agreement on Trade in Services (GATS) Mode 4 conforms to principles of global justice. To answer this question on the backdrop of the complex set of policy considerations relating to labour migration, I explore four competing theories of global justice: Cosmopolitanism; Statist Realism; Rawlsian Society-of-Peoples; and Nationalism. While the initial assumptions of these approaches are far removed from each other, and their ideal prescriptions seem mutually incompatible, a shift to non-ideal formulations reveals a broad range of commonalities and complementarities. From these one may derive general principles that delineate the common ground of international migration regimes that might be morally acceptable to all approaches. These include the encouragement of global distributive justice; the protection of basic human rights of migrants; promotion of the effectiveness of migration policy; and emergency safeguards for migration receiving states. As analyzed in the articles final section, the GATS Mode 4 does not satisfy any of these requirements.

Conflict and Complementarity in Trade, Cultural Diversity and Intellectual Property Rights

This article generally addresses the interrelationship between international trade regulation, the international protection of intellectual property rights, and the protection and promotion of cultural diversity. The main themes explored will be the binary notions of conflict and complementarity, suggesting a rough map of the territory in which these fields have the potential to clash with each other; and in contrast, the areas in which they appear to be mutually supportive. International trade and indeed intellectual property protection are in many senses not only a complement to cultural diversity, but a necessary component in the promotion and protection of interculturality. There are, however, also significant areas of discord. What emerges from the analysis is that the foundational concepts of trade regulation, intellectual property protection and cultural diversity are so far removed from each other, in their perceptions of basic ideas such as culture, diversity, innovation, tradition, markets and rights, that substantive conflict is inevitable, if not upon the surface, then at a deeper level. That in the exceptional circumstances of overt conflict, a lawyerly solution may be found, is no remedy for the potentially disruptive - or at least non-constructive - effects of the parallel existence of such inherently different normative regulatory systems.

Behavioral International Law

This article systematically explores the application of insights from behavioral economics to international legal issues. Economic analysis has in recent years made significant inroads into the study of international law, but most of this literature relies upon assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both in its insufficient empirical grounding and in its question-begging tendency towards often unsophisticated and outdated forms of ‘Realist’ international relations theory. A behavioral approach would augment legal research by providing new hypotheses to address puzzles in international law while at the same time introducing empirically grounded concepts of real, observed bounded’ rationality, which diverge from the assumed, perfect rationality of traditional law and economics. The article addresses some possible methodological objections to the application of behavioral analysis to international law, namely: the focus of behavioral analysis on the individual; the empirical foundations of behavioral economics; and behavioral analysis’ relative lack of parsimony. It then offers indicative behavioral research frameworks for three outstanding puzzles in international law: (a) the relative inefficiency of the development of international law; (b) collegiality and dissent in international tribunals; and (c) target selection in armed conflict. Behavioral research of international law can serve as a viable and enriching alternative and complement to economic analysis and other theoretical approaches to international legal research, so long as it is pursued with academic and empirical rigor as well as intellectual humility.

Regional Economic Integration in the Middle East and North Africa: A Primer

The Middle East and North Africa (MENA) is not a region easily associated with economic integration. It more readily conjures up images of geopolitical discord, state-led economies, authoritarian regimes and oil Sheikdoms that fear the reverberations of political liberalization that might come with economic openness.1 Indeed, early attempts at regional integration from the 1950s until the 1980s failed unequivocally,2 and only in the last few years can it be said that any real progress has been made. The economic gains anticipated from MENA integration, by any estimate, are evidently not so dramatic3 as to have overcome domestic and regional political obstacles; and at the same time, in no other region of the world is the project of regional economic integration so politicized, in the sense that it is driven more by the idea of peace and stability through trade than by rational economic logic.4

US – Anti-Dumping Measures on Certain Shrimp from Viet Nam: A Stir-Fry of Seafood, Statistics, and Lacunae

This unappealed Panel Report deals with now standard controversies involving US zeroing practices, but also involves a number of novel problems in administrative reviews of US anti-dumping orders that transcend zeroing issues. Most importantly, this dispute highlights the economic, legal, and statistical importance of sample-selection bias when calculating ‘all others’ rates for exporters that were not queried during dumping investigations. Sampling is particularly problematic in this dispute since US investigators found only zero and de minimis margins in the administrative reviews, a situation in which the relevant provision of the Anti-Dumping Agreement appears to provide no guidance (an apparent ‘lacuna’). The Panel did not directly deal with the key sample-selection issues in the case, and so we provide an alternative legal and statistical analysis. These issues are likely to become more important as the practice of zeroing is phased out in the United States. Indeed, sampling may well be the new zeroing.

The politics of international economic law

1. Introduction: some observations on the politics of international economic law Tomer Broude, Marc L. Busch and Amelia Porges Part I. The Politics of Law-Making in International Trade: 2. The politics and indirect effects of asymmetrical bargaining power in free trade agreements Meredith Kolsky Lewis 3. The politics of linkages in US preferential trade agreements Kimberlee G. Weatherall 4. The politics of African trade negotiations in the WTOs Doha Round Uche Ewelukwa 5. The politics of legitimacy in the UNCITRAL working methods Claire R. Kelly Part II. The Politics of International Investment Treaty-Making: 6. The politics of the European Unions investment treaty-making Marc Bungenberg 7. The politics of Chinas investment treaty-making programme Axel Berger 8. The politics of south-south bilateral investment treaties Lauge Skovgaard Poulsen Part III. The Politics of Sovereign Wealth and International Financial Law: 9. The politics of sovereign wealth funds: benign investors or smoking guns? Yvonne C. L. Lee 10. The politics of international financial law Douglas Arner Part IV. The Politics of Dispute Settlement in International Economic Law: 11. The politics of judicial economy at the WTO Marc L. Busch and Krzysztof Pelc 12. The politics of competing jurisdictions in WTO and RTA disputes, and the use of private international law analogies Henry Gao and C. L. Lim Part V. Linkages between International Economic Law and Foreign Policy: 13. The politics of rules of origin Moshe Hirsch 14. The politics of divestment Perry S. Bechky.

Who Cares About Regulatory Space in BITs? A Comparative International Approach

Regulatory space has become one of the buzzwords of the debate on international investment protection law. Critics claim that investment law unduly constrains states’ regulatory space. Proponents contend that claim. This article analyzes state sensitivity to constraints on regulatory space from a comparative perspective, on the basis of quantitative analysis of textual coding of investor-state dispute settlement provisions in renegotiated bilateral investment treaties.

Warming to Crisis: The Climate Change Law of Unintended Opportunity

Global warming is perhaps the ultimate crisis for humanity. But is it a crisis for international law? How has crisis framing and rhetoric influenced the development of international climate change law? Elements of a ‘crisis model’ can be identified in international responses to climate change, but they have transcended it and are evolving in much more complex and textured ways. On the one hand, the continuous pressure for urgent and exceptional action at the multilateral level has led to acrimony between states, indifference and denial among important constituencies, and ultimately to weak arrangements within conventional intergovernmental models. This has produced an impression of constant failure, which in itself poses a challenge to the normative capacity of traditional international law-making. On the other hand, crisis framing has been a catalyst for developments in international law in unintended ways. It has legitimated ‘bottom-up’ approaches and sub-global and unilateral action, as well as localized legal responses. It has led to sophisticated yet plausible reconciliations between climate concerns and international trade. It has promoted reconsiderations of hard policy choices, such as between mitigation and adaptation. International law’s climate change agenda has broadened, not narrowed, and it has shown a considerable capacity to innovate and develop, presenting new opportunities for international law’s functions and modalities.