International Law / Trade
LL.M Seminar (cross-listed) | 2 credit hours
This course blends mock litigation experiences with class discussion of techniques, strategy, and ethics in international arbitration proceedings. Students directly participate in a series of practical exercises based upon proceedings brought by a foreign investor against a State before the International Centre for Settlement of Investment Disputes (ICSID), including role-playing as litigators and arbitrators. The course emphasizes advocacy in connection with jurisdictional and procedural issues, selecting and challenging arbitrators, limits on the enforceability of awards, and other litigation problems that arise in the globalized environment of international investment and arbitration. There will be a number of oral advocacy assignments throughout the semester. The course grade will be a function of those assignments and class participation.
Recommended: International Law I: Introduction to International Law
Note: Students participate in in-class exercises and are graded on those exercises and productive class participation. Students may not withdraw from this class after the add/drop period ends without the permission of the professor.
LL.M Seminar (cross-listed) | 2 credit hours
This course blends mock arbitration experiences with class discussion of techniques, strategy, and ethics in international arbitration proceedings. Students directly participate in a series of practical exercises based upon a series of international arbitration fact patterns, which will entail their role-playing as advocates, cross-examiners, and arbitrators. The course emphasizes advocacy in connection with jurisdictional and procedural issues, selecting and challenging arbitrators, and other scenarios that often arise in international arbitration.
Recommended: An introductory course or some experience in international arbitration; International Law I: Introduction to International Law.
Note: Note: Students participate in in-class exercises and are graded on those exercises and productive class participation. Students may not withdraw from this class after the add/drop period ends without the permission of the professor.
J.D. Seminar (cross-listed) | 2 credit hours
Corporations today have a global scale as well as an impact that matches or sometimes exceeds that of governments. Their activities -- from sourcing of raw materials, to processing and production of intermediate or finished goods, to distribution and sale -- have major consequences not only for the human rights of their employees but also for the rights of the individuals and communities impacted by their operations. In many countries, government regulation and oversight are either absent or largely ineffective. Companies in turn struggle to define their responsibilities in the face of these "governance gaps" -- particularly where requirements under national law fall short of international standards in areas such as hours of work and safety and healthy.
A robust and often contentious debate over these issues culminated in the development of the U.N. Guiding Principles on Business and Human Rights (the “UNGPs”) under the leadership of Special Representative John Ruggie. These Principles establish a framework for considering the respective roles of governments and corporations and outline core concepts of human rights due diligence and effective remedy. In doing so, the UNGPs also inform and to some extent refocus efforts that have emerged over the past 20 years to address these governance gaps and have brought together stakeholders from business, labor, civil society, the investment community, and academia.
At the same time, in recent years there has been an increased push from civil society groups and certain governments to go beyond these "voluntary" efforts and develop a binding business and human rights treaty mechanism; this has met with strong opposition from business and many other governments, including the United States.
Even as "non-regulatory" approaches remain the predominant means of addressing various business and human rights challenges, there also has been a growing focus in recent years on tools through which national governments and international institutions could exercise greater leverage. This includes advocacy for stronger labor and other human rights language in trade agreements, one-way trade preference programs, procurement standards, and the rules and guidelines applied by international financial institutions -- coupled with more aggressive enforcement of those criteria. Expanded efforts to advance that "regulatory" approach in trade policy and elsewhere in some cases has been met with resistance from governments and business, but there also have been examples of emerging consensus among a diverse range of stakeholders.
This course introduces students to this quickly-evolving business and human rights landscape, including the diverse set of multi-stakeholder initiatives -- some, but not all, of which include government participation. We will discuss the guidance provided by the UNGPs and other instruments, the range of stakeholders and how they engage with one another, tools utilized by governments and corporations to implement human rights standards, and how all of these interact in the context of both sector-specific and cross-cutting legal and policy challenges.
Among the questions the course will examine are:
- Which human rights standards are most relevant to business?
- What are the appropriate linkages between business policies and practices and the promotion of human rights?
- Which business and human rights approaches are emerging as “best practices" and perhaps even as recognized norms?
- What tools to support those are being used by governments and corporations?
- Who are the principal stakeholders and what are their roles and objectives?
- What are the strategies for addressing business and human rights "governance gaps" at the national and international levels?
- What are the opportunities for increased integration of labor/human rights and trade policies, and what are the limitations?
- What mix of mandatory/regulatory and voluntary/“self-regulatory” approaches has been utilized in different situations to advance human rights objectives? Which approaches have been most effective?
- How are various business and human rights challenges playing out in specific sectors, and how do these inform the debate about different approaches?
To address these and other key questions, the course will begin with several sessions setting out the relevant legal and policy developments, with special attention to the UNGPs. It will also include a review of different stakeholders and their roles and interests, and examination of concepts of corporate responsibility and corporate accountability, and an analysis of the various approaches to business and human rights advanced by companies, governments, labor, civil society, and through multi-stakeholder initiatives. The second half of the semester will then focus on how these concepts are being applied in particular sectors to address specific business and human rights challenges.
Throughout the course, students will be asked to examine the various approaches and differing roles of key stakeholders, including by playing the roles of those addressing the key issues from the perspectives of corporations, civil society and unions, and governments. The class will be divided into three groups for purposes of this “role playing” -- with each asked to adopt all three perspectives during the course of the semester, both in students’ individual analyses of assigned readings and in group sessions during certain classes.
Introduction to business and human rights landscape, including legal and policy developments, particularly the UN Guiding Principles on Business and Human Rights. The course reviews different stakeholders and roles, examines concepts of corporate responsibility and accountability, and analyzes various approaches to business and human rights advanced by stakeholders. The course will also familiarize students with sector specific business and human rights challenges.
Recommended: There are no formal course requirements, but some basic familiarity with international trade and human rights law is assumed.
Mutually Excluded Courses: Students may not receive credit for both this seminar and the practicum course Business and Human Rights.
LL.M Course (cross-listed) | 1 credit hour
The relationship between business, human rights, and sustainability has gained momentum in recent years with the private sector, governments, civil society, and international organizations, owing largely to the passage of the United Nations Guiding Principles on Business and Human Rights (UNGP) in 2011, the 2012 UN Rio + 20 Sustainable Development Conference and the UN Sustainable Development Goals (2015). These developments were preceded and followed by a series of multi stakeholder (governments, private sector, investors, civil society networks and organizations) and specific industry driven initiatives looking at how to integrate these international standards into both self and binding regulatory processes. As a result, many of these initiatives led to an emerging international soft law system of business, human rights and sustainability that is based in the internationally acknowledged body of hard law principles.
Regardless of being industry, sector specific or multi stakeholder in nature, the regulation, de-regulation, policy, practice and ever growing global litigation in this new field of practice is multifaceted, dynamic, interactive, complex and challenges business leaders, markets and even lawyers to think outside the box in order to address a challenging relationship between business, markets and society. This is where business strategy meets risks. Or instead, this is where risks eat a business strategy. As a result, business leaders, shareholders and their advisors are now required to integrate a 3D internal and external view and assessment on how to address, prevent, mitigate and remediate the social and environmental impacts (risks) of private sector operations in complex environments and with a collaborative and systems thinking approach.
Bar Associations in America and abroad have begun issuing specific guidance on how corporate lawyers should advice their clients incorporating human rights and sustainability standards. For instance, in a Mergers and Acquisitions (M&A) transaction, corporate lawyers are most likely to encounter questions dealing with social, environmental, human rights and environmental concerns. Those advocating on behalf of environmental and human rights organizations will find their work directly intersects with company law, securities law, investment law, governance, compliance, company law and alternative dispute resolution mechanisms to name a few sub areas.
Fast-forward 2020. The global COVID-19 pandemic has suddenly entered this space. It has done so highlighting the vulnerabilities and opportunities in the relationship between business, governments and society across the globe. Furthermore, the global pandemic is challenging all stakeholders not only to become relevant but to re-think, re-imagine and re-envision new models that seek engagement, resilience, addressing grievances, investment, economic recovery and accountability frameworks.
In practice, these global and ever growing litigation trends are also challenging traditional company-led corporate social responsibility (CSR) and ethics programs that have been associated with both philanthropic, corporate citizenship and company-sponsored activities that give back to societies. While many of these programs have achieved several levels of success, for many sectors in society they remain as corporate public relations or green wash exercises and demand more transparent, accountable and remediation responses. The stakes are high.
Litigation, a growing movement towards mandatory human rights and environmental due diligence and reporting requirements and other types of social demands are challenging companies to be very purposeful and accountable on how they address the environmental, social and governance negative impacts (for some) or violations (for others) of their operations globally and domestically. Stakeholders are asking companies to integrate ongoing due diligence processes that address materiality concerns when it comes to managing supply chains and making sure they are free of child labor, modern slavery and human trafficking. They are also asking companies to address the social and environmental impacts of extraction of natural resources above and below ground, to name a few.
Furthermore, stakeholders are not alone on this. The emerging and growing movement of shareholder advocacy is leading the way across industries and pushing the way through different strategies for more corporate engagements that drive responsible business conduct and standard-setting activities that push for robust business, human rights and sustainability policies embedded as part of corporate operations across systems and functions. In particular, a wide range of investors that include asset management firms, trade union funds, public pension funds, foundations, endowments, faith-based organizations and family funds are leveraging their assets of over US$3.5 trillion to collaborate around responsible investment while influencing boards and management.
At the conclusion of this course, students will demonstrate the capability:
- To distinguish between relevant applications of the Business, Human Rights and Sustainability frameworks of international hard and soft laws, in the context of environmental, social and human rights challenges across industries and different actors and how they can be integrated into the business strategy.
- To assess critical human rights, environment and natural resources challenges currently faced by industries and markets in different contexts through a multi stakeholder and 3D lens risk management approach.
- To analyze and discuss how different tools and resources can be applied and be relevant to address human rights and environmental challenges, which tools would be best suited for specific contexts and grievance mechanisms that exist for access to remedy across relevant and selected industries (policy development, stakeholder forums and facilitation, influence and development, multi stakeholder assessments, human rights due diligence and environmental assessments) in international development, conflict and post-conflict environments.
Note: Attendance of ALL classes is Mandatory. Students will also have to come ready to actively participate with all assigned readings on the Syllabus completed before class, will have to work on small cohort simulated presentations and submit a final written memo that will be assigned in class. No exceptions.
LL.M Seminar (cross-listed) | 1 credit hour
The course is designed to give students an overview and practical insight on the legal aspects of doing business with or investing in Latin America. The course will focus on Mexico, but will also address legal issues associated with doing business in Central and South American countries. Topics will be discussed from the perspective of U.S. investors doing business in the region, and will cover the legal implications of cross-border distribution, licensing and joint venture arrangements, acquisitions and direct investments, labor planning and creditor rights.
Recommended: Contracts, Corporations, and International Business Transactions.
Note: ATTENDANCE IS MANDATORY AT ALL CLASS SESSIONS. Enrolled students must be in attendance at the start of the first class session in order to remain enrolled. Waitlisted students must be in attendance at the start of the first class session in order to remain eligible to be admitted off the waitlist. All enrolled students must attend each class session in its entirety. Failure to attend the first class session in its entirety will result in a drop; failure to attend any subsequent class session in its entirety may result in a withdrawal.Enrolled students will have until the beginning of the second class session to request a drop by contacting the Office of the Registrar; a student who no longer wishes to remain enrolled after the second class session begins will not be permitted to drop the class but may request a withdrawal from an academic advisor in the Office of Academic Affairs. Withdrawals are permitted up until the last class for this specific course.
J.D. Seminar (cross-listed) | 2-3 credit hours
This seminar provides an introduction to the increasingly important field of private international law as well as an opportunity to explore in depth specific issues now under active consideration in the various international and regional organizations working on the development, codification and harmonization of private international law. Beyond the “classic” PIL questions of jurisdiction, choice of law, judicial assistance and enforcement of judgments, we will explore such topics as international family law (including international adoption, abduction and enforcement of child support and family maintenance), alternative dispute settlement mechanisms (including international mediation and commercial and investment arbitration), as well as the cross-border aspects of such topics as data protection and privacy, bankruptcy/insolvency, secured transactions, securities law, intellectual property, transport of goods by sea, letters of credit, leasing law, consumer protection, and even wills and trusts. You may write your papers in any of these areas (among others). All students will be expected to choose a topic to research, write and present to the class.
This course requires a paper and an oral presentation. It is open to J.D. and LL.M. students. For J.D. students who choose the 3 credit “writing seminar” option, the objective will be to research and write analytical papers of publishable quality on discrete topics of current importance in transnational practice. Students will be required to satisfy the WR requirement including (1) selection of a paper topic approved by the professor, (2) submission of an outline, followed by feedback from the professor, (3) submission of a draft paper of at least 6,000 words exclusive of footnotes, followed by feedback from the professor, and (4) submission of a final paper of at least 6,000 words exclusive of footnotes, incorporating the professor’s suggested revisions. The paper must use legal forms of citation, where appropriate.
Learning goals for this course:
Familiarity with substance of "Private International Law", where it is developed and how; understanding of the relationship between international and domestic law; ability to research effectively in the field; ability to write coherently and present conclusions orally.
Recommended: International Law I.
Note: This course requires a paper. Students must register for the 3 credit section of the course if they wish to write a paper fulfilling the Upperclass Legal Writing Requirement. The paper requirements of the 2 credit section will not fulfill the Upperclass Legal Writing Requirement.
LL.M Course (cross-listed) | 2 credit hours
This course involves an in-depth look, in a seminar-type setting, at different state-to-state dispute settlement systems in the international trade area. Although the principal focus will be WTO dispute settlement, the course will also examine the new or re-invigorated mechanisms in regional agreements (e.g., RCEP, CPTPP) and bilateral trade and investment agreements of the United States (USMCA, CAFTA) and the EU (Korea FTA, CAI with China). In addition to examining the treaty provisions themselves, the course will involve the close reading of arbitral decisions, as a medium to examine real-world systemic issues regarding dispute settlement, such as the function of terms of reference, approaches to treaty interpretation, confidentiality, coherence between different bodies of international law, the role of precedent, standard of review, the scope of appellate review, implementation and compliance, and remedies. At the same time, students will gain familiarity with some of the leading substantive issues in international trade law.
Recommended: Background in international trade law and in public international law generally.
Strongly Recommended: A introductory course in international trade law is strongly recommended.
Note: This course will have a final exam and short paper.
LL.M Seminar (cross-listed) | 2-3 credit hours
This seminar will examine the development of antitrust law around the world, starting with a basic understanding of U.S. and EC competition principles and then reviewing the application of those principles around the world (in particular China), as applied to current issues such as the regulation of Big Tech and progressive challenges to the status quo in the United States. Particular emphasis will be on merger control and regulation of dominant firm conduct (monopolization/abuse of dominant position). We will also consider the role of competition policy in economic and political development generally. Grading will be based on a paper and an assessment of class participation.
Prerequisite: For J.D. students: Antitrust Law or Antitrust Economics and Law. LL.M. students should have some previous work experience or coursework in U.S. antitrust law or competition regulation in other jurisdictions; otherwise professor's approval required before enrolling.
Note: This course is part of the following graduate programs: International Business and Economic Law LL.M. International Business and Economic Law LL.M. - List A International Legal Studies LL.M.This seminar requires a paper. J.D. students must register for the 3 credit section of the seminar if they wish to write a paper fulfilling the Upperclass Legal Writing Requirement for JD students. The paper requirements of the 2 credit section will not fulfill the Upperclass Legal Writing Requirement for JD students.
LL.M Seminar (cross-listed) | 2 credit hours
This seminar will examine the development of competition laws around the world, differences in substantive standards among the major enforcement jurisdictions; the role of historical, political, and economic forces that affect those differences; and the possible consequences of those differences. We will start with a basic understanding of U.S., Canadian, and EC competition principles, and then compare and contrast these with the principles applied in developing and transition economies, such as China, Mexico, India, and South Africa. Particular emphasis will be on current issues and trends including the role of antitrust in a digital economy, multi-jurisdictional merger control, and regulation of dominant firm conduct. We will also consider the role of competition policy in economic and political development generally.
Prerequisite: For J.D. students: Antitrust Law or Antitrust Economics and Law. LL.M. students should have some previous work experience or coursework U.S. antitrust law or competition regulation in other jurisdictions; otherwise professor's approval required before enrolling.
LL.M Course (cross-listed) | 2 credit hours
In this course, students will learn how to structure and execute global securities offerings. The course begins with a brief examination of the process of an SEC-registered offering in the U.S., and the ongoing requirements of SEC reporting companies, and then continues by examining how to conduct offerings, both domestically and internationally, outside of SEC registration. Topics include the registration requirements of 5 of the Securities Act, the various exceptions from registration, including Sections 4(a)(1), 4(a)(2) and 4(a)(7) of the Securities Act, the safe harbors pursuant to those exemptions, including Regulation S, Regulation D, Rule 144, Rule 144A, and the changes to certain of those rules and regulations by recent legislation, including the JOBS Act and the FAST Act. In addition to a thorough review of the rules and regulations in the course materials, this course seeks to give students insight into how those rules and regulations are used in practice, and into the mechanics of conducting various types of securities offerings, so that upon completing the course students are better prepared to address these topics in practice. The course was jointly developed by a senior SEC staffer and a private practitioner. Note that there is no pre-requisite for this course.
LL.M Course (cross-listed) | 2 credit hours
Examines United States, foreign, and international law and practice relating to international commercial arbitration, including the U.S. Federal Arbitration Act, the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, and the arbitration rules of major arbitral institutions such as the ICC, JAMS, the ICDR, etc, The course focuses on the procedural law applicable to and the practical aspects of arbitration. It will cover such topics as enforcing arbitration clauses, conducting arbitration proceedings, judicial oversight of arbitration, choice of law, enforcing and setting aside awards as well as drafting dispute resolution clauses.
Recommended: International Law I: Introduction to International Law (or the equivalent International Law I); International Business Transactions.
Mutually Excluded Courses: Students may not receive credit for both this course and International Commercial Arbitration, Introduction to Commercial Arbitration, Introduction to International Commercial Arbitration or the J.D. seminar, International Commercial Arbitration Seminar (CTLS course).
J.D. Course (cross-listed) | 4 credit hours
This four-credit survey course studies the major legal issues arising in international business, trade and investment activity, taught from a practical, problem-oriented approach. The focus of the course is on the law and practice that is different when business, trade or investment takes place across an international boundary. The principle areas of coverage are: 1) the movement of goods, including the Convention on Contracts for the International Sale of Goods (CISG), contracts for transportation, and financing, including the law of letters of credit, 2) problems of international investment and the transfer of intellectual property, including the international law governing patents, trademarks, copyrights and trade secrets, 3) national and international rules for dealing with imports and exports, including export controls and sanctions and trade remedies (antidumping, countervailing duty and safeguards), 4) public international law disciplines that arise in connection with anti-corruption efforts and norms of corporate social responsibility, and 5) international dispute resolution, including investment arbitration, trade disputes at the WTO, and private international commercial litigation issues, including choice of law and forum issues.
Mutually Excluded Courses: Students may not receive credit for this course and International Business Transactions and Trade Law or the LL.M. course, International Business Transactions.
J.D. Course (cross-listed) | 4 credit hours
This course will provide an introduction to the international legal and institutional frameworks that govern economic cooperation among nation states in the key areas: (a) international monetary law, (b) international trade, (c) international capital movements (including foreign direct investment) and (d) international development. A central area of focus will be how these different frameworks interact – and, in some cases, conflict – with each other, as policy makers struggle to both maximize the benefits of globalization and minimize its costs. Considerable emphasis will be placed on the institutional dimension of cooperation, with a comparative review of the relevant international organizations (including the WTO, IMF and the World Bank). The Course will identify the current challenges faced by each of these institutions in an environment where multilateral co-operation, although increasingly urgent, is also increasingly unpopular. The Course will be interdisciplinary, focusing on the legal, political and economic dimensions of these complex problems. Senior officials of a number of the major international organizations will participate as guest lecturers, giving their own perspectives regarding the key challenges facing their institutions.
The Course will be divided into two parts:
The first part will include an overview of the relevant legal and institutional frameworks, their relationship with each other and some of the key challenges they currently face.
The second part will cover a number of cross-cutting issues that often require effective coordination among these different institutions, including the following:
- The backlash to globalization and efforts to “decouple” or restrict the flow of capital, goods or technology to certain markets, or to reconfigure global supply chains.
- The role of the state in the market economy, including the role of subsidies and other forms of government intervention and the debate over non-market economies in the WTO.
- The efficacy of “soft law” and “soft institutions”, which are increasingly relied upon in an environment where countries are less inclined to surrender legal sovereignty through the creation of treaty obligations or the establishment of independent international organizations.
- The impact of both economic crime on economic development and financial stability, with a review of efforts by the international community to address this problem.
By the end of the course, students will have gained a general understanding of the range of legal frameworks that govern international cooperation in trade, monetary affairs, international capital movements (including foreign direct investment) and international development. They will also have gained insight into the relationship among these frameworks, which is critical in an environment where global economic problems require integrated solutions. Importantly, they will have gained an appreciation of the institutional dimension of economic cooperation, which is of great importance given that a critical feature of the post-war architecture has been the extent to which the international community has delegated authority to international organizations to provide the “machinery of cooperation” despite a waning faith in multilateralism. Having gained an understanding of the general principles that underpin international economic law and institutions, students will have an opportunity to apply this understanding to a number of cross-cutting issues that are of current relevance, including sovereign debt, the growing importance of soft law, economic crime, the accountability of international organizations, and the backlash to globalization.
Mutually Excluded Courses: Students may not receive credit for this course and the first year elective by the same name.
LAW 1260 v00 International Economic Law Practicum (Project-Based Practicum)
J.D. Practicum | 4 credit hours
In this project-based practicum course focused on international economic law, primarily international trade and investment law, students will participate in a seminar and will work throughout the semester on a project done on behalf of a developing country government, an international organization, an NGO or an SME under the supervision of their professor(s) and in conjunction with expert mentors. Students will participate in a weekly seminar with two-hour sessions (during some weeks, primarily at the start of the semester and around the middle and end of the term, the seminar meets two or three times, other weeks, the seminar does not meet and only team meetings take place) and carry out 10 hours/week of project work under the direction of the course professors.
SEMINAR: This practicum offers a unique opportunity to thoroughly analyze international trade and investment law, as well as broader issues of international economic law, and jurisprudence through a combination of practice and theory. The practicum has three goals. First, to enhance students’ substantive legal knowledge of international economic law, not only through traditional in-class teaching but also through hands-on work on a specific legal project of high practical importance for their “beneficiary.” Second, the practicum aims to improve students’ professional skills to become successful lawyers, including the ability to analyze complex legal problems, to apply the law to a set of facts, to interact with beneficiaries, to work in groups with other lawyers across cultures and language barriers, to convincingly make oral presentations, to write legal memos or submissions, and to adapt the explanation of legal expertise to a diverse audience. Third, the practicum aims to stimulate personal skills and aspirations of students and to make them aware of professional opportunities in the international law field and discover new challenges. Through interactions with students from diverse background and a diversity of “beneficiaries”, often from other countries and legal systems, participants will build inter-personal skills, learn about other legal, economic, and social systems, and experience the challenges and needs of a wide variety of stakeholders affected by international economic law, extending well beyond traditional issues and stakeholders.
PROJECT WORK: Students will work in small groups (“project teams”) and under the close supervision of one or more Professors ("Supervising Professors"), invited experts (“Mentors”) and the Teaching Assistant (TA) on specific legal questions related to international economic law (IEL) coming from “real clients” (“beneficiaries”) such as international organizations, governments, SMEs or NGOs. In addition, introductory sessions by Mentors will be held to provide substantive background to the respective topics, as well as sessions to improve research and legal writing skills. At the end of the semester, the groups will submit written legal memos or other work products and orally present their projects in class in the presence of the beneficiary and other invited guests. To get an idea of the types of projects done in previous years, see www.tradelab.org.
The practicum is part of the broader TradeLab network and operates in collaboration with TradeLab (www.tradelab.org) to enable beneficiaries to submit projects, to facilitate the operation of the teams and to promote the completed work to the public. TradeLab is an online platform that allows countries, NGOs and other smaller stakeholders easy and smart access to legal talents in the field of trade and investment law, allowing these actors to reap the full development benefits of global trade and investment rules by making WTO, preferential trade and bilateral investment treaties work for everyone.
Mutually Excluded Courses:
LL.M Seminar (cross-listed) | 1 credit hour
The scramble to secure steady supplies of inexpensive energy to generate electricity and to power industry and transport has defined much of the twentieth and, thus far, twenty-first centuries. Climate change and renewable energy (appropriately) dominate the discussion today, particularly in the developed world, but, absent a major unforeseen technological breakthrough, non-renewable sources such as oil and natural gas are still expected to meet the majority of the world’s energy needs for decades to come (according to the US Energy Information Administration, 82% of energy consumed worldwide will still come from non-renewable sources in 2050).
The oil and gas industry lies at the intersection of global business, international law, geopolitics, the environment and particularly in the developing world, economic development. This seminar will address the international legal norms and public policy principles that have shaped, and continue to guide, this industry. It is designed for students interested in careers in energy, energy policy, project finance, international arbitration, environmental regulation or development – whether for a law firm, energy company, NGO, international organization or government – as well as students simply interested to learn more about an industry that impacts our daily lives in countless ways.
Note: FIRST CLASS ATTENDANCE IS MANDATORY. Enrolled students must be in attendance at the start of the first class session in order to remain enrolled. Waitlisted students must be in attendance at the start of the first class session in order to remain eligible to be admitted off the waitlist.Enrolled students will have until the beginning of the second class session to request a drop by contacting the Office of the Registrar; a student who no longer wishes to remain enrolled after the second class session begins will not be permitted to drop the class but may request a withdrawal from an academic advisor in the Office of Academic Affairs. Withdrawals are permitted up until the last class for this specific course. This course is mandatory pass/fail and will not count toward the 7 credit pass/fail limit for J.D. students.
LL.M Course | 2 credit hours
This course deals with international protection of intellectual property through the World Trade Organization (WTO) and the WTO agreements which cover intellectual property: the TRIPS Agreement, The Paris Convention and the Berne Convention. The course will also cover the General Agreement on Tariffs and Trade (GATT) and the Dispute Settlement Understanding, which are essential in enforcing these agreements.
The course examines in detail the relevant U.S. law and how the extraterritorial application of these laws effects international enforcement of intellectual property. These laws are Section 337 of the Tariff Act of 1930 which prohibits the importation of articles into the United States which infringe U.S. patents, trademarks, or copyrights, and Section 301 of the Trade Act of 1974 which allows retaliation against foreign countries which impose unjustifiable or unreasonable restrictions against U.S. commerce.
The main WTO cases in intellectual property will be read and analyzed. These will include the cases on Sections 337 and 301, which have limited the United States’ ability to unilaterally affect intellectual property law. Other cases will include the U.S. – Cuba Havana Club case, the Indian Pharmaceutical case, the Internet Gaming case, the U.S. Musical Copyright case, the European Geographical Indication (GI) case, the Canada Pharmaceutical patent case, and the China Intellectual Property Violation case. The course will study the Doha Agreement, which allows the compulsory licensing of pharmaceutical patents to fight pandemic diseases particularly HIV/AIDS. Finally, the course will review any significant changes in trade law or existing trade agreements, particularly as relates to intellectual property, that may occur under the Trump administration
Mutually Excluded Courses: Students may not receive credit for both this course and Intellectual Property in World Trade (LAWG/J-226).
J.D. Course (cross-listed) | 3 credit hours
This three-credit survey course is designed to introduce students to the legal system governing international economic transactions and international economic relations, with a focus on the World Trade Organization (WTO) and its constituent treaty instruments. The primary objective of the course is to give the student an in-depth overview of the world trading system and some exposure to its particular details. The course will cover the basic principles and mechanisms of international trade law, including most-favored-nation (MFN) and national treatment, and relevant law in different substantive areas, including tariffs, quotas, services, intellectual property, trade remedies, and standards. We will also examine the issue of development in the WTO and trade treaties and whether treaty obligations constrain countries’ policy autonomy and hinder their ability to pursue successful development strategies, as well as the tensions between trade liberalization and other values, such as those concerning the environment, health and safety, workers’ welfare, and human rights.
The course will also cover current trends and issues in international trade law. The Uruguay Round established the WTO in 1994 as the premiere forum for negotiating multilateral trade agreements and adjudicating international trade disputes; however, the negotiation and adjudication functions of the WTO currently face significant challenges. Globally, more than 300 regional or bilateral trade agreements have been negotiated, including the recent United States-Mexico-Canada Agreement (USMCA) and Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), with implications for both individual countries and the global trading system overall. The course will include current developments at the WTO, bilateral and regional trade agreements (including U.S.-Europe and U.S.-Kenya negotiations and trade models in other parts of the world like China’s Belt and Road Initiative and the African Continental Free Trade Area), Brexit, and U.S. “trade wars” pursued on national security grounds.
Mutually Excluded Courses: Students may not receive credit for both this course and International Trade and the WTO or International Trade Law or World Trade Organization: Law, Policy and Dispute Settlement; or the graduate course, International Trade Law and Regulation.
J.D. Course (cross-listed) | 3 credit hours
This three-credit course introduces students to the legal and policy aspects of international trade and investment law, two pillars of international economic law that have developed dispute settlement systems. These two areas of law affect a broad array of national legislation, regulation, and administrative practice, as well as other areas of international law and policy, such as development, human rights, climate change, and other environmental issues. Both trade law and investment law have raised anxieties regarding their linkages, effects, and overlaps with non-economic issues. The United States, European Union, China, and many other countries have actively engaged in litigation and new negotiations in both fields of law. In international trade law, governments bring legal claims against each other for breaches of obligations, while private lawyers work with private commercial interests behind the scenes and often directly on behalf of governments. International investment law, in contrast, provides direct rights to private foreign investors to bring claims against governments. These disputes are proliferating and sometimes overlap with international trade law claims. In the past, the U.S. always sought protection for its investors in developing countries, but with shifts in the global economy, the U.S. increasingly became subject to such suits by foreign investors. This course will introduce students to both of these areas of international law practice.
LL.M Seminar (cross-listed) | 2 credit hours
This course will teach students the practical aspects involved in litigation of international trade and investment disputes. Its goal is to prepare students entering either private practice or government service to handle complex litigation in those fields. The course will provide a comparative analysis of the dispute settlement mechanism of the World Trade Organization (WTO) and Investor-State arbitration. While it will focus on procedural issues and case management, the first sessions will provide an overview of the legal framework of the multilateral trading system and investment treaty law. It will identify and analyze each phase of the proceedings of WTO disputes (under the Dispute Settlement Understanding) and of investor-State arbitrations (mainly under the arbitration rules of the International Centre for Settlement of Investment Disputes and Chapter Eleven of the North American Free Trade Agreement). Some of the topics that will be covered include: pre-trial preparation, formal initiation of a dispute, constitution of panels and tribunals, discretionary procedural issues, evidentiary issues, jurisdictional and other preliminary objections, written pleadings, conduct of hearings, use of witnesses and experts, awards and rulings, recourses, implementation and enforcement, and in general case management. The analysis and discussions in class will be based on treaty text, jurisprudence and the practical, hands-on experience of the professors. Guest-speakers – including practitioners, government officials, or staff from relevant international organizations – will be invited to a few sessions. Students will be expected to participate in class discussions and in simulations.
Recommended: Basic courses in public international law and international trade.
J.D. Course (cross-listed) | 3 credit hours
Economic interdependence between countries and across production chains has grown exponentially. Yet, today, economic globalization is under attack. In this context, existing rules on international trade, and negotiating fora to potentially change those rules, are key. This course focuses on the rules and institutions established under the World Trade Organization (WTO) as well as selected regional trade agreements. What are the benefits and risks of trade liberalization from legal, economic and political perspectives? How can trade liberalization go hand in hand with pursuing public policy goals such as protecting the environment or labour standards ("non-trade concerns"), job creation or promoting the economic development of poor countries? The course will offer an in-depth, practical knowledge of substantive WTO law drawing heavily on case law from dispute settlement practice. It will address the basic principles of trade in goods and trade in services as well as more specific WTO agreements on, for example, health measures, subsidies, trade remedies and intellectual property rights. The course will also focus on the unique WTO mechanism for the settlement of trade disputes, and especially on how it balances trade liberalization with non-trade concerns as well as how it copes with increasing trade tensions between OECD countries and emerging economies like Brazil, China, India and Russia.
Mutually Excluded Courses: Students may not receive credit for both this course and International Trade and the WTO or World Trade Organization: Law, Policy and Dispute Settlement; or the graduate course, International Trade Law and Regulation.
Note: There are no prerequisites for this course.This course will meet 2 times per week in the weeks of August 30 - September 17 and October 11- October 29. In addition, there will be three classes taught remotely on October 7, November 11 and November 16.
LL.M Course (cross-listed) | 2-3 credit hours
Examines international trade laws and regulations and World Trade Organization agreements affecting international trade, and the relationship of the General Agreement on Tariffs and Trade 1994 and other international agreements to U.S. law and practice. Considers, in detail, the U.S. antidumping, countervailing duty, safeguards (Section 201) laws and regulations and the WTO agreements that establish multinational standards applicable to the use of those remedies. Examines the WTO agreements on services, intellectual property, and technical barriers to trade. Examines the statutory remedies, particularly Section 301, that are available to address foreign restrictions on U.S. exports of goods, capital, services, and intellectual property. Analyzes the U.S.-China "trade war" and resulting tariffs and agreements. Evaluates the role of Congress, the U.S. Trade Representative, and other U.S. agencies in setting trade policy and overseeing administration of the trade laws. Analyzes the WTO procedures for dispute resolution and key WTO panel and Appellate Body decisions. Reviews free trade agreements, including the U.S.-Mexico-Canada Agreement, as well as bilateral investment treaties. The course includes a weekly discussion of current events affecting international trade law and regulation.
Mutually Excluded Courses: Students may not receive credit for both this course and the J.D. course, International Trade or World Trade Organization: Law, Policy and Dispute Settlement.
Note: The 3-credit section of this course meets the "Category 1" requirement for the WTO certificate program.
The two-credit class requires a final exam; the three-credit class requires a paper. J.D. students must register for the three-credit section of the seminar if they wish to write a paper fulfilling the Upperclass Legal Writing Requirement for JD students. The paper requirements of the two-credit section will not fulfill the Upperclass Legal Writing Requirement for JD students.
LL.M Seminar (cross-listed) | 2-3 credit hours
This course will examine the connection between trade law and development, including aspects of international and regional trade agreements, comparative law, and diverse areas of market regulation at the national level. Overall, the seminar will highlight the role of law and regulation as a driver for sustainable development and inclusive growth and link broader legal frameworks and policy debates with the needs of individuals and enterprises. It will engage students in ways in which economic law can help encourage sustainable and inclusive development and will assess challenges associated with legal and regulatory capacity and the uneven implementation of laws in practice. Cross-cutting and inter-disciplinary approaches in the field, such as socio-legal approaches, human rights, food security, the UN Sustainable Development Goals (SDGs), and gender and trade will also be discussed throughout the seminar.
The seminar will take place in three phases. In Phase I, the seminar will explore the historical and institutional relationship between trade and development, including World Trade Organization (WTO) disciplines, regional trade agreements (RTAs), and other relevant international legal frameworks. Phase II will focus on different issues and will cover a number of substantive aspects of trade and development in depth, all of which impact stakeholders and communities and hold greater potential to contribute to the common good. Specific areas of focus will include domestic market regulation and investment, non-tariff measures, regulation of services, trade facilitation, agriculture, labor and environment, intellectual property rights, gender, and digital trade. Phase III of the course will consist of an in-class exercise to apply the theory and substantive legal approaches discussed in Parts I and II in the context to practical trade and development challenges.
Readings will be drawn from a variety of viewpoints and sources – law review articles, white papers, academic journals, newspapers and magazines, and excerpts from books – and will cut across trade and economic law, inclusive economic development, and business. The readings will highlight different aspects of the legal and regulatory environment in the context of encouraging sustainable and inclusive development globally and at the grassroots level. Discussion questions will be provided for each session, which can be used as the basis for class preparation
The course will also incorporate short, practical case studies that illustrate how different issues in trade, development, and economic regulation can be applied from the perspective of different stakeholders (entrepreneurs, countries, and communities). Seminar members will be asked to assume roles in discussion of these case studies, which will count towards class participation and lay the groundwork for the final paper. Questions to guide the case study analysis will also be provided.
In addition to the readings assigned for each session, optional background readings will be included for students wishing to explore a topic in greater depth (additional background reading is recommended for students who have not taken a trade law course, but the course does not have any prerequisites).
Note: Only the 3-CR section will fulfill the WTO & International Trade Certificate List C requirement.
LL.M Seminar (cross-listed) | 2 credit hours
This course will cover the interface between the intellectual property rights, international trade and public health, focusing in particular on the WTO TRIPS Agreement and subsequent decisions, including on the Covid-19 waiver, if approved. It will provide an introduction to the provisions of WTO agreements relevant to public health (other than TRIPS), and to the law and economics relating to IPRs and public health; it will cover the provisions of the TRIPS Agreement relevant to public health, and discuss the relevant disputes settled in the WTO. It will examine the background, content and implications of the Doha Declaration on the TRIPS Agreement and Public Health and of the subsequent TRIPS amendment implementing compulsory licensing for exports. It will devote a session to Covid-19 and infectious disease pandemics. It will also discuss the relevance of bilateral or regional free trade area agreements to the subject.
The course would study relevant national/regional implementing legislation, for example on compulsory licenses, and discuss use of the WTO export compulsory license provisions. In addition to the final paper, students will be graded on class participation, individual presentations and group exercises, an example of the last being a hypothetical case study of exports, with students taking up the role of legal advisors based in either the importing country or the exporting country.
Finally, the course will also cover recent work on trade, intellectual property and public health in other intergovernmental organizations, in particular in the World Health Organization
Recommended: Coursework in International Trade, Intellectual Property Rights, or Public Health.
LL.M Seminar | 3 credit hours
The subject of investor-state disputes and their resolution lies at the cutting edge of international law, and is a major factor in the development of the global economic system in years to come. Study of this form of arbitration provides insight into the evolving shape of customary international law, the conflict between capital-importing and capital-exporting states, and the status of individuals in the international legal order. This seminar will provide students with a firm grounding in the history, present practice, and future implications of arbitration between foreign investors and host states, sanctioned by multilateral and bilateral investment treaties. Topics that will be covered in this course are the history of the treatment of aliens and investments under international law; an overview of the most important international treaties that give investors a right to arbitration of claims; the most important elements of procedure that characterize investor-state arbitration, including tribunal composition, jurisdiction, evidence, award and challenge or annulment; substantive law of investment arbitration, the standards that apply when a tribunal determines whether a breach of the treaty has occurred; and the future development of investor-state arbitration including the challenges of globalization and other stresses, the clash of capital-importing and capital-exporting countries, environmental protection and free trade, restrictions on state sovereignty, the construction of an international investment jurisprudence, the limits on arbitrability, and the expansion of multilateral investment protections worldwide. Active participation in discussion of the course materials is required.
Prerequisite: International Law I
Recommended: International Commercial Arbitration
Note: For the Spring section: FIRST CLASS ATTENDANCE IS MANDATORY. Enrolled students must be in attendance at the start of the first class session in order to remain enrolled. Waitlisted students must be in attendance at the start of the first class session in order to remain eligible to be admitted off the waitlist.Student who no longer wishes to remain enrolled will not be permitted to drop the class but may request a withdrawal BY PROFESSOR PERMISSION ONLY. This course requires a paper. J.D. Students: this will fulfill the J.D. Upperclass Legal Writing Requirement.
LL.M Seminar (cross-listed) | 2 credit hours
Trade remedies are the bread of butter of international trade law, and hence a critical area of study for any aspiring trade lawyer. This course will introduce participants to the three principal types of trade remedies, anti-dumping, countervailing measures and safeguards. The class will explore the role of, and justifications for, trade remedies in the international trading system, the framework set out in the WTO Agreement for their use, and the dispute settlement jurisprudence regarding them. Because trade remedies are a global phenomenon, it will then examine and compare the trade remedy regimes of major users around the world, before zooming in on the specifics of US practice.
The first objective of this course will be to familiarize students with trade remedies, both in term of the WTO framework and in terms of the practice of both the United States and other major user countries. At the same time, the course should help students to gain a better understanding of the WTO Agreement, how that Agreement interacts with the national law and policy of the United States and other WTO Members, and the role that WTO dispute settlement can play in that interaction.
Prerequisite: An introductory course in International Trade Law and/or WTO Law is highly recommended.
J.D. Seminar (cross-listed) | 3 credit hours
Successful management of globalization has emerged as the central challenge of our time. Globalization has been blamed for many of our social and economic problems from inequality to stagnant growth. The international regulatory failures exposed by the financial crisis of 2008-2009 have called into question not only the regulatory framework for financial stability, but also the entire framework of international norms and institutions known as Bretton Woods that have been the pillars of global economic regulation. The accompanying collapse in public trust in government experts and private elites has complicated efforts to address these challenges. Populist candidates have swept elections, particularly in the US and UK, based on platforms to reverse the course of international integration. Meanwhile, China and Russia have doubled down on leaders that embrace a return to state controlled economies and traditional notions of regional hegemony. Are we at an historical turning point characterized by GLEXIT – the abandonment of globalization – or will these challenges lead to a Globalization 2.0?
The purpose of this seminar is to look at the role of international economic law in managing globalization, both in terms of extracting the benefits and in addressing the consequences, particularly those negative effects that have fed the backlash. The focus of the seminar will be on the central regulatory regimes governing international economic activity: trade, monetary, investment, finance, competition, tax, sovereign debt and corruption. We will examine the fundamental character and role of legal norms, regulatory systems and international institutions in a world characterized by interdependence and conflict.
This is a research seminar in which the initial eight weekly classes will present a survey of regulatory regimes designed to give students a framework for what have historically been somewhat distinct “silos” but which each illustrate the recurring tensions between fragmentation and coherence. We invite student involvement in the specific topics in the field on which we focus. Each student will be asked to provide short papers responding to the readings for each of the initial sessions. Students will be expected to write a research paper on a relevant topic under the guidance of one of the professors and to make a short presentation to the class during the last third of the course. In their research paper, students will be expected to identify a contemporary, global economic regulatory issue and propose solutions drawing on insights from the seminar (and their broader studies) to analyze the problem, propose and defend possible solutions.
The seminar will be taught by professors with a wide range of experience in academia, private practice and government service. Distinguished outside experts will also be called upon to address particular topics within this framework.
A number of broad themes will be developed to help unravel the complexity of global regulation:
- What is the role of legal norms in creating efficient and sustainable global markets? Do some problems lend themselves to different types of norms (e.g. soft versus hard law)? What about governance, the formality of legal norms (and institutions) and the role of national sovereignty and subsidiarity?
- Why do the different global economic regulatory regimes look so different? Why has trade evolved with an advanced set of norms, dispute settlement and enforcement?
- How have crises and systemic failures contributed to the development of legal regimes? Do crises lead to sustainable and effective regulatory regimes?
- What role does trust play in the character of legal regimes? Can international economic law be viewed as the objectification of trust? How can trust be sustained when global issues engage citizenry across the most diverse context imaginable?
Recommended: Students may want to familiarize themselves with basic principles of international economic law and areas of international regulation such as international trade, investment and financial regulation. The seminar will include both JD and LLM students and we encourage students with a range of exposure to the underlying subject matter. For insight into the kinds of issues the seminar will address, students are encouraged to review the material in Cottier, Jackson and Lastra, International Law in Financial Regulation and Monetary Affairs, Oxford University Press (2012). Students may also find useful the PBS Documentary, The Ascent of Money; A Financial History of the World, written and presented by Niall Ferguson which is available online at http://www.pbs.org/show/ascent-of-money/.
LL.M Course (cross-listed) | 2 credit hours
As international trade and commerce have increased over the years, customs law has become increasingly more internationalized, important and complex. This course will examine and provide a basic introduction to the rules and principles relating to both U.S. and international customs law. This will include an examination of those rules and principles relating to tariff classification, customs valuation, rules of origin, border enforcement of intellectual property rights and regional trading arrangements. International efforts to facilitate trade and to harmonize and simplify customs laws and procedures will also be examined together with international organizations dealing with customs laws and procedures (such as the World Trade Organization and the World Customs Organization).
Customs authorities are the guardians of national borders. The role of customs authorities in combating terrorism and criminal activity and in securing and safeguarding national borders will also be examined.
Mutually Excluded Courses: Students may not receive credit for both this course and Customs Law.
LL.M Course (cross-listed) | 2 credit hours
The course analyzes the World Trade Organization (WTO) and its agreements, including the General Agreement on Tariffs and Trade (GATT), and the substance and status of negotiations to amend the agreements. It concentrates on the coverage of the agreements, based on their text and interpretive guidance from key dispute settlement decisions. The course also reviews the relevant economic, policy and legal aspects of the international trading system.
LL.M Course (cross-listed) | 2 credit hours
Since the institution of the WTO’s Dispute Settlement Understanding in 1994, WTO
jurisprudence has increasingly addressed disputes involving the interaction between trade related values and other domestic or international policy values. The various WTO instruments that are subject to the discipline of the Dispute Settlement Understanding address the relationships between international trade and other fields such as public health, the environment, intellectual property, and even public morality. The treatment of these issues in the WTO Agreements simultaneously demonstrates the linkages among these fields, and the separation of each from the others. Moreover, many of these “trade-related but not trade” policy areas are covered by other international agreements and understandings, as well as by domestic laws, and are in some cases subject to different judicial or quasi-judicial dispute resolution mechanisms, each applying its own rules of decision. Finally, even within the international trade arena, the proliferation of regional trade arrangements with their own dispute settlement mechanisms presents another
potential source of conflict with the jurisprudence of the WTO.
This state of affairs has, since about 1995, given rise to serious concerns over what has been termed the “fragmentation” of international law. Although abstract, the question of whether international law should be viewed as a “system” of law, or merely as an aggregation of rules formed principally by agreements between sovereign states, has become one of more than theoretical interest. The resolution of actual or potential conflicts between various specialized international regimes, as well as between such regimes and domestic legal regimes, has become of increasing practical importance. In many respects, WTO jurisprudence stands at the heart of these developing concerns.
This course will examine the jurisprudence of the WTO through the lens of the issue of
fragmentation. Through a close study of relevant decisions and hypothetical disputes, the course will address actual and potential regime conflict issues between the international trade regime and competing norms in the environmental, public health, and intellectual property spheres. It will also address the challenges to the integrity of general international law, and of the WTO regime itself, that are posed by the proliferation of regional trade regimes with their own dispute settlement mechanisms, and by emerging questions about the effect of WTO norms within domestic legal regimes. The course will seek to balance a case-driven approach to these issues with a consideration of the underlying theoretical questions, and will regularly return to the question of the future role of the WTO in the new world order of international law.
Recommended: Prior exposure to WTO law, or concurrent enrollment in a basic course in WTO law.