International Economic Law and Policy Blog

Requiring Foreign Manufacturers to Have a Domestic Worker

Other bills Speaker Pelosi hopes to pass soon include ... a requirement that foreign manufacturers keep at least one worker stationed in the U.S. so the company can be officially served with court papers.

http://seminal.firedoglake.com/diary/62330

That's probably not a big deal for large companies, but it sounds burdensome for smaller foreign manufacturers (perhaps there will be an exemption for companies below a certain size).

In terms of WTO rules, here's what I wonder:  Would it be considered discriminatory?  Would it be justified under any defenses?  Would it be effective in achieving its goals?

"Tolerating" Zeroing under International Law

I know that not everyone reads the comments, so I thought I'd pull something out of the comments on a previous post by Marc Benitah on the Kosovo ICJ decision.  In our brief back and forth there, Marc pointed me to a statement by Judge Simma in his separate opinion in that case:

... the Court could have explored whether international law can be deliberately neutral or silent on a certain issue, and whether it allows for the concept of toleration, something which breaks from the binary understanding of permission/prohibition and which allows for a range of non-prohibited options. That an act might be “tolerated” would not necessarily mean that it is “legal”, but rather that it is “not illegal”.

See para. 9.

With regard to all things related to international law, I like to start with my usual caveat that I don't know all that much about international law.  But in reading the Judge Simma quote, I was struck by the possible parallel to AD Agreement Article 17.6(ii).  The second sentence of that provision says:

Where the panel finds that a relevant provision of the Agreement admits of more than one permissible interpretation, the panel shall find the authorities' measure to be in conformity with the Agreement if it rests upon one of those permissible interpretations.

Article 17.6(ii) is sometimes analogized to a deferential standard of review in the U.S. administrative law context, but maybe it has a counterpart in this kind of thinking about international law as well?  Could the "range of non-prohibited options" be similar in effect to "more than one permissible interpretation"? I know the U.S. is skeptical of giving too great a role to international law in WTO dispute settlement (see, e.g., here), but I wonder if this could be a useful argument for it to make in support of "zeroing" being allowed.

(I should clarify that I don't necessarily support either the permissibility of zeroing or the use of international law in WTO dispute settlement.  Just thinking out loud here!)

Trade in Legal Services, Country by Country

The Economist reports on the globalization of legal services, with a number of countries highlighted:

China, Brazil, Hong Kong:

In China and Brazil foreign firms have flourished by offering advice on international law, but they cannot provide legal representation in local courts. (An exception is Hong Kong, which has recently seen a spurt in foreign lawyers taking the local bar exam.)

Canada:

Another big Commonwealth country, Canada, is less restrictive than India—but not as open as England or Australia either. It is fairly rare for lawyers to move between Canadian provinces, and a switch from Quebec to an English-speaking province involves a change of legal tradition as well as language. Meanwhile, foreign lawyers who want to practise Canadian law face two evaluations—one at federal level, the other provincial—and most fail.

India:

But there is one determined outlier among fast-growing Asian economies: India, the only big country that is closed to foreign lawyers in any capacity. A powerful lobby—ranging from hundreds of thousands of small (often husband-and-wife) practices to a handful of leading partnerships—resists change. Foreigners who tried venturing into the Indian market are still reeling from a decision in December by the Bombay High Court which deemed illegal the “liaison offices” that some outsiders had opened. The Indian government said (rather half-heartedly) that it would appeal against this ruling. But the climate in which law-related work could be undertaken by outsiders has gone from difficult to prohibitive.

Korea:

South Korea has promised to open up its legal market to outsiders under a Free Trade Agreement with the European Union that should be ratified later this year. 

Singapore:

Singapore became more foreign-friendly; certain firms from other countries can practise domestic law in some areas, as long as the lawyers they use have local qualifications. 

Japan:

Japan opened up its legal-services market in 1999, despite great nervousness from its own lawyers. Since 2005, foreign firms have been able to set up partnerships employing Japanese lawyers, who (in contrast with Singapore) need not give up their national licence.

Venezuela:

And even in countries where trust has been established, the climate can change, as Baker & McKenzie is finding in the anti-American atmosphere that now rages in Venezuela, where it has worked since the 1950s. The situation there is “really testing our mettle, and I call our Caracas partners heroes,” Mr Conroy says. 

Bullfighting, Seal Products and the WTO

Reuters reports:

 Lawmakers dealt the death blow to bullfighting in Catalonia on Wednesday, outlawing the centuries-old blood sport for the first time in a mainland region of Spain.

The result of 68 in favor, 55 against the ban was expected, since the Catalonian parliament had cast preliminary votes in December accepting a citizens' petition to stop bullfighting on the grounds that it constituted cruelty to animals.

When I saw this, I immediately thought of the criticism of the EU in relation to the WTO Seal Products dispute, that banning seal products while allowing bullfighting was hypocritical. See, e.g., here:

As a Canadian I find this stuff pretty annoying. Seals are not endangered. Seals have been hunted in this manner by the Inuit for over 4,000 years. The method of killing is no more inhumane than any other slaughtering of animals. It is certainly more humane than the treatment of bulls in Spain – a truly repulsive practice. If these people are vegans and are against all slaughter, then fine, but singling out the seal hunt because the animal is cute is just silly.

So does this action by Catalonia help the EU defense?

In tracking down that last quote, I came across another point related to the Seal Products case that I've been meaning to bring up.  This is from Matt Yglesias, who is a well-respected, widely read blogger, but not a trade specialist:

When foes of trade liberalization are able to make adorable baby seals the face of their cause, it’s hard to oppose them. This makes me wonder why the seal issue is being handled as a trade policy matter in the first place. In other words, why ban the import of seal products rather than simply ban selling seal products? Clearly the EU’s concern here is with the existence of a commercial market for dead seals rather than with the transnational flow of seals per se.

My sense is he does not realize that the measure, in fact, bans both the importation and sale of seal products.  He is assuming that it just bans imports.  That's not a surprising mistake for someone who only follows these issues casually.  But what I find striking about his statement is his apparent assumption that a pure ban on selling seal products could not violate trade rules.  That suggests to me that we in the trade world still have some work to do in explaining to non-specialists what trade rules actually say, not to mention why they say it.

Trade in Everything: Prisoners (Again)

The proposal to send certain California inmates to Mexican prisons doesn't seem to have gone anywhere, but it appears that there is, in fact, a market for trade in prison services, as the Economist reports:

THE border between Belgium and the Netherlands can be easy to miss: a road sign here, a flagpole there, a change in the colour of cars’ licence plates. When it comes to penal policies, though, the neighbours differ sharply. The Dutch prison population has been falling for some years and, with 14,000 cells for 12,000 prisoners, the government last year decided to close eight jails. But in Belgium the numbers locked up keep rising, causing serious overcrowding.

On February 5th this year, the Dutch and Belgian governments drew the logical conclusion, and agreed on a deal. Belgium took possession of the Dutch prison of Tilburg, a modern affair with tennis courts and a football pitch but a chronic shortage of residents.

For a rent of €30m a year, 500 Belgian prisoners now live behind Tilburg’s barbed wire. The governor is Belgian, most of the guards are Dutch. ...

Trade in Everything: [Censored]

A headline from law.com: "Copycat Sex Toys Stimulate ITC Patent Fight":

At first glance, a recent complaint at the U.S. International Trade Commission -- Devices Having Elastomeric Gel and Components Thereof -- sounds like a typical high-tech patent dispute.

That is, until you get to the part describing the allegedly infringing devices.

This is a family-oriented blog, so I'll leave it up to readers to click on the link if you want the full details.