• Business Reactions to Trade Wars

    by  • April 15, 2019 • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on April 14, 2019]


    There is a Chinese saying that “when there is a policy from the above, there is a reaction from the below” (“上有政策, 下有对策”).  This is exactly what has happened since the inception of trade wars.  Both domestic and international businesses have attempted to avoid the punitive tariffs through various means, such as the exclusion application, transshipment and tariff engineering.  As you can imagine, some have been successful; others not.

    The Financial Times has recently offered an excellent simulation game (“Dodging Trump’s Tariffs”) in which readers can educate themselves about intriguing consequences of trade wars.  The simulation game is based on real examples.  Highly recommendable!

    A WTO’s “Kompetenz-Kompetenz” Moment

    by  • April 9, 2019 • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on April 5, 2019]


    This is a supplemental post to Simon’s earlier one that provides an excellent summary of the Russia – Traffic in Transit panel report. Here are some aspects of the panel report that I found interesting and worth further reflection.

    First, one might say that this landmark decision is characteristic of a “constitutional” moment to the WTO. I understand that the use of “c” word here might be frowned upon in some circles, both legal and political. However, GATT Article XXI is not just a mundane, technical interpretive issue to the WTO. It is a matter of allocating power between the WTO as an autonomous institution and its member. If I exaggerate a little bit, this particular dispute echoes potential existential angst from the WTO. What if the panel had accepted Russia’s original claim and declared Article XXI as a “self-judging” provision? Constitutional consequences would have been dire. The WTO would have opened the jurisdictional Pandora’s Box, invited massive abuses and therefore undermined its own rationale (and identity). (more…)

    May the (Trade) Force Be With You

    by  • March 18, 2019 • 0 Comments

    Trip Planning photo with Admiral Ackbar and Yoda minifigs by Maëlick Reiterlied

    Not many people know it was actually a “trade” dispute that precipitated the Star Wars “a long time ago in a galaxy far, far away.” Professor Sungjoon Cho shares the history of trade wars, laws that aim to prevent trade wars, and how they might have obviated the need for Jedi knights.

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    Are Trade Wars Missing the Point? (Part II)

    by  • February 12, 2019 • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on February 12, 2019]


    In the previous post, I introduced main finding of the recent McKinsey report (“Globalization in Transition: The Future of Trade and Value Chains.”)  The report highlighted the growing importance of services and the relative decline of goods production in global value chains (GVCs).  Likewise, GVCs have become more technology and knowledge-intensive.  In addition, “regional” value chains have become prominent as emerging economies mature and are now capable of insourcing more of intermediate products, which they used to import from advanced economies.  Then, what would be possible implications of those new phenomena to the WTO? (more…)

    Are Trade Wars Missing the Point? (Part I)

    by  • February 6, 2019 • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on February 5, 2019]


    The answer might be in the affirmative according to the recent report by McKinsey Global Institute, titled “Globalization in Transition: The Future of Trade and Value Chains.”  Here is a summary of its main findings.

    1. “Goods-producing value chains have grown less trade-intensive.”
    2. “Services play a growing and undervalued role in global value chains.”
    3. “Trade based on labor-cost arbitrage is declining in some value chains.”
    4. “Global value chains are growing more knowledge-intensive.”
    5. “Value chains are becoming more regional and less global.”

    On its face, this report might seem to play the same gloomy tune as “slowbalization.”  However, the McKinsey report does not equate this new phenomenon with the decline of globalization.  On the contrary, it attributes the phenomenon as the economic maturation of emerging economies, such as China, India, Thailand, Malaysia and Indonesia, which are “now consuming more of what they produce.”  By 2030, developing countries’ consumption will exceed a half of global consumption. (more…)

    The Dawn of the e-WTO

    by  • January 27, 2019 • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho


    On the sidelines of the Davos World Economic Forum this week, seventy six WTO member countries agreed to launch a negotiation on electronic commerce.  Yes, we all know that e-commerce has recently been skyrocketing, becoming part of our everyday lives.  Meanwhile, the WTO has been criticized for having failed to provide effective multilateral rules to regulate e-commerce.  I see a bit of déjà vu from the Uruguay Round here, in particular within the context of the North-South tension.  Developed countries such as the United States, the European Union and Japan are spearheading this new initiative, while developing countries such as China and India seem to be lukewarm about the initiative.  China joined the initiative with the reservation that developing countries’ concerns must be reflected. India argued that the Doha Development Round must be addressed before starting a new set of negotiations in the WTO. (more…)

    The Resiliency of the WTO Dispute Settlement Mechanism (Or Not)

    by  • January 12, 2019 • 0 Comments

    Cho_Sungjoon thumbBy Sungjoon Cho [originally posted on the International Economic Law and Policy Blog on January 10, 2019]


    Many worry that the current United States–China trade wars, and negotiations therefrom, might undermine the WTO dispute settlement mechanism (DSM).  Curiously, however, both the United States and China have not completely bypassed the WTO DSM.

    In fact, both countries have invoked the WTO DSM in tandem with their unilateral/bilateral engagements outside of the WTO.  For example, China sued the United States for the latter’s punitive tariffs against the former (here and here).  The United States also filed a complaint against China regarding the latter’s alleged violation of TRIPS, in addition to its execution of the Section 301 procedure on the same complaint.

    One might surmise that the U.S.’ such actions are in contrast to its recent blocking of new Appellate Body members.  So, can we say comfortably that the WTO DSM is resilient?  Or, are these all about merely anteing up political rhetoric?

    Epic Systems v. Lewis: The Movements’ Time is More Clear Now

    by  • June 5, 2018 • 0 Comments

    photo of US Supreme Court by Matt Popovich

    by César F. Rosado Marzán In Epic Systems v. Lewis, Supreme Court Justice Neil Gorsuch and four conservative Justices determined that class action waivers are enforceable, not least because of the Federal Arbitration Act’s (FAA) strong protection of arbitration agreements. Class action waivers are enforceable despite the National Labor Relations Act (NLRA), which provides workers...

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    “Swatting” and Section 1983: Some Preliminary Thoughts

    by  • February 26, 2018 • 0 Comments

    by Professor Sheldon Nahmod

    Suppose, either as some sort of misguided prank or motivated by malice, an individual calls the police anonymously and informs them falsely that a man has killed his father and is holding other persons hostage at a particular address. Members of a police SWAT team arrive at the location in the early evening, surround the location and call on the man inside to come out. They also call out directions to the man–who apparently has no idea of what’s going on–to keep his hands up. However, for whatever reason the man appears to lower his hands and at that point one of the officers shoots and kills him.

    This is obviously a real tragedy. But I would like to make some preliminary observations about the section 1983 liability issues potentially arising out of these circumstances. (more…)

    Cert Granted in Lozman v. City of Riviera Beach: Section 1983 First Amendment Retaliatory Arrest Claims & Probable Cause

    by  • February 24, 2018 • 0 Comments

    by Professor Sheldon Nahmod

    Suppose a section 1983 plaintiff alleges that a city had him arrested in retaliation for the exercise of his First Amendment rights. He claims that he was arrested (although never prosecuted) at a city council meeting when he got up to speak because he previously had criticized the city’s eminent domain redevelopment efforts and had also sued the city for violating the state’s Sunshine Act.

    Ordinarily, such a plaintiff, in order to make out a section 1983 First Amendment retaliatory arrest claim, would only have to allege and prove that this impermissible retaliatory motive caused him harm, and the defendant would have the burden of disproving the absence of but-for causation in order to escape liability. But here the city argued that even if its motive was impermissible under the First Amendment, there was probable cause–an objective Fourth Amendment standard–to arrest the plaintiff anyway, and that this constituted a defense to the plaintiff’s First Amendment retaliation claim. What result? (more…)

    Prof. Shapiro: “Gerrymandering the Constitution: More than statehouse politics at risk”

    by  • October 2, 2017 • 0 Comments

    In advance of Tuesday morning’s Supreme Court oral arguments in Gill v. Whitford, Professor Carolyn Shapiro has published an opinion piece in The Hill outlining the dangers of “extreme partisan gerrymandering.” An excerpt from the introduction follows: The primary issue in Gill is whether partisan gerrymandering can be challenged in court at all and, if so,...

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