Volume 22, Issue 1 (Spring 2018)

The four pieces in this Issue were based on the topic of the 2017 JILFA Symposium held on March 3, 2017. The Symposium explored the shift in U.S. trade policy under the Trump Administration, from both a domestic and global perspective, as well as the potential responses of stakeholders and foreign governments in the new trade landscape. Some of the selected pieces were written by the academics and practitioners who presented at the Symposium. This Issue contains a selection of pieces based on this and related topics. Available at HeinOnline, Westlaw, and LexisNexis.

Reflections on Trade Under the New Administration, by Mickey Kantor. 22 UCLA J. Int’l L. & Foreign Aff. 1.

Mr. Mickey Kantor, the keynote speaker at the 2017 Symposium, draws from his experience as former U.S. Trade Representative and Secretary of Commerce to reflect on the current administration’s shift on trade policy. Mr. Kantor’s speech acknowledges that while existing trade agreements may require some updating and better enforcement, there are a variety of reasons why the current Administration should not disregard them entirely.

Digital Trade and Regulation in an Age of Disruption, by Peter Cowhey & Jonathan Aronson. 22 UCLA J. Int’l L. & Foreign Aff. 8.

Professors Peter Cowhey and Jonathan Aronson consider the Trump Administration’s trade policy-in particular, the administration’s promise to promote steel, coal, and other heavy industry jobs by upending U.S. trade policy. Cowhey and Aronson argue that, if it is to pay wages commensurate with U.S. living standards, U.S. manufacturing must have an edge over its international counterparts in value added and productivity through the use of digital technologies. In making their case, the authors first survey how digital technology is already a critical component of sustainable economic growth and social prosperity throughout the world. They then describe why sound global economic governance is critical to the proper application of digital technology to new and traditional industries. Cowhey and Aronson thus sketch a new synthesis of trade and regulatory policies to create the necessary digital environment for the success of American heavy industries. Their model addresses traditional issues such as market access and competition, but emphasizes the building of a trusted digital environment to ensure cybersecurity and digital privacy. Their model also underscores the use of non-governmental multi-stakeholder organizations to keep regulation less cumbersome and more efficient than the traditional reliance on government agencies.

Rethinking the Use of Deference in Investment Arbitration: New Solutions Against the Perception of Bias, by Mojtaba Dani and Afshin Akhtar-Khavari. 22 UCLA J. Int’l L. & Foreign Aff. 37.

Professors Mojtaba Dani and Afshin Akhtar-Khavari deal with the “crisis of legitimacy” that surrounds the investor-state dispute-settlement (ISDS) system. The ISDS system is accused of favoring foreign investors to the detriment of host states’ public policy choices and regulatory autonomy. In order to reduce this perception of bias that jeopardizes the system’s legitimacy, Professors Dani and Akhtar-Khavari propose that deference-the doctrine that international tribunals must refrain from subjecting host states’ policy choices to a high level of scrutiny-must be reworked, by arguing for the consideration of the public international law defenses of due diligence and clean hands as a way of making deference more appropriate and diminishing criticisms of the ISDS system’s legitimacy.

Disparate Treatment for Property and Labor Rights in U.S. Trade Agreements?, by Celeste Drake. 22 UCLA J. Int’l L. & Foreign Aff. 70.

Ms. Celeste Drake compares the legal regimes of labor and investment rights in U.S. trade agreements in order to highlight that the agreements have accorded preferential treatment to the protection of investment rights. After describing the historical context that birthed the disparity, Ms. Drake outlines the methods of protection, scope of obligations, standing provisions, and remedies accorded to both kinds of rights under U.S. international agreements. Ms. Drake proposes a series of potential solutions to the disparity, including the expansion of labor protection obligations, the deployment of qualified labor inspectors to identify violations, the imposition of limitations on foreign labor recruiters, and the elimination of barriers of enforcement in international agreements.

Available at HeinOnline, Westlaw, and LexisNexis.

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