LEGL4900 - Roessing Exam 4

copyrights

protected equally in all NAFTA countries

direct effects doctrine

provides that provisions within EU treaties are applicable to individual businesses and persons and thus these businesses and individuals are empowered to seek enforcement without the necessity of state intervention or participation

NAFTA

purpose was to spur trade and investment in North America and to improve the standard of living throughout the continent

European Commission

responsible for proposing EU legislation, implementing it, and monitoring compliance

NAFTA Article 1110

states that no NAFTA country may expropriate property of a NAFTA investor, unless it is done pursuant to internationally accepted rules - that private property may only be taken for a public purpose or for public use on a nondiscriminatory basis, using procedures that are open, fair, and in accordance with due process of law, and fair compensation must be paid according to the market value of the property taken

Department of Transportation v. Public Citizen

the Court held that the government could implement the NAFTA transportation rules without an environmental impact statement addressing issues such as the effect on increased traffic, fuel consumption, and air pollution

qualified majority voting

the EU voting system in which the Council of Ministers does not need to reach unanimity on most issues

NAFTA

the largest free trade area in the world

acquis communautaire

"that which has been agreed upon by the community"

Treaty of Paris

(Europe) specifically defined the outlines of an agreed common policy, covering combined price and output controls, investment subsidies, tariff protection, and competition rules with respect to coal and steel

tariff shift rule

- Annex 401 rules of origin may be based on a change in tariff classification, a regional value-content requirement, or both, depending on the requirements for that particular product

Bulmer v. Bollinger

- English court recognized the national court's obligation to follow EU law - noted the difference between English and EU law, but followed the controlling EU law

Treaty of Rome

- Established the European Economic Community as an economic alliance - stated the original objectives of the EU - launched the process of establishing a customs union - launched internal multinational regulation

Commission of the European Communities v. Italian Republic

- Italian law regulated tickets for admission to monuments, museums, etc. - provided for free admission to EU citizens under 18 years old or over 65 years old - only applicable to national monuments and did not apply to public monuments operated by local government authorities - reduced rates were restricted to Italian nationals - Court prohibited local governments in Italy from maintaining different fees for Italian nationals and citizens of other EU member states

Commission of the European Communities v. Portuguese Republic

- Portuguese law prohibited tinting of vehicle windows - Portugal justified it by the objectives of road & public safety - there was no Community legislation on tinted windows at the time - the Court struck down Portugal's absolute prohibition on window tinting

Samsonite Corp v. US

- Samsonite assembled luggage in Mexico for import in to the US - many component parts used in the assembly process were make in the US - 20% ad valorem tax on the luggage - Samsonite appealed - Court of Appeals upheld that the bending and processing of the steel strips in Mexico was fabrication and not a mere assembly and therefore did not qualify for duty-free treatment

Kirk v. NY State Department of Education

- Simon Kirk, a veterinarian and citizen of Canada, sought to obtain a license to practice veterinary medicine from the state of NY - he was neither a US citizen nor a permanent resident alien - obtained an entry visa pursuant to NAFTA that permitted him to live and work in the US on a temporary basis - NY education code restricted the issuance of vet licenses to US citizens or aliens - Kirk filed a lawsuit against NY Dept of Education alleging that its restriction upon licensure was inconsistent with federal regulations implementing NAFTA - Court granted Kirk's motion for summary judgement and ordered NY to grant him a veterinary license in accordance with his immigration status pursuant to NAFTA

In the Matter of Cross Border Trucking

- US prohibited Mexican trucks from carrying goods through to their US destination for safety reasons (40% of trucks from Mexico in 1999 failed to meet US safety regulations) - US said Mexico must adopt similar safety standards to the US and Canada - US also restricted Mexican investment in US trucking firms - Mexico said US violated NAFTA by not treating Mexican trucking firms as they would US or Canadian firms - Panel held that US restrictions on Mexican trucking industry violated NAFTA - US could hold Mexican trucks to the same standards

TCAJ (Tax Cuts and Jobs) Act

- aimed at the tax issues of US tech companies - BEAT - Base Erosion and Anti-Abuse Tax (minimum tax for US companies that you can't avoid) - GILTI - Global Intangible Low-Tax Income Rule (replaced the idea of deferred earnings)

common market

- also called an economic community - seeks to further facilitate free competition within a group of nations - protects the right of all enterprises and persons within the area to do business, invest capital, and sell their services anywhere within the area without discrimination on the basis of national origin - must establish certain common rules

Common Agricultural Policy (CAP)

- central to the EU's mission - goals: 1. to increase agricultural productivity 2. to ensure a fair standard of living for the agricultural community 3. to stabilize markets 4. to guarantee regular supplies 5. to ensure reasonable prices to consumers

European Council

- composed of the heads of state or government of the EU's member states along with the president of the European Commission - has jurisdiction over a wide range of areas - president is elected by the Council to a term of 2 and a half years and can be reappointed once

NACEC (North American Commission for Environmental Cooperation)

- created by the NAAEC - oversees the NAAEC - headed by a council made up of three cabinet-level officers of the three governments - may convene panels to resolve disputes between countries - panels can authorize tariff increases against a country that fails to enforce its environmental laws or is otherwise found in violation of the environmental provisions of th eagreement - can impose monetary penalty

NAAEC (North American Agreement on Environmental Cooperation)

- does not set environmental or ecological standards, but calls for the 3 NAFTA countries to cooperate in protecting the environment - countries promised to enforce their laws more effectively - also promise to develop environmental emergency procedures and to share information on protecting the environment - working to develop common environmental standards

Pros of NAFTA

- easier to transport goods - tariff elimination - lower prices - relationship building - less illegal immigration - improved conditions in Mexico - less drugs - specialization

European Parliament

- elected EU body that provides consultation on issues proposed by European Commission - members elected by EU citizens

European Union (EU)

- established by the Maastricht Agreement, aka the Treaty on on European Union - created the concept of a Union as an expression of the member states' underlying unity - added goals to which the member states aspired

customs user fees

- fees imposed on importers to help fund the cost of customs enforcement and port services - eliminated by NAFTA

The Four Freedoms

- free movement of (1) goods, (2) services, (3) capital, and (4) people - at the heart of EU law

customs union

- free trade in all goods that come through any of the union members, even imports from outside of the union - can only function if all of its members agree to a common tariff on imports from outside the union

European Court of Justice

- functions as the final arbiter of EU law - function is to hear appeals from the European trial court - has original jurisdiction in cases brought by EU institutions to compel member states to comply with their treaty obligations - one judge appointed by each member state

Telefonos de Mexico

- government-owned monopoly from 1972-1990 - operated Mexico's telephone system - now privately owned and traded on the NYSE

effects of NAFTA

- higher volume of trade between US/Canada/Mexico - drop in manufacturing employment, increase in output - winners and losers in industries - auto and textile manufacturing

Metalclad Corp v. United Mexican States

- involves a US firm that attempted to build a hazardous waste landfill in Mexico - it was told that all permits necessary to build the facility had been obtained - after making significant progress to complete the project, the municipality where the landfill was claimed one additional permit was missing, and the state issued a decree turning the property into a wildlife refuge - work was ordered stopped, and Metalclad requested that an arbitral tribunal award damages - tribunal found that Metalclad's investment was not accorded fair and equitable treatment in accordance with international law, and that Mexico violated NAFTA

NAFTA

- liberalizes trade in goods and services - contains specific provisions for protecting IP rights - makes cross-border investment easier - protects the interests of foreign investors from arbitrary government action - allows easier access for commercial trucks and for business travel between the countries - encourages cooperation between governments on antitrust policy dealing with monopolies and unfair methods of competition, worker safety, child labor, and environmental protection - much broader in scope than most typical trade or investment agreements

European Central Bank

- located in Frankfurt, Germany - mission is to "promote price stability" and "to define and implement the monetary policy of the euro zone, conduct foreign exchange operations, issue notes, and promote the smooth operation of payment systems" - effectively in charge of monetary policy relating to the euro

trademarks

- protected under NAFTA for 10 years - can be renewed indefinitely - owner has the right to prevent others from using identical or similar signs for goods or services if it would result in a likelihood of confusion - specific provisions prohibit the use of the names of geographical regions unless the products are actually derived from that area

Single European Act (SEA)

- purpose was to strengthen the institutions and enable them to act to further the goals of the Treaty of Rome - signaled a dramatic move away from the Treaty of Rome's slow, consensus-based system - abandoned the unanimous consent requirement

certificate of origin

- required for all shipments moving among the US, Canada, and Mexico - certifies that the goods qualify as having originated in North America for purposes of preferential tariff treatment under NAFTA - required for all commercial shipments entering the US where the total line item value for a good is more than $1,000

Treaty of Lisbon

- significantly modified the EU's existing institutions as well as its underlying structure - abolished the separation between the policy areas and introduced a single consolidated entity with a legal personality - redefined the relationship between EU institutions and the national governments of the member states

The Council of Ministers

- sits in Brussels, Belgium - composed of one representative from each member state of the EU - different ministers appointed from each country depending on what is on the agenda for a given meeting - purpose is to coordinate economic policies of member states and to make decisions on issues within its jurisdiction - reaches decisions through a "qualified majority" voting system (55% of member states representing at least 65% of total EU population)

NAFTA Fair Trade Commission

- supervises the implementation of the agreement and attempts to resolve disputes that may arise regarding its interpretation or application - one cabinet-level official from each of the 3 governments form the commission

maquiladora

Mexican assembly plants lining U.S. border

Torresi (v. Consiglio dell'Ordine degli Avvocati di Macerata)

- two Italian nationals obtained university law degrees in Italy and Spain from respective institutions - both registered as attorneys in the Bar of Santa Cruz de Tenerife in Spain - 3 months later, applied to register in the Bar Council of Macerata in Italy - Italian bar did not act on the applications - Court held that the directive must be interpreted that as long as no abuse was present in obtaining a degree, traveling to another member state to obtain the qualification of lawyer, and returning back to the home state to practice law

Cons of NAFTA

- vulnerability (national security and drug flows) - job displacement (manufacturing and agriculture) - harm to domestic producers

Blanco and Fabretti (v. Agenzia Delle Entrate)

- winnings from casinos in Italy were exempt from income taxation - casino winnings outside of Italy were subject to income taxation - two Italian nationals were accused by Italian tax authorities of failing to declare winnings obtained in casinos located abroad - the ECJ concluded that Italy's differing tax treatment of casino winnings discriminated against casinos located outside of Italy and could not be justified by reasons of public policy

patents

-must be made available for any invention "in all fields of technology", whether it is a product or process - must be new, result from an inventive step, and be capable of industrial application - effective for a period of 20 years from the date of application or 17 years from the date when it was granted

4 principal means of harmonization (EU)

1. An EU regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states. 2. An EU directive shall be binding as to the result to be achieved on each member state to which it is addressed but shall leave to the national authorities the choice of form and methods. 3. A decision shall be binding in its entirety on the member state or individual to whom it is addressed. Decisions are commonly used with respect to proposed mergers and agricultural matters. 4. Recommendations and opinions shall have no binding force.

NAFTA rules of origin

1. the goods must be wholly produced or obtained in Canada, Mexico, or the United States 2. the goods may contain non-originating inputs (components or raw materials), but must meet the regional value content requirements or the tariff shift rules of origin found in Annex 401 of the NAFTA agreement

supremacy doctrine

EU law is superior to the laws of the member states in areas in which integration has been occurred

No

Is NAFTA a customs union?

False

T/F : Contracts in European sports leagues are typically more binding than American ones.

True

T/F : Insurance is treated as an international service and is regulated as such.

NAFTA

US, Canada, and Mexico

Generalized System of Preferences (GSP)

agreement that allowed many Mexican products to qualify for either a low tariff or no tariff at all

ICSID

an organization closely allied with the World Bank and is headquartered in DC

NAFTA emergency actions

can be taken only where increased quantities of a particular good are a substantial cause of serious injury, or threat thereof to a domestic industry producing a like or directly competitive good and only with the consent of the country from which the goods were exported

arbitral panel

consists of five members who are experts in trade or law

binational panels

panels where NAFTA cases now go, apply the same standard of review as would a court of law convened in the country where the case originated

free trade area (FTA)

develops when two or more countries agree to eliminate or phase out customs duties and other barriers to trade among the member countries

sunset clause

every 6 years, countries must reaffirm NAFTA or it expires

NAALC (North American Agreement on Labor Cooperation)

intended to make labor policies more uniform by promoting basic labor principles in the region: - freedom of association and right to organize - right to bargain collectively - right to strike - prohibition of forced labor - protection for children and young persons - minimum working conditions - elimination of employment discrimination - equal pay for women and men - prevention of accidents and occupational disease and injuries, and compensation to workers - protection of migrant workers

Article 50 of the Treaty of Lisbon

invoked by the UK to withdraw from the EU

national treatment

once goods arrive from another NAFTA country, they must be treated without discrimination and no differently than domesticaly made goods

production sharing

the process of spreading manufacturing and assembly operations across international borders

substantial transformation test

used to determine the country of origin of goods imported into the US when goods are produced or assembled in more than one country