The Washington International Law Journal publishes global perspectives on international legal issues while fostering the development of student analysis. The Journal’s professional articles and student comments cover diverse legal and geographical terrain and offer novel approaches to international, foreign, and comparative law. To further cross-cultural dialogue on foreign law, the Journal publishes English-language translations of Chinese, Korean, and Japanese legal materials.

Volume 29 | Number 3 | June 2020

Cross-Border Data Flows, the GDPR, and Data Governance

W. Gregory Voss
W. Gregory Voss, Cross-Border Data Flows, the GDPR, and Data Governance, 29 Wash. Int'l. L.J. 485 (2020).
June 2020

Today, cross-border data flows are an important component of international trade and an element of digital service models. However, they are impeded by restrictions on cross-border personal data transfers and data localization legislation. This Article focuses primarily on these complexities and on the impact of the new European Union (“EU”) legislation on personal data protection—the GDPR. First, this Article introduces its discussion of these flows by placing them in their economic and geopolitical setting, including a discussion of the results of a lack of international harmonization of law in the area. In this framework, rule overlap and rival standards are relevant. Once this situation is established, this Article turns to an analysis of the legal measures that have filled the gap left by the lack of international regulation and the failure to harmonize law: extraterritorial laws in the European Union (regional legislation) and the United States (state legislation); and data localization laws in China and Russia. Specific provisions restricting cross-border personal data transfers are detailed under EU legislation, as are the international agreements that have been invaluable in allowing flows between the United States and the European Union to continue—first the Safe Harbor, and now the Privacy Shield. Finally, in this context, the role of data governance is investigated, both in the context of data controllers’ accountability for the actions of other actors in global supply chains under EU law and under the Privacy Shield. Thus, this Article goes beyond the law itself, to place requirements in the context of the globalized business world of data flows, and to suggest ways that companies may improve their compliance position worldwide.

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Ride-Hailing Drivers as Autonomous Independent Contractors: Let Them Bargain!

Ronald C. Brown
Ronald C. Brown, Ride-Hailing Drivers as Autonomous Independent Contractors: Let Them Bargain!, 29 Wash. Int'l. L.J. 533 (2020).
June 2020

“Autonomous” workers include most gig-platform drivers, like those working globally for Uber and Lyft, who are usually classified as independent contractors and are ineligible for labor protections and benefits. The “new economy” and its business model, with its fissurization and increased use of contingent and outsourced workers hired as independent contractors, provide employers flexibility and lower costs by shifting labor costs to the workers. Many of these workers operate more as employees rather than genuine independent contractors or self-employed entrepreneurs, causing lost employee labor benefits and costing the government billions of lost tax dollars. Legal attempts continue to classify these workers as employees by means of adjudication or legislation interpreting the legal test of “control” to have them fit into the traditional employment relationship. California recently passed a law using a three-prong test to allow drivers who are dependent on a primary hiring company to be presumed as employees with full rights and benefits. Still, there are many drivers who will be independent contractors. However, the City of Seattle is trying an approach different from expanding the “employee” definition and has embraced the market practice of the employers’ use of independent contractors, and has legislatively provided the drivers, as independent contractors, with a voice through collective bargaining, wherein they could gain labor rights and benefits. Issues of federal preemption and antitrust limitations are discussed, and future legislation at the state or local level looks possible. The choice provided employers is that labor rights are provided to their workers as employees or as independent contractors. This Article proposes a model of granting labor rights to the ride hailing drivers by legislation at the state or local government level that stays under the legal radar of federal preemption and meets the requirements of the antitrust law. Comparisons will be made with global trends and experiences in the EU and in China to place the proposed Seattle model in greater context. Selected states in the EU show their bottom line in legal developments is to maintain the employer-employee dichotomy, sometimes using the “dependent employee” doctrine; whereas, China does not recognize “independent contractors,” but allows business contracts for services that can provide some advantages.

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Mass Torts: Dispute Resolution in France and the United States--the Vioxx and Mediator Cases Compared

Fred Einbinder
Fred Einbinder Mr., Mass Torts: Dispute Resolution in France and the United States--the Vioxx and Mediator Cases Compared, 29 Wash. Int'l. L.J. 575 (2020).
June 2020

Dispute resolution in legal systems has largely been designed for handling issues between small groups of individuals or organizations. Obtaining legal redress for those injured by mass torts and using the law as a means to prevent future occurrences has presented challenges for the development of effective dispute resolution mechanisms to obtain relief for plaintiffs and deter future tortfeasors. A comparison of French and American mass tort law and practice offers a fertile field for useful comparative study given the significant differences in approach taken by each country’s legal system. These differences derive as much from history, politics, the attitudes and practice of legal professionals, and business culture as from substantive law. This article describes and analyzes how these procedural and cultural differences impact French and American mass tort dispute resolution and how those differences must be carefully considered in any future attempt to integrate parts of one country’s dispute resolution mechanisms into the other. Using the French Mediator and United States’ Vioxx drug scandals and infrastructure disasters as case studies, this article examines and compares debates over class actions, American “entrepreneurial” lawyers versus French “corporationist” lawyers, the role of administrative agencies, notions of acceptable risk and individual responsibility, and the appropriateness of criminal law in mass tort dispute resolution. This Article concludes with an analysis of whether elements of each system might be adapted or serve to inspire the other legal system’s improvement.

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Translation: The Korean Bar Association's Code of Ethics for Attorneys

Wonji Kerper & Changmin Lee
Wonji Kerper & Changmin Lee, Translation, Translation: The Korean Bar Association's Code of Ethics for Attorneys, 29 Wash. Int'l. L.J. 649 (2020).
June 2020

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Korean Code of Ethics for Attorneys

Wonji Kerper & Changmin Lee
Wonji Kerper & Changmin Lee, Comment, Korean Code of Ethics for Attorneys, 29 Wash. Int'l. L.J. 667 (2020)
June 2020

In 2009, Korea implemented a law school educational system, which not only changed the legal education system, but the legal landscape as a whole. This has led to rapid growth in the number of attorneys. Although the increased number of attorneys has resulted in lower barriers to accessing justice, it has also brought the unintended consequence of cut-throat competition. With the number of disciplinary actions rising by four-fold in the last three years, the current version of the Korean Code of Ethics for Attorneys is certainly a step in the right direction but may not be enough to strengthen attorneys’ legal ethics in such an unprecedented time in Korean legal history. In light of the heated discussion in Korea regarding legal ethics, this comment, following the accompanying translation of the Korean Bar Association’s Code of Ethos for Attorneys, first, analyzes how the Korean legal education system and legal ethics education has changed over time. Second, to provide context on how the current Code of Ethics reached its current form, this comment reviews the history of and recent amendments to the Code of Ethics. Lastly, it considers next steps for the Code of Ethics and how attorneys can have a better sense of legal ethics in the long term. This comment is for those interested in comparative legal ethics, Korean legal ethics, and the Korean legal system.

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Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law

Jennifer Mendoza
Jennifer Mendoza, Comment, Ktunaxa Nation v. British Columbia: A Historical and Critical Analysis of Canadian Aboriginal Law, 29 Wash. Int'l. L.J. 585 (2020).
June 2020

Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a) religious freedoms claims of the Canadian Charter of Freedom and Rights. There, the Canadian Supreme Court decided that the Ktunaxa Nation did not have religious freedom claim under Section 2(a) over their traditional territory. The decision allowed Glacier Resorts Ltd. and the province of British Columbia to begin building a year-long ski resort that would destroy sacred Ktunaxa land and drive away the grizzly bear population—which played a significant role in the Ktunaxa’s religious beliefs. Given that the Ktunaxa brought a religious freedom claim under Section 2(a) of the Canadian Charter of Rights and Freedoms, their argument was not able to withstand scrutiny in Court. This demonstrated that Aboriginal peoples are instead more likely to succeed with claims under Section 35 of the Constitution. As such, instead of looking at Ktunaxa Nation v. British Columbia as another precedent-setting case, this case is arguably of little precedential value given the limited record that was available when the Supreme Court of Canadian heard the case.

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