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 1 | December 2019

Outer Space: How Shall the World's Governments Establish Order Among Competing Interests?

Paul B. Larsen
Paul B. Larsen, Outer Space: How Shall the World's Governments Establish Order Among Competing Interests?, 29 Wash. L. Rev. 1 (2019).
December 2019

We are in a period of transition in outer space; it is becoming increasingly congested. As one example, small satellites are beginning to interfer with astronomical observations. The objective of this article is to examine and evaluate how the various outer space interests interact, coordinate or conflict with each other. This article examines legal order options and the consequences of choosing among those options.

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China-EU BIT and FTA: Building a Bridge on the Silk Road Not Detoured by Labor Standard Provisions

Ronald C. Brown
Ronald C. Brown, China-EU BIT and FTA: Building a Bridge on the Silk Road Not Detoured by Labor Standard Provisions, 29 Wash. L. Rev. 61 (2019).
December 2019

It is time for European Union and Chinese leaders to build on the existing EU-China 2020 Strategic Agenda for Cooperation, quickly conclude on-going negotiations on their EU-China Bilateral Investment Treaty, and begin substantive negotiations on an EU-China Free Trade Agreement? China is now the European Union's second-biggest trading partner behind the United States, and the European Union is China's biggest trading partner. China is reaching to become the leader in globalism and is investing heavily to make it happen. One of the world’s largest projects, the Belt and Road Initiative is a primary driver of China's larger development strategy. A key aim of the BRI is to promote economic connectivity among countries in Eurasia by recreating the historic Silk Road along several land corridors and sea routes. While the parts of the project fit together like a giant jigsaw puzzle, one of the most important corridors is the road between the European Union and China where China is the European Union's biggest source of imports and its second-biggest export market. China is motivated to address historic obstacles and seize the opportunities for growth. At the same time, China can develop its own mega-regional free trade agreement as other such agreements grow around them, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership and the Comprehensive Economic and Trade Agreement, while China’s Regional Comprehensive Economic Partnership and European Union’s Transatlantic Trade and Investment Partnership languish. China’s first step might be an EU-China free trade agreement setting standards among the European Union’s 28 countries and China and paving the Silk road with a model for the 68 countries touched by the BRI encompassing about two-thirds of the world's population and 40% of global GDP. This paper will compare and discuss the possible accommodations necessary to reconcile the different approaches in free trade agreements by the European Union and China, with a focus on labor standards and dispute resolution provisions in their existing free trade agreements, in the context of current global obligations, including the International Labour Organisation, Organisation for Economic Co-operation and Development, and others.

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Hybrid Dispute Resolution Beyond the Belt and Road: Toward a New Design of Chinese Arb-Med(-Arb) and Its Global Implications

Weixia Gu
Weixia Gu, Hybrid Dispute Resolution Beyond the Belt and Road: Toward a New Design of Chinese Arb-Med(-Arb) and Its Global Implications, 29 Wash. L. Rev. 117 (2019).
December 2019

Arb-med is a form of hybrid dispute resolution that combines an adjudicative approach (arbitration) with a non-adjudicative approach (mediation). Dispute resolution clauses requiring arb-med will assume a popular role in resolving disputes that arise under China’s Belt and Road Initiative. This article argues that China should regulate arb-med in a way to reconcile local practices (mediation) with international expectations (arbitration) in context of the BRI. As an economic bloc proposed by China, the BRI development has the potential to promote dispute resolution means with Chinese characteristics such as arb-med. Global comparative study of leading arbitration jurisdictions in the East and the West shows a heightened awareness of arb-med due process concerns regarding international enforcement of arb-med awards. Most recent reforms on arb-med by leading Chinese arbitration institutions, such as the CIETAC, BAC and SCIA, evidence a trend toward bifurcating the two processes when facing international clients. China is aware of procedural justice in the hybrid dispute resolution. The establishment of the China International Commercial Court (“CICC”), and its creation of the “One-Stop” Platform shows the need to attract foreign parties, in addition to merely Chinese ones, and the pressure to compete in the BRI dispute resolution market. These are the leading factors that drive Chinese regulators to look beyond sociopolitical imperatives and cultural boundaries in promoting arb-med outside of the Belt and Road. As China is anticipated to propel the BRI arbitration system, Chinese arb-med, and its unique process, will remain a fluid area of localized globalism in contrast with globalized localism in China-led BRI dispute resolution development.

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Rethinking Adjudicative Jurisdiction in International Law

Satya T. Mouland
Satya T. Mouland, Rethinking Adjudicative Jurisdiction in International Law, 29 Wash. L. Rev. 173 (2019).
December 2019

The contribution of national courts to international law has long been doubted in the international law literature. As an aspect of the state’s power to prescribe, courts have been conceived as organs that merely apply the state’s laws, which may give effect to an international law norm. According to this conception, national courts merely apply and operate within the state’s national legal system and rarely have a direct contribution to international law. However, in enforcement proceedings for international arbitral awards, arising at the intersection between the law of state immunity and the law governing the enforcement of arbitral awards, a number of cases challenge this interpretation. In this area, adjudicative jurisdiction may be emerging as a specific manifestation of the state’s enforcement jurisdiction––that is, the power to induce or compel compliance with a state’s laws. In view of the lack of clarity regarding the lawful scope of a state’s enforcement jurisdiction in international law, which is arising increasingly in a globalized world where jurisdictional disputes cross territorial borders, the approach put forward in this study may be useful for uncovering potential state practice which may crystalize as customary international law. This article seeks to draw attention to this practice, illustrating how a conception of adjudicative jurisdiction as enforcement jurisdiction is not only timely and useful, but also potentially reflective of emerging state practice. It sets some normative foundations for how such an approach may be defensible and identifiable, thereby proposing that this topic is worthy of further exploration.

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Past, Present, and Future of Intellectual Property in Space: Old Answers to New Questions

Rosario Avveduto
Rosario Avveduto, Comment, Past, Present, and Future of Intellectual Property in Space: Old Answers to New Questions, 29 Wash. L. Rev. 203 (2019).
December 2019

This comment critically analyzes international space law in the context of intellectual property. The issues explored, current and future, are at the crossroads of the international space legal framework and U.S. intellectual property law. The first stage of the analysis includes a brief history of space law, introducing the U.N. treaties on space activities and taking a hard look at the founding principles they enshrine. An analytical overview of the International Space Station Agreement follows, introducing the present application of space law to issues of intellectual property. This overview further considers the fundamental principles of U.S. intellectual property, especially patent law, including the peculiar mandate of the Patents in Space Act. Both preceding sections highlight issues specifically affecting intellectual property and its development or enforcement in outer space and reveal the ramifications of this complex topic. After dissecting the relevant legal norms, the comment explores the future of the interaction between space and intellectual property, building upon the preceding critical approach to examine two issues: orbital patents and flags of convenience for patent infringers in space. Having delineated a number of interpretive problems that scarcely find comfort in the language of the applicable law, the comment concludes that commercial development and innovation in outer space will either require an update of international space law principles or a conscious disregard of its provisions.

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