The Viability of Stimulating Technology-Oriented Entrepreneurial Activity in China, Taiwan, Japan, and South Korea: How Regulations and Culture Encourage the Creation, Development, and Exploitation of Intellectual Property
Matthew Goldberg

This paper provides investors, advisors, and legal practitioners with a framework to better evaluate and compare these North Asian nations for potential investment ventures. Each country is separately evaluated under a three-part analysis using criteria based on what venture capitalists deem most important when evaluating a possible portfolio company. This includes areas of analysis such as whether the company owns or has exclusive rights to its intellectual property, whether the company can protect and profit from this ownership, whether the company’s management has the entrepreneurial tools to move the company forward, and finally, whether investors can sell their interests and withdraw a return from their investment.

Accordingly, this paper describes each country’s foundation for patent and software copyright laws and explains how these laws facilitate or inhibit the creation of intellectual property in each nation. It also discusses each country’s ability to enforce such laws and reviews the nature and viability of exit opportunities for investors in each nation. Finally, the author explores the culture and logistics of each nation to determine if a proper environment exists for technological entrepreneurship. Where applicable, laws that encourage entrepreneurial funding and activity have been integrated into the evaluation. 

Compensation for "Measures Tantatmount to Expropriation" Under NAFTA: What It Means And Why It Matters
Jeffrey Turk

This paper delineates the scope of the right to recover for the transnational expropriation of foreign property under NAFTA, and addresses the implications of this right. The author discusses and rejects the arguments for broad exceptions to the general rule of compensation for regulatory expropriations enacted for environmental or social purposes.

The paper also provides a basic overview of the relevant portions of NAFTA Chapter 11 and surveys some of the major claims that have been submitted for arbitration. The author then offers a framework for deciding which “expropriations” are compensable; ultimately advocating for protection of foreign investment stimulating capital infusion for domestic economies. Finally, the paper advances the adoption of a standard of binding agreements to compensate in the event of expropriation, a standard most similar to that found in American takings law and most likely to attract foreign investment.

Negotiating a Commercial "Most Favored Nation" Clause
Stirling Adams

The author discusses the practical ways that corporate attorneys can aid their clients through avoiding the pitfalls of an unfavorable Most Favored Nation clause or through accentuating the client’s long-term goals by incorporating a properly constructed MFN clause. After examining a brief historical example of the effect of an MFN clause, the author explores the impracticalities that may arise while negotiating an MFN clause, such as administrative difficulties, restrictions on corporate decision-making, and antitrust issues. From both the supplier's and buyer’s perspectives, the author also focuses on common negotiation points and tips.

Conglomerating Antitrust Policy By Comparative Example: An Analysis of Merger Regulation In The United States, Japan, and the European Union
Jonathan Trexler

Antitrust law presents an especially valuable opportunity for international cooperation and borrowing because of the importance of comity in enforcement and the need to avoid inconsistent standards. Multinational corporations are frequently the target of merger regulations because of their potential of acquiring a monopoly or dominant position. Such companies may not be able to operate competitively if faced with varying or inconsistent directives from the regulatory agencies of several different countries or blocs.

This article provides a historical and theoretical background of merger regulation in the United States, the European Union, and Japan, respectively, outlining the standards to which mergers are held and the institutional mechanisms to which the enforcement of merger regulation is entrusted. Throughout, this article draws comparisons and makes distinctions between these systems. Finally, this study offers lessons that each system can take from the others, and points out areas that require special attention in all three merger regimes.

The EU Data Protection Directive: Implementing a Worldwide Data Protection Regime and How the U.S. Position Has Progressed
Seth P. Hobby

In a technology driven economy, where information can be rapidly aggregated, sorted, and analyzed for an array of commercial advantages, personal information may be tantamount to gold dust to companies of virtually every field. Consequently, the focus on protecting such information has been inevitably heightened. In October 1995, the European Community adopted “Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data,” laying out a comprehensive harmonizing data privacy regime to be implemented by the EU’s member states within three years. In essence, this Directive prohibits transfers of personal data from an EU member state to any non-member nation that does not engender an “adequate level of protection.”

This paper looks at the background to the formation of the European data protection regime, its ostensibly limitless application, and the extent to which its ramifications indirectly regulate international trade and international data privacy policy, with a particular emphasis on the dealings between the United States and the EU. The United States as a whole has not been designated as a country providing blanket “adequate protection” through an existing or subsequently implemented privacy regime. The United States, however, is the only nation to date to effectively conduct negotiations with the EU and reach a satisfactory compromise regarding alternative methods of meeting, or at least circumventing, the strict requirements of the Directive. The author shows that with the EU evidencing scant and insufficient ability to accomplish effective regulation, even within its own jurisdiction, it seems that at least for the foreseeable future the EU has an uphill battle in imposing on the world its approach to fundamental freedoms and individual privacy.

Privatization of Space Ventures: Applying the Proven Doctrine of Discovery to Extraterrestrial Appropriation
Jonathan C. Thomas

This paper addresses the inadequacies of the current space appropriation treaties to accommodate the increased privatization of outer space venture, and the limited role of states. The author reviews flaws in the current body of space law upon which these treaties are based, ultimately faulting a philosophy of common ownership (“res communis”). The author posits that while res communis exists as an important intellectual idea for philosophical debate, it is incongruent with the market conditions that will facilitate the establishment of commercial interests in space.

The author contends that states must eventually abandon res communis treaties because of their inability to work in tandem with the emerging realities of privately funded space expansion. In short, the international community must find a new framework for the body of space law that will properly encourage and facilitate commercial space activity. This author ultimately proposes a corpus juris spatialis derived from property jurisprudence that has effectively and efficiently worked under the pressures of an international market over the past millennia.

Use of WTO Panel Decisions in Judicial Review of Administrative Action Under U.S. Antidumping Law
Dan Nichols

The author reviews the narrow context of administrative implementation of antidumping law in the U.S. and seeks to resolve tension that results when such implementation differs from WTO panel decisions. Recent federal court decisions, such as Corus v. United States, illustrate this point of tension in international law. After offering a  brief summary of the reasoning behind the precedent in Corus and exploring counterarguments to that reasoning, the author proposes a consistent approach to the application of WTO panel decisions in litigation. His proposal involves the interpretation of the Anti-Dumping Agreement and its implementing legislation. Specifically, the author proposes that WTO panel decisions should carry more weight than they presently do.

The World Summit on the Information Society: Making The Case For Private Industry Filtering to Control Extraterritorial Jurisdiction and Transnational Internet Censorship Conflicts
Jay Wahlquist

This paper addresses governmental jurisdiction over Internet content creators, as well as how to avoid the chilling effect this jurisdiction can have on speech. The author provides a brief background on the World Summit on the Information Society (WSIS) and the Working Group on Internet Governance (WGIG) before exploring three alternative methods of conferring jurisdiction over Internet content providers—effects-based jurisdiction, target-based jurisdiction, and private industry filtering. The author discusses how each method balances the interests of governments in law enforcement against the interests of individuals in free speech. It ultimately asserts that private industry filtering provides the best alternative because it enables governments to enforce laws on the Internet without extending the effects of those laws into other nations. The author therefore concludes that the WGIG and WSIS would be wise to adopt the best practice of private industry filtering to deal with the uncertainty of Internet jurisdiction.

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