Journal articles on the topic 'Appellate procedure – United States – Cases'
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1
BESHKAR, MOSTAFA, and ADAM S. CHILTON. "Revisiting Procedure and Precedent in the WTO: An Analysis ofUS – Countervailing and Anti-Dumping Measures (China)." World Trade Review 15, no. 2 (February 1, 2016): 375–95. http://dx.doi.org/10.1017/s1474745615000683.
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AbstractAfter not applying countervailing duty (CVD) law against non-market economies (NMEs) for two decades, the United States opened a CVD investigation against China in 2006. After extensive litigation, a US appeals court ruled that it was illegal to apply CVD law to NMEs. While that ruling was being appealed, the US Congress passed legislation stipulating that the application of CVD law to NMEs starting in 2006 was legal. China challenged this legislation at the WTO. The dispute resulted in a ruling that left open the possibility that the legislation violated the GATT, as well as a finding that the United States must investigate its application of countervailing and antidumping duties against China. This dispute has implications for a number of current WTO debates including: whether Appellate Body rulings create a binding precedent, whether the Appellate Body should have authority to remand cases, and what information should be required in panel requests.
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Widiatedja, I. Gusti Ngurah Parikesit, and Mohammad Qadam Shah. "Paralyzing the WTO from the Inside: The Deadlock of the Appointment of Appellate Body Judges and its Repercussions." Jurnal IUS Kajian Hukum dan Keadilan 10, no. 2 (August 23, 2022): 289–302. http://dx.doi.org/10.29303/ius.v10i2.1093.
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The establishment of the dispute settlement procedure that consists of the Panel Report and the Appellate Body has been the most remarkable characteristic of the World Trade Organization. Beside the most productive international dispute resolution process, it has consistently adopted a rule-oriented procedure in enforcing the commitments made during trade negotiations. Since the last five years, however, the dispute settlement process has confronted an existential crisis. While conflict resolution through consultations and panels continues, the process under the Appellate Body is forced to stop. The United States has impaired the appointment of additional judges to this body, preventing it from obtaining the quorum required to hear appeals. By employing a normative research, this paper aims to identify and analyze the deadlock of the appointment of the Appellate Body judges and its repercussions for international trade governance, including Indonesia. This deadlock could jeopardy the viability of global trading system as there would be no proceeding to hear the dispute at the appellate level. Some cases that involved Indonesia would also be affected, particularly if the parties are willing to continue this process to the Appellate Body.Â
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Lévesque, Céline. "Influences on the Canadian FIPA Model and the US Model BIT: NAFTA Chapter 11 and Beyond." Canadian Yearbook of international Law/Annuaire canadien de droit international 44 (2007): 249–98. http://dx.doi.org/10.1017/s0069005800009036.
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SummaryIn recent years, Canada and the United States have modified their model bilateral investment treaties (BITs). If NAFTA Chapter 11 cases have provided the new lens through which investment issues are considered, the solutions to problems experienced in this context have come from different sources. This article explores three influences on the model BITs: the NAFTA Free Trade Commission's interpretation and statements, World Trade Organization law and cases, and US domestic law and principles. A range of interpretation issues is raised, from the effects of changes in wording in successive treaties, to the “transferability” of law across systems (international and domestic), to the use of arbitral awards as precedent. Issues of a systemic nature are also raised, including attempts at limiting the discretion of arbitral tribunals through state interpretations, the possibility of creating an appellate mechanism, and a push for expedited preliminary procedures. The article illustrates the fast-paced evolution of international investment law and highlights the influence of the United States on this evolution.
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Vázquez, Carlos M. "Volkswagen Aktiengesellschaft v. Schlunk." American Journal of International Law 82, no. 4 (October 1988): 816–20. http://dx.doi.org/10.2307/2203516.
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In this first decision by the United States Supreme Court on the scope and application of the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, better known as the Hague Service Convention, petitioner, a West German company, challenged the respondent’s attempt to serve process on petitioner by serving its wholly owned U.S. subsidiary in accordance with the state’s rules rather than pursuant to the procedures of the Convention. The Circuit Court of Cook County, Illinois, found that the relationship between the German parent and the U.S. subsidiary was such that, under state-law rules of agency, the U.S. subsidiary was the parent’s involuntary agent for service of process. Because service could thus be perfected entirely within the United States, the court held that it was not necessary to follow the procedures of the Hague Service Convention. The Illinois Appellate Court affirmed, and the Illinois Supreme Court denied leave to appeal. The U.S. Supreme Court (per O’Connor, J.) affirmed and held: (1) the Hague Service Convention is “mandatory” and preempts inconsistent state-law methods of service in all cases to which it applies; (2) the Convention applies where there is occasion to transmit a document abroad to charge persons with formal notice of a pending action; and (3) whether it is necessary to transmit a document abroad for such purposes is determined by the forum state’s internal law.
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Koops, Catharina E. "Suspensions: To Be Continued The Consequences of the Appellate Body Report in Hormones II WTO Appellate Body Report, 16 October 2008, WT/DS320/AB/R & WT/DS321/AB/R, United States & Canada - Continued Suspension of Obligations in the EC - Hormones Dispute." Legal Issues of Economic Integration 36, Issue 4 (November 1, 2009): 353–68. http://dx.doi.org/10.54648/leie2009024.
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In October 2008, the WTO Appellate Body (AB) issued its report on Hormones II, marking the next stage in the long-running Hormones case. This comment discusses the AB’s findings on the matter. It outlines how the AB has shown the correct procedural avenue for cases involving compliance panels, regarding the standard of review, burden of proof and the use of Article 21.5 DSU. In particular, the AB resolves the hitherto unanswered question of how to handle cases concerning the compliance of implementing measures in the post suspension stage. However, some important consequences of the report involve the choice of scientific experts in SPS cases, and the use of the so-called carousel technique by parties that are allowed to suspend concessions. This comment shows how these issues may pose serious threats to the objectiveness of panel procedures, as well as the security and predictability of the multilateral trading system.
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Beckerle, Sebastian. "Stare Decisis in the WTO Dispute Settlement Procedure: A Response to the Trump Administration’s Criticism." Global Trade and Customs Journal NULL, NULL (December 1, 2019): 513–16. http://dx.doi.org/10.54648/gtcj2020063.
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The United States’ refusal to reappoint judges to the WTO Appellate Body will potentially render the appellate mechanism functionless at the end of this year. One of the alleged justifications provided by the Trump Administration – the treatment of previous Appellate Body reports as precedent – is the subject of this article. By examining the WTO legal framework as well as relevant case law, the paper demonstrates that the criticism in this regard is unjustified, and instead rather serves to conceal the dissatisfaction with consecutive negative decisions by panels and the Appellate Body, dismantling protectionist US measures.
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Beckerle, Sebastian. "Stare Decisis in the WTO Dispute Settlement Procedure: A Response to the Trump Administration’s Criticism." Global Trade and Customs Journal 14, Issue 11/12 (December 1, 2019): 513–16. http://dx.doi.org/10.54648/gtcj2019069.
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The United States’ refusal to reappoint judges to the WTO Appellate Body will potentially render the appellate mechanism functionless at the end of this year. One of the alleged justifications provided by the Trump Administration – the treatment of previous Appellate Body reports as precedent – is the subject of this article. By examining the WTO legal framework as well as relevant case law, the paper demonstrates that the criticism in this regard is unjustified, and instead rather serves to conceal the dissatisfaction with consecutive negative decisions by panels and the Appellate Body, dismantling protectionist US measures.
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PRUSA, THOMAS J., and EDWIN VERMULST. "United States – Anti-Dumping Measures on Polyethylene Retail Carrier Bags from Thailand: a cat in the bag." World Trade Review 11, no. 2 (April 2012): 257–71. http://dx.doi.org/10.1017/s1474745612000018.
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AbstractThis paper analyzes the dispute between Thailand and the United States regarding the method of calculating the anti-dumping duty on polyethylene retail carrier bags from Thailand. In December 2006, after a series of WTO Appellate Body reports, the United States ceased zeroing in original investigations. The United States implemented the policy change prospectively, that is only for future cases. Consequently, the margins in this case remained unchanged because they had been calculated in 2004. Thailand challenged the United States' use of zeroing in the final determination. The US did not contest the claim. The Panel confirmed that zeroing was used and, following the long line of Appellate Body rulings, found the United States' practice inconsistent with Article 2.4.2 of the Anti-Dumping Agreement. After the Panel Report was adopted, the United States retroactively applied the policy change to the facts of this case and recalculated the margins without zeroing. The relative simplicity of the panel proceeding and the United States' willingness to amend the calculations following the adoption of the Panel Report may invite other WTO members to pursue a similar course of action in instances where their exporters have been subjected to US zeroing.
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DAVEY, WILLIAM J., and ANDRÉ SAPIR. "United States – Subsidies on Upland Cotton Recourse to Article 21.5 by Brazil, WT/DS267/AB/RW (2 June 2008)." World Trade Review 9, no. 1 (January 2010): 181–99. http://dx.doi.org/10.1017/s1474745609990292.
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AbstractTwo of the four issues in this Appellate Body Report concerned the proper scope of Article 21.5 DSU compliance panel proceedings; the other two issues concerned the Appellate Body's review of the Panel's use of evidence. On the Article 21.5 issues, the Appellate Body essentially ruled that an Article 21.5 compliance proceeding could evaluate the WTO consistency of: (i) the entirety of an implementation measure (including parts of the measure that did not specifically implement DSB recommendations and rulings) and (ii) new subsidy grants made under a program in respect of which prior subsidy grants had been found to cause serious prejudice so as to determine whether the new grants also resulted in serious prejudice. On the evidentiary issues, the Appellate Body upheld the Panel's conclusions, although it modified certain of the Panel's reasoning. Probably the most interesting aspect of the case was the substantial deference showed by the Appellate Body to the Panel's consideration of causation and non-attribution issues. This deference was striking compared to the lack of deference that the Appellate Body has given to national authorities on those issues. We detect, however, a welcome interest on the part of the Appellate Body to require the use of analytical tools on the part of panels evaluating serious-prejudice cases.
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Totten, Christopher, and James Purdon. "A Content Analysis of Post-Jones Federal Appellate Cases." New Criminal Law Review 20, no. 2 (2017): 233–308. http://dx.doi.org/10.1525/nclr.2017.20.2.233.
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The United States Supreme Court in 2012 in United States v. Jones changed the legal test for what constitutes a police search under the Fourth Amendment. After Jones, a search occurs when: (1) an individual’s privacy rights are violated (“Katz” test); and/or (2) an individual’s property is trespassed upon (“Jones” test). From 1967 until Jones, only the Katz test was used. In light of this significant change, this study explores two questions using a content analysis approach: (1) the choice of legal test used by federal appellate courts to decide the “search” question (i.e., the Jones test, Katz test, or both tests), and (2) these courts’ holding regarding whether a “search” occurred. Most of these courts are relying upon Jones in some fashion; however, Jones has not prevented these courts from frequently applying Katz. Though reliance on Jones alone has led to uniform determinations by courts of a “search” and hence enhanced Fourth Amendment protections, overall post-Jones there are nearly an equal number of courts finding a “search” and “no search.” When courts apply Katz alone to evaluate a search, they have held no search occurred. In sum, Jones’ impact on Fourth Amendment search law has been incremental and gradual.
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Stewart, Terence P. "Addressing (or Not) Widespread Concerns with the WTO." Proceedings of the ASIL Annual Meeting 112 (2018): 321–22. http://dx.doi.org/10.1017/amp.2018.11.
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The United States for at least sixteen years has had serious concerns with whether the World Trade Organization (WTO) dispute settlement system was operating according to the terms upon which WTO Members had agreed. While the United States has been a major supporter of the WTO system and the dispute settlement system generally, concerns about sovereignty and the proper functioning of the system have been important since at least 2002, reflected in U.S. legislation and actions by three administrations. Concerns have existed on (1) whether panels and the Appellate Body have honored the limitations contained in Articles 3.2 and 19.2 of the Dispute Settlement Understanding (DSU) not to create rights or obligations; (2) the issuance of advisory opinions on issues not raised or not necessary to the resolution of the dispute; (3) actions of the Appellate Body that permit deviation from the DSU without affirmative authorization by the Dispute Settlement Body (DSB); and, former Appellate Body members continuing to be involved in cases after their term has expired (failure to complete appeals in the DSU required maximum time of ninety days). These are all issues that have concerned the United States for years but also have been raised by other members.
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Baker, Thomas. "A Survey of the Literature on Federal Appellate Practice and Procedure." FIU Law Review 18, no. 1 (December 21, 2023): 43–60. http://dx.doi.org/10.25148/lawrev.18.1.6.
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This is a survey of the literature related to appellate practice and procedure before the United States Courts of Appeals for the benefit of lawyers and judges and scholars. It is reproduced with permission from THOMAS E. BAKER, A PRIMER ON THE JURISDICTION OF THE U.S. COURTS OF APPEALS (Fed. Jud. Ctr. 3d ed. 2023) available at: https://www.fjc.gov/content/379899/primer-jurisdiction-us-courts-appeals-third-edition). This origin explains the scattered references in the entries to “this Primer.”
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Peaslee, John E., Dennis James, and Ramona Simmons. "Litigation in Interior Design: Examining United States Appellate Court Cases in Professional Practice." Journal of Interior Design 25, no. 2 (September 1999): 16–31. http://dx.doi.org/10.1111/j.1939-1668.1999.tb00341.x.
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Miyoka, Kunio, and Colin Trehearne. "Explaining Japan’s Decision to Join the MPIA: Avoiding the Void." Global Trade and Customs Journal 18, Issue 7/8 (July 1, 2023): 274–78. http://dx.doi.org/10.54648/gtcj2023031.
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Japan has long been a supporter of and an active participant in the rules-based trading system. This has allowed Japan, like many states, to engage in trade that it regards as fair and stable, liberated from superpower or great power preferences. In recent years, however, the rules-based trading system has faced challenges including from paralysis at the WTO Appellate Body arising from the United States deciding to block the appointment of Appellate Body members, accusing the body of ‘persistent overreaching’. In turn, the lack of a functioning Appellate Body allows WTO cases to be appealed ‘into the void’ of a non-functioning appeals system. Some WTO Members have made alternative temporary arrangements for an appeals system: the Multi-Party Interim Appeal Arbitration Arrangement (MPIA) which, until now, Japan had not chosen to join. Japan’s decision to now join the MPIA could be seen as a departure from its prior approach, but is in fact consistent with its long-held principles. Japan, MPIA, WTO, DSB, Arbitration, DSU, Appellate Body, Void, Trade, Plurilateral
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Grossman, Gene M., and Petros C. Mavroidis. "United States – Countervailing Measures Concerning Certain Products from the European Communities (WTO Doc. WT/DS212/AB/R): Recurring Misunderstanding of Non-Recurring Subsidies." World Trade Review 4, S1 (2005): 78–87. http://dx.doi.org/10.1017/s1474745605001242.
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In United States – Countervailing Measures Concerning Certain Products from the European Communities (WTO Doc. WT/DS212/QB/R, henceforth Certain Products), the Appellate Body (AB) of the World Trade Organization was called upon to revisit the issue of whether the United States can legally impose countervailing duties following the privatization of state-owned enterprises that had received non-recurring subsidies. In twelve cases, the United States Department of Commerce (USDOC) had applied either the “gamma method” or the “same-person method” in assessing the impact of a change of ownership on the continued existence of a benefit from a countervailable subsidy. The European Communities challenged the legality of these methods.
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Bacchus, James, and Simon Lester. "The Rule of Precedent and the Role of the Appellate Body." Journal of World Trade 54, Issue 2 (April 1, 2020): 183–98. http://dx.doi.org/10.54648/trad2020008.
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The crisis over appointments to the WTO's Appellate Body has been one of the most challenging conflicts the GATT/WTO system has ever seen, threatening to destroy a core institution of the world trading system. The Appellate Body has played a valuable role in dispute settlement, by providing a coherent set of jurisprudence to guide WTO Members as to the meaning of WTO law. The Appellate Body does not create formal "precedent," but nevertheless its reasoning in past cases serves informally to create expectations as to the meaning of the WTO agreements. The United States has objected to the Appellate Body's treatment of past rulings, arguing that the Appellate Body has elevated these rulings to "binding precedent." However, a careful reading of the language used by the Appellate Body to describe its views indicates that the Appellate Body has not done so. The U.S. objections are one part of its series of concerns justifying its blocking of appointments. Losing the Appellate Body over this dispute would be devastating to the WTO, and engagement on these issues must continue in good faith in order to find a resolution. WTO Dispute Settlement, Appellate Body, Panels, Precedent, StareDecisis, Cogent Reasons, Rule of Law, Walker Principles
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Nedumpara, James J. "Antidumping Proceedings and Zeroing Practices: Have We Entered the Endgame?" Global Trade and Customs Journal 7, Issue 1 (January 1, 2012): 15–26. http://dx.doi.org/10.54648/gtcj2012003.
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'Zeroing', the practice of setting to zero negative dumping margins in antidumping investigations, has been a contentious issue in the WTO for well over a decade. Members including the United States argued that GATT 1994 and the WTO Agreement on Antidumping did not outlaw such a practice. The WTO panels in certain cases have accepted this point of view, but the WTO Appellate Body was unambiguous in holding that the zeroing practice was untenable in most of its current manifestations. The differences of opinion of the panels and Appellate Body on zeroing have tempted many to believe that this issue could potentially escalate to affect the WTO system. That zeroing has moved beyond the realm of a complicated mathematical calculation or interpretation of a few provisions of the GATT and the WTO Antidumping Agreement has been accepted by many. However, will it snowball into a major crisis? It seems unlikely, argues this article, as the principal user of 'zeroing', that is, the United States has almost exhausted its defence in support of continuing with this practice and the Appellate Body has clearly indicated that there is no real gain in rehearsing the fine points of treaty provisions. This article argues that it will be virtually impossible for members such as the United States to re-agitate the issues in future disputes although they can argue that it strikes at the root of the retrospective system of duty collection in the way in which such countries administer such systems. The United States can, at best, use the panel and the Appellate Body process to buy some more time to make necessary reforms in their domestic law to conform to the zeroing prohibition. However, the future zeroing disputes will be 'lame duck' disputes and are unlikely to involve much discussion of any substantive arguments. It seems that the long drawn out controversy on zeroing is coming to a close.
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BOWN, CHAD P., and JASPER WAUTERS. "United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico: a legal-economic assessment of sunset reviews." World Trade Review 7, no. 1 (January 2008): 269–98. http://dx.doi.org/10.1017/s1474745607003576.
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AbstractThis paper reviews the WTO Appellate Body Report on United States – Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico (WT/DS282/AB/R 2 November 2005). This dispute concerns the disciplines imposed by the Anti-Dumping Agreement on WTO Members seeking to extend their anti-dumping measures beyond the original five-year period through a so-called sunset review. Our analysis focuses on the Appellate Body's finding in this case that no causation analysis is required in sunset reviews, and addresses the AB's approach towards the legal instrument that provides for the US policy in terms of sunset reviews, the Sunset Policy Bulletin. We conclude that the Anti-Dumping Agreement, as interpreted by the Appellate Body in this and other similar cases, imposes only minimal disciplines of a general nature on Members wishing to extend the anti-dumping measure beyond its original five-year period. We argue that the ‘textual’ argument relied on to support this deferential approach is weak and has resulted in undermining the practical effect of, what was considered to be, one of the major achievements of the Uruguay Round Anti-Dumping Agreement: limiting the life span of an anti-dumping measure to five years. From an economic perspective, Panels and the Appellate Body are simply debating the wrong type of questions. The prospective nature required by a sunset review analysis raises questions such as why exporters engaged in dumping in the first place, and what the conditions of the industry were so that the dumped imports caused injury. At the moment, sunset reviews seem adrift as panels and the Appellate Body fail to give guidance to Members on how to do a more economically sound and informed review.
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Voon, Tania. "Flexibilities in WTO Law to Support Tobacco Control Regulation." American Journal of Law & Medicine 39, no. 2-3 (June 2013): 199–217. http://dx.doi.org/10.1177/009885881303900201.
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Cases concerning the regulation of tobacco have long existed within the World Trade Organization (WTO) and its predecessor, the General Agreement on Tariffs and Trade 1947 (GATT 1947), although often these cases have not centered on the detrimental health impact of tobacco products. With the 2012 circulation of the Report of the WTO Appellate Body in U.S.—Clove Cigarettes, the potential friction between international trade law and tobacco regulation in the context of public health has come to the fore. In that Report, the Appellate Body found in part against the United States’ flavored cigarette ban. Combined with the ongoing WTO challenges to mandatory plain tobacco packaging in Australia—Tobacco Plain Packaging, governments might begin to fear that the WTO agreements represent an insurmountable barrier to ambitious tobacco control measures. However, careful examination of the Clove Cigarettes case alongside the two other recent Appellate Body Reports (U.S.—Tuna II (Mexico)5 and U.S.—COOL6) on the WTO's Agreement on Technical Barriers to Trade (TBT Agreement)7 demonstrates that the TBT Agreement has ample flexibility to accommodate health objectives underlying tobacco regulation.
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PRUSA, THOMAS J., and EDWIN VERMULST. "United States – Continued Existence and Application of Zeroing Methodology: the end of Zeroing?" World Trade Review 10, no. 1 (January 2011): 45–61. http://dx.doi.org/10.1017/s1474745610000480.
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AbstractThis is the eighth Appellate Body Report in which some aspect of zeroing was adjudicated. As in the prior cases, the AB again found the US practice inconsistent with several aspects of the Anti-Dumping Agreement. The novelty in this dispute was the EC attempt to broaden the concept of what constitutes an appealable measure. The EC challenged whether a WTO decision regarding zeroing could apply to subsequent proceedings that might modify duty levels and asked the AB to decide whether the United States' continued use of zeroing in the context of a given case was consistent with WTO obligations. The AB stated that in its attempt to bring an effective resolution to the zeroing issue, the EC is entitled to frame the subject of its challenge in such a way as to bring the ongoing use of the zeroing methodology in these cases, under the scrutiny of WTO dispute settlement. The AB then cautiously applied the new perspective to US zeroing practice.
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SIM, KWAN KIAT. "Rethinking the mandatory/discretionary legislation distinction in WTO jurisprudence." World Trade Review 2, no. 1 (March 2003): 33–64. http://dx.doi.org/10.1017/s1474745603001319.
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A WTO member state whose legislation is alleged to have infringed WTO rules often invokes the mandatory/discretionary distinction, which states that only legislation mandating actions inconsistent with WTO rules can be challenged; legislation merely granting the discretion to do so cannot be challenged. This article highlights the treatment of this distinction by the Panel and the Appellate Body in recent decisions, in particular, United States–Section 211 Omnibus Appropriation Act of 1998 (‘US–Section 211’), and United States – Countervailing Measures Concerning Certain Products from the European Communities (‘US–Countervailing Measures’). The reasoning and analysis in these cases extended beyond the characterization of the form of the legislation to an examination of the effect of the legislation, and may portend a reconsideration of the mandatory/discretionary distinction and a reformulation of the test for reviewing a state's legislation for WTO-compliance.
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Sun, Changyou. "Common Law Liability for Landowners When Using Prescribed Fires on Private Forest Land in the Southern United States." Forest Science 53, no. 5 (October 1, 2007): 562–70. http://dx.doi.org/10.1093/forestscience/53.5.562.
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Abstract The potential liability associated with escaped fires has been a widespread concern to forest landowners when using prescribed fires on private forestland. In this study, common law for prescribed fires on forestland in the 13 southern states was analyzed by examining published legal cases. A thorough search on the legal database of Westlaw generated a list of 27 cases at the state appellate courts. Major characteristics of these cases were summarized by features such as state, year, ownership type, and liability of landowner. Furthermore, these cases were analyzed under three focus areas: negligence rules, strict liability, and vicarious liability. Overall, the standard of care associated with the reasonable prudent person has been required for the intentional use of fire on forestland with a lawful purpose. In the past, gross negligence rule and strict liability have not been applied in the South. Vicarious liability may become a chief concern for forest landowners in the future.
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Gonzalez, Andrea Maria, and Aldina Sakhi. "The Multi-party Interim Appeal Arbitration Arrangement: An Update." Global Trade and Customs Journal 17, Issue 10 (October 1, 2022): 436–40. http://dx.doi.org/10.54648/gtcj2022062.
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The World Trade Organization’s Appellate Body (AB) continues to face an existential and operational crisis. Since 2017, the United States has blocked the selection of replacements for retiring AB members. As a result, the Appellate Body no longer has any active members and, therefore, cannot function. In March 2020, a group of 16 WTO members, including the European Union, promoted an initiative to establish a ‘multi-party interim appeal arrangement’ (MPIA), as an alternative to AB proceedings pending a resolution of the AB impasse. The arrangement is intended to allow disputes to be resolved finally by an impartial adjudicating body and to preserve a two-tier WTO dispute settlement system, until the Appellate Body resumes its functions. This Article provides a review of the structure and provisions of the MPIA and an update on how it has worked in practice. To date, no WTO dispute has gone through the MPIA process. However, in two recent disputes, Türkiye, which is not an MPIA party, and the European Union entered into agreements on appeals using a process very similar to the MPIA. One of those disputes has proceeded to the appeal stage under this arrangement. This note also provides the review of the differences between the MPIA and the Türkiye-EU mechanism. The World Trade Organization's disputes, the Dispute Settlement Body, Appellate Body Members, Multi-party interim appeal arrangement, MPIA, structure, appeal arbitration procedure, arbitrators, MPIA arbitrator, outgoing disputes, the first case to use appeal, Article 25 Arbitration, Türkiye-EU appeal arbitration agreement, WTO reform, MC12 outcome.
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Warikandwa, Tapiwa Victor, and Patric C. Osode. "Managing the Trade-Public Health Linkage in Defence of Trade Liberalisation and National Sovereignty: An Appraisal of United States-Measures affecting the Production and Sale of Clove Cigarettes." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 17, no. 4 (April 11, 2017): 1285. http://dx.doi.org/10.17159/1727-3781/2014/v17i4a2164.
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Under the legal framework of the World Trade Organisation (WTO), countries have great flexibility to unilaterally adopt environmental regulations that have effect within their territories only. However, the same discretion does not apply to measures that adversely affect imports or exports. An absence of clear guidelines on how to address some of the attendant issues poses challenges to the effectiveness of a trade-environment linkage. Not surprisingly, attempts to link the environment and trade have resulted in a number of jurisprudentially significant cases in which the WTO's Panel and Appellate Body have tried to address critical questions about the Organisation's capacity to address or manage legal or quasi-legal subjects falling outside the scope of its legal framework. In this regard the Panel and Appellate Body reports in the case of United States - Measures Affecting the Production and Sale of Clove Cigarettes (US-Clove Cigarettes) have re-ignited the debate on the Organisation's existential challenge of balancing the rights of the sovereign to freely regulate matters pertaining to health or the environment within its domestic domain with the need to maintain the sanctity of the multilateral trade order. This article demonstrates that in the US-Clove Cigarettes case the WTO Panel and Appellate Body, whilst managing to successfully defend the integrity of WTO Member States' treaty commitments and the overarching importance of trade liberalisation within the organisation's policy foundations even in the context of public health-related regulations, failed to provide any substantive affirmation of the development-related challenges facing developing countries that are part of the WTO family.
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GROSSMAN, GENE M., and JASPER WAUTERS. "United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina: a cloudy sunset." World Trade Review 7, no. 1 (January 2008): 235–63. http://dx.doi.org/10.1017/s1474745607003631.
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AbstractWe review the WTO Appellate Body report on United States – Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (WT/DS268/AB/R, 29 November 2004). This dispute is one of several that deals with sunset reviews of antidumping-duty orders. In its ruling, the AB reasserts a rigid distinction between mandatory and discretionary law, and sets a very high standard for Member challenges to laws or practices that allow for violations of WTO obligations but do not mandate such behavior. We argue that this ruling is unfortunate, because it diminishes scope of and incentives for ‘as-such’ challenges to laws and practices, which have a potentially useful role to play in the world trading system. The AB ruling also overlooks the purpose and objectives of sunset reviews – to ensure that duty orders are not extended when their removal would generate no harm to an import competing industry – by failing to impose sufficient discipline on their conduct. We argue that a sunset review requires an evaluation of competitive conditions in the industry and of the reasons and incentives for dumping, in order that the investigating authority can judge whether the removal of a duty order would lead to a continuation or recurrence of dumping and injury. The Appellate Body's rulings in this and other similar cases have the effect of relieving the investigating authority of this responsibility and thereby render the sunset review process virtually meaningless.
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Sharma, Divyansh. "The Move Towards Multi-Party Interim Appeal Arbitration: How Efficacious?" Arbitration: The International Journal of Arbitration, Mediation and Dispute Management 88, Issue 1 (February 1, 2022): 117–34. http://dx.doi.org/10.54648/amdm2022007.
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The Appellate Body (AB) of the World Trade Organisation (WTO) is in a period of severe crisis. Though generally composed of seven members, the forum’s composition has now dropped below three, the minimum number required to hear any new appeal. At its root, this deadlock arises out of the United States’ veto against any further appointments to the AB. However, it is important to understand the potential fallout likely to occur when approaching solution-oriented discussions from this perspective. This article hypothesizes that the crisis is not limited merely to AB members’ appointment but originates from a threat to core WTO tenets of mutual trust and multilateralism. In this context, it argues that the Multi-Party Interim Appeal (MPIA) Arbitration Procedure is a mere ‘band-aid’ solution that promotes complacence within Member States and distracts attention from the structural WTO transformations necessary to escape from the current impasse. Further, the article finds that the legal and practical feasibility of the procedure is suspect, and thus there is an urgent need to explore alternative means to restore a functioning multilateral trade disputes mechanism.
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Župan, Mirela, Paula Poretti, and Martina Drventić. "Izvršenje presuda Europskog suda za ljudska prava u građanskopravnim međunarodnim otmicama djece u Republici Hrvatskoj – nova otvorena pitanja." Zbornik Pravnog fakulteta u Zagrebu 71, no. 3-4 (November 15, 2021): 347–75. http://dx.doi.org/10.3935/zpfz.71.34.02.
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The European Court of Human Rights (ECtHR) established a violation of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in several cases of international parental child abduction before Croatian courts. The length and the manner in which the proceedings concerning the return of the child were conducted constituted grounds for establishment of a violation of the right to a fair trial and the right to respect for private and family life. The execution of these judgments is still pending before the Committee of Ministers, despite the fact that the measures ordered resulted with a modified Croatian legal regime introduced through the Act on the Application of the Convention on the Civil Aspects of International Child Abduction. The Act includes a number of procedural improvements which align the practice of Croatian courts with international and European standards. However, the judgment of the ECtHR in Adžić v Croatia (no. 2) reveals that there is still no unambiguous answer to the question whether extraordinary appellate proceedings should be permitted in child abduction cases. Hence, the authors critically analyse the possibility of initiating an extraordinary appellate proceedings in these cases from a civil procedure and private international law aspect. The conclusion takes into account the specific circumstances of the case at hand as well as the case law of the ECtHR in relevant cases concerning other contracting states.
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Ostendorf, Adam P., Stephanie M. Ahrens, Fred Alexander Lado, Susan T. Arnold, Shasha Bai, Meriem K. Bensalem Owen, Kevin E. Chapman, et al. "United States Epilepsy Center Characteristics." Neurology 98, no. 5 (December 8, 2021): e449-e458. http://dx.doi.org/10.1212/wnl.0000000000013130.
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Background and ObjectivesPatients with drug-resistant epilepsy (DRE) may benefit from specialized testing and treatments to better control seizures and improve quality of life. Most evaluations and procedures for DRE in the United States are performed at epilepsy centers accredited by the National Association of Epilepsy Centers (NAEC). On an annual basis, the NAEC collects data from accredited epilepsy centers on hospital-based epilepsy monitoring unit (EMU) size and admissions, diagnostic testing, surgeries, and other services. This article highlights trends in epilepsy center services from 2012 through 2019.MethodsWe analyzed data reported in 2012, 2016, and 2019 from all level 3 and level 4 NAEC accredited epilepsy centers. Data were described using frequency for categorical variables and median for continuous variables and were analyzed by center level and center population category. EMU beds, EMU admissions, epileptologists, and aggregate procedure volumes were also described using rates per population per year.ResultsDuring the period studied, the number of NAEC accredited centers increased from 161 to 256, with the largest increases in adult- and pediatric-only centers. Growth in EMU admissions (41%), EMU beds (26%), and epileptologists (109%) per population occurred. Access to specialized testing and services broadly expanded. The largest growth in procedure volumes occurred in laser interstitial thermal therapy (LiTT) (61%), responsive neurostimulation (RNS) implantations (114%), and intracranial monitoring without resection (152%) over the study period. Corpus callosotomies and vagus nerve stimulator (VNS) implantations decreased (−12.8% and −2.4%, respectively), while growth in temporal lobectomies (5.9%), extratemporal resections (11.9%), and hemispherectomies/otomies (13.1%) lagged center growth (59%), leading to a decrease in median volumes of these procedures per center.DiscussionDuring the study period, the availability of specialty epilepsy care in the United States improved as the NAEC implemented its accreditation program. Surgical case complexity increased while aggregate surgical volume remained stable or declined across most procedure types, with a corresponding decline in cases per center. This article describes recent data trends and current state of resources and practice across NAEC member centers and identifies several future directions for driving systematic improvements in epilepsy care.
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PRUSA, THOMAS J., and EDWIN VERMULST. "United States – Definitive Anti-Dumping and Countervailing Duties on Certain Products from China: Passing the Buck on Pass-Through." World Trade Review 12, no. 2 (April 2013): 197–234. http://dx.doi.org/10.1017/s1474745612000560.
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AbstractIn 2007, the United States reversed its long-standing policy prohibiting the simultaneous imposition of anti-dumping duties (ADDs) and countervailing duties (CVDs) against nonmarket economies. Subsequently, the United States has imposed concurrent ADDs and CVDs in numerous cases against China. China challenged a number of aspects of the US practice, most notably the double-remedies issue, which occurs when a domestic subsidy is offset by both an ADD and CVD. The Appellate Body (AB) correctly ruled that double remedies are inconsistent with the Agreement on Subsidies and Countervailing Measures and that the burden was on the investigating authorities to ensure that double remedies were not being imposed; however, the AB largely limited its discussion to measurement concerns, an approach that may have inadvertently opened the door to future double-remedies disputes involving other methods for computing normal value. Two other issues that are likely to have significant long-term ramifications are (i) the scope of the term ‘public body’ and (ii) the appropriate use of out-of-country benchmarks. On both issues, we believe the AB's conclusions and analysis were correct.
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Annisa, Intan Baretta Nur. "The Recent Crisis of the WTO Appellate Body: Is the WTO’s Reform a Solution?" Yustisia Jurnal Hukum 11, no. 3 (December 25, 2022): 167. http://dx.doi.org/10.20961/yustisia.v11i3.68070.
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<p><em>At the end of 2019, the international society was surprised by the cessation of the Dispute Settlement Body of the World Trade Organization (WTO) since the United States (US) blocked the election of the new judge of the Appellate Body (AB). This study examined the superiority and drawbacks of the implementation and capacity of the WTO dispute settlement body (DSB) to maintain the trading system among the state members. This paper finds that the WTO DSB plays a crucial role in the panel report’s acceptance. WTO also continues to develop and is characterized by a strict interpretation of the WTO treaties. Nevertheless, provisions were criticized, which made their implementation inefficient, such as retaliation, the lack of transparency, the restriction of amicus curiae briefs, the procedure of concession suspension, and the deficiency in the enforcement of the report by the injured party. The crisis that happened to the AB could trigger countries to revise the mistakes in the WTO whole system. This situation presents a chance to resolve issues about the output quality and institutional mandate observance of the WTO tribunals. Overall, the ideal option for member states is to continue incurring the costs of loss, develop a consensus, earn global benefits to keep the trading system running and support the WTO through active participation.</em></p>
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HOEKMAN, BERNARD, and JOEL TRACHTMAN. "Continued suspense: EC–Hormones and WTO disciplines on discrimination and domestic regulation Appellate Body Reports: Canada/United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R,WT/DS321/AB/R, adopted 14 November 2008." World Trade Review 9, no. 1 (January 2010): 151–80. http://dx.doi.org/10.1017/s1474745609990280.
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AbstractBased on the reasoning of the Appellate Body in Canada/United States – Continued Suspension of Obligations in the EC–Hormones Dispute (‘Continued Suspension’), this paper analyzes the distinction between the national-treatment obligation under Article III of GATT and the requirement under the Agreement on Sanitary and Phytosanitary (SPS) Measures that such measures be based on a risk assessment that takes into account available scientific evidence. The Appellate Body's reasoning makes clear that the primary purpose of the SPS Agreement is to discipline discriminatory regulation, and not the level of protection. We argue that the case clarifies that de facto protection (market segmentation) created by an SPS measure must be motivated by demonstrating that the measure is addressing a market failure, as reflected in the existence of some scientific basis for a health or safety concern. The scientific-basis requirement is a means for determining the intent of an SPS measure. While this is a factor that is ostensibly not relevant in GATT national-treatment cases, the need for scientific justification is not a move away from a concern with preventing illegitimate discrimination against imported products.
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Kim, Hyun-Jung. "A Research on Regionalization under the WTO SPS Agreement." Korea International Law Review 63 (October 31, 2022): 171–91. http://dx.doi.org/10.25197/kilr.2022.63.171.
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The World Trade Organization (hereinafter, WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (hereinafter, SPS Agreement) is the first multilateral agreement which elaborates on the principles of Article XX(b) of the General Agreement on Tariffs and Trade (GATT) 1994. The SPS Agreement aims to protect human, animal or plant life or health, and prevent those SPS measures from discriminating arbitrarily between the WTO members.
Especially, it is important to understand the Adaptation to Regional Conditions (hereinafter, Regionalization) of Article 6 under the SPS Agreement, as WTO Appellate Body in the Russia-Pigs Dispute examined the implementation aspects of Article 6.2 under the SPS Agreement. The Appellate Body reversed its previous rulings on Article 6.2 in the India-Agricultural Products Dispute, the US-Animals Dispute, and the Russia-Pigs Dispute, and highlighted the implementation aspects of the 'Regionalization Procedure', for the first time. In addition, the WTO Dispute Settlement Body (DSB) in the US-Animals Dispute and the Russia-Pigs Dispute pinpointed the relationship between the 'Import Approval Procedure' under Article 8 and Annex C, and the 'Regionalization Procedure' under the Article 6 of the SPS Agreement. Thus, this research focuses on the WTO Adjudications on Regionalization of Article 6, and its extended interpretations to the 'Import Approval Procedure' of Article 8 and Annex C of the SPS Agreement. It continues to study on the Regionalization provisions within the United States, European Union, and the Republic of Korea. Also, it analyzes and compares on the legal obligations of Regionalization provisions under the preferential trade agreements, such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (hereinafter, CPTPP), the Regional Comprehensive Economic Partnership (hereinafter, RCEP), and the United States-Mexico-Canada Agreement (hereinafter, USMCA). It mainly compares CPTPP and RCEP, or CPTPP and USMCA. The main purpose of this analysis is to comprehend the contents and the level of legal obligations of CPTPP, and find legal improvements for the domestic regulations of the Republic of Korea after its accession to CPTPP. In the same vein, this research emphasizes on the significance of the WTO Adjudications and its implications to be reflected on the domestic regulations.
The Republic of Korea needs to organize a systematic framework for dealing with the Regionalization requests from foreign governments, and establish an official position who specializes in the 'Regionalization Procedure'. This research will provide implications for the improvement of the legal and administrative framework of the Republic of Korea.
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Wagner, Richard K. "Proving Chinese Law in the Courts of the United States." Amicus Curiae 2, no. 2 (March 1, 2021): 188–215. http://dx.doi.org/10.14296/ac.v2i2.5253.
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The volume of disputes heard by United States (US) courts containing a China element continues to be robust even against a backdrop of political rhetoric concerning an economic ‘de-coupling’ of the US and China. These cross-border disputes often involve Chinese parties and special issues, some of which concern Chinese business culture, but many of which involve interpreting questions of Chinese law. How is proving Chinese law accomplished in these cases and how have US courts performed in interpreting Chinese law? This article first discusses the approach to proving Chinese law in US courts. While expert testimony is often submitted and can be valuable to a US court, the applicable US rule offers no standards by which these opinions are to be judged. And, in the China context, without specific guidance, it can be challenging for a judge, unaccustomed with China or the Chinese legal system to determine which version of the law to believe. Moreover, under the applicable rule, the US court can simply ignore competing Chinese law opinions and conduct its own Chinese law legal research, presumably using English language sources. This can lead to interesting interpretations of Chinese law to say the least. The article anchors its discussion in an examination of those recent cases which have interpreted Article 277 of the Civil Procedure Law of the People’s Republic of China. This is the legal provision of Chinese law that can be implicated in certain situations involving cross-border discovery, and there are now numerous Article 277 cases among the reported US decisions. The article analyses Article 277 by placing it within the larger context of Chinese civil procedure and argues that the language used in the provision has a special meaning within Chinese evidence law that has been obscured in those US case decisions interpreting it, leading to erroneous results. The article concludes by offering judges and practitioners some suggestions for interpreting Chinese law in future US cases.
Keywords: Chinese law; US courts; Article 277; deposition; cross-border discovery; Hague Evidence Convention; Chinese civil procedure.
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CHEBOTAREV, A. V., and Ya N. RZHEPIK. "INSTITUTION OF APPEAL OF THE DECISIONS OF THE RUSSIAN COURT OF ARBITRATION FOR DOPING DISPUTES TO THE COURT OF ARBITRATION FOR SPORT (CAS): PROCEDURAL PROBLEMS AND PROSPECTS." Herald of Civil Procedure 11, no. 4 (October 20, 2021): 299–316. http://dx.doi.org/10.24031/2226-0781-2021-11-4-299-316.
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The article concerns the legal problems in the procedural legislation of Russia within the consideration and appeal of cases of violation of anti-doping rules in the appellate procedure. The doping scandal that occurred with Russian athletes and a number of sports organizations and functionaries led to the hasty adoption of a number of regulations and amendments to the existing laws of Russia. One of the important aspects is the analysis of the procedure on appeal of decisions in doping cases, due to the edition of the World Anti-Doping Code and the All-Russian Anti-Doping Rules that came into force in January 2021. New in these acts is the implementation of rules on the separation of powers to appeal proceedings in the current anti-doping rules. With reference to Article 13 of the World Anti-Doping Code (WADA Code) states that appeals for international athletes (testing pool) or violations detected during international competitions are filed directly with the Court of Arbitration for Sport (CAS) in Lausanne (Switzerland). As for national athletes and other individuals (coaches, athlete support personnel), disputes with their participation are filed with the national appeal authority. In addition, sufficient attention is paid to the recognition of decisions of international authorities on doping cases and the procedure for their implementation in Russia. All the arguments made in the article are supported by examples from judicial practice, including the practice of CAS, in which these cases were considered.
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Sin, Dongyun. "The ADR Procedure and Implication of Labor Disputes in the United States." Institute for Legal Studies Chonnam National University 43, no. 3 (August 31, 2023): 173–200. http://dx.doi.org/10.38133/cnulawreview.2023.43.3.173.
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In South Korea, specific work procedures have not been established to activate the alternative dispute resolution before and after labor disputes in the relief procedure. In particular, there is no special law that can uniformly and consistently apply the alternative solutions to labor disputes, and the subjects, procedures, and contents of the application are scattered in the Trade Union and Labor Relations Adjustment Act or the Labor Relations Commission Act. Nevertheless, the Labor Relations Commission actively participates from the collective bargaining stage, or the local labor commission leads the cooperation from the local governments to deploy the experts of alternative dispute resolution from the community. Therefore, in order for South Korea to actively introduce and revitalize the methods of alternative dispute resolution in labor cases, it is firstly necessary to establish the legal bases, procedures, and contents for the alternative dispute resolution.
Therefore, this paper aims to derive implications after examining the ADR procedure in the case of unfair labor practices and employment discrimination in the United States. Firstly, the ADR procedure in the United States provides the legal basis in accordance with the Administrative Dispute Resolution Act of 1996, a federal law. Specifically, the ADR procedures and contents of unfair labor practices and employment discrimination cases can be found through the Federal Code of Regulations. Secondly, the agency conducts the ADR procedures according to the work in charge of each agency. In other words, it means that the division of labor by agency is possible depending on the task in charge. Thirdly, the timing of the commencement for the ADR procedure is possible even before applications for unfair labor practices and employment discrimination relief are received. In other words, the ADR procedure may proceed at any stage before and after the issuing for relief. Fourthly, the ADR procedures are based on spontaneity, neutrality, confidentiality, and enforceability. Therefore, either party may withdraw the ADR at any time, and is left at the sole discretion of the party, without incurring any charges or expenses. Fifthly, the National Labor Relations Board has signed the agreement with the Equal Employment Opportunity Commission to provide mediators, while the Equal Employment Opportunity Commission uses not only internal mediators but also external contract mediators. Sixthly, the Employment Equality Opportunity Commission enters into the universal mediation agreement with employers. In other words, the Employment Equality Opportunity Commission encourages employers to enter into the universal mediation agreement to utilize the mediation at the regional, local, or national level. Seventhly, the National Labor Relations Board's ADR reconciliation and withdrawal rate and the Equal Employment Opportunity Commission's adjustment resolution rate exceed 70%, so its effectiveness is excellent.
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_, _. "Colorectal Cancer Screening Clinical Practice Guidelines." Journal of the National Comprehensive Cancer Network 4, no. 4 (April 2006): 384. http://dx.doi.org/10.6004/jnccn.2006.0033.
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Colorectal cancer is the third most frequently diagnosed cancer in men and women in the United States. An estimated 104,950 new cases of colon cancer and 40,340 new cases of rectal cancer will occur in the United States in 2005. During the same year, an estimated 56,290 people will die from colon and rectal cancer. Because patients with localized colon cancer have a 90% 5-year survival rate, screening is a critical and particularly effective procedure for colorectal cancer prevention. Screening options include colonoscopy; combined fecal occult blood test (FOBT) and sigmoidoscopy; sigmoidoscopy alone; or double-contrast barium enema. For the most recent version of the guidelines, please visit NCCN.org
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PRUSA, THOMAS J., and EDWIN VERMULST. "China – Countervailing and Anti-dumping Duties on Grain Oriented Flat-rolled Electrical Steel from the United States: exporting US AD/CVD methodologies through WTO dispute settlement?" World Trade Review 13, no. 2 (April 2014): 229–66. http://dx.doi.org/10.1017/s1474745614000093.
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AbstractIn July 2009, Chinese steel producers of grain oriented electrical steel filed anti-dumping (AD) and countervailing duty (CVD) cases against US and Russian producers. The US challenged the duties for a variety a reasons, many of which involved deficiencies in the producers' application to China's investigating authority, the Ministry of Commerce of the People's Republic of China (MOFCOM). The US also challenged certain aspects of MOFCOM's injury analysis. The Panel and Appellate Body ruled in favor of the US on virtually every issue. Given the deficiencies in the application and China's handling of the case, the Panel and AB decisions were justified. In a larger sense, however, we believe China may well emerge as the ‘winner’ in this dispute as this case establishes important standards for allegations and evidence in applications, standards that other countries (including the US) likely have failed to meet when they have imposed AD and CVD orders on the largest target country, China.
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Bashinskaya, Bronislava, Ryan M. Zimmerman, Brian P. Walcott, and Valentin Antoci. "Arthroplasty Utilization in the United States is Predicted by Age-Specific Population Groups." ISRN Orthopedics 2012 (November 14, 2012): 1–8. http://dx.doi.org/10.5402/2012/185938.
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Osteoarthritis is a common indication for hip and knee arthroplasty. An accurate assessment of current trends in healthcare utilization as they relate to arthroplasty may predict the needs of a growing elderly population in the United States. First, incidence data was queried from the United States Nationwide Inpatient Sample from 1993 to 2009. Patients undergoing total knee and hip arthroplasty were identified. Then, the United States Census Bureau was queried for population data from the same study period as well as to provide future projections. Arthroplasty followed linear regression models with the population group >64 years in both hip and knee groups. Projections for procedure incidence in the year 2050 based on these models were calculated to be 1,859,553 cases (hip) and 4,174,554 cases (knee). The need for hip and knee arthroplasty is expected to grow significantly in the upcoming years, given population growth predictions.
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Bhupatiraju, Sandeep, Daniel Chen, and Kannan Venkataramanan. "Mapping the Geometry of Law Using Natural Language Processing." European Journal of Empirical Legal Studies 1, no. 1 (May 13, 2024): 49–68. http://dx.doi.org/10.62355/ejels.18073.
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Judicial documents and judgments are a rich source of information about legal cases, litigants, and judicial decision-makers. Natural language processing (NLP) based approaches have recently received much attention for their ability to decipher implicit information from text. NLP researchers have successfully developed data-driven representations of text using dense vectors that encode the relations between those objects. In this study, we explore the application of the Doc2Vec model to legal language to understand judicial reasoning and identify implicit patterns in judgments and judges. In an application to federal appellate courts, we show that these vectors encode information that distinguishes courts in time and legal topics. We use Doc2Vec document embeddings to study the patterns and train a classifier model to predict cases with a high chance of being appealed at the Supreme Court of the United States (SCOTUS). There are no existing benchmarks, and we present the first results at this task at scale. Furthermore, we analyze generic writing/judgment patterns of prominent judges using deep learning-based autoencoder models. Overall, we observe that Doc2Vec document embeddings capture important legal information and are helpful in downstream tasks.
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Cassella, Stefan D. "NATURE AND BASIC PROBLEMS OF NON-CONVICTION-BASED CONFISCATION IN THE UNITED STATES." Veredas do Direito: Direito Ambiental e Desenvolvimento Sustentável 16, no. 34 (May 31, 2019): 41–65. http://dx.doi.org/10.18623/rvd.v16i34.1334.
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This report discusses the goals that asset forfeiture is intended to serve in the federal criminal justice system, the types of property that are subject to forfeiture, and the procedures that are used to initiate, litigate, and conclude asset forfeiture cases. With respect to procedure, its focus is on non-conviction-based (NCB) forfeiture, and especially on the safeguards that protect the property interests and due process rights of property owners.
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Schwartz, Ruben. "Descriptive Analysis of Federal and State Interventional Pain Malpractice Litigation in the United States: A Pilot Investigation." Pain Physician 4;23, no. 7;4 (July 14, 2020): 413–21. http://dx.doi.org/10.36076/ppj.2020/23/413.
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Background: The aim of this study was to examine and appreciate characteristics of malpractice lawsuits brought against interventional pain specialists. Objectives: To examine and appreciate characteristics of malpractice lawsuits brought against interventional pain specialists. Study Design: Retrospective review. Setting: Jury verdicts and settlement reports of state and federal malpractice cases involving interventional pain practitioners from January 1, 1988, to January 1, 2018 were gathered from the Westlaw online legal database. Methods: Jury verdicts and settlement reports of state and federal malpractice cases involving interventional pain practitioners from January 1, 1988, to January 1, 2018 were gathered from the Westlaw online legal database. Data collected for each case included year, state, patient age, patient gender, defendant specialty, legal outcome, award amount, alleged cause of malpractice, and factors in plaintiff’s decision to file. After elimination of duplicates and applying inclusion/ exclusion criteria to our initial search yielding over 1,500 cases, a total of 82 cases were included in this study. Results: A total of 57.3% of cases resulted in a jury verdict in favor of the defendant, whereas 41.5% favored the plaintiff. When comparing cases that were performed in the operating room to cases performed outside the operating room, we found the jury verdicts to favor the plaintiff 83.3% of the time for operating room procedures (P = 0.003). In other words, interventional pain practitioners were more likely to be found at fault for complications from procedures performed in the operating room. To eliminate confounders, a logistical regression was performed and confirmed operating room procedures were an independent predictor of a verdict awarded to the plaintiff (P = 0.008). The median amount awarded to the plaintiff for all cases was $333,000, and the single highest award amount was $36,636,288. The median payout for operating room procedures was $450,000 (P = 0.010), which was significantly different from the median payout for nonoperating room procedures. Procedure categorization demonstrated a statistically significant difference in jury verdicts (P = 0.01411) and procedural error was the leading reason for pursuing litigation, followed by lack of informed consent and unnecessary procedure performed. Limitations: There is more than one database that captures medicolegal claims brought against practitioners. Westlaw, which has been previously utilized by other studies, is only one of them and the extent to which overlap exists in unclear. For each, data input are not necessarily consistent and data capture are not complete. As a result, there could exist a skew toward more severe complications and the details of individual cases likely vary. During data extraction, we found that all details of the procedure were not always included. For example, not all cases specified the type of injectate utilized for epidural injection (i.e., local anesthetic, steroid, mixture, and others) or route of injection (i.e., transforaminal vs. interlaminar). Moreover, as previously mentioned, cases that are settled out of court or finalized prior to trial are not necessarily reported by the Westlaw database, and therefore were not always included in our data search. Conclusions: Overall, interventional pain medicine physicians were favored by jury verdicts for malpractice claims. However, when filtering by procedure or setting, jury verdicts favored the plaintiff in some cases. Key words: Interventional pain, medical, malpractice, anesthesiology
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Butler, Graham. "Lower Instance National Courts and Tribunals in Member States and Their Judicial Dialogue with the Court of Justice of the European Union." Nordic Journal of European Law 4, no. 2 (December 30, 2021): 19–36. http://dx.doi.org/10.36969/njel.v4i2.23779.
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The vast majority of cases that are submitted to the Court of Justice of the European Union (the Court) through the preliminary reference procedure that is contained in Article 267 TFEU come from lower instance national courts and tribunals in EU Member States. As a result, it is not always appellate courts, or higher instance national courts and tribunals, such as courts of final appeal, which make orders for reference. Judicial dialogue between national courts and the Court through this Article 267 TFEU procedure is notable for its particular quality of it being open to receiving orders for reference, for an interpretation of EU law from national courts and tribunals – of any instance – from first instance, to final instance. But can this judicial dialogue between lower instance national courts and tribunals and the Court be impeded by national courts’ more senior national Brethren, with appeals being allowed against orders for reference within national legal orders? The case law of the Court on such an issue has been progressive, in that it developed slowly over time, and the Court, by 2021, becoming increasingly assertive. As will be analysed in this article, the Court’s approach to the arising issue has clearly been an attempt to balance the interests of judicial dialogue on the one hand, and national rules on the other. Yet, with the Court’s broader case law tightening the understanding of who constitutes the European judiciary, and ensuring that all national courts and tribunals remain independent from executive interference in EU Member States, the article commends recent developments, but makes the further plea for an affirmative judgment of the Court to not permit, as a matter of EU law, appeals against orders for reference made by lower instance national courts and tribunals in EU Member States, in the name of preserving judicial dialogue through the preliminary reference procedure.
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Dieckmann, Jens, and Christina Kerll. "UN Ad Hoc Tribunals Under Time Pressure – Completion Strategy and Referral Practice of the ICTY and ICTR from the Perspective of the Defence." International Criminal Law Review 8, no. 1-2 (2008): 87–108. http://dx.doi.org/10.1163/156753608x265240.
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AbstractThe ICTY and ICTR have been put under an enormous time pressure to comply with the deadlines scheduled by the so-called Completion Strategy, which was announced by the United Nations Security Council in its Resolutions 1503 and 1534. This strategy called upon the two ad hoc Tribunals to focus on the trials of the most senior leaders and transfer intermediary- and lower-level accused to competent national jurisdictions in order to complete all trial activities at first instance by 2008 and all of its work by 2010. Rules 11bis of the ICTY and ICTR Rules of Procedure and Evidence were consequently amended to provide for the referral of indictments to national courts. While the ICTY to date has issued ten Referral Bench decisions and seven appellate decisions in Rule 11bis cases, the ICTR has only just initiated its referral practice. It is therefore time to examine the ICTY's jurisprudence on referrals as they will have a large impact on referral cases presented before the ICTR. This article critically analyses the development of the Tribunals' case law on referral cases from the point of view of the Defence. It provides an exhaustive overview of the jurisprudence in Rule 11bis proceedings, and examines the extent to which this jurisprudence has developed reasonable responses to the strict guidelines of the UN Security Council.
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Carender, Christopher N., Alan G. Shamrock, Kyle R. Duchman, Natalie A. Glass, T. Sean Lynch, and Robert W. Westermann. "Arthroscopy Volume in United States Residency Programs: Are New Trainees Prepared?" Journal of Hip Surgery 03, no. 03 (August 7, 2019): 124–29. http://dx.doi.org/10.1055/s-0039-1694766.
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AbstractArthroscopy is a technically demanding procedure with a prolonged learning curve. The purpose of this study is to determine if current arthroscopic case volume over the course of an orthopaedic surgery residency is sufficient to meet the number of cases required to achieve competence and/or mastery in complex arthroscopic tasks as well as hip arthroscopy. Publicly available Accreditation Council for Graduate Medical Education case log data for arthroscopic procedures from accredited orthopaedic residencies were reviewed from 2007 to 2017. Linear and segmental regression analyses were used to identify temporal trends, with significance set to p < 0.05. From 2007 to 2013, there was a significant increase in the median number of shoulder and knee arthroscopy case logs (p < 0.001). A sharp decline in the median number of shoulder and knee arthroscopy case logs was seen in 2013 to 2014 (p < 0.001), and the number remained low from 2014 to 2017 (p = 0.02, p = 0.03). The median number of hip arthroscopy procedures logged increased significantly from zero cases in 2012 (range: 0–48 cases) to five cases in 2017 (range: 0–76 cases) (p = 0.02). Over the study period, the median number of total arthroscopic procedures decreased from 301 to 186 (p = 0.01). In the United States, the majority of orthopaedic surgery residents graduate with case log numbers that meet theoretical minimum requirements for competence in basic diagnostic arthroscopy of the shoulder, hip, and knee. Resident experience with hip arthroscopy has increased; however, the majority of residents are graduating with little to no hip arthroscopy experience. Moreover, the median number of total arthroscopic procedures has declined to the point where the average graduate may not be able to perform complex hip or shoulder arthroscopy tasks based on previously published data. These findings support the need for further investigation into the best methods for training residents interested in performing arthroscopy as part of their careers. This was a level of evidence III, retrospective cohort study.
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Yengibaryan, R. V. "Legal cooperation between Russia and the USA: historical roots of modern problems." Journal of Law and Administration 15, no. 2 (October 10, 2019): 3–11. http://dx.doi.org/10.24833/2073-8420-2019-2-51-3-11.
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Introduction. Relations between Russia and the United States have nearly three centuries of history, and for more than two hundred years the countries had diplomatic relations which were interrupted for sixteen years from 1917 to 1933. Perhaps the XIX century was the most peaceful and fruitful for our countries when the interests of the Russian Empire and the United States on the world stage did not contradict each other, often coincided, thus excluding confrontation between the two nation-states. The XIX century for Russia and the United States was marked by the singing of a number of bilateral treaties, including the treaty on the extradition of criminals, which consolidated their partnership.On the contrary, the XX century is marked by unstable and cyclical relations between the two countries. The rejection of Soviet power, the long period of non-recognition of the Soviet Union was followed in 1933 by mutual multifaceted cooperation between the USSR and the United States, which included the legal sphere, and by the allied relations during the Second World War. The second half of the twentieth century was the time of open confrontation between the two world giants, when the crisis of relations between the USSR and the United States put the world on the brink of world war III. In such conditions, there could be no talk of improving the legal framework of legal cooperation, and the agreement on the procedure for execution of court orders concluded in 1935 did not find its practical application.Modern Russia has assumed the entire burden of problems and contradictions in legal cooperation with the United States. Searching for ways out of them is possible only on the basis of historical analysis of their prerequisites, taking into account the peculiarities of modern international relations.Materials and methods. The methodological basis of the study is the dialectical method of cognition of phenomena in the relationship and mutual conditionality using a set of general and particular scientific methods of cognition of reality. The historical method contributed to the restoration of the chronological sequence of legal cooperation between Russia (USSR) and the United States. The method of actualization made it possible to identify the historical factors that determined the peculiarities of international cooperation in the legal sphere. The method of diachronization made it possible to identify certain successive stages in the development of international legal cooperation between Russia (USSR) and the United States, to compare them, to identify patterns of development.Results. In the framework of the study, the author found that inter-state legal cooperation is an integral part of the foreign policy of states. The international legal basis of cooperation between Russia and the United States in civil, family and criminal cases was created in a different historical era, does not meet modern international relations, and is poorly implemented by the justice authorities of the two States.There is no treaty on legal assistance in civil and family matters that is fundamental to the protection of the rights and legitimate interests of citizens of both States, and there are no provisions on extradition in the Treaty on legal assistance in criminal matters.Discussion and Conclusions. The international legal framework of cooperation between the Russian Federation (and earlier - the Soviet Union) and the United States of America in the legal sphere; the problems of implementation of international legal assistance in civil, family and criminal cases are researched. The main provisions of the Treaty on mutual legal assistance in criminal cases of 2000; multilateral Conventions on the service abroad of judicial and extrajudicial documents in civil or commercial cases of 1965 are analyzed. The 1958 Convention on the recognition and enforcement of foreign arbitral awards, the 1935 Agreement “On the procedure for the execution of court orders between the Union of Soviet Socialist Republics and the United States of America” were explored. The prospects for the development of legal cooperation between Russia and the United States are shown.
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Klement, Alon, and Robert Klonoff. "Class Actions in the United States and Israel: A Comparative Approach." Theoretical Inquiries in Law 19, no. 1 (February 13, 2018): 151–202. http://dx.doi.org/10.1515/til-2018-0006.
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Abstract Unlike most countries, the United States and Israel have employed the class action procedure for decades. This Article compares the two countries’ class action regimes and examines how the device has evolved in those countries. It examines the current procedures, as well as proposed reforms. It also compares class action statistics in the two countries relating to filings and outcomes. We demonstrate the many common features between the United States and Israeli class action procedures. As we illustrate, these common features have led to robust class action practices in both countries. At the same time, there are profound differences between the types of class actions filed and their outcomes. Thus, while Israel has many more class actions than the United States on a per capita basis, the cases are much less consequential from a monetary and subject matter perspective. We explore possible explanations for these observations. Furthermore, this study identifies features — utilized by the United States and Israel — that can serve as models for other countries that are adopting or amending their own class action regimes.
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O'Hara, Claerwen. "Consensus and Diversity in the World Trade Organization: A Queer Perspective." AJIL Unbound 116 (2022): 32–37. http://dx.doi.org/10.1017/aju.2021.74.
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When the World Trade Organization (WTO) was established in 1995, it was seen as representative of a new era in international law, which claimed to be more functional and cooperative than the Cold War years. Fast forward to 2022, most commentators proclaim that the WTO is in “crisis.” For over two decades, its membership has struggled to reach decisions and, in 2019, the WTO was “dejudicialized” by the United States blocking consensus on appointments to the Appellate Body. In seeking to understand what went wrong, some commentators have focused on the operation of the WTO's consensus procedure and, in particular, the way it can afford states a veto power. In this essay, I take a different approach by considering how the discursive effects of consensus decision making have played into some of the problems facing the WTO today. Inspired by Gibson-Graham's work on “queering the economy,” I do so by unmooring queer theory from its base of gender and sexuality and applying queer insights to a discourse analysis of statements made in relation to the Uruguay Round of multilateral trade negotiations, which lasted from 1986 until 1993 and culminated in the agreement to establish the WTO. I show how the use of consensus decision making served to cultivate an intolerance of economic difference by giving rise to discourses of worldwide sameness and agreement. Finally, I consider what a queerer approach to trade-related decision making might look like.
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Reddy, Sudheer, Lane Koenig, Berna Demiralp, Jennifer T. Nguyen, and Qian Zhang. "Assessing the Utilization of Total Ankle Replacement in the United States." Foot & Ankle International 38, no. 6 (March 1, 2017): 641–49. http://dx.doi.org/10.1177/1071100717695111.
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Background: Total ankle arthroplasty (TAR) has been shown to be a cost-effective procedure relative to conservative management and ankle arthrodesis. Although its use has grown considerably over the last 2 decades, it is less common than arthrodesis. The purpose of this investigation was to analyze the cost and utilization of TAR across hospitals. Methods: Our analytical sample consisted of Medicare claims data from 2011 and 2012 for Inpatient Prospective Payment System hospitals. Outcome variables of interest were the likelihood of a hospital performing TAR, the volume of TAR cases, TAR hospital costs, and hospital profit margins. Data from the 2010 Cost Report and Medicare inpatient claims were utilized to compute average margins for TAR cases and overall hospital margins. TAR cost was calculated based on the all payer cost-to-charge ratio for each hospital in the Cost Report. Nationwide Inpatient Sample data were used to generate descriptive statistics on all TAR patients across payers. Results: Medicare participants accounted for 47.5% of the overall population of TAR patients. Average implant cost was $13 034, accounting for approximately 70% of the total all-payer cost. Approximately, one-third of hospitals were profitable with respect to primary TAR. Profitable hospitals had lower total costs and higher payments leading to a difference in profit of approximately $11 000 from TAR surgeries between profitable and nonprofitable hospitals. No difference was noted with respect to length of stay or number of cases performed between profitable and nonprofitable hospitals. TAR surgeries were more likely to take place in large and major teaching hospitals. Among hospitals performing at least 1 TAR, the margin on TAR cases was positively associated with the total number of TARs performed by a hospital. Conclusion: There is an overall significant financial burden associated with performing TAR with many health systems failing to demonstrate profitability despite its increased utilization. While additional factors such as improved patient outcomes may be driving utilization of TAR, financial barriers may exist that can affect utilization of TAR across health systems. Level of Evidence: Level III, comparative study
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Amelia Putrina Lumbantobing, Sudirman Sitepu, and Herlambang. "COMPARISON OF PLEA BARGAINING IN THE UNITED STATES WITH “SPECIAL LINE” IN THE DRAFT BOOK OF CRIMINAL PROCEDURE CODE (KUHAP) IN INDONESIA." Bengkoelen Justice : Jurnal Ilmu Hukum 13, no. 2 (December 17, 2023): 274–89. http://dx.doi.org/10.33369/jbengkoelenjust.v13i2.31572.
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Plea Bargaining is a faster and more efficient way of resolving criminal cases, where if the Defendant has admitted guilt, the Defendant or his attorney can make an agreement with the public prosecutor regarding the form of indictment and a lighter sentence. Plea Bargaining is widely embraced by Common Law countries. However, in its development, the success of the United States in reducing the pile of cases by using Plea Bargaining has been followed by Civil Law countries such as Germany, France, Russia, Georgia, the Netherlands, Italy, Taiwan. Even in an effort to reform the criminal justice procedural law, Indonesia has also adopted the basic concept of Plea Bargaining into the Draft Criminal Procedure Code with a concept called "Special Line". However, the concept of the Special Line has many differences so that it cannot be fully equated with the Plea Bargaining adopted by the United States. This is because Indonesia adheres to an inquisitorial system, not an adversary system. For this reason, Indonesia needs to study the successes and failures of Plea Bargaining in the United States, so that the Special Line concept that is to be implemented in Indonesia is a concept that has been adapted to the conditions of the criminal justice system in Indonesia.
Keywords: Plea Bargaining, Special Line, Guilty Confession
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Bhattacharyya, Neil. "Benchmarks for the Durations of Ambulatory Surgical Procedures in Otolaryngology." Annals of Otology, Rhinology & Laryngology 120, no. 11 (November 2011): 727–31. http://dx.doi.org/10.1177/000348941112001106.
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Objectives: I undertook to determine benchmarks and variability for the surgical times associated with ambulatory otolaryngological procedures in the United States. Methods: I examined the 2006 release of the National Survey of Ambulatory Surgery and extracted all cases of otolaryngological surgery in which one, and only one, otolaryngological procedure was performed. The mean surgical times and operating room times were determined for each procedure that met reliability criteria for their estimates. A secondary analysis was computed for tonsillectomy and for tonsillectomy plus adenoidectomy according to a patient age of greater than 12 years. Results: An estimated 1.68 ± 0.23 million otolaryngological procedures were analyzed as solitary procedures, including 507,000 cases of myringotomy with ventilation tube placement, 136,000 cases of tonsillectomy, and 429,000 cases of tonsillectomy plus adenoidectomy. The mean (±SE) surgical times were 8.0 ± 0.5, 23.9 ± 1.8, and 20.3 ± 0.8 minutes, respectively. The total operating room times were 17.6 ± 0.9, 48.2 ± 2.0, and 40.7 ± 1.1 minutes, respectively. Septoplasty with turbinectomy was the most common rhinologic procedure performed (48,000 cases analyzed) and had surgical and operating room times of 49.6 ± 4.78 and 79.8 ± 5.8 minutes, respectively. The surgical times for tonsillectomy and tonsillectomy plus adenoidectomy did not differ significantly in magnitude according to standard age cutoffs, although the operating room time was slightly (11.7 minutes) longer for tonsillectomy in patients more than 12 years of age (p = 0.034). Conclusions: The surgical times for the performance of the most common otolaryngological ambulatory procedures are remarkably consistent in the United States. Given the volume and consistency of these surgical procedures, they are ideal candidates for studies of cost and efficiency.