38980-swt_23-2 Sheet No. 1 Side A 05/11/2017 09:52:06 2 OW UMBER N : H ...... 327 ASE AW L C ISCRETION - ULES SE HE ARKET D R U ON : T M ESOLVED BY OW ...... 351 N AIR R : H E ...... 397 AP F UDICIAL B LOBAL G REATIES OW J OPYRIGHT G T : H SSAULT C USTIFY ITS OJINSHI OULD J D A C OLE OF LOSE THE AW R 2017 C L AW T O EXUAL NVESTMENT ITAL L ELP S QUILIBRIUM I ...... 375 V H E NTERNATIONAL ERMINATION IN A ARODY AND HE AN I 2017 by Southwestern Law School T P OPYRIGHT C : T © TABLE OF CONTENTS UTEUR ILATERAL OPYRIGHT B INTERNATIONAL LAW INTERNATIONAL D’A U.S. C EYOND NTERNATIONAL C APANESE ONSENT OPYRIGHT DJUDICATION OF I ...... 303 B J C C ROIT A AND D NFORCEMENT OF XXIII S A ’ THAT PPLIED IN THE E ROTECT A SOUTHWESTERN JOURNAL OF JOURNAL SOUTHWESTERN Andrew Paster Carlo Brooks Haik Gasparyan Michelle Lewis Yoshimi M. Pelc P TPP IMITATION IN CHIEVING THE PPLICATION FFIRMATIVE RBITRABILITY IN NIVERSITY M K ETHINKING OLUME AN HE L RANCE A C T U A R F V Notes & Comments A \\jciprod01\productn\s\swt\23-2\toc232.txt unknown Seq: 1 26-APR-17 15:54 A C Y 38980-swt_23-2 Sheet No. 1 Side A 05/11/2017 09:52:06 A 05/11/2017 1 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 1 Side B 05/11/2017 09:52:06 M K C Y EGAL L ANDATORY ...... 423 AVOR OF M F ELIVERY D LIMINATING XAMINATION OF THE FFENDERS IN : E E ATER O N W RIME : A RUG C D OLD RIVATE G P IT THE ...... 445 F LUE B OT ONVIOLENT N N OES ISCRETION URROUNDING D D S IME Shannon Royster Shannon Ava Shahani T INIMUMS FOR ESIGNS ONTRACTING FOR HE UDICIAL C D T M J \\jciprod01\productn\s\swt\23-2\toc232.txt unknown Seq: 2 26-APR-17 15:54 38980-swt_23-2 Sheet No. 1 Side B 05/11/2017 09:52:06 B 05/11/2017 1 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 2 Side A 05/11/2017 09:52:06 2 UMBER ATA UNG IM ENTA ILT J IVKIN RONK M K ONTANO R ARCROW W R P ASHALIAN ASHINGTON ARGARYAN ERIGIENKO OON JARADJIAN UILLERMO M H OVHANNISYAN N Z W S LIVIA Y D HASE H ICOLE O SHLEY C YE RANDON HANTAL RA ICCI N A AVIT HANT ACKEE OLENE A.J. G B H C AVEN A R J J S ERA D R V ILLER UTZ EWIS L AERMAN EPCHIAN AMMACK E. L M. M TEINBERG ASPARYAN R Staff C S IJEYEWICKREMA F. F G W ICHELLE ARK OBERT AIK Editor-in-Chief RICA ANIEL Faculty Advisors Managing Editor Associate Editors M R ILVIA M E H D S ONATHAN ASUN J K LI IM ELC LMARY HUNG ALVAN AYAT A NDERSON EJA AUMAN ATTLE P ARTHORN K ARAJAS C UBENHEIM RANCO INTERNATIONAL LAW INTERNATIONAL A AKOPIAN B G C ANDHOLD A B B C F B B H B RIK RACE ARHAN E OSHIMI YNN G RIANA URIT F USTIN ANNAH SOUTHWESTERN JOURNAL OF JOURNAL SOUTHWESTERN Y LLEN L AUREN J ICHELLE OURDES A Z TACY H L A ICTORIA ARMONY S L TEPHEN M Lead Article Editors Note & Comment Editors XXIII 2017 N S V H M K OLUME V \\jciprod01\productn\s\swt\23-2\boe232.txt unknown Seq: 3 26-APR-17 15:54 C Y 38980-swt_23-2 Sheet No. 2 Side A 05/11/2017 09:52:06 A 05/11/2017 2 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 2 Side B 05/11/2017 09:52:06 M K C Y Trustee Emeritus , Trustee Emeritus Trustee Emeritus , , EW OODS Trustee Emeritus HILIBOSIAN , CHOONENBERG S ARKER Trustee Emeritus EGIL ® EBB M. W S.W. L , ARIS H. P ETROCELLI VAN LLSWORTH UN OOLVERTON F. P ANDERS CHULMAN D. S PIRTOS P. P A. G W G. RLEIGH M. P OBERT ONALD OHN L. E A. S K. X A. S B. S . R . A . R . J Vice Dean Vice Dean and Justice Marshall F. ANIEL ON ON EORGE ON ON Dean and Chief Executive Officer OBERT RIAN ARRAINE RANK ANFORD HELDON OHN OHN ULIE S D H J L J R H G J F S H H B Associate Dean for Library Services Professor of Legal Analysis, Writing and Skills The Honorable Arleigh M. Woods and William T. Associate Professor of Law 2016-2017 Professor of Legal Analysis, Writing and Skills , B.A., J.D., , B.A., J.D., Assistant Dean for Career Services Professor of Law Professor of Law Emeritus Associate Dean for Student Affairs Associate Dean for Experiential Learning Associate Dean for SCALE Vice President and Chief Operating Officer Chair of the Board of Trustees John J. Schumacher Chair and Professor of Law John J. Schumacher Chair and Professor of Associate Dean for Strategic Initiatives Director of Street Law Clinic and Public Service Programs Senior Associate Dean for Academic Administration Associate Dean for Research Professor of Law , B.A., M.A., J.D., Professor of Law AMERON AMERON Dean of Students and Diversity Affairs Associate Dean for Institutional Advancement C C , B.A., J.D., , B.A., J.D., , A.B., J.D., , B.S., J.D., UIZ UIZ Associate Dean for Administrative Services , B.A., J.D., RAGER , B.A., J.D., Assistant Dean for Admissions , M.S., J.D., , B.A., J.D., R R , B.A., P , B.A., M.A., J.D., , B.S., J.D., , B.A., M.L.S., J.D., , B.A., M.A., Ph.D., , B.S., M.S., , B.A., M.B.A., , B.A., J.D., , B.A., J.D., , B.A., J.D., , B.A., M.S.W., J.D., ARPENTER AVID AVID , B.A., , B.A., J.D., OHEN , B.A., M.S., Ed. D., OLNICK ODON , B.A., SOUTHWESTERN LAW SCHOOL LAW SOUTHWESTERN AHILL ASSETT RONOVSKY OWNER OWNER OBERMAN EYER AIRCHILD HENG ERGER RISCOLL D D EICHTMAN , B.A., J.D., LL.M., OORMOSLEH C YRNE HISMAN HRISTENSEN IDD EATHERS B ARTER RIMES ATERSTONE L. C EINSTEIN ENA P ALNAN ATEMAN EAR ANAL K EVIN YM ESTERBERG YN J. B J. D C E. C J. D UENEZ P. F TIER M. R UCHESNEAU G URKE AMMACK G. A E. H H. H L. D B. L OHNSON M W. C C ALDWELL L P. B P.R. C D L. L L S J. F D W. C W J A. W D B C L. C K. W C A. B M. G McComb Professor of Law Woods Professor of Law and Clinical Professor of Law ARREN AYNE ARK ICHAEL ICHAEL ICHAEL ARCIE ICHAEL ICHAEL LAN NTHONY EBRA ARRIET EBRA ARIN OREEN ENNIS OBERT ONALD YDIA EVIN ETH HRISTOPHER ATHERINE RAIG YRON INDY HRISTOPHER HARLES AURA INDA ISA HOMAS AUREN HOMAS AUL HYLLIS ETER HAHRZAD USAN TEVEN ULIE A L C W A M L J M S N B R D L W M L P C H S M C C D C D B FULL-TIME FACULTY R D T ADMINISTRATION M BOARD OF TRUSTEES BOARD K S M P D M T P C \\jciprod01\productn\s\swt\23-2\fac232.txt unknown Seq: 4 26-APR-17 15:54 38980-swt_23-2 Sheet No. 2 Side B 05/11/2017 09:52:06 B 05/11/2017 2 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 3 Side A 05/11/2017 09:52:06 Professor of Legal Analysis, Writing and Professor of Law Dean, Chief Executive Officer and Professor Professor of Law Professor of Law Supervising Editor of the Journal of Editor of the Journal Supervising Co-Director of Academic Success and Bar- Director of Summer Law Program in Buenos Summer Law Program Director of Associate Professor of Legal Analysis, Writing Associate Professor of Director of Writing Center and Associate Center and of Writing Director Professor of Law Professor of Law Professor of Law Emeritus in Residence Professor of Law Professor of Legal Analysis, Writing and Skills Professor of Legal Analysis, Professor of Law Emeritus Dean Emeritus Co-Director of the Donald E. Biederman Entertainment Director of the Externship Program and Professor of Director of the Externship Faculty Director of the General LL.M. Program and Faculty Director of the General LL.M. Program Professor of Law Professor of Legal Analysis, Writing and Skills Professor of Law Visiting Professor of Law Professor of Law Professor of Law Emeritus Associate Director of International Programs and Adjunct Associate Director of International Programs , B.A., M.A., Ph.D., Visiting Associate Professor of Law and Research Fellow for Visiting Associate Professor of Law and Research Associate Dean for Research and Irving D. and Florence Associate Dean for Research Co-Director of the Trial Advocacy Honors Program and of the Trial Advocacy Co-Director , B.A., J.D., Professor of Legal Analysis, Writing and Skills Michael & Jessica Downer Endowed Chair and Professor of and Professor Endowed Chair Downer & Jessica Michael Visiting Associate Professor of Law Visiting Associate Professor Co-Director of the Donald E. Biederman Entertainment and Co-Director of the Donald E. Biederman Entertainment Visiting Professor of Legal Analysis, Writing and Skills Visiting Professor of Legal Analysis, Writing Paul E. Treusch Professor of Law , B.A., M.A., J.D., Professor of Law Emeritus .D., ., J.D., Professor of Law H C Supervising Attorney, Children’s Rights Clinic and Lecturer in Law Supervising Attorney, , B.A., J.D., , B.A., M.A., J.D., LL.M., Professor of Law , B.S., B.A., J.D., LL.M., , B.S., B.A., J.D., LL.M., ORILLARD RAGER AMPBELL , B.A., J.D., M.P.W., J.D., M.P.W., , B.A., , B.A., J.D., , B.A., J.D., , B.A., J.D., , B.S., M.Acc., J.D., , A.B., J.D., , B.A., J.D., , B.A., J.D., M.A., Ph.D., , B.A., J.D., , A.B., J.D., M.A., Ph.D., , B.A., J.D., LL.M., , B.A., J.D., LL.M., L P C , B.A., J.D., , B.S., J.D., , B.S., J.D., , Abogada (law degree), , Abogada , A.B., J.D., , A.B., , B.B.A., J.D., , B.A., M.A., Ph.D., , B.A., J.D., Ph.D., , J.D., , A.B., J.D., M.C.L., , B.A., J.D., *, B.A., J.D., , B.A., J.D., , A.B., J.D., M.A., Ph.D., , B.A., J.D., , B.A., J.D., , B.A., J.D., ART VOY ILLER , B.E.S., J.D., LL.M., TALIA , B.A., MS E , B.S., J.D., M.P.A., M.R.E.D., PSTEIN UNNING ARLAND ORMAN ORFF RIMMEL NOLTON ROST H C RIMES ARTH , B.A., J.D., , B.S., J.D., P , B.A., J.D., LL.M., UGSLEY IND UTZ ETTEER , LL.B., Ph.D., ONTZ IE D’I OYOS NIPPRATH SPOSITO USHNER EHRMAN LASCO ISCHER ARTIN EE UPTA AERMAN HARAKHANIAN M. M M K WANNA L. F ENDRON F AMACHANDRAN ESTERBERG T. K R. G H. F B. D M. E C. K S. G M. G F. M G. G G A. P C. L E. L EILMAN EREN J. H N LLIVIERRA P. E R T. M EIKOFF F. F L. G W. K W J. M A. K M. F R. F ANWAR S. G H K * In Memoriam P O Professor of Law the Study of Objectivism of Law Professor of Law Skills Emeritus Professor of Law Professor and Skills International Media and Entertainment Law and Professor of Law Law and Professor Media and Entertainment International Aires and Associate Professor of Law Professor of Aires and Associate and Media Law Institute and Irwin R. Buchalter Professor of Law and Media Law Institute and Irwin R. Buchalter Professor of Law Professor of Law Legal Analysis, Writing and Skills Legal Analysis, Writing Rosenberg Professor of Law Rosenberg Professor of Media Law Institute and Associate Professor of Law Media Law Institute and Associate Professor Related Programs and Professor of Law W. G K M K ARREN ICHAEL ICHAEL ICHAEL MY RTHUR NAHID NITA LEXANDRA OWRI ILA ERBERT DOKA ANIELLE EBORAH EIL OBERT OBERT OBERT IVIEN ORMAN OMAN IK ATHRYN RISTINA HRISTINE RYANT RIYA USAN USAN ILVIA OERG AMES ONATHAN AY OHN OSEPH ENNY AMES SABELLE D S G J D N R R J M J B V H J W J M S C H C V R S K M U A A J N P J A J A R A \\jciprod01\productn\s\swt\23-2\fac232.txt unknown Seq: 5 26-APR-17 15:54 I C Y 38980-swt_23-2 Sheet No. 3 Side A 05/11/2017 09:52:06 A 05/11/2017 3 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 3 Side B 05/11/2017 09:52:06 M K C Y RINSKY UHAS EBOWSKY K IBBY ANE ENKOV EFFERS A. J EVINE ELBERG OHNSON NAPP IM M. L AYNE RONI J OHNSON EVIN L ANGER J K S. K OHNSON J AWLER W. L M. L K ARK A L L J R. K L A. K . M AYNE and Associate Professor of and Associate IRIAM ARY LLAN NDREW EROLD OUGLAS ON ILLARY ERONICA EVILLE OBERT ACHARY RIAN AWRENCE UDY ESSICA EFFREY W Z G V A D N H H R B J A M J M L J ® Associate Professor of Law ORDON ASTINGS H ELFING Visiting Associate Professor of Law ANDEL ENRY LASS Professor of Law Emeritus M. G LADSTONE Professor of Legal Analysis, Writing and Skills ARFIELD ACOBS INE H ARY G OLDBERG Associate Dean for Library Services and Professor of Associate Dean for Library Services and Professor OBEL J Professor of Law ELFOUND ARRELL ELTON RADINGER ELDMAN F. H Professor of Law AVRON Professor of Law Emeritus Dean Emeritus and Professor of Law Dean Emeritus and Professor COTT A. H F G G F G F B. G J. G P. F G Associate Dean for Strategic Initiatives and Professor of Associate Dean for Strategic Associate Professor of Law G . S . J. G Academic Success Fellow and Adjunct Associate Professor Fellow and Adjunct Academic Success Associate Dean for Experiential Learning, Director of the Associate Dean for Experiential Learning, Director Professor of Law Supervising Attorney, Immigration Law Clinic and Supervising Attorney, Immigration Law Clinic Associate Dean for SCALE Associate Dean Co-Director of Academic Success and Bar-Related and Success of Academic Co-Director AX LICE OWARD ARY AVID ON ARY ON OBERT AREN RAIG ENELOPE EGGY EVAN Associate Professor of Law, Academic Success and Bar- Associate Professor of AMES ONATHAN AMES USTIN Professor of Legal Analysis, Writing and Skills Professor of Legal Analysis, Professor of Law Professor of Director of the Legal Analysis, Writing and Skills Program and Director of the Legal Analysis, Writing and J P S D H G J H R K H P J J G A M C Professor of Law , B.A., J.D., Director of the Immigration Law Clinic and Clinical Professor of Professor and Clinical Law Clinic of the Immigration Director , B.A., M.P.M., J.D., LL.M, Professor of Law Emeritus in Residence and Director of Professor of Law Emeritus Co-Director of the Trial Advocacy Honors Program and Professor Honors Program and of the Trial Advocacy Co-Director , B.A., M.A., J.D., , B.S., J.D., , B.S., J.D., ATSON , B.A., J.D., , B.A., M.S., J.D., , B.A., J.D., , B.A., J.D., , B.A., J.D., , B.A., J.D., , B.A., , B.S., B.A., J.D., W , B.A., M.L.S., J.D., , B.A., J.D., , B.S., J.D., , B.S., J.D., , B.A., J.D., , B.A., M.I.A., J.D., FACULTY , B.A., J.D., , B.A., J.D., LL.M., RAZIL , A.B., M.S., J.D., , B.A., J.D., , A.B., J.D., Law Paul W. Wildman Chair and Professor of LOAN OGERS , B.A., J.D., LL.M., , B.A., J.D., , B.A., HEEHAN AYS , B.A., M.A., J.D., , B.A., M.S.E.L., J.D./M.A., B LANCO S ANDINGHAM OLNICK OMIS IMON HUNG COTT , B.A., J.D., HEW AIRCHILD UNKEL OE URAN L ORGHI -M PANIAN HAFFER , B.A., J.D., , B.A., J.D., OKOYAMA ROOZ AYLOR HISMAN C TIER B OOD URNER C AYLOR ECKMAN K. R C. S ATERSTONE K ODRIGUEZ OLLADO IMIJIAN AMOS B AVIS E TRADER AISMAN AN T D A. B GRAWAL EKI A. S EE OBEL B D. S ANNIZZARO P. F Y. C M. R S W C R R D HAFIROFF D D V AZQUEZ N. D OHEN D. S EBORAH C. A ECKNER EHRANIAN T. Y S A L G. S L. T C A. W H. T V C K. W B T EMBA . D A. W H. S Law Law Law Emeritus Programs and Associate Professor of Law Associate Professor Programs and of Law Professor of Legal Analysis, Writing and Skills of Law Related Programs of Law Children’s Rights Clinic and Clinical Professor Lecturer in Law Southwestern’s International Entertainment and Media Law Summer Program in London Entertainment and Media Law Summer Southwestern’s International Law ELLY L. S ILLIAM ILENE ICHAEL ICHAEL LEXANDER NGELA NDREA AROUT EBORAH ENNIS ON OV ARRIET OBYN OBERT AHUL ACHEL ATALIE ATHERINE EBECCA HARLES ATHERINE ARBARA YRON ILL UTLER IMOTHY EAH HOMAS INDA IONEL EIGH RACY RANK IANNAH AMANTHA UDY OHN ULIA ULIE ACQUELYN RA M I N. K W L J J. K L J B L J D K R J H T R B J C D R T L S A A T H D R C B ADJUNCT R M M B S H F A N \\jciprod01\productn\s\swt\23-2\fac232.txt unknown Seq: 6 26-APR-17 15:54 38980-swt_23-2 Sheet No. 3 Side B 05/11/2017 09:52:06 B 05/11/2017 3 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 4 Side A 05/11/2017 09:52:06 ARRAD B REECK ANJAN EWARD T ALERIO TARK -R EGIL V AN ALVO MITH S M. S C. S V ARENAS AGURA ATZ ADAV S A. S Y A. S Z Y LICE MANDA ORMAN ANI DWARD ATHERINE OVEE ARRAINE ODD ONIA ULIE A L L A T E C N R S J ONNELL ELLMAN ALAZUELOS EUMEISTER UIZ P O’C EWCOMBE N AMOS M. P N ALYAN ARIKH STROVE ALBANDYAN H. R HILIBOSIAN MY AVID P VETTE P O N P A. R . D . Y . A ON AVID ON ON EORGE AROLINE HRISTOPHER IGRAN HERIN ANET ANET UAN J H C C D T S H J J G .H R , J AVIS OHR AFFREY C M S. M ARKS C ONGO ORENO YMAN OLINARO L OO ATSUDA D. M B. M M ARKS M UELLER M NTHONY ARRELL M ANE M M M J . D . A M K MY ON ON ERMEZ YLE ICHARD VETTE AMAL ONI OBERT RAIG IMOTHY A K R C H T H Y K H R R \\jciprod01\productn\s\swt\23-2\fac232.txt unknown Seq: 7 26-APR-17 15:54 C Y 38980-swt_23-2 Sheet No. 4 Side A 05/11/2017 09:52:06 A 05/11/2017 4 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 4 Side B 05/11/2017 09:52:06 M K C Y \\jciprod01\productn\s\swt\23-2\fac232.txt unknown Seq: 8 26-APR-17 15:54 38980-swt_23-2 Sheet No. 4 Side B 05/11/2017 09:52:06 B 05/11/2017 4 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 5 Side A 05/11/2017 09:52:06 R R R R R R R R R R R ..... 311 ...... 307 Carlo Brooks* EFENSES TO ...... 313 D ...... 306 USTOMARY ...... 324 C ...... 321 OF UBSTANTIVE NON–APPLICATION REATIES ” S LAW TO JUSTIFY ITS LAW TO JUSTIFY 303 T ...... 324 ...... 314 AW O F e de Pau et des Pays de l’Adour, 1999; B.A., University of ...... 323 VAILMENT L OVEREIGNTY OVEREIGN ...... 303 S A S ...... 325 LAIMS C ARBITRABILITY IN BILATERAL ARBITRABILITY SSUE OF THAT APPLIED INTERNATIONAL APPLIED THAT I The Howsam Rationale in Commercial Transactions The Primacy of Sovereignty State Considerations The Road to the Vienna Convention and Back The Road to the Vienna Convention Jurisprudence International Vienna Convention U.S. Vienna Convention Jurisprudence URPOSEFUL ONCLUSION HE RADITIONAL NTRODUCTION NTERNATIONAL NVESTOR INVESTMENT TREATIES: THE CASE TREATIES: INVESTMENT A. B. C. I A. B. C. I NTRODUCTION Attorney General Loretta Lynch arrives at the White House one Attorney General Loretta Lynch I. I * Staff Member of the Southwestern Journal of International Law; J.D., Southwestern V. C II. “P IV. T III. T M K Law School, 2016; PhD, Universit ´ I. I a notice compelling the United morning and discovers on her desk arbitral proceeding in Brussels for States of America to appear at an bilateral investment treaty. An an alleged breach of a U.S.-Armenia E. California at Berkeley, 1993. I would like to thank faculty advisors Silvia F. Faerman, Robert Lutz, and Tigran Palyan for their invaluable feedback and encouragement; Ronald G. Aronov- for sky, for bringing my attention to the case that inspired me to write this Note; Ara Djaradjian, his excellent editorial assistance on earlier drafts; my family and friends, for their constructive comments and indispensable moral support during the writing process. \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 1 11-MAY-17 9:18 C Y 38980-swt_23-2 Sheet No. 5 Side A 05/11/2017 09:52:06 A 05/11/2017 5 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 5 Side B 05/11/2017 09:52:06 . , M K R- & AW C Y A ORK ASH PPLI- : L in SPECTS Y , A , [Vol. 23 HORE A RINCIPLES EW S , 71 W ARTASIDES P N ARRA P EGAL L RBITRATION R. P AURENCE A UBSTANTIVE NTONIO ONSTANTINE EARS OF THE QC, L : S A UBSTANTIVE 146, 148 (Albert Jan van den & C 50 Y S In contrast to interna- 1 in ACHLAN , 1–2 (4th ed. 2004) (describing the see also NTERNATIONAL L C , I RBITRATION M LACKABY ONFERENCE A ORN B C “The tribunal must inquire into 5 ITA requires an arbitral tribunal ITA requires an 4 (2008). IGEL RBITRATION B. B 2 ROCEDURAL AND N AMPBELL A oll eds., 2004); : P ARY NVESTMENT RBITRATION I A ISPUTES RBITRATION Stayin’ Alive?: BG Group, PLC v. Republic of Argentina and Stayin’ Alive?: BG Group, PLC v. Republic of D A see generally The Law Applicable to International Investment Disputes The Law Applicable to International Investment NTERNATIONAL Investment Treaty Arbitration and Commercial Arbitration: Are Investment Treaty Arbitration and Commercial TATE I S note 1, at 411. and consider, among other factors, “the BIT itself, and consider, among other factors, NTERNATIONAL 3 4 NVESTMENT NTERNATIONAL note 1, at 1989 (citing C , I I supra , UNTER ON NVESTOR supra I 42 (2012) (noting that, “most BITs provide significant substantive protections for 42 (2012) (noting that, “most BITs provide significant H . 1979, 1981 (2014) (citing G ORN EINIGER : ICCA I SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW OREIGN B EV BITRATING AND Stephen R. Halpin III, CABLE F W AW S I N See See L. R L RACTICE Although the arbitral tribunal’s final decision is heavily grounded Although the arbitral tribunal’s final International investment treaty arbitration (“ITA”) typically in- treaty arbitration (“ITA”) International investment 2. 4. Richard H. Kreindler, 5. Halpin, 3. Bernard Hanotiau, 1. P EE ATTHEW EDFERN AND ONVENTION & L R M historical roots of arbitration). Berg ed., 2009). They Different Ball Games? The Legal Regime/Framework the Vitality of Host–Country Investment Treaty Arbitration Litigation Requirements in investments made by foreign investors, including guarantees against expropriation and denials of investments made by foreign investors, including fair and equitable treatment.”)); C 401, 404 (Norbert Horn & Stefan Michael Kr ¨ 69–70 (stating that “[t]he investments of non–State (2007) actors are creatures of private law and tribunals cannot avoid addressing issues arising under the law pursuant to which investments owe their existence in adjudicating treaty questions.”)). on international principles, “[h]ost–country law retains significance in notwithstanding the BIT movement international investment disputes, and its focus on international law.” 304 the U.S. of to the failure due damages claims corporation Armenian The corpora- treatment.” “fair and equitable the company to provide claims in first litigate that investors bypassed the requirement tion has but a Belgian jurisdiction, the tribunal’s The U.S. disputes U.S. courts. procedural under Belgian proper appeals finds jurisdiction court of entirely article will illustrate, yet, as this vignette is fictitious law. This prevent this scena- American jurisprudence. To proper under current treaty arbitration law should consider international rio, U.S. domestic consent as a prerequisite to arbitration. law in analyzing country, often by an investor against a sovereign volves arbitration investment treaty (“BIT”). under a bilateral \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 2 11-MAY-17 9:18 tional commercial arbitration (“ICA”), which “involve[s] commercial arbitration (“ICA”), which “involve[s] tional commercial private parties,” disputes between [and] the rules and principles of in- the law of the Contracting State, ternational law.” and whether the claimant has stand- its jurisdiction to hear the claim “to perform very substantial, multi–step,“to perform very before reaching legal work its final decision” 38980-swt_23-2 Sheet No. 5 Side B 05/11/2017 09:52:06 B 05/11/2017 5 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 6 Side A 05/11/2017 09:52:06 , UB- 305 S see also de novo the U.S. 9 , Chevron Corp. v. was the first oll eds., 2004); ROCEDURAL AND accord : P BG Group ISPUTES D 10 The Law Applicable to International In- note 3, at 148 (“In investment arbitration, the , N.Y. L. J. (June 15, 2009), http://www.newyork NVESTMENT I and choice–of–law provisions in BITs supra 7 OREIGN , review). L. 1137, 1143 (2016). F L ’ Given the extent and complexity of the fac- of complexity and the extent Given 6 NT 8 de novo . J. I , 134 S. Ct. 1198 (2014). 401, 404 (Norbert Horn & Stefan Michael Kr ¨ Defining ‘Arbitrability’ EO RBITRATING BG Group PLC v. Republic of Argentina BG Group PLC note 1, at 1988. A 47 G SPECTS in , A supra . at 1988 (quoting Richard H. Kreindler, ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY Enforcement in International Investment and Trade Law: History, Assessment and Enforcement in International Investment and Instead, the Court employed standards derived from the Instead, the Court employed In so holding, the Court expressly declined to apply princi- In so holding, the Court expressly STANTIVE EGAL at 1987–88 (citing Hanotiau, . 12 11 L Id See id See BG Grp. PLC Id. Recently, in Divining the applicable law is a more complicated task than in the task than in is a more complicated the applicable law Divining as a thought of A BIT is often context. strictly commercial ‘self–contained system,’ legal frequently direct a tribunal to consider, among others, ‘the BIT it- others, ‘the BIT to consider, among direct a tribunal frequently and principles Contracting State, [and] the rules self, the law of the of international law.’ 7. 8. Halpin, 9. S. Ct. 1198 (2014); BG Grp. PLC v. Republic of Argentina, 134 6. 12. 11. 10. Laurence Shore, M K vestment Disputes issue of jurisdiction is nearly invariably raised by the respondent. It leads the arbitral tribunal to issue of jurisdiction is nearly invariably raised .determine whether claimant has standing . . but also whether it qualifies for protection under the applicable BIT . . . .”)). Jieying Ding, Proposed Solutions Cir. 2015) (holding that an arbitral tribunal’s Republic of Ecuador, 795 F.3d 200, 205 (D.C. determination of whether a treaty requirement is a condition on the State’s consent to arbitrate is subject to deferential, not lawjournal.com/id=1202431398140/–Defining–Arbitrability#ixzz3oZyLUf6R (noting that, “what and the United States calls ‘arbitrability’ can be an exceedingly complicated question, both here internationally.”). 2017] the claim.” bring ing to \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 3 11-MAY-17 9:18 context of private arbitration, effectively side–steppingcontext of private arbitration, effectively international ples of treaty interpretation to determine the appropriate standard of ples of treaty interpretation to determine review. tors considered: time the Court ruled on an investor–state dispute arising out of a BIT The Court held that an arbitral tribu- between two sovereign nations. treaty requirement is a condition on nal’s determination of whether a subject to deferential, not the State’s consent to arbitrate is Supreme Court set a precedent for eschewing the multi–step ITA the multi–stepset a precedent for eschewing Supreme Court in favor of the in- above. The Court’s decision was analysis described arbitration law to of U.S. private commercial terpretive presumptions threshold question of BIT disputes. This determine the “arbitrability” has the author- “whether an arbitral tribunal is critical as it determines should be sub- an initial matter, that a given dispute ity to decide, as whether the arbitral for a determination of mitted to arbitration dispute.” tribunal has jurisdiction over the review. C Y 38980-swt_23-2 Sheet No. 6 Side A 05/11/2017 09:52:06 A 05/11/2017 6 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 6 Side B 05/11/2017 09:52:06 M K C Y , U.S. [Vol. 23 cert. de- NTERNATIONAL I In deferring to the ITA 16 Third, because an arbitra- 15 USTOMARY C Court’s application of private Vienna Convention on the Law of Treaties OF ” BG Group VAILMENT decision relies on a blatant misconstruction by decision relies and its progeny stand for the proposition that a the proposition progeny stand for and its A REATIES Frequently Asked Questions, T , (last visited Feb. 29, 2016) (not- http://www.state.gov/s/l/treaty/faqs/70139.htm , Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 433 (2d Cir. 2001), BG Group BG Group SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW BG Group PLC v. Republic of Argentina, 134 S. Ct. 1198, 1208-13 (2014). TATE . Second, the 13 URPOSEFUL S Compare See Id See, e.g. AW O F 14 L Still, treaty interpretation, international law, and international international law, and Still, treaty interpretation, The imposition of U.S. contract law in ITA stems from an ITA The imposition of U.S. contract TOF ’ , 534 U.S. 891 (2001) (citing Chubb & Son, Inc. v. Asiana Airlines, 214 F.3d 301, 309 (2d Cir. 16. 15. 13. 14. EP D nied 2000)). ing that the United States is not a party to the Vienna Convention on the Law of Treaties since, ing that the United States is not a party to the Vienna Convention on the Law of Treaties the arbitral tribunal of Articles 31 and 32 of Vienna Convention on of Articles 31 and 32 of Vienna the arbitral tribunal Convention”), which the U.S. “gen- the Law of Treaties (the “Vienna guide to treaty interpreta- erally recognizes . . . as an authoritative tion.” private multinational commercial interest can sidestep host–country can sidestep interest commercial private multinational directly submitting a dispute principles by international treaty law and precondition whether a has determined before a court to arbitration will give deference been satisfied, and that the U.S. to arbitration has of ordinary U.S. findings under the presumptions to the arbitrator’s contract law. of a treaty in favor of interpreting the arbitrability policy all militate international–lawunder governing to the con- principles as opposed tract–law law analysis. employed in domestic arbitration framework First, the tribunal’s flawed interpretation of the Vienna Convention on the Law tribunal’s flawed interpretation of the United States “considers many of Treaties. Although not a party, Convention . . . to constitute custom- of the provisions of the Vienna of treaties.” ary international law on the law 306 to presumptions law arbitration domestic of in favor principles treaty to arbi- nation’s consent of the sovereign the arbitrability determine tration. \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 4 11-MAY-17 9:18 commercial arbitration principles to ITA fails to consider standard in- commercial arbitration principles vestor–state international law, such as the arbitration defenses under exhaustion of local remedies requirement. tion agreement often implicates a nation’s sovereign interests and en- tion agreement often implicates courts should treat traditional tails large financial stakes, U.S. consent as conditions precedent to international law conditions on text and other relevant evidence suf- consent to arbitration unless the ficiently indicate otherwise. II. “P 38980-swt_23-2 Sheet No. 6 Side B 05/11/2017 09:52:06 B 05/11/2017 6 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 7 Side A 05/11/2017 09:52:06 ) I- 307 L HIRD (T UDIOVISUAL The claimant 17 19 ESTATEMENT R , U.N. A and Court tacitly approved Court tacitly , 214 F.3d at 309 (stating that, “[t]he , pt. III intro. note, at 144–45 (1987) (dis- The BIT provided for two 21 TATES note 19, at art. 8 (describing the article as, “Set- BG Group with Chubb S involved a BIT entered into in 1990 involved a BIT supra NITED U note 18, at 5. Vienna Convention on the Law of Treaties BG Group To fully grasp this outcome, one must understand To fully grasp this AW OF THE supra 18 L , http://legal.un.org/avl/pdf/ha/vclt/vclt–e.pdfGuinea–Bissau (quoting v. AW L L ’ ELATIONS . (referencing the Agreement Between the Government of the United Kingdom ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY . 53, para. 48 (Nov. 12, 1991) (stating that, “[a]rticles 31 and 32 of the Vienna . 53, para. 48 (Nov. 12, 1991) (stating that, NT R BRARY OF EP Final Award, Karl Zemanek, BG Grp. PLC v. Republic of Argentina, Final Award, at 5 (UNCITRAL Dec. 24, BG Grp. PLC v. Republic of Argentina, Final circumstances: . at 5–6 (citing Arg.–U.K. BIT, I BG filed notice of arbitration in 2003 pursuant to Article 8 of BG filed notice of arbitration in Id See See See id See 20 The U.S. Supreme Court upheld a judgment in favor of a British Court upheld a judgment in favor The U.S. Supreme The dispute in (a) in any of the following if one of the Parties so requests, OREIGN 21. 20. 17. 19. 18. F M K tlement Disputes Between an Investor and the Host State”)). and Northern Ireland and the Government of the Republic of Argentina for the Promotion and and Northern Ireland and the Government of the Republic of Argentina for the Promotion Protection of Investments, Arg.-U.K., Dec. 11, 1990, 1765 U.N.T.S 33 [hereinafter Arg.–U.K. BIT]). 2007), [hereinafter Final Award], http://www.italaw.com/sites/default/files/case-documents/ita00 81.pdf. cussing the Vienna Convention’s codification of customary international law governing interna- cussing the Vienna Convention’s codification Convention by the United States). tional agreements and the acceptance of the Sen., ICJ R Convention on the Law of Treaties . . . may in many respects be considered as a codification of Convention on the Law of Treaties . . . may existing customary international law . . . .”)). although “[t]he United States signed the treaty on April 24, 1970 . . . [t]he . . . Senate has not although “[t]he United States signed the treaty given its advice and consent to the treaty.”) OF 2017] to and therefore of arbitrability, determination problematic tribunal’s BIT, the of the its interpretation A. Vienna Convention and Back The Road to the a BIT to which the against Argentina under natural gas consortium U.S. is not a party. \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 5 Convention 32 of the Vienna Articles 31 and misuse of the tribunal’s law.” customary international “existing to misconstrue 11-MAY-17 9:18 the BIT, which provided for the submission of disputes “to the deci- the BIT, which provided for the the Contracting Party in whose terri- sion of the competent tribunal of tory the investment was made.” how ITA law and U.S. law intersect. how ITA law and United States considers many of the provisions of the Vienna Convention on the Law of Treaties United States considers many of the provisions the law of treaties.”) to constitute customary international law on exceptions to this general jurisdiction requirement. It allowed for sub- exceptions to this general jurisdiction in the following cases: mission to international arbitration between Great Britain and the Republic of Argentina. between Great Britain in the arbitration, BG Group PLC. (“BG”), was a British corporation BG Group PLC. (“BG”), was in the arbitration, in MetroGAS and an indirect ownership interest with “a direct in Argen- gas distribution company incorporated S.A.[,] . . . a natural tina.” C Y 38980-swt_23-2 Sheet No. 7 Side A 05/11/2017 09:52:06 A 05/11/2017 7 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 7 Side B 05/11/2017 09:52:06 M K C Y supra [Vol. 23 However, the 29 , UNCITRAL, http://www Argentina naturally de- Argentina naturally 24 dispute resolution mechanisms . . . .”). note 19, at art. 8 (stating that, “[d]isputes . . . note 19, at art. 8 (stating that, “[d]isputes . 22 supra sui generis note 18, at 7. note 18, at 6. note 18, at 6 (alteration in original) (citing Arg.–U.K BIT, Thus, the BG tribunal was free to select an Thus, the BG tribunal was free 28 supra supra Arg.–U.K. BIT, supra note 1, at 412 (noting that, “many BIT arbitrations are conducted note 1, at 412 (noting that, “many BIT arbitrations supra , see also 26 Under the UNCITRAL regime, “the place of arbitration Under the UNCITRAL regime, been made but the Parties are still in dispute; [or] been made but the the moment when the dispute was submitted to the compe- was submitted when the dispute the moment territory the Party in whose of the Contracting tent tribunal given its fi- said tribunal has not was made, the investment nal decision; 27 ORN SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW B Final Award, Final Award, Final Award, (i) elapsed from eighteen months has after a period of where, BG then referred the dispute to arbitration under the the dispute to arbitration BG then referred tracting Party have so agreed. tracting Party have (ii) tribunal has of the aforementioned the final decision where . at 8. . at 48; Instead, it sought Argentina’s agreement, under Article 8 of Argentina’s agreement, under Instead, it sought 25 See Id See See Id See FAQ – Origin, Mandate and Composition of UNCITRAL See 23 Whether a feat of cynicism, brilliance, or both, BG Group’s deci- Whether a feat of cynicism, brilliance, BG did not attempt to litigate the dispute in Argentina, how- to litigate the dispute in BG did not attempt (b) other Con- Party and the investor of the where the Contracting 27. 25. 26. 24. 23. 28. UNCITRAL Arbitration Rules (as revised in 2010), G.A. Res. 65/22, U.N. Doc. A/ 29. 22. note 19, at art. 8). which arise within the terms of this Agreement between an investor of one Contracting Party which arise within the terms of this Agreement at the request of one of the Parties to the and the other Contracting Party . . . shall be submitted, of the Contracting party in whose territory the dispute, to the decision of the competent tribunal investment was made.”). under general institutional arbitration rules, such as UNCITRAL Rules . . . [or] [i]n other in- under general institutional arbitration rules, stances . . . subject to specialized and .uncitral.org/uncitral/en/about/origin_faq.html#members (last visited Mar. 21, 2016) (stating that .uncitral.org/uncitral/en/about/origin_faq.html#members (last visited Mar. 21, 2016) (stating RES/65/22, art. 18(1) (Jan. 10, 2010) (noting that, “[i]f the parties have not previously agreed on RES/65/22, art. 18(1) (Jan. 10, 2010) (noting that, “[i]f the parties have not previously agreed notice the number of arbitrators, and if within 30 days after the receipt by the respondent of the arbitra- of arbitration the parties have not agreed that there shall be only one arbitrator, three tors shall be appointed.”). sion to bypass the BIT’s exhaustion provisions and file for ad hoc arbi- sion to bypass the BIT’s exhaustion rules proved to be fateful for tration under the UNCITRAL Argentina. 308 ever. \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 6 11-MAY-17 9:18 Argentine, British, or any other UNCITRAL member State locality, Argentine, British, or any other for the dispute. as the place, or “seat,” of arbitration the BIT, to submit the dispute to the International Centre for Settle- the dispute to the International the BIT, to submit Disputes (“ICSID”). ment of Investment Article 8 of the BIT a procedure proper under UNCITRAL rules, claim there [was] no period of three months . . . of the only “[i]f after a ICSID or UNCITRAL] alternative agreement to [either one of the procedures.” having regard to the circum- [is] determined by the arbitral tribunal stances of the case.” clined. 38980-swt_23-2 Sheet No. 7 Side B 05/11/2017 09:52:06 B 05/11/2017 7 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 8 Side A 05/11/2017 09:52:06 33 309 RBITRA- note 1, at A supra , in accordance ORN B 30 ONSTRUCTION C ; but see Thus, because BG filed Thus, because “The ‘place’ or ‘seat’ of “The ‘place’ 31 32 note 28, at art. 7(1) (noting that, “[i]f 34 ) provides procedural rules ) provides procedural NTERNATIONAL supra , I claim became justiciable in the ARRIS lex arbitri L. H ROY note 18, at 7. BG Group & T supra note 1, at 1992. note 2, at 1992 (FAA determines seat) INCHEY supra UNCITRAL Arbitration Rules, supra W. H § 5:13 (2015). ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY OHN J see also Halpin, Halpin, Final Award, TION ; See See Id. See See ANDBOOK Accordingly, the This determination is no trivial matter. is no This determination that parties must follow during arbitration [and] sets forth the follow during arbitration [and] that parties must award. In the parties may vacate an arbitral grounds on which court em- FAA grants the U.S. federal district United States, the to vacate where an award is made the power bracing the location the award on certain procedural grounds. once parties have agreed where to arbitrate, the law of the seat of agreed where to arbitrate, the law once parties have the situs or arbitration (law of H 33. 32. 31. 34. 30. M K 116 (citations omitted) (“In contrast to legislation in most countries, the FAA grants U.S. courts 116 (citations omitted) (“In contrast to legislation of the arbitral seat in international arbitrations. In a potentially significant role in the selection to compel arbitration (under §4, §206 and §303 particular, the FAA grants U.S. courts the power orders compelling arbitration under the FAA, U.S. of the FAA) in a particular place. In issuing place where the arbitration is to proceed. In some courts have therefore sometimes specified the where cases, U.S. courts have issued orders compelling arbitration within the United States, even parties have agreed to arbitration in accordance with institutional rules specifying an alternative means of selecting a seat. This approach is at odds with the overwhelming weight of authority, party with U.S. obligations under Article II of the Convention and with principles of autonomy.”). the parties have not previously agreed on the number of arbitrators, and if within 30 days after the parties have not previously agreed on the arbitration the parties have not agreed that there the receipt by the respondent of the notice of shall be appointed.”). shall be only one arbitrator, three arbitrators “UNCITRAL was originally composed of 29 States; its membership was expanded in 1973 to 36 “UNCITRAL was originally composed of 29 States and again in 2004 to 60 States.”). Indeed, 2017] D.C. in Washington in 2004 constituted was tribunal \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 7 11-MAY-17 9:18 the arbitration is important because the law of the ‘place’ or ‘seat’ will of the ‘place’ because the law is important the arbitration the arbitral tribunal, of issues, including the powers of affect a number in the arbitral quality of state court intervention the availability and award.” the enforceability of the arbitrators’ proceedings, and United States when Argentina petitioned under the Federal Arbitra- United States when Argentina petitioned arbitral award rendered against it in tion Act (“FAA”) to vacate the the U.S. the U.S. District for its alleged violation of a BIT. Thereafter, confirmed the award, the U.S. Court for the District of Columbia of Columbia Circuit reversed, and Court of Appeals for the District certiorari. However, since the FAA the U.S. Supreme Court granted for arbitration in Washington D.C., the tribunal was also free to select was also D.C., the tribunal in Washington for arbitration “seat” of arbitration. D.C. as the Washington with Article 7(1) of the UNCITRAL Rules. 7(1) of the UNCITRAL with Article C Y 38980-swt_23-2 Sheet No. 8 Side A 05/11/2017 09:52:06 A 05/11/2017 8 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 8 Side B 05/11/2017 09:52:06 M K 39 37 C Y Ar- [Vol. 23 35 the tri- 41 note 18, at 6 Argentina’s supra 36 The Role of the IMF in Argen- Final Award, see also Persuaded “that under the dire 40 note 19, at art. 8; supra At the time of the BG dispute, Argentina was At the time of the BG dispute, 38 , Pub. No. 70403, Int’l Monetary Fund 1 (July 2003), www.imf.org/External/NP/ . at 4. id SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Arg.–U.K BIT, Indep. Evaluation Office of the Int’l Monetary Fund, 9 U.S.C. § and for the district wherein 10(a) (West 2012) (granting U.S. courts “in . Id See See See The tribunal expressly stated that the applicable law governing that the applicable expressly stated The tribunal 40. Petition of the Republic of Argentina to Vacate or Modify Arbitration Award at 53, BG 41. 39. See 37. Carlos Menem, BRITANNICA, http://www.britannica.com/biography/Carlos–Menem 38. 36. 35. Grp. PLC v. Republic of Argentina, 665 F.3d 1363 (D.C. Cir. 2012) (No. 08–0485 (RBW)), http:// www.italaw.com/documents/BGvArgentina.pdf. tina, 1991-2002 ieo/2003/arg/070403.pdf. (stating “BG appointed Professor Albert Jan van den Berg and Argentina appointed Professor (stating “BG appointed Professor Albert Jan jointly designated Guillermo Aguilar Alvarez Alejandro M. Garro as arbitrators, both of whom as president of the tribunal.”). (last visited Mar. 2, 2016). the award was made” power to “make an order vacating the award” for reasons such as corrup- the award was made” power to “make an order tion, fraud or prejudice). Emergency measures involved temporarily barring creditors from Emergency measures involved bringing suit in Argentine courts. Argentina had pegged the peso to the U.S. dollar, but was never able Argentina had pegged the peso to maintain parity. 310 arbitration, seat of to the respect with procedurally controlled \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 8 11-MAY-17 9:18 restructuring and renegotiating its debt to reflect economic realities. restructuring and renegotiating its circumstances surrounding the emergency measures, the Executive circumstances surrounding the of the financial system by (i) Branch sought to prevent the collapse operation of its courts, and (ii) by directly interfering with the normal the renegotiation process,” excluding litigious licensees from gentina’s ability to wrest the dispute from U.S. law was greatly dimin- U.S. law was greatly the dispute from ability to wrest gentina’s In this sense, jurisdiction. tribunal asserted the moment the ished from assert could the tribunal is: on what basis question the threshold jurisdiction? provides that the be defined by the BIT, which the arbitration would accordance with the [would] decide [the] dispute in “arbitral tribunal Party in- Agreement, the laws of the Contracting provisions of this of laws, the terms including its rules on conflict volved in this dispute, such an investment concluded in relation to of any specific agreement law.” principles of international and the applicable have been pivotal in and political history seems to troubled economic of interna- to rely on “applicable principles the tribunal’s decision produce an outcome of the Vienna Convention, to tional law,” by way into the BIT at the height of Presi- it deemed just. Argentina entered dent Menem’s extremely market–oriented economic policy, which he crisis in the country’s history.” launched “amid the worst economic 38980-swt_23-2 Sheet No. 8 Side B 05/11/2017 09:52:06 B 05/11/2017 8 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 9 Side A 05/11/2017 09:52:06 311 which states that 47 Article 32 creates an exception to this Article 32 creates an exception 48 The tribunal reasoned that “[w]here re- The tribunal reasoned that “[w]here was the type of manifest absurdity con- was the type of manifest absurdity 43 Court’s use of U.S. contract law served to use of U.S. contract Court’s 45 46 note 18, at 50. supra BG Group Argentina’s only avenue of redress was, oddly of redress only avenue Argentina’s According to the tribunal, “allowing the State to uni- According to the tribunal, “allowing 42 44 . . at art. 31(1) (providing that, “[a] treaty shall be interpreted in good faith in . The Final Award is silent with respect to whether an interpretation of the BIT . The Final Award is silent with respect to whether ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY Vienna Convention on the Law of Treaties art. 32, May 23, 1969, 1155 U.N.T.S 331 Vienna Convention on the Law of Treaties Final Award, . . . at 3-4. See id See id See Id Id See id Id See Article 32 is a sister provision of Article 31, Article 32 is a sister provision of The BG arbitration tribunal’s award against Argentina is tribunal’s award against The BG arbitration 48. 47. 44. 45. 46. 42. 43. M K accordance with the ordinary meaning to be given to the terms of the treaty in their context and accordance with the ordinary meaning to be given to the terms of the treaty in their context in the light of its object and purpose.”). [hereinafter Vienna Convention] (“Recourse may be had to supplementary means of interpreta- in tion, including the preparatory work of the treaty and the circumstances of its conclusion, the order to confirm the meaning resulting from the application of article 31, or to determine or meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous obscure; or (b) leads to a result which is manifestly absurd or unreasonable.”). that would permit BG to patently disregard Article 8(2)(a)(i) would also result in a manifest that would permit BG to patently disregard absurdity. 2017] and ulti- local remedies exhaust duty to its BG from excused bunal in damages, $185,285,485 consortium awarded the British mately in legal fees plus £2,414,141 and $437,073 in arbitration costs, $247,300 and expenses. \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 9 11-MAY-17 9:18 templated by Article 32. course to the domestic judiciary is unilaterally prevented or hindered course to the domestic judiciary would lead to the kind of by the host State, any such interpretation by Article 32 of the Vienna absurd and unreasonable result proscribed Convention.” laterally elude arbitration, which has been the engine of the transition laterally elude arbitration, which protection to one of direct in- from a politicized system of diplomatic vestor–State adjudication,” enough, through a U.S. district court. strange we will see, in a Yet, as the twist of fate, international treaties are to be interpreted according to the “ordinary international treaties are to be interpreted language” of their provisions. reinforce a peculiar application of international law. application of international reinforce a peculiar B.Vienna Convention Jurisprudence International While the tri- provisions of the Vienna Convention. grounded on two matter of treaty law Argentina’s position that as a bunal “accept[ed] under the Argentina–U.K.investors acting to] litigate in the BIT [had bring their claims for 18 months before they [could] host State’s courts of treaty interpre- tribunal held that “[a]s a matter to arbitration,” the not] be construed as an absolute tation . . . Article 8(2)(a)(i) [could impediment to arbitration.” C Y 38980-swt_23-2 Sheet No. 9 Side A 05/11/2017 09:52:06 A 05/11/2017 9 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 9 Side B 05/11/2017 09:52:06 M K C Y note The the [Vol. 23 49 52 supra petition for cert. seems to have missed seems to have Yet the official records of , 665 F.3d 1363, 1368 54 BG Group in a manner that produces an ab- that produces in a manner The actual language of Article 32 language of The actual BG Grp. PLC 50 arbitrators strayed from the ordinary Yet the Court need only have consulted Yet the Court need applied With respect to the “manifestly absurd or With respect to the “manifestly 53 55 note 47, at art. 32. note 18, at 50. supra supra BG Group —leads which is manifestly absurd or unreason- to a result . at art. 32. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Final Award, BG Grp. PLC v. Republic of Argentina, 134 S. Ct. 1198, 1212-13 (2014) (“We would BG Grp. PLC v. Republic of Argentina, 134 at 1213 (citing Stolt–Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 671 The U.S Supreme Court in The U.S Supreme See Id. See See id 51 The arbitral tribunal claimed that its decision was commanded The arbitral tribunal claimed that provide for alternative, autonomous, means of interpretation but provide for alternative, autonomous, , 2012 WL 3091067 (U.S. July 27, 2012) (No. 12–138), 2012 WL 3091067 (U.S. July 27, 2012) (No. Vienna Convention, (citing 55. Int’l Law Comm’n, Rep. on the Work of its 18th Sess., May 4 – July 19, 1966, U.N. Doc. 54. 53. 51. Vienna Convention, 52. 50. Petition for a Writ of Certiorari, 49. A/6309/Rev/1, 2 Y.B Int’l L. Comm’n 173, 223; GAOR, 21st Sess., Supp. No. 9 (1966). http:// A/6309/Rev/1, 2 Y.B Int’l L. Comm’n 173, 223; GAOR, 21st Sess., Supp. No. 9 (1966). legal.un.org/ilc/documentation/english/reports/a_cn4_191.pdf. (2010) (quoting Major League Baseball Players Assn. v. Garvey, 532 U.S. 504, 509, (2001) (per (2010) (quoting Major League Baseball Players Assn. v. Garvey, 532 U.S. 504, 509, (2001) curiam)) (alternation in original) (internal quotation marks omitted). not necessarily characterize these actions as rendering a domestic court–exhaustionnot necessarily characterize these actions as rendering requirement ‘absurd and unreasonable’. . .”). filed 47, at art. 32(b)). this distinction. While acknowledging that the arbitration tribunal’s in- acknowledging that the arbitration this distinction. While the Vienna Convention was “controversial,” terpretation of 312 treaty of the language the plain to interpret attempt when an rule or unreasonable.” is manifestly absurd to a result which “[l]eads \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 10 11-MAY-17 9:18 meaning of the Vienna Convention in order to stray from the ordinary meaning of the Vienna Convention the BIT. meaning of Article 8(2)(a)(i) of “[a]s a matter of treaty interpretation.” the official reports of the International Law Commission to confirm of the International Law Commission the official reports just how far the the General Assembly of the Vienna Convention make clear that the the General Assembly of the Vienna never intended Article 32 to International Law Commission (“ILC”) extrinsic factors into treaty in- function as a mechanism for importing of the treaty stands for itself; terpretation when the ordinary language emphasizes that article [32] does rather, “[t]he word ‘supplementary’ not governed by the principles only for means to aid an interpretation contained in article [31].” surd or unreasonable result.” surd or British corporation first seized on this provision in its writ of certiorari in its writ seized on this provision first British corporation Conven- under the Vienna arguing that Supreme Court, to the U.S be treaty shall not tion, “a were not barred by that the arbitrators’ conclusions Court concluded arbitrators did not “‘stra[y]the BIT as the and from interpretation dispens[e] their agreement’ or otherwise ‘effectively application of the . justice.’”own brand of . . provides that the exception arises when an “interpretation”—notprovides that the an application able. 38980-swt_23-2 Sheet No. 9 Side B 05/11/2017 09:52:06 B 05/11/2017 9 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 10 Side A 05/11/2017 09:52:06 58 313 Y.B. , the Bank USTRALIAN Bank of New 57 , [1966] 1 Y.B. Int’l L. ‘ordinary’ meaning ‘ordinary’ , 1968–69 A Yugoimport under article [31] gives under article only in cases where ordi- only in cases where The ILC summary notes The ILC summary In 59 with Article 31 being the with Article 31 62 .” 60 The Republics of Croatia and 63 interpretation , recently decided by the U.S. Court of Appeals , recently decided by the U.S. Court Two Approaches To Treaty Interpretation —i.e., where “cases , 745 F.3d 599 (2d Cir. 2014). 56 61 . at 602. ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY Polish Postal Service in Danzig, Advisory Opinion, 1925 P.C.I.J. (ser. B) No. 11, at Polish Postal Service in Danzig, Advisory Opinion, (emphasis added) (internal quotation marks omitted). (emphasis added) (internal quotation marks (emphasis added). . at 39 (emphasis added). See id Id See Summary Record of the 873d Meeting on the Law of Treaties See, e.g. Id. Id. See Notwithstanding the original U.S. position on Articles 31 and 32 Notwithstanding the original U.S. In clarifying the ancillary role of Article 32, the ILC cited a 1925 32, the ILC cited role of Article the ancillary In clarifying L. 55, 57 (1971) (describing that this strict view stood in contrast with the U.S. view that L. 55, 57 (1971) (describing that this strict view L 63. 59. 60. J. G. Merrills, 62. 61. 56. 57. 58. ’ M K NT I 41 (May 16). Comm’n, at 206, U.N. Doc. A/CN.4/SR.873 [hereinafter Summary Record], http://legal.un.org/ docs/?path=../ilc/documentation/english/summary_records/a_cn4_sr872.pdf&lang=EFS (accord- ing to Special Rapporteur, Sir Humphrey Waldock, this approach represented the “existing rule.”). “the text of the treaty should be regarded as simply the formal embodiment of the parties’ “the text of the treaty should be regarded to make, as a matter of course, a far ranging shared intentions and requiring the interpreter inquiry into non–textual of the 873d Meeting on the Law of matters.” (citing Summary Record Treaties, [1966] 1 Y.B. Int’l L. Comm’n, at 206, U.N. Doc. A/CN.4/SR.873.)). C. U.S. Vienna Convention Jurisprudence U.S. law has shown a deference of the Vienna Convention, prevailing to the ILC–intended 32. The case of meaning of Article 2017] its couched expressly tribunal which the in exception unreasonable” to cases was “limited clear that this exception the ILC made decision, of the character absurd or unreasonable where the is manifest” Justice eschewed Permanent Court of International case in which the urged by Danzig. of Poland’s postal rights the strict construction strict or liberal con- stated that, “the rules as to a There, the Court stipulations can be applied struction of treaty interpretation have failed nary methods of York v. Yugoimport this well. for the Second Circuit, illustrates \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 11 11-MAY-17 9:18 of New York brought a state law interpleader action to resolve the of New York brought a state law account to which Yugoimport, a Ser- ownership of funds in a deposit bian entity, claimed full ownership. a result which is manifestly absurd or unreasonable.” which is manifestly a result confirm that the Vienna Convention drafters intended to enforce a Vienna Convention drafters intended confirm that the to interpretation,” “two stage approach only when the and Article 32 being “decisive default provision ambiguity or in article [31] failed to eliminate processes set out obscurity.” C Y 38980-swt_23-2 Sheet No. 10 Side A 05/11/2017 09:52:06 A 05/11/2017 10 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 10 Side B 05/11/2017 09:52:06 M K C Y cert. cert. BG [Vol. 23 EFENSES TO 70 D Like the plaintiff in Like the 64 The Court explained that The Court explained 67 UBSTANTIVE of the international treaty. On ap- treaty. of the international S 65 Zicherman v. Korean Air Lines Co., 516 U.S. 217, 223 The Appeals Court expressly rejected The Appeals 66 see also at 598. OVEREIGN Id. S This is true because “it is [a court’s] responsibility This is true because “it is [a court’s] LAIMS 69 C 68 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Air France v. Saks, 470 U.S. 392, 396-97 (1985) (citing Maximov v. United States, at 611. at 611-12. . at 399 (alteration added) (citing Reed v. Wiser, 555 F.2d 1079 (2d Cir. 1977), . . . at 611. RADITIONAL , Yugoimport relied on extrinsic evidence in an effort to avoid a in an effort to avoid evidence relied on extrinsic , Yugoimport NVESTOR Id Id Id. Id Id. Id See I , 434 U.S. 922; Day v. Trans World Airlines, Inc., 528 F.2d 31, 35 (2d Cir. 1975), , 429 U.S. 890 (1976)); In adopting a private commercial arbitration framework, the U.S. In adopting a private commercial Similarly, when interpreting provisions of the Warsaw Conven- Similarly, when interpreting provisions courts may consider certain, limited types of external evidence only certain, limited types of external courts may consider the ordinary meaning of the text, or where to confirm the ordinary External evi- or would lead to absurd results. meaning is ambiguous there is none admitted to create ambiguity where dence may not be ordinary interpretation different from the text’s or to compel an meaning. 70. 64. 65. 66. 67. 68. 69. denied denied (1996). 373 U.S. 49, 53-54 (1963)). III. T of Columbia and the U.S. Supreme District Court for the District international law defenses avail- Court did not consider the traditional able in investor–state thereby failed to engage in the arbitration, and tion, the U.S. Supreme Court explicitly stated that “analysis must be- tion, the U.S. Supreme Court explicitly and the context in which the written gin . . . with the text of the treaty words are used.” 314 among divided should be funds that the contended however, Slovenia, of which the interpretation treaty, pursuant to a multilateral the states Convention. by the Vienna was governed \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 12 11-MAY-17 9:18 to give the specific words of the treaty a meaning consistent with the to give the specific words of the parties.” shared expectations of the contracting Group interpretation” “plain language “could [not] prop- holding that the evidence Yugoimport’s position, the interpretive rules into consideration under erly have been taken Vienna Convention.” set forth in the under Article 32, peal, Yugoimport contended that the district court should have district court that the contended peal, Yugoimport credited this evidence. 38980-swt_23-2 Sheet No. 10 Side B 05/11/2017 09:52:06 B 05/11/2017 10 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 11 Side A 05/11/2017 09:52:06 315 The 77 Methanex Corp. v. Methanex Corp. In 73 Methanex distributed methanol, which is Methanex distributed methanol, 75 note 1, at 433. 71 Methanex, a Canadian corporation submitted a claim corporation submitted a Methanex, a Canadian supra 74 , , Methanex’s contention was similar to BG’s in that it Methanex’s contention was similar at 434 (“States frequently cite concepts of national sovereignty and regulatory . at pt. III, ch. A, ¶ 65. 76 . . at 433-36 (describing the following as recognized defenses in investor-state arbi- . at 433-36 (describing the following as recognized ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY tribunal cited a lack of conclusive evidence justifying Cali- tribunal cited a lack of conclusive ORN Like BG, Methanex appealed to Article 32 of the Vienna Like BG, Methanex appealed B . at pt. II, ch. D, ¶ 27. . at pt. II, ch. E, ¶ 5. 78 Id Id See id See id. See id See id See 72 As described in detail by Gary Born, “[h]ost states have a variety states have Gary Born, “[h]ost in detail by As described investor–stateOne such traditional is “per- arbitration defense 76. 77. 78. 73. 74. Methanex Corp. v. United States, 44 I.L.M. 1345, pt. I, preface, ¶ 1 (NAFTA Ch. 11 75. 72. 71. M K tration: permitted regulation, exceptions, investor’s unlawful conduct, necessity, exhaustion of tration: permitted regulation, exceptions, investor’s time bar). local remedies, international obligation, and prerogatives in asserting such defenses.”). Arb. Trib. 2005) (Veeder et al., Arb.), http://www.state.gov/documents/organization/51052.pdf. 2017] norm in is the that analysis remedies” of local “exhaustion traditional law. international arbitra- in investment claims by investors available to of defenses principally always governed are virtually . . [T]hese defenses tions . . of either the provi- law (not national law), in the form by international international investment treaty or customary sions of the applicable law.” that [its] regula- where a host state denies “either mitted regulation,” or amount to a an (indirect) expropriation tory actions constitute of the international equitable treatment or a breach denial of fair and of treatment of aliens.” minimum standard \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 13 11-MAY-17 9:18 Convention in an attempt to cast California’s actions as either “unfair Convention in an attempt to cast in a sense that lay outside of the and inequitable” or “discriminatory” used to manufacture MTBE. Methanex contended that the regulation used to manufacture MTBE. Methanex treatment in accordance with in- denied Methanex fair and equitable measures had the effect of harm- ternational law since the regulatory foreign methanol producers such as ing the expectancy interests of Methanex. contract under the trade agreement claimed that the purpose of its regulatory actions. was frustrated by the host country’s to arbitration under the UNCITRAL rules for alleged injuries result- the UNCITRAL rules for alleged to arbitration under gasoline additive methyl tertiary- ing from a California ban on the butyl ether (“MTBE”). United States Methanex of ethanol; nevertheless, it found the fornia’s ban of MTBE in favor warranted under the circum- sovereign state’s regulatory response stances. C Y 38980-swt_23-2 Sheet No. 11 Side A 05/11/2017 09:52:06 A 05/11/2017 11 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 11 Side B 05/11/2017 09:52:06 M K 82 79 C Y [Vol. 23 Under Article 81 tribunal and re- note 47, at art. 31. supra BG Group , 53d Sess., Apr. 23–June 1, July 2–Aug. 10, 2–Aug.July , 53d Sess., Apr. 23–June1, of the supposed intentions of the parties constitutes Vienna Convention, ab initio see also note 1, at 435 (“Host states sometimes raise a defense of ‘necessity’ 80 tribunal rejected the attempt, stating that the “ap- stating rejected the attempt, tribunal supra , Rep. of the Int’l Law Comm’n, Draft Articles on Responsibility of States for , ORN SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW B North American Free Trade Agreement, U.S.-Can.-Mex., art. 1105, Dec. 8–Dec. North American Free Trade Agreement, U.S.-Can.-Mex., 17, See See, e.g. See Methanex Even if Argentina’s regulation of its court system could not pass regulation of its court system Even if Argentina’s 81. 82. 80. 1345, pt. II, ch. B, ¶ 22 (NAFTA Ch. 11 Methanex Corp. v. United States, 44 I.L.M. 79. under customary international law or ‘essential security’ under the text of some BITs. These under customary international law or ‘essential security’ under the text of some BITs. of defenses typically claim that a governmental act was either unavoidable or justified because pressing and essential state interests.”). Internationally Wrongful Acts, with commentaries 2001, art. 25 and commentary, U.N. Doc. A/56/10, http://legal.un.org/ilc/texts/instruments/eng lish/commentaries/9_6_2001.pdf. 1992, 32 I.L.M. 289, (1993) (“Each Party shall accord to investments of investors of another 1992, 32 I.L.M. 289, (1993) (“Each Party shall law, including fair and equitable treatment and Party treatment in accordance with international shall accord to investors of another Party, and to full protection and security . . . [and] each Party investments of investors of another Party, non–discriminatory treatment with respect to mea- suffered by investments in its territory owing to sures it adopts or maintains relating to losses armed conflict or civil strife.”). Arb. Trib. 2005) (Veeder et al., Arb.), http://www.state.gov/documents/organization/51052.pdf of its 18th Sess., May 4 (citing Int’l Law Comm’n, Rep. on the Work – July 19, 1966, U.N. Doc. ¶18; GAOR, 21st Sess., Supp. No. 9 (1966), http:/ A/6309/Rev/1, 2 Y.B Int’l L. Comm’n 173, 223, (“[T]he Commission’s approach to /legal.un.org/ilc/documentation/english/reports/a_cn4_191.pdf the text of the treaty must be presumed to be the treaty interpretation was on the basis that parties, and that the elucidation of the meaning of authentic expression of the intentions of the the text rather than an investigation the object of interpretation.”)); Thus, in the context of an investor dispute that arose under a BIT Thus, in the context of an investor an ICSID tribunal held Argentina to between Argentina and the U.S., the BIT with respect to the stan- be in breach of its obligations under and prohibition of discriminatory dard of fair and equitable treatment 316 1105. Article NAFTA forth in as set the terms of meaning ordinary The the treaty is the text of is that the Vienna Convention proach of of the parties the intentions expression of to be the authentic deemed for the sup- searches than wide ranging elucidation, rather [and] its object of is the proper the parties, intentions of posed interpretation.” regulation,”muster as a “permitted the \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 14 11-MAY-17 9:18 viewing courts could have recognized Argentina’s actions under the have recognized Argentina’s viewing courts could law doctrine of “necessity.” customary international 25 of the International Law Commission’s Articles on State Responsi- Law Commission’s Articles 25 of the International for precluding “be invoked by a State as a ground bility, necessity may an international ob- of an act not in conformity with the wrongfulness for the State to safe- if the act “is the only way ligation of that State” a grave and imminent peril.” guard an essential interest against 38980-swt_23-2 Sheet No. 11 Side B 05/11/2017 09:52:06 B 05/11/2017 11 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 12 Side A 05/11/2017 09:52:06 86 317 no treaty finding, on the 85 and in the absence of explicit tribunal’s rationale in recogniz- LG&E Accepting Argentina’s proposition that Argentina’s proposition Accepting 84 rather, the tribunal determined it would “ap- rather, the tribunal determined 88 However, the tribunal recognized Argentina’s recognized tribunal the However, 89 83 , general international law; and, third, the Argentine , general international law; and, Significantly, the tribunal explained that this trump Significantly, the tribunal explained 87 LG&E Energy Corp., LG&E Capital Corp., LG&E Int’l, Inc. v. Argentine LG&E Energy Corp., LG&E Capital Corp., 90 . ¶ 206. . ¶ 245. . ¶ 206. ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY between LG&E and Argentina but rather a binding between LG&E and Argentina . ¶ 99 (emphasis added). . ¶ 238. . . ¶ 238. Id See id Id Id Id See id See generally See id It is worth noting that the Although Argentina’s liability under the BIT was not extin- Although Argentina’s liability To conclude that such a severe economic crisis could not constitute such a severe economic crisis could To conclude that that the econ- interest is to diminish the havoc an essential security the ability of the lives of an entire population and omy can wreak on State’s economic foundation is the Government to lead. When a can equal that of any mili- under siege, the severity of the problem tary invasion. 90. 89. 85. 86. 87. 88. 83. 84. M K Republic, ICSID Case No. ARB/02/1 (Oct. 3, 2006), http://www.italaw.com/sites/default/files/ Republic, ICSID Case No. ARB/02/1 (Oct. case-documents/ita0460.pdf. Central to the tribunal’s reasoning was the recognition that Argentina reasoning was the recognition Central to the tribunal’s sovereign state: to a commercial contract but a was not a party Argentina from its duty to per- guished entirely, the Tribunal excused which lasted from December 1, form during the “State of Necessity,” 2001 to April 26, 2003. 2017] provisions. measures \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 15 11-MAY-17 9:18 order derived directly from international law itself, since there was order derived directly from international contract ply first the Bilateral Treaty; second, ply first the Bilateral Treaty; second, the “conditions as of December 2001 constituted the highest degree of the highest 2001 constituted as of December the “conditions inter- essential security Argentina’s and threatened public disorder contention corporation’s the Kentucky Tribunal rejected ests,” the applicable in cir- BIT necessity provision was “only that the pertinent to military action and war,” cumstances amounting provisions therein domestic law.” “necessity” defense as legitimate under the provisions of the BIT and provisions of under the defense as legitimate “necessity” international law.” “general ing the legitimacy of the “necessity” defense in the general context of ing the legitimacy of the “necessity” Argentine law, the BIT, or custom- the BIT did not lie exclusively in ary international law; contrary, that “the conditions in Argentina . . . called for immediate, conditions in Argentina . . . contrary, that “the economic decline.” restore civil order and stop the decisive action to C Y 38980-swt_23-2 Sheet No. 12 Side A 05/11/2017 09:52:06 A 05/11/2017 12 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 12 Side B 05/11/2017 09:52:06 M K 94 ON- C Y [Vol. 23 , ICSID C note 19, at art. 8). ISPUTES supra D 97 Toward A Theory of Precedent NVESTMENT The Argentina–U.K. BIT I , the relevant provision ex- provision relevant , the 93 tribunal could have granted note 1, at 366 (“In practice, awards frequently ”) (emphasis added). ETTLEMENT OF BG Group BG tribunal before it. Employing the sound logic of the Employing the S supra 92 95 BG Group , . 1895 (2010) (“Much like courts . . . arbitrators can . . . W. Mark C. Weidemaier, EV ORN As in As B LG&E 91 L. R note 18, at 47-48 (citing Arg.–U.K. BIT, ee also ENTRE FOR C ARY and the But cf. supra note 1, at 435 (“[A] few BITs require an investor to exhaust its local note 1, at 435 (“[A] few BITs require an investor note 1, at 427 (citing the Argentina-U.K. BIT as an example of “BITs note 1, at 427 (citing the Argentina-U.K. BIT 96 . & M M supra supra , this express provision reflected recognized customary , this express provision , , The fact that there is no contract between the Argentine Republic and LG&E The fact that there is no contract between the arbitration decision without need for recourse to the Vi- arbitration decision without need ORN ORN , 51 W NTERNATIONAL SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW B B I VENTION Final Award, . ¶ 89. . ¶ 98 (stating that “[i]n short, one must also recall that between Argentina and . ¶ 98 (stating that “[i]n short, one must tribunal, the BIT provision would have been controlling in the provision would have been controlling tribunal, the BIT LG&E , art. 26 (Apr., 2006), https://icsid.worldbank.org/ICSID/StaticFiles/basicdoc/CRR_Eng See See See Id See Id Like “permitted regulation” and “necessity,” exhaustion of local regulation” and “necessity,” exhaustion Like “permitted 95. 94. 96. 92. 93. 97. Whether arbitral awards create judicial precedent is an unsettled question from a purely 91. in Arbitration remedies in the host state courts before commencing an investment arbitration. In addition, remedies in the host state courts before commencing a foreign investor’s substantive rights has occurred states sometimes argue that no violation of remedies because the investor failed to exhaust its local – for example, by seeking appellate review of a wrongful first instance judicial decision.”). to pursue relief initially in the host state’s courts [that] contain provisions requiring an investor prior to commencing an investment arbitration.”). serve as decisive authority.”); s LG&E there is no binding contractual agreement. The existence of such relationship would have LG&E there is no binding contractual agreement. clauses in the event of changes in certain circum- allowed the parties to agree on stabilization one is bound to resort to a legal system regulat- stances. But, in the absence of such agreement, ing those events. favors in the first place, the application of international law, inasmuch as we are dealing with a favors in the first place, the application of international is especially subject to the provisions of the Bilat- genuine dispute in matters of investment which eral Treaty complemented by the domestic law create precedent that guides future behavior and provides a language in which disputants, law- create precedent that guides future behavior and provides a language in which disputants, yers, and adjudicators can express and resolve grievances.”). lish–final.pdf arbitration under this Convention shall, (providing that, “[c]onsent of the parties to other unless otherwise stated, be deemed consent to such arbitration to the exclusion of any remedy.”). theoretical point of view. isted within the plain meaning of the BIT. The tribunal made clear The tribunal of the BIT. the plain meaning isted within 32 of the to Articles 31 and for recourse obviated the need that this law as an international to customary as deference Vienna Convention, triggered Treaty” is only of the for the interpretation “instrument of a further interpretation or where a term is ambiguous, “where is required.” Treaty provision partial relief as did the As in 318 two states. the between law principle as both a customary international remedies is recognized BIT defense provision. as well as a valid \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 16 11-MAY-17 9:18 LG&E BG Group enna Convention, expressly required the investors to litigate in the host state’s courts for the investors to litigate in the expressly required to arbitration. before they could bring their claims eighteen months international law principles. international law 38980-swt_23-2 Sheet No. 12 Side B 05/11/2017 09:52:06 B 05/11/2017 12 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 13 Side A 05/11/2017 09:52:06 319 The , a , May 9, 1934, in charac- A Mississippi state procedural 99 Loewen v. United States Loewen In 98 Loewen claimed that the company Loewen claimed The Finnish Ships Arbitration Award 100 [1958–1959] Yearbook of the European Commission of a claim in international law, not of a claim in international law, Although far from indifferent to Loewen’s Although far from indifferent to at 1503–05).”). 102 Nielsen v Denmark admissibility . ¶ 1 (Acknowledging that the case was “extremely difficult”). . ¶ 4. . ¶¶ 3-4, 87. . ¶¶ 5-7 (Indicating that Mississippi law required an appeal bond for 125% of the ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY the tribunal noted that “the local remedies rule which re- the tribunal noted that “the local Loewen Grp., Inc. and Raymond L. Loewen v. U.S., ICSID Case No. ARB (AF)/ Loewen Grp., Inc. and Raymond L. Loewen . ¶ 149 (emphasis added). . ¶ 2. The tribunal denied Loewen’s claim, resting its decision on Loewen’s claim, resting its The tribunal denied The tribunal emphasized the “gatekeeping” function of the ex- The tribunal emphasized the “gatekeeping” 103 Id See id Id See id See id See id See American trade agreement jurisprudence should not have not should jurisprudence agreement trade American 101 104 99. 98. 104. 103. 102. 101. 100. M K judgment as a condition of staying execution on the judgment. Both the trial court and the judgment as a condition of staying execution on the judgment. Both the trial court and to Mississippi Supreme Court refused to reduce the appeal bond. Thus, Loewen was required post a $625 million bond within seven days in order to pursue its appeal). Finnish Ships Arbitration Award on Human Rights, 412 at 436, 438, 440, 444) so long as the remedy is not ‘obviously futile’ ( on Human Rights, 412 at 436, 438, 440, 444) 3 RIAA, 1480 at 1495; 98/3, Award, ¶ 165 (June 26, 2003), 7 ICSID Rep. 442 (2005) [hereinafter Loewen Group] 98/3, Award, ¶ 165 (June 26, 2003), 7 ICSID the view that the complainant is bound to exhaust (“There is a body of opinion which supports ( any remedy which is adequate and effective haustion of local remedies rule, citing Article 44 of the ILC Draft haustion of local remedies rule, as proof that “the local remedies rule Articles on State Responsibility deals with the “the Claimants’ failure to show that Loewen had no reasonably avail- failure to show that Loewen had “the Claimants’ United States municipal law in re- able and adequate remedy under being matters alleged to be spect of the matters of which it complains, violations of NAFTA.” of international law by a State quires a party complaining of a breach that State before the party can raise to exhaust the local remedies in law is the complaint at the level of international ter.” 2017] or UN- relief in an ICSID obtaining partial any obstacle to presented NAFTA court system. or in the federal arbitral tribunal, CITRAL defense of the traditional the validity for example, recognize tribunals, remedies. of local of exhaustion \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 17 11-MAY-17 9:18 NAFTA tribunal adjudicated a Canadian funeral home business’s funeral home a Canadian tribunal adjudicated NAFTA for the alleged viola- against the state of Mississippi claim for damages standards of due process. tion of international whether the claim arises from a violation or breach of international whether the claim arises from a was effectively “foreclosed” from seeking redress from the allegedly from seeking redress was effectively “foreclosed” system due to the in the Mississippi judicial discriminatory verdict dispute to arbitra- requirements and brought the state’s onerous bond tion. plight, court had rendered a $500 million verdict against Loewen in favor of a a $500 million verdict against court had rendered state business. local Mississippi C Y 38980-swt_23-2 Sheet No. 13 Side A 05/11/2017 09:52:06 A 05/11/2017 13 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 13 Side B 05/11/2017 09:52:06 M K .”) C Y to [Vol. 23 duty to the U.S. all the alternatives 106 109 , http://www.oxforddictionaries.com/ writ of certiorari 108 decision, it is clear that an arbitra- ICTIONARIES D course which Loewen could reasonably XFORD Loewen O only note 98, ¶ 216. The tribunal acknowledged Loewen’s efforts, but The tribunal acknowledged supra ee generally 107 course which Loewen could reasonably be expected to could reasonably be expected course which Loewen . ¶ 200. . ¶ 216; s SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW only tribunal, as it made no attempt to engage, let alone exhaust, tribunal, as it made no attempt . ¶ 168. . (emphasis added). In the tribunal’s view, this rule was qualified only by the prin- only by was qualified this rule view, tribunal’s In the See id See id Id Id 105 Under the logic of the Unlike BG Group, Loewen made a good faith effort to seek re- faith effort to made a good Group, Loewen Unlike BG be expected to take. . . . Accordingly, our conclusion is that Loewen be expected to take. . . . Accordingly, . . . . failed to pursue its domestic remedies take, that would be enough to justify an inference or conclusion that enough to justify an inference or conclusion take, that would be and adequate remedy. . . . Al- Loewen had no reasonably available may well have been a though entry into the settlement agreement we are simply left to specu- reasonable course for Loewen to take, decision to adopt that course late on the reasons which led to the It is not a case in which it can rather than to pursue other options. be said that it was the If, in all the circumstances, entry into the settlement agreement was entry into the settlement agreement If, in all the circumstances, the 108. 107. 109. Loewen Group, 106. 105. us/definition/american_english/exhaustion (last visited Mar. 7, 2016) (defining the term “exhaus- tion” as, inter alia, “[t]he process of establishing a conclusion by eliminating (emphasis added). Supreme Court. ciple that the obligation to exhaust is limited to remedies “which are to remedies to exhaust is limited the obligation ciple that complain- available to the are reasonably and adequate and effective in which it is situated.” circumstances ant in the attempt to exhaust all such remedies to gain “admission” into the ju- attempt to exhaust all such remedies BG Group’s actions did not risdiction of an international tribunal. standard as articulated by the come close to satisfying the ILC Loewen a mere eighteen months. In fact, the Argentine judicial system, for much longer exhaustion periods than courts and tribunals have upheld tion claimant lacks the discretion to determine whether local remedies tion claimant lacks the discretion available (this is a matter for a are effective, adequate, and reasonably rather, a claimant has a reviewing court or tribunal to decide); 320 law.” to settle with the state, but ultimately elected dress in the investor to pursue the rather than pay the bond required Mississippi litigant for a stay of execu- or apply to the Fifth Circuit local judicial remedy filing of a petition for tion pending the \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 18 11-MAY-17 9:18 rested its decision on the logical implications of its effective/adequate/ on the logical implications of its rested its decision exhaustion rule: reasonably available 38980-swt_23-2 Sheet No. 13 Side B 05/11/2017 09:52:06 B 05/11/2017 13 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 14 Side A 05/11/2017 09:52:06 see 321 law court BG Group context. In 110 domestic BG Group note 1, at 2010 (characteriz- Loewen supra case. “Procedural,” how- case. “Procedural,” Halpin, Loewen see also With the presumption thus reversed 113 decision into sharp relief. The decision into sharp note 98, ¶¶ 149, 161. L. 809, 824 (2005) (due to the exhaustion of local remedies re- L. 809, 824 (2005) (due to the exhaustion of majority, however, framed the issue as whether majority, however, OVEREIGNTY L supra ’ Reconciling State Sovereignty and Investor Protection in Denial of Reconciling State Sovereignty and Investor Protection S , 134 S. Ct. at 1209; NT . J. I BG Group A BG Group SSUE OF ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY , 45 V I BG Grp. PLC v. Republic of Argentina, 134 S. Ct. 1198, 1208 (2014) (citing How- Loewen Group, Interhandel (Switz. v. U.S.), Preliminary Objections, 1959 I.C.J. 6, at 26-27 (Mar. 21) Interhandel (Switz. v. U.S.), Preliminary Objections, , the exhaustion requirement was “procedural” in a due pro- requirement was “procedural” , the exhaustion HE This is what happened in the This is what happened The See BG Grp. PLC See See See The foregoing discussion of customary treaty interpretation and interpretation of customary treaty discussion The foregoing In an odd sense, Argentina, a sovereign nation, now found itself In an odd sense, Argentina, a sovereign 111 112 Andrea K. Bjorklund, 113. 112. 111. 110. M K ing the Court’s reasoning as a declination “to grant the term ‘consent’ in an international treaty ing the Court’s reasoning as a declination “to grant the term ‘consent’ in an international talismanic significance . . . .”). sam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002) (“[W]hether a party filed a notice of sam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85 (2002) (“[W]hether a party filed a notice matter arbitration within the time limit provided by the rules of the chosen arbitral forum ‘is a presumptively for the arbitrator, not for the judge.’”)). quirement in the context of state espousal of traditional international law denial of justice claims, quirement in the context of state espousal of its injured citizen had attempted to gain redress a “state could not intervene diplomatically until right of a host state to control matters within its locally. This principle respected the sovereign redress for wrongs committed within its territory. borders by allowing it the opportunity to grant if they proved to be futile, waiting to reach While an alien did not have to exhaust local remedies and proving futility is not necessarily the point of futility could be very frustrating, straightforward.”). (holding that, despite a twelve year delay, remedies had not been exhausted in U.S. courts); (holding that, despite a twelve year delay, remedies also Justice Claims majority held that the BIT’s local court litigation requirement could the BIT’s local court litigation majority held that precedent to arbitra- as a procedural condition indeed be construed tion. 2017] eighteen–month unreasonable” “manifestly the of redress period judicial system. in the Argentine to BG Group available IV. T of the U.S. Su- defenses brings the implications investment treaty preme Court’s \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 19 11-MAY-17 9:18 in favor of “ordinary” U.S. arbitration principles, the in favor of “ordinary” U.S. arbitration arbitrability determination but also acceded not only to the tribunal’s law to justify that determination. to its dubious use of international of ordinary consumers who unwit- in a dilemma analogous to that when they sign contracts contain- tingly consent to binding arbitration assume will never be given effect. ing boilerplate language they before a party could raise the complaint at the level of international raise the complaint at the before a party could law. ever, had a very different significance in the ever, had a very Loewen party’s it ensured deference to the host cess sense in that in a treaty warrant[ed] aban- “the presence of the term ‘consent’ of, [the Court’s] ordinary in- doning, or increasing the complexity tent–determining framework.” C Y 38980-swt_23-2 Sheet No. 14 Side A 05/11/2017 09:52:06 A 05/11/2017 14 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 14 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 and which deter- 118 The BIT provided for tar- The BIT provided 115 Third, BITs are often negotiated in Third, BITs are often negotiated note 47. 119 supra note 18, at 64. note 18, at 50. The BIT was entered into at the time of Presi- The BIT was entered supra supra 114 presumption emanates from considerations that are presumption emanates from considerations note 40. , Vienna Convention, at 80. The Section 8 exhaustion prerequisites were Argentina’s The Section 8 exhaustion prerequisites SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Howsam Argentina’s efforts to restructure its debt, according to BG, to restructure its debt, according Argentina’s efforts AT&T Mobility v. Concepcion, 563 U.S. 333, 343-44 (2011). e.g. , Final Award, Final Award, 117 116 See See See id. See supra See See Despite these precautions, Argentina could not foresee the force Despite these precautions, Argentina 119. 118. 117. 115. 116. 114. caused “a substantial deprivation of the value and economic benefit of deprivation of the value and caused “a substantial that this “qualifie[d] as an expro- an investment;” the tribunal agreed alteration of formal ownership priation . . . even without any rights.” leery of “diplomatic protec- only protection against arbitral tribunals to the economic interests of tion” and more inclined to be sympathetic rich investor nations. give to the arbitrator’s power to that the U.S. Supreme Court would States—adecide arbitrability in the United force that the Court has certification, interpreted to extend to class action 322 the fine in not “buried was provision BIT arbitration the Although availa- and only become to lay dormant was plainly intended print,” it exhausted. had been after local remedies alternative remedy ble as an to the Argentina’s consent consumer, like an ordinary Additionally, choice lack of a meaningful more to do with provision had arbitration investor–State for “direct than a preference “diplo- adjudication” over matic protection.” \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 20 11-MAY-17 9:18 dent Menem’s aggressive economic policies to stave off inflation and economic policies to stave dent Menem’s aggressive from economic collapse. save the country mined the Court’s deferential review of the arbitration tribunal’s mined the Court’s deferential treaty law. In so doing, questionable interpretation of international of sovereignty that ought to the Court flouted the basic principles law. This is true in several respects. guide all interpretation of treaty First, the economic contexts that are no longer valid at the time of presumed economic contexts that are no longer breach and that entail social, economic and political consequences iffs intended to attract foreign investors, the terms to which a wealthy foreign investors, the terms iffs intended to attract that Argentina so slavishly consent. BG claimed nation would never measures adopted by the value of its shares . . . [by] “damage[d] . . . of MetroGAS had a negative impact on the activities Argentina which and in Metro- value of its shareholding in GASA and, hence, on the GAS.” not germane to international treaty law. Second, international treaty not germane to international treaty is grounded in the irreducible author- law, whether commercial or not, ity of a state to govern itself. 38980-swt_23-2 Sheet No. 14 Side B 05/11/2017 09:52:06 B 05/11/2017 14 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 15 Side A 05/11/2017 09:52:06 323 BG Group Howsam v. Dean The Court held The 123 see also 125 element of the rule element of the . 1, 63, 67 (May 2014). O N L ’ framework provides a neat NT . I Howsam procedural/substantive distinc- ESOL . R The to arbitrability.” holding was the Court’s reluctance to was the Court’s holding ISP 122 Howsam , 8 D The Regulation of Tax Matters in Bilateral Investment Trea- The Regulation of Tax Matters in Bilateral Investment than this notion of whether a state gave consent or didn’t give than this notion of whether a state gave consent The Court relied on the principle that “proce- The Court relied on the principle 124 BG Group First Options/Howsam , 537 U.S. at 81. The 121 ıra de Melo Vieira, . at 82-83. ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY Ma´ 120 First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 940 (1995) (whether arbitra- First Options of Chicago, Inc. v. Kaplan, 514 Transcript of Oral Argument at 37, BG Grp. PLC v. Republic of Argentina, 134 S. Transcript of Oral Argument at 37, BG Grp. . Memorial Hosp. v. Mercury Construction Corp., 460 at 84 (quoting Moses H. Cone Id See See Howsam See id See See Essential to the Essential a little bit easier to work with 125. 122. 123. 124. 121. 120. M K U.S. 1, 25 (1983)) (emphasis added). tors or courts have primary power to decide if parties agreed to arbitrate merits of dispute de- tors or courts have primary power to decide pends on whether parties agreed to submit question to arbitration); consent or it doesn’t mention it in the treaty.”) (emphasis added). consent or it doesn’t mention it in the treaty.”) of the Witter Reynolds, Inc., 537 U.S. 79, 84 (2002) (“procedural” questions which grow out arbitra- dispute and bear on its final disposition are presumptively not for the judge, but for an tor, to decide). Ct. 1198 (2013) (No. 12–138), http://www.supremecourt.gov/oral_arguments/argument_trans [Howsam] said there’s a presumption about that cripts/12-138_8l9c.pdf (Breyer, J.) (“I thought was the language that the Court has found procedural rule, and I thought important language the narrow circumstance where contracting parties the phrase, i.e., for the judge, applicable in decided the gateway matter. Now, that, it seems to would likely have expected a Court to have me, ties: A Dispute Resolution Perspective “two-step” analysis, which requires determining, based on very liberal which requires determining, “two-step” analysis, if so, the arbitrator the parties agreed to arbitrate; standards, whether the dispute and to power to arbitrate the merits of has the primary itself. determine arbitrability 2017] private befall that those from different are qualitatively that interests. A. in Commercial Transactions Rationale The Howsam \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 21 11-MAY-17 9:18 standard to decide it considered a workable legal depart from what arbitrability. that interpretation of the arbitration regime’s rule imposing a six–year of the arbitration regime’s rule that interpretation matter presumptively for the arbitra- time limit for arbitration was a tor, not for the court. of the dispute and bear on its final dural” questions, which grow out for a judge to decide; rather, “the disposition, are presumptively not should decide allegation[s] of presumption is that the arbitrator waiver, delay, or a like defense arose in the context of a brokerage firm’s suit to enjoin a customer of a brokerage firm’s suit arose in the context an allegedly time–barredfrom arbitrating dispute. Court relied expressly on the tion, finding the UK–Argentina litigation requirement . . . “local provisions that both this Court and highly analogous to procedural C Y 38980-swt_23-2 Sheet No. 15 Side A 05/11/2017 09:52:06 A 05/11/2017 15 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 15 Side B 05/11/2017 09:52:06 M K C Y , such [Vol. 23 involved available all Loewen Howsam , 537 U.S. at 85). . Howsam key question of consent. key question of Howsam rationale, which was guided the Jurisdiction was not the basis of the Jurisdiction was BG Group 127 tribunal applied a “procedural” legal stan- tribunal applied a “procedural” approach embodies the “procedural” rigors approach embodies the “procedural” decision violates basic principles of sovereignty decision violates basic principles Developing countries know that opening up their Developing countries 128 Loewen , 134 S. Ct. at 1207-08 (2014) (citing Loewen 126 , 537 U.S. at 81. In keeping with the “procedural” nature of the exhaustion In keeping with the “procedural” SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW BG Group Loewen Group, ICSID Case No. ARB (AF)/98/3, Award, ¶ 145, 189, (June 26, 129 . at 81-82, 84. See Id Howsam BG Grp. PLC Just as the Eleventh Amendment grants immunity to states from Just as the Eleventh Amendment Yet the facts of any dispute involving a treaty between nations treaty between involving a facts of any dispute Yet the The 129. 128. 127. 126. 2003), 7 ICSID Rep. 442 (2005) http://www.state.gov/documents/organization/22094.pdf. suit without their consent, local remedies clauses prevent a nation suit without their consent, local trade commitments. In from being commandeered by its requirement, the a consumer commercial transaction contract containing a typical boil- transaction contract containing a consumer commercial provision. erplate arbitration 324 interpret to primarily not courts, for arbitrators, found are have others and to apply.” B. of Sovereignty The Primacy from those in are readily distinguishable \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 22 11-MAY-17 9:18 borders may invite a fox into the henhouse. Hence the BITs’ balance a fox into the henhouse. Hence borders may invite country litigation arbitration remedies and host between institutional disputes is not a arbitrability in investor-state requirements. Thus, question, but entails mere procedural bargain. Investment treaties, by contrast, are designed to address ju- treaties, by contrast, are designed bargain. Investment risdictional issues. a clause served as a safeguard against a NAFTA trade party from us- a clause served as a safeguard against of justice) to escape an interna- ing an international law claim (denial (exhaustion) executed by sovereign tional trade agreement provision nations. dard, finding against Loewen because it failed to exhaust dard, finding against Loewen because remedies. The dictated by sovereignty and supported by international law. This dictated by sovereignty and supported stands in stark contrast to the by a competing notion of “procedural” that could only take root in by a competing notion of “procedural” suspicious application of customary international law thanks to a treaty interpretation. C. State Considerations treaty interpretation. An arbitra- that ought to guide all international tion agreement can implicate a nation’s sovereign interests and entail 38980-swt_23-2 Sheet No. 15 Side B 05/11/2017 09:52:06 B 05/11/2017 15 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 16 Side A 05/11/2017 09:52:06 325 BG Grp. –the very 133 ., http://www.state text accompanying T S TOF ’ EP see also supra note 47, at art. 31(1); Comity itself should require U.S. courts to U.S. courts itself should require Comity The United States is a signatory to no less to is a signatory States United The supra 132 130 , 134 S. Ct. at 1219 (Roberts, C.J., dissenting) (“It is no trifling matter , 134 S. Ct. at 1219 (Roberts, C.J., dissenting) yet it has never ratified the Vienna Convention. The the Vienna Convention. never ratified yet it has 131 ARBITRABILITY IN BILATERAL INVESTMENT TREATIES INVESTMENT IN BILATERAL ARBITRABILITY Chevron Corp. v. Ecuador, 795 F.3d 200, 205–06 (D.C. Cir. 2015) (quoting Vienna Convention, United States Bilateral Investment Treaties, U.S. D ONCLUSION See See See See BG Grp. PLC Governing international law treaty principles, deference to tradi- law treaty principles, deference Governing international , 134 S. Ct. at 1219 (“FSIA . . . allows federal courts to exercise jurisdiction over Ecuador in , 134 S. Ct. at 1219 (“FSIA . . . allows federal courts to exercise jurisdiction over Ecuador 133. 132. 131. 130. M K note 48. PLC order to consider an action to confirm or enforce the award.”)). .gov/e/eb/ifd/bit/117402.htm (last visited Mar. 8, 2016). for a sovereign nation to subject itself to suit by private parties; we do not presume that any for a sovereign nation to subject itself to suit country—including our own—takes that step lightly.” (internal citation omitted)). United States federal judiciary has decided at least two cases against at least two has decided federal judiciary United States nations. these signatory tional investor–state of sover- arbitration defenses, and principles to international in favor of an international approach eignty all weigh international law arbitration based upon governing investment treaty principles. principle of the Vienna This comports with the grounding good faith in accor- “[a] treaty shall be interpreted in Convention, that to be given to the terms of the treaty dance with the ordinary meaning its object and purpose” in their context and in the light of 2017] stakes. financial large \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 23 11-MAY-17 9:18 treat traditional international law conditions on consent, absent ex- on consent, law conditions international treat traditional to consent precedent otherwise, as conditions that provide press terms to arbitration. V. C than 48 BITs, than 48 principle, of course, which should have determined arbitrability in the principle, of course, which should first instance. C Y 38980-swt_23-2 Sheet No. 16 Side A 05/11/2017 09:52:06 A 05/11/2017 16 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 16 Side B 05/11/2017 09:52:06 M K C Y \\jciprod01\productn\S\SWT\23-2\SWT201.txt unknown Seq: 24 11-MAY-17 9:18 38980-swt_23-2 Sheet No. 16 Side B 05/11/2017 09:52:06 B 05/11/2017 16 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 17 Side A 05/15/2017 13:59:36 R R R R R R R R R R R R for their : RULES 15-MAY-17 13:45 ACTICS T Haik Gasparyan* ...... 334 ...... 332 Seq: 1 Seq: NFORCEMENT ETTLEMENT E S 327 unknown ...... 344 NFORCEMENT BUSIVE RIMINAL ...... 337 ...... 335 E ...... 347 A C ROLL T ...... 339 ...... 345 ...... 327 IN THE ENFORCEMENT OF ENFORCEMENT IN THE ...... 349 ...... 336 ...... 342 OPYRIGHT C INTERNATIONAL COPYRIGHT INTERNATIONAL AMAGES AND OPYRIGHT D NALYSIS OF THE ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE C Volume-Based Approach for Enforcement of Illegal Volume-Based Approach for Enforcement File Sharing of User-Made The Need for Fair Use Protection Content Thriving Copyright Trolls: The Creation of Conditions Preventing Abusive Restricting the Right to Sue and Settlement Tactics The Piracy Culture of the 21st Century The War on Piracy File Potential for Widespread Criminalization: Sharing and Memes A N ONCLUSION RIMINAL HE ROVISIONS TEEP NTRODUCTION THE TPP AND BEYOND: THE VITAL BEYOND: TPP AND THE B. C. A. B. A. B. P A. T J.D., May 2017, Southwestern Law School; Editor-in-Chief, Southwestern Journal of NTRODUCTION The United States has an obvious interest in protecting copy- I. I * V. C II. C IV. S III. A M K rights. In 2014 alone, “core copyright industries” contributed over a rights. In 2014 alone, “core copyright industries” contributed over I. I International Law. The author wishes to thank his parents, Tatevik and Manvel, unwavering love, support, and patience. \\jciprod01\productn\S\SWT\23-2\SWT202.txt C Y 38980-swt_23-2 Sheet No. 17 Side A 05/15/2017 13:59:36 A 05/15/2017 17 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 17 Side B 05/15/2017 13:59:36 M K 4 L I- ’ N- 18 C Y I H P. NT OPY- HE and , C [Vol. 23 OODS . J. I HI G IMOTHY how T NTELLECTUAL I LLIANCE BSERVATIONS ON , 12 C in OPYCATS ARE A IRATED Bargaining Around , C Internet Pirates Find , 52 IDEA: T P AND see also , The Surprising Benefits to ROPERTY 23, 71 (Carlos M. Correa & P L. 11, 34 (1996). , GAO-10-423, O L ’ (Jan. 4, 2010, 6:05 PM), http://www RAFFICKERS Bobbie Johnson, NT OUNTERFEIT AND GREEMENT FFICE , T C A O . & I NTELLECTUAL Universal Minimum Standards of Intellectual I Rachel Brewster, These compromises disappointed UARDIAN RIPS see also 5 OMP T , G J.H. Reichman & David Lange, MUGGLERS HE FFORTS OF J. C see also S 1, 9 (2016), http://www.iipawebsite.com/pdf/2016Cpyrt : T E UKE OW But there have been some successes as But there have been some successes CCOUNTABILITY see also 7 RADE : H 23-24 (2005); J.H. Reichman, NTERNATIONAL A , 9 D T T CONOMY ’ , I CONOMIC OV LLICIT E 6 IWEK Enforcement, Enforcement, What Enforcement? , I However, even with the most rigorous copyright most rigorous even with the However, U.S. E see also CONOMY 1 AIM E U.S. G Historically, the U.S. has relied on highly leveraged Historically, the note 3, at 243; E. S 3 These losses are often contributed to the lack of cohe- to the are often contributed These losses N . 239, 241-49 (2012). 2 EV NTERNATIONAL LOBAL I UANTIFY THE , supra OISES . at 243-49. . at 242-43; TEPHEN G SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Peter K. Yu, S M Q Yu JACKING THE TELL RIGHT . L. R See See See generally See id See id See See NDUSTRIES IN THE ROP to apply this authority against. For those countries, like the U.S., who have been leading the ef- For those countries, like the U.S., I 3. 7. 2. 5. 4. 6. 1. . P FFORTS TO ROPERTY AND (2010), http://www.gao.gov/assets/310/303057.pdf. Developing Countries of Linking International Trade and Intellectual Property Developing Countries of Linking International Abdulqawi A. Yusuf eds., 2d ed. 2008); .theguardian.com/technology/2010/jan/05/internet-piracy-bulletproof; Property Protection Under the TRIPS Component of the WTO Agreement Property Protection Under the TRIPS Component RptFull.pdf. ‘Bulletproof’ Havens For Illegal File Sharing the TRIPS Agreement: The Case For Ongoing Public-Private Initiatives To Facilitate Worldwide Intellectual Property Transactions P L. 1, 31 (2011). E For example, during the negotiation rounds of the Trade-Related as- the negotiation rounds of the For example, during (TRIPS), countries Property Rights Agreement pects of Intellectual key compromises enforcement regime struck against a demanding granting official au- provisions as only that construed enforcement mandating exactly thority to enforce copyrights, without policies, another major setback forts in global copyright enforcement and illegal downloaders to bypass has been the ability of digital pirates both jurisdiction and law. 328 jobs 5.4 million nearly produced and U.S. GDP to the dollars trillion alone. in the U.S. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 2 15-MAY-17 13:45 sive international enforcement policies and the availability of circum- the availability policies and enforcement sive international of legal loopholes in that allow for exploitation vention technology copyright laws. countries to beef up (FTAs) that require other free trade agreements borders, but of copyrights within their respective their enforcement been ineffective. efforts, for the most part, have these enforcement enforcement policies in the world, a myriad of studies claim that U.S. of studies claim world, a myriad policies in the enforcement piracy in its dollars a year to of billions of still lose hundreds industries various forms. enforcement-centric countries, and are now referred to as the “Achil- enforcement-centric countries, and les heel of TRIPS.” what 38980-swt_23-2 Sheet No. 17 Side B 05/15/2017 13:59:36 B 05/15/2017 17 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 18 Side A 05/15/2017 13:59:36 329 OR- B ARTNER- . (Oct. 14, P EPRESENTA- CROSS EV . 393, 394-395 R A R ACIFIC . United States v. ECH However, as However, AW -P 9 RADE IGHTS L L Trans-Pacific Partner- ’ R RANS AT U.S. T T (Sept. 14, 2014), http://www , N HE , . J. L. & T T aff’d sub nom ROPERTY ARV P in , , https://www.mfat.govt.nz/en/about- FFICE OF Six Secret (and Now Open) Fears of O , 19 H New TPP Leaks Reveal US Pushing For (Aug. 6, 2015 at 7:56 AM), http://www RADE IMES . & T NTELLECTUAL . T FF Peter K. Yu, I US A B Aditya Tejas, L 159-68 (Scott Sinclair & Stuart Trew eds., 2016). ’ see also NT OREIGN I UIDE F ROTECTING G see also In October of 2015, after five years of intense In October of 2015, S ’ , P In 2010, the U.S. began to push for the enforce- In 2010, the U.S. The Grokster Dead End 12 11 ITIZEN . 975, 989 (2011). LLUMS INISTRY OF note 3, at 243; EV 10 United States v. All Assets Listed in Attachment A, 89 F. Supp. 3d 813 United States v. All Assets Listed in Attachment Press Release, U.S. Dept. of Justice, Justice Department Charges Leaders Press Release, U.S. Dept. of Justice, Justice : A C E. A supra . 13 The Trouble with the TPP’s Copyright Rules , N.Z. M ICKI Bryan H. Choi, The government successfully argued that the court should argued that successfully The government Yu, DERS ANADA 8 SHIP AND TIVE C & V See See A Review of the Patent Related Provisions of the TPP TPP Full Text, Chapter 18, Intellectual Property, See generally See See generally , 64 SMU L. R THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE The flexible means of online infringement and piracy, combined of online infringement and piracy, The flexible means 8. 9. 453 (2009) , https://ustr.gov/tpp/overview-of-the-TPP (last visited Mar. 2, 2017); , https://ustr.gov/tpp/overview-of-the-TPP (last 11. 13. 12. 10. M K RAINER ACTA 2015), http://www.natlawreview.com/article/review-patent-related-provisions-tpp-patentable-sub ject-matter-and-grace-periods#sthash.9XHpxkv1.dpuf. (2006). us/who-we-are/treaties/trans-pacific-partnership-agreement-tpp/text-of-the-trans-pacific-partner- ship (last visited Mar. 2, 2017); Strong Copyright, IP Enforcement, .ibtimes.com/new-tpp-leaks-reveal-us-pushing-strong-copyright-ip-enforcement-2041486; Michael Geist, T 2017] Kim its founder and Megaupload, against indictment The 2012 well. brought by piracy cases the most ambitious is often cited as Dotcom, the U.S. continues to drive record of international efforts with the weak track strengthen their other countries to adopt or further U.S. pressure on enforcement efforts. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 3 15-MAY-17 13:45 extend jurisdiction to foreign defendants based on their use of U.S. based on their defendants to foreign extend jurisdiction conspiracies. piracy as and classify commercial servers, of Megaupload with Widespread Online Copyright Infringement of Megaupload with Widespread Online Copyright Batato, 833 F.3d 413 (4th Cir. 2016). ship Agreement .justice.gov/opa/pr/justice-department-charges-leaders-megaupload-widespread-online-copy right-infringement. in furtherance of the conspiracy to commit copy- (E.D. Va. 2015) (holding the alleged acts were district when defendants “allegedly reproduced and right infringement within the court’s judicial caused communications to be sent from servers in stored infringing files on these servers and been removed.”), Virginia indicating that infringing files had ment of copyrights through a new, and more demanding FTA known through a new, and more demanding ment of copyrights urging the twelve Partnership Agreement (TPP), as the Trans-Pacific model simi- to adopt a copyright enforcement participating countries U.S. lar to that of the the TPP agreement, placing the negotiations, all parties finally signed legislative authorities for ball in the courts of member-party ratification. previously illustrated, rigid rules cannot deter piracy in the age of flex- piracy in the rules cannot deter illustrated, rigid previously ible technology. C Y 38980-swt_23-2 Sheet No. 18 Side A 05/15/2017 13:59:36 A 05/15/2017 18 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 18 Side B 05/15/2017 13:59:36 M K E- E- P C Y , IP R see ND [Vol. 23 Trips was 19, 41-43, A Lopert et al., REFERENTIAL 17 P TO OUNTRIES GREEMENT see also Susan Sell, C However, even However, A 14 Thus, although the Thus, although TRIPS 15 The Battle Against TPP Isn’t see also note 15; ROM MERGING TPP and Trans-Pacific Perplexi- US Perspectives: TPP’s Copyright E , F . 64 (Jan. 24, 2017). OR ARTNERSHIP supra OC , . (Nov. 9, 2016) [hereinafter Malcolm, F P . D RES OUND ROGRAMME ACIFIC it does not necessarily mean that it does not necessarily F . P Jeremy Malcolm, P -P 16 (Mar. 23, 2015), http://www.ip-watch.org/2015/03/ HALLENGES OMP RANS C Steven Seidenberg, : C see also RONTIER ATCH T . (Apr. 20, 2016), https://www.eff.org/deeplinks/2016/04/ F AILY NION ], https://www.eff.org/deeplinks/2016/11/battle-against-tpp- ARTNERSHIP see also U . L. 447 (2011); Peter K. Yu, , IP W OUND P Inside Views: TPP May Be Dead – But Its Impact Lingers F ROP RCEP: The Other Closed-Door Agreement to Compromise Users’ RCEP: The Other Closed-Door Agreement to . P LECTRONIC Congress Will Abandon Trans-Pacific Partnership Deal, White House UROPEAN NCLUDING THE , E L.J. 1129 (2014). E L The Battle Against TPP Isn’t Over RONTIER ’ NOWLEDGE , I (Nov. 12, 2016, 8:14 PM), https://www.theguardian.com/business/2016/nov/ NTELL F HE NT ., K T I , 18 J. I SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Ruth Lopert et al., Alan Yuhas, Malcolm, UARDIAN LATED DRO Jeremy Malcolm, GREEMENTS , G LECTRONIC ORDHAM RENDS IN See See See (June 12, 2016), http://www.ip-watch.org/2016/12/06/tpp-may-dead-impact-lingers (“De- (June 12, 2016), http://www.ip-watch.org/2016/12/06/tpp-may-dead-impact-lingers A OFFE ET AL T In its final form, the TPP’s IP Chapter (Chapter 18) sets out an the TPP’s IP Chapter (Chapter In its final form, As this article went into publication, President Trump signed a signed Trump President into publication, went article As this note 15. , E TPP countries are still in the process of passing their implementing legislation, which TPP countries are still in the process of passing that we have been fighting against for the contains all of the worst measures in the TPP last six years—including the strict rules against the extension of the term of copyright, penalties against those who infringe cop- DRM circumvention, [and] the tough criminal yright . . . . R see also 15. 17. 16. 14. U.S From the Trans-Pacific Partnership Memorandum Regarding Withdrawal of the , 37 F ; ATCH RADE Never Enough http://www.ipekpp.com/admin/upload_files/Report_3_54_From_2237283020.pdf (providing a re- http://www.ipekpp.com/admin/upload_files/Report_3_54_From_2237283020.pdf of IP provisions, and examples of common port of the historical similarities and transformations IP agreements); preferential language contained in subsequent Rights The Battle Against TPP Isn’t Over W 23/tpps-copyright-term-benefits-us-burdens-others/. Over, But It Has Shifted isnt-over-it-has-shifted. Id. rcep-other-closed-door-agreement-compromise-users-rights (noting the mirroring civil damages in the draft Regional Comprehensive Eco- provisions contained in the TPP and those contained nomic Partnership (RCEP) agreement); Concedes supra ties 12/tpp-trade-deal-congress-obama; Term Benefits US, Burdens Others spite the [TPP] being—to all-intents-and-purposes—deadwater, pursuit of some of the in the driving the TPP agenda rolls on.”); most egregious objectives of the corporate interests T elaborate framework, outlining the minimum amount of protection outlining the minimum amount elaborate framework, copyright enforce- must implement into their that member countries Negotiations and Agreement, 2017 D 330 officially the TPP, thus the U.S. from to withdraw memorandum the re- halt and leaving to an indefinite U.S. participation bringing countries in uncertainty. eleven member maining \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 4 15-MAY-17 13:45 with the U.S. withdrawal, the TPP’s implications on copyright en- on copyright the TPP’s implications U.S. withdrawal, with the negotiated TPP’s heavily nullified. The are not entirely forcement its way into future in one form or another, find principles will likely, by the transplan- agreements, as demonstrated international copyright IP-related provisions in the past. tation of similar for good. copyright provisions are gone its well-developed TPP is defunct in its current form, TPP is defunct in 38980-swt_23-2 Sheet No. 18 Side B 05/15/2017 13:59:36 B 05/15/2017 18 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 19 Side A 05/15/2017 13:59:36 331 AILY supra (Nov. 30, From the EWS 20 N sources cited QUARE . S see also Bounded Discretion in Interna- ASH The Final Leaked TPP Text Is All This is not to suggest that , W 24 However, by adopting harsher However, by adopting 23 21 . (Oct. 9, 2015), https://www.eff.org/deeplinks/ L. 631 (member country courts and other judicial OUND L ’ Jeremy Malcolm, (Jan. 11, 2016), http://rabble.ca/news/2016/01/tpps-un- F NT CA See . The TPP’s Unbalanced Approach to Internet Providers Pits The TPP’s Unbalanced Approach to Internet . J. I A Strong Fair Use Provision Could Help Balance the TPP’s A Strong Fair Use Provision Could Help Balance A RONTIER ABBLE note 12. F note 12, art. 18.66; Tom Ginsburg, . (Sept. 30, 2015), http://www.cato.org/publications/commentary/ , R , 45 V TPP Limits Creative Expression NST I Michael Geist, ATO LECTRONIC discretion to tailor a balanced approach; one that takes discretion to tailor a balanced approach; . 64 (Nov. 5, 2015); , C , E OC K. William Watson, Although this harsher standard of enforcement may one day standard of enforcement may Although this harsher . D see also The official release of the TPP text on November 5, 2015 November 5, the TPP text on release of The official ; In other words, member countries approved the TPP’s regula- the TPP’s approved countries member words, In other 22 RES 19 TPP Full Text, supra See Id TPP Full Text, supra Id. 18 THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE Although the recent shift of FTAs, such as the TPP, compel mem- Although the recent shift of FTAs, . P permitted 24. 23. Abraham Gross, 21. 22. 18. 19. 20. Partnership Agreement, 2017 Notice of Intention to Enter Into the Trans-Pacific D M K OMP tional Judicial Lawmaking 2015), http://www.nyunews.com/2015/11/30/tpp-limits-creative-expression/. Copyright Rules balanced-approach-to-internet-providers-pits-rights-holders-against-users. 2015/10/final-leaked-tpp-text-all-we-feared. authorities often do not participate in the deal-making and negotiation process of FTAs, thereby limiting the role of courts in the enforcement of such obligations). That We Feared Rights Holders Against Users strong-fair-use-provision-could-help-balance-tpps-copyright-rules; note 12. C ber countries to adopt a far stricter minimum standard of copyright ber countries to adopt a far stricter and their courts should utilize any enforcement, signatory countries to level the imbalance between in- FTA-granted discretionary rights terests of citizens and copyright industries. 2017] ment. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 5 15-MAY-17 13:45 live up to its deterrent purpose, before it does, it will pose serious purpose, before it does, live up to its deterrent court conformance, and, perhaps issues to social welfare, international most importantly, creative expression. tory provisions, not as a ceiling for copyright enforcement, but as a enforcement, ceiling for copyright not as a tory provisions, vital impor- in sectors of the public interest to “promote floor in order para- “Principles” by the introductory as boldly advocated tance,” graph. confirmed the incorporation of most U.S.-pushed provisions, which by provisions, of most U.S.-pushed the incorporation confirmed law. the core values of U.S. copyright a closer look, reflect member country courts should intentionally undermine already member country courts should Instead, I argue that they should use agreed upon trade agreements. any Digital Millennium Copyright Acts’ takedown process, to the abun- Copyright Acts’ takedown process, Digital Millennium the impression that provisions, one can get dance of criminalization it some steroids, reworded the Copyright Act, gave the U.S. simply on its TPP partners. and unleashed it countries are enforcement standards, member and more demanding works at the expense the U.S. export of copyrighted urged to promote wide-scale criminal- citizens to steep penalties and of subjecting their ization. C Y 38980-swt_23-2 Sheet No. 19 Side A 05/15/2017 13:59:36 A 05/15/2017 19 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 19 Side B 05/15/2017 13:59:36 M K the C Y . 731, [Vol. 23 EV after , 83 B.U. L. R , The Crime of Copyright in order to strike a much in order to strike Geraldine Moohr . 151 (2006). Recent debates about the balance, See 25 EV proactively NFORCEMENT . L. R E OMP & C , Misconceptions, Miscalculations, and Mistakes: P2P, China, and L ’ NT I OPYRIGHT C ASTINGS SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW , 30 H RIMINAL Copyright producers have a legitimate concern and right to pro- Copyright producers have a legitimate This article advances the presented arguments through a utilita- the presented arguments through This article advances Part II will first provide the issues created by criminal copyright Part II will first provide the issues 25. Although the scope of this article focuses on member-country court discretion 776, n. 201 (2003); Tao Leung Copyright enactment of TPP-like copyright enforcement agreements, it is worth noting that commentators impo- continue to explore alternative theories of infringement prevention that do not require the sition of aggressive enforcement mechanisms. Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory tect their copyrights. However, the means by which privacy-driven tect their copyrights. However, on aggressive enforcement poli- losses are cured should not rest solely cies against the consuming public. 332 also the but to FTAs, obligations their country’s not only account into utilizing their measures. By enforcement realities of ironclad difficult threshold for criminalization; (1) elevate the powers to discretionary limitations (3) place certain protections; and “fair-use” (2) introduce their courts FTAs and countries to TPP-like member on civil damages, but enforcement standards, minimum to meet required will continue created under it. the imbalance of interests also be able to alleviate of prospective as I argue, enhance the efficacy rian approach, which this not only copyright measures. However, FTAs and international allowable discretion, courts utilize their requires that member-country should do so but also that they \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 6 15-MAY-17 13:45 needed balance between user and producer interests. Further, this ar- between user and producer interests. needed balance TPP’s heavily nego- and illustrate by example of the ticle will analyze provisions, enforcement controls and discretionary tiated copyright of international copyright enforce- which I believe reflect the future ment efforts. break down the TPP’s text, by way of liability, in general; Part III will by which member-party courts example, to demonstrate the means to avoid the risk of wide-scale may utilize discretionary language will illustrate why steep civil reme- criminalization; and finally Part IV incentivize the growth of “cop- dies provided by TPP-like agreements scale and the means by which the yright trolls” on an international be averted. international copyright troll can II. C or lack thereof, between copyright producers and users under the TPP or lack thereof, between copyright that the TPP benefits producers have led to much criticism on grounds of widespread criminalization of most heavily at the potential expense 38980-swt_23-2 Sheet No. 19 Side B 05/15/2017 13:59:36 B 05/15/2017 19 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 20 Side A 05/15/2017 13:59:36 & 333 ROP- P Pro- 67, 74 29 NTERNET I (Nov. 23, 2014, FOR Megaupload . 28 RIMINOLOGY TR NTELLECTUAL I ERALD , C Trade Secrecy and the Trans- . L. & C , N.Z. H If the TPP’s copyright RIM 31 ROSECUTING ., P UST , 102 J. C J Rethinking the Anti-Counterfeiting Trade Agree- TOF ’ EP According to the Department of Justice’s to the Department According 27 Likely, his conduct would be conceived as Likely, his conduct ., U.S. D note 12, art. 18.76; David Levine, 30 The Fall of The House of Dotcom Why Kim Dotcom Has a Case: The Truth Behind the Megaupload Indict- (Feb. 02, 2012, 2:07 PM), http://www.ibtimes.com/why-kim-dotcom-has- note 21. note 25, at 747-49. ATTLE ET AL IMES B supra . T , supra 5-6 (3rd ed. 2006); Miriam Bitton, US ERTY B ICHAEL L Criminal punishment is often justified as an effective means of means effective as an justified is often punishment Criminal ’ See TPP Full Text, supra 26 RIMES NT THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE However, the language provided by TPP’s copyright enforcement However, the language provided (Oct. 27, 2014, 4:26 PM), http://cyberlaw.stanford.edu/blog/2014/10/trade-secrecy-and- C , I Y ’ 29. Russell Blackstone, 30. Melanie Jones, 31. 27. Moohr 26. Watson, 28. M M K OC ment S (2012). 7:27 AM), http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11363084. ment’s Criminal Copyright Enforcement Measures case-truth-behind-megaupload-indictment-213963. Pacific Partnership Agreement: Secret Lawmaking Meets Criminalization trans-pacific-partnership-agreement-secret-lawmaking-meets. 2017] users. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 7 15-MAY-17 13:45 deterrence, regardless of whether it is applied against crimes commit- against crimes whether it is applied regardless of deterrence, or on the street. ted online provisions are any indication of future international copyright en- provisions are any indication of balancing by member coun- forcement efforts, a careful discretionary to prevent a clash between foreign tries would be vital in order The following parts will focus on obligations and domestic realities. the 21st century, the issues created the behavioral aspect of piracy in and the corrective discretion al- by aggressive criminal enforcement, by FTAs. lowed to member country courts 2006 Intellectual Property Manual, “criminal sanctions are often war- sanctions are Manual, “criminal Property 2006 Intellectual repeat and violators: the most egregious punish and deter ranted to groups . . . .” organized crime offenders, and large-scale so egregious as to justify the application of TPP’s criminal copyright to justify the application of TPP’s so egregious as enforcements. sanctions to piracy captains like provisions do not limit criminal Megaupload and Kim Dotcom—itinstead engulfs a larger segment of consumers. society: the everyday users and ceeds from his operations allowed him luxuries, some even beyond allowed him luxuries, ceeds from his operations he illegally dissemi- the many creators whose works those enjoyed by nated over the Internet. is perhaps an accurate example of those infringers that the Depart- example of those infringers is perhaps an accurate this manual. Kim had in mind when they drafted ment of Justice as a modern day often viewed by his supporters Dotcom, though number of works for exploited an astronomical Robin Hood, clearly other users financial benefit, and further incentivized his own personal by the U.S. files, even after several warnings to illegally share C Y 38980-swt_23-2 Sheet No. 20 Side A 05/15/2017 13:59:36 A 05/15/2017 20 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 20 Side B 05/15/2017 13:59:36 M K in , C Y , 89 RIMI- [Vol. 23 , 10 W. C U.S.A. 235, 253-254 Y This key finding ’ 37 OC S Other studies indicate However, as in the case 35 38 OPYRIGHT 163 (Christophe Geiger Ed., 2012). This American Copyright Life: Reflections on Copyright Alert Enforcement: Six Strikes and , 61 J. C ROPERTY Explaining Deviant Peer Associations: An Exami- . 317, 319 (2008). P EV R 233, 269-70 (2015). Learning from Copyright’s Failure to Build Its Future Learning from Copyright’s Failure to Build RTS OMPUTER NTELLECTUAL Deterrence and Digital Piracy: A Preliminary Examination of the Why Do ‘Good People’ Disregard Copyright on the Internet? Why Do ‘Good People’ Disregard Copyright I . C CI . S . J.L. & A note 34, at 253. Ken Burleson, OC OL This behavioral argument simply states that although This behavioral 34 supra , 26 S , 39 C . 43, 45-46 (2009). SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Ben Depoorter & Alain Van Hiel, see also NFORCEMENT OF NOLOGY EV ; E 36 Id. Id. See After years of studying the psychology of file sharers, scholars the psychology of file sharers, After years of studying Studies have shown that everyday users continue to illegally that everyday users continue Studies have shown . R Though a limited number of studies have attempted to draw a Though a limited number of studies Although proponents of copyright-related criminal sanctions are criminal sanctions copyright-related proponents of Although 33 32 35. Menell, 36. Scott E. Wolfe & George E. Higgins, 33. 34. 38. 37. Scott E. Wolfe et al., 32. Alexander Peukert, . L.J. 1299, 1309-1310 (2014); Peter S. Menell, . L.J. 1299, 1309-1310 (2014); Peter S. Menell, RIMINAL ND nation of Low Self-Control, Ethical Predispositions, Definitions, and Digital Piracy (2014). Privacy Harms I Role of Viruses C Age Re-Equilibrating Copyright for the Internet causal connection between the threat of criminal prosecution and its causal connection between the threat has consistently found that “the deterrent effect on users, research than severity.” threat of certainty is more important 334 A. the 21st Century Culture of The Piracy the culture do the crime,” do the time, don’t say, “if you can’t quick to than is much more complex file sharing behind illegal and mindset in a fascinating phenomenon There exists on the surface. what is seen conduct does not sharers, where the legality of their the minds of file downloaded con- hoarding stockpiles of illegally prevent them from tent. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 8 15-MAY-17 13:45 have pinpointed “moral disengagement” as one of the key reason for “moral disengagement” as one have pinpointed this behavior. download copyrighted content due to their perceived anonymity, the content due to their perceived download copyrighted nature of the con- of free media, and the intangible vast availability tent. of illegally sharing what is right from wrong, the act users understand as immoral, which in media is often not perceived and downloading file sharing. turn, does not dissuade illegal that low self-control is an influential determinant in the average users’ that low self-control is an influential choice to download illegally—similar to the common cause of drug abuse. copyright agreements, under the TPP and other enforcement-heavy enforcement is not the best pursuing deterrence through criminal indicates that adequate and firm notice, coupled with educational ef- indicates that adequate and firm they will not be spared when caught, forts to properly notify users that sharing. can one day conclusively curb file 38980-swt_23-2 Sheet No. 20 Side B 05/15/2017 13:59:36 B 05/15/2017 20 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 21 Side A 05/15/2017 13:59:36 335 Af- 42 . 485, 496- EV For exam- 41 L. R . 819, 827-29 (2014). ENT .-K ESOL HI R , 78 C ONFLICT J. C ARDOZO In order to examine whether the ag- In order to examine 40 , 15 C A Society of Suspects: The War on Drugs and Civil Liber- Law and Cultural Conflict 39 43 The Stop Online Piracy Act: The Latest Manifestation of a Conflict Carpe Omnia: Civil Forfeiture in the War on Drugs and the War on Robert C. Post, Steven Wisotsky, . L.J. 684, 686 (2014). T . S . (Oct. 2, 1992), http://www.cato.org/publications/policy-analysis/society-suspects- RIZ Steven Tremblay, NST I See Id. See generally See generally THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE , 46 A In retrospect, a “zero-tolerance” criminalization policy, combined In retrospect, a “zero-tolerance” An aggressive policy against end-users is not only detrimental to against end-users is not only An aggressive policy ATO 40. 41. Annemarie Bridy, 43. 42. 39. , C M K Ripe for Alternative Dispute Resolution 496 (2003). Piracy ties war-drugs-civil-liberties. with inadequate treatment, was arguably not the best policy for drug with inadequate treatment, was have the same disappointments in enforcement, and I believe it will enforcement. the context of international copyright 2017] commu- online to the provided of notice a lack there is where route is prompting criminalization the activity especially where nity, and centuries of As taught by behavior. in widespread deeply embedded that law popular culture, law is at odds with when legal philosophers: to enforce. will be difficult B. The War on Piracy the focus away from citizens, but it also shifts the welfare of everyday of digital piracy—thethe core problem created by thriving industry operations. large-scale piracy \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 9 15-MAY-17 13:45 gressive enforcement regime of copyrights will prove to be effective so regime of copyrights will prove gressive enforcement to draw a historical efforts, it is helpful as to justify its criminalization its outcomes. Though similar enforcement regime and comparison of a its causes and the approach taken digital piracy is a fairly novel issue, problem are not so different. For one, by world leaders to alleviate the and the approach taken by world the issues created by digital piracy, of drugs, namely, the “War leaders is eerily similar to the prohibition Nixon administration. on Drugs” policy created under the ter spending, on average, $7 billion per year on arresting and prose- ter spending, on average, $7 billion offenses related to marijuana alone, cuting 800,000 people for criminal a dent in cartel operations, and the the U.S. drug policy has barely put use of drugs altogether. ple, by facilitating individual enforcement through the criminal sys- ple, by facilitating individual enforcement such as steep fines and tem, and mandating harsher punishment against digital piracy mirrors the criminal sanctions, the TPP’s plan against victims of drug abuse. failed approach taken by the U.S. C Y 38980-swt_23-2 Sheet No. 21 Side A 05/15/2017 13:59:36 A 05/15/2017 21 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 21 Side B 05/15/2017 13:59:36 M K C Y 49 ATCH EPORT EPORT [Vol. 23 , IP W 301 R 301 R ROVISIONS PECIAL PECIAL P Every year, the Every year, 44 , 2015 S , 2015 S The USTR, a major The USTR, a 48 Chapter 18 further pro- 50 NFORCEMENT E EPRESENTATIVE EPRESENTATIVE R R Commercial scale under the TPP is Commercial scale under the TPP RADE RADE 51 RIMINAL In the 2015 report, USTR included five In the 2015 report, 46 C U.S. T U.S. T note 12, art. 18.77. A major reason for why these countries were A major reason 47 It further prioritizes countries based on how their It further prioritizes 45 FFICE OF THE FFICE OF THE O O 52 NALYSIS OF THE SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW A at 3-4. at 1-3. . at 1-4. N Id. Id. Id See TPP Full Text, supra Id. See generally Id. Id. See generally In an attempt to standardize and provide greater protection to In an attempt to standardize and The text of the TPP reflects a long history of the copyright prob- of the copyright a long history of the TPP reflects The text (a) or financial gain; and acts carried out for commercial advantage (b) commercial advantage or fi- significant acts, not carried out for prejudicial impact on the inter- nancial gain, that have a substantial owner in relation to the ests of the copyright or related rights marketplace. 51. 52. 49. 50. 48. 45. 46. 47. 44. (May 6, 2015), http://www.ip-watch.org/2015/06/05/confidential-ustr-emails-show-close-industry- involvement-in-tpp-negotiations/. 1 (2015), https://ustr.gov/sites/default/files/2015-Special-301-Report-FINAL.pdf. 1 (2015), https://ustr.gov/sites/default/files/2015-Special-301-Report-FINAL.pdf; William New, 1 (2015), https://ustr.gov/sites/default/files/2015-Special-301-Report-FINAL.pdf; Involvement In TPP Negotiations Confidential USTR Emails Show Close Industry copyright holders, Chapter 18 of the TPP introduced definitive provi- copyright holders, Chapter 18 of to criminalize anyone who is sions that require member countries scale.” found to infringe on a “commercial 336 III. A Repre- Unites States Trade between the the ongoing friction lem, and USTR finds that the the many countries (USTR) and sentative efforts. enforcement in their copyright inadequate \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 10 15-MAY-17 13:45 “practices have the greatest adverse impact (actual or potential) on the greatest adverse impact (actual “practices have products.” the relevant U.S. that their protection was because the USTR found included on the list the degree preferred insufficient, or at least not to of copyrights was and related industries. by copyright holders TPP participating countries on the Watch List: Canada, Chile, Mexico, countries on the Watch List: Canada, TPP participating Peru, and Vietnam. player in TPP negotiations, also places countries on the Watch List for player in TPP negotiations, also places against copyright infringers. their failure to use criminal sanctions vides that member countries must provide for criminal procedures and vides that member countries must . . . copyright or related rights penalties to be applied for “willful piracy on a commercial scale.” defined as: Office of the USTR publishes the Special 301 Report, highlighting publishes the Special 301 Office of the USTR and lax en- for their insufficient regulations “Watch List” countries forcement efforts. 38980-swt_23-2 Sheet No. 21 Side B 05/15/2017 13:59:36 B 05/15/2017 21 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 22 Side A 05/15/2017 13:59:36 337 on [DO], 17 de Although the goal 57 This subsection is an effective and is an effective This subsection 53 This language, for one, is not the type of This language, 54 note 12, art. 18.77 nn. 126 & 127. note 12, art. 18.77. Copyright Act, R.S.C. 1985, c. C-42, §Der- del Federal Ley (Can.); 29.21 58 17 U.S.C § 506 (2012); Anti-Counterfeiting Trade Agreement (ACTA), art. see also Jingjing Hu, Research On TPP “Intellectual Property Damages” And China’s Ap- North American Free Trade Agreement, U.S.-Can.-Mex., art. 1717, Dec. 17, 1992, North American Free Trade Agreement, U.S.-Can.-Mex., ; Our NAFTA neighbors, Mexico and Canada, for example, neighbors, Mexico and Canada, Our NAFTA See TPP Full Text, supra Id. See, e.g., TPP Full Text, supra See (2014) (unpublished Ph.D. dissertation, Peking University Law School), https://www The provision’s footnotes further particularizes on the key word footnotes further particularizes The provision’s , THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE 55 Memes To illustrate how low the TPP’s threshold for criminality actually To illustrate how low the TPP’s On its face, subsection (a) reiterates the widely adopted justifica- adopted the widely (a) reiterates subsection face, On its 56 58. 57. 56. 53. 54. 55. M K .law.berkeley.edu/files/Hu_Jingjing_-_draft-Research_On_TPP.pdf. proach echo de Autor [LFDA] [Federal Law on Copyright], Diario Oficial de la Federaci ´ Marzo de 1997 (Mex.). 32 I.L.M. 289 (1993). A. File Sharing and Potential for Widespread Criminalization: trend of Internet memes. An Internet is, one should turn to the recent 23(1) Dec. 3, 2010, 50 I.L.M. 243. 2017] criminal sanctions—wheretion for is car- infringement the copyright benefit. for a commercial ried out \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 11 15-MAY-17 13:45 measurable and definitive language accustomed to by U.S. trade part- definitive language accustomed measurable and ners. is a “commercial infringement solely if there criminalize copyright this default standard subsection (a), but under gain” similar under under subsection need to prosecute activity that falls they would also (b). member countries have discretion to “substantial,” which states that as it would in the way its applied in either (1) interpret “substantial” countries; or (2) by taking into ac- criminal copyright cases in their value” of the infringement has a sub- count whether the “volume and interests. stantial impact on the copyright holder’s is to deter through tough consequences, if future international IP is to deter through tough consequences, in subsection (b), its vagueness and agreements reflect the provisions of individuals may very likely potential for wide scale criminalization and overcriminalization of lead to an over-deterrence of innovation ordinary users. often warranted tool to pinpoint large piracy operations that unjustly operations pinpoint large piracy tool to often warranted such as advertisements, through sources infringed content profit from applies crimi- (b) not only subsection fees. However, and membership but also to indi- large-scale copyright infringers, nal sanctions against acts” over the their “significant [non-commercial] viduals who, by against the interests “substantial prejudicial impact” Internet, create a holder. of the copyright C Y 38980-swt_23-2 Sheet No. 22 Side A 05/15/2017 13:59:36 A 05/15/2017 22 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 22 Side B 05/15/2017 13:59:36 . M K RT Do C Y . 1437, , A [Vol. 23 EV UARDIAN G , 55 UCLA L. R This would be the case This would be the 62 However, since Chapter 18 However, since 64 However, since a majority of since a majority However, 60 . (Feb. 12, 2015), https://www.eff.org/deeplinks/ The crucial component of a suc- component The crucial 59 OUND Although the meme creator’s intent Although the , https://www.merriam-webster.com/dictionary/meme; F 61 (2017) (defined as “an element of a culture or system of (2017) (defined as “an element of a culture Fortifying the Safe Harbors: Reevaluating the DMCA in a Typically in the U.S., a situation involving Typically in the . L.J. 437, 445-449 (2008). EBSTER 63 Substantially Modifying the Visual Artists Rights Act: A Copy- ECH RONTIER , ABA J. (Sept. 1, 2016), http://www.abajournal.com/magazine/ -W F T Posting an Internet Meme? You May Receive a Getty Letter Posting an Internet Meme? You May Receive Go to Prison for File Sharing? That’s What Hollywood Wants in the Go to Prison for File Sharing? That’s What ICTIONARY What made ‘Nasa Mohawk Guy’ such a successful meme?, What made ‘Nasa Mohawk Guy’ such a successful D ERRIAM ERKELEY ,M LECTRONIC Brandon Brown, XFORD E , 23 B , O SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Maira Sutton, Nicole Martinez, Kate Miltner, Richard J. Hawkins, see also See See See See Meme See Though the TPP’s threshold for criminalizing file sharing is low, Though the TPP’s threshold for 62. 64. 17 U.S.C. § 107 (1976). 60. 63. 59. 61. Secret TPP Deal, L.J. (Oct. 1, 2015), http://artlawjournal.com/internet-meme-getty-letter/; Lorelei Laird, L.J. (Oct. 1, 2015), http://artlawjournal.com/internet-meme-getty-letter/; Memes Violate Copyright Law? article/do_memes_violate_copyright_law. 1448-50 (2008). right Proposal for Interpreting the Act’s Prejudicial Modification Clause behavior passed from one individual to another by imitation or other non-generic means,” behavior passed from one individual to another humorous in nature). through an image, video or text and is generally 2015/02/go-prison-sharing-files-thats-what-hollywood-wants-secret-tpp-deal (discussing that if 2015/02/go-prison-sharing-files-thats-what-hollywood-wants-secret-tpp-deal (discussing will be copyrighted work is used, even if it is on a non-commercial scale, criminal sanctions imposed); see also Meme Web 2.0 World (Aug. 8, 2012), https://www.theguardian.com/commentisfree/2012/aug/08/nasa-mohawk-guy- bobak-ferdowsi-meme. 338 behavior “idea, some to express or video picture use of a is the meme mimicry. often through or style,” \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 12 15-MAY-17 13:45 here was not to receive a “commercial advantage,” the mere fact that receive a “commercial advantage,” here was not to act” that has a fall into the realm of a “significant it went viral can on the copyright holder. “prejudicial impact” copyright infringement through the use of memes would most likely through the use of memes copyright infringement it was used for mar- the “fair use doctrine” unless be protected under commercial purposes. keting or other memes incorporate copyrighted visuals or sound recordings, when the sound recordings, visuals or copyrighted memes incorporate to criminal it may be subject the creator of indeed go viral, meme does steep fines. prosecution and the success or dis- absolutely no financial gain from even if there was meme. semination of the does not incorporate the basic safeguards provided by U.S. copyright the basic safeguards provided does not incorporate signatory countries to agreements law, such as the “fair use doctrine,” need to draw out an enforcement that lack similar safeguards may not become compelled to enforce a plan with vigilance, so that they do that would not occur even large number of systematic prosecutions laws. under the most stringent U.S. copyright and their courts can prevent member countries to similar agreements a “balance in its copyright and widespread criminalization by striking cessful meme is how well it resonates with others, which in return with others, which it resonates is how well cessful meme to go viral. its ability demonstrates 38980-swt_23-2 Sheet No. 22 Side B 05/15/2017 13:59:36 B 05/15/2017 22 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 23 Side A 05/15/2017 13:59:36 ET 339 , ZDN Although the 70 This minimal wig- minimal This 65 Under the TPP and 72 Therefore, by increas- Therefore, 66 In addition, the TPP provides gui- 69 note 28, at 5-6. note 12, art. 18.77 n.127. note 12, art. 18.66. note 63. TPP: ISPs Will Hand Over Copyright Infringer Details 71 supra ., supra The permissive language provided here clearly shows The permissive 68 art. 18.77. arts. 18.62, 18.66. Courts can eliminate potential widespread criminalization Courts can eliminate . 67 Hawkins, ATTLE ET AL See id. See id. TPP Full Text, supra See id TPP Full Text, supra See THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE Whether through tracking the number of files that the file-sharer Whether through tracking the number 72. Corinne Reichart, 71. 70. 68. 69. 67. B 65. 66. M K (Nov. 6, 2015), http://www.zdnet.com/article/tpp-isps-will-hand-over-copyright-infringer-details/. B. of Illegal File Sharing Volume-Based Approach for Enforcement or by tracking the number of uploads through Peer-to-Peer software, IP address, Internet Service illegal files downloaded by a particular unprecedented access to the number Providers (ISPs) today have an user’s devices. of files that enter and exit the 2017] TPP. by the as encouraged system,” rights related \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 13 15-MAY-17 13:45 that the drafters intended to allow judicial authorities some flexibility that the drafters intended to allow in how they are to apply the law. dance on implementing “fair-use” protections for particular types of dance on implementing “fair-use” or adaptations. infringement that involve recreations of their citizens by first textually analyzing the negotiated language, by first textually analyzing the of their citizens example, footnote the exact discretion afforded. For and pinpointing that the ‘volume and states, “A Party may provide 127 of Chapter 18 account in determin- items may be taken into value’ of any infringing impact on the inter- act has a substantial prejudicial ing whether the in relation to the or related rights owner ests of the copyright marketplace.” discretion allowed under criminal enforcement is minimal, there are discretion allowed under criminal courts may have a fair amount of two types of infringing conduct that and (2) unlicensed re-adaptations control over: (1) illegal file sharing, or derivative works. pressure on ISPs to keep track similar agreements, there is a growing of copyright holders seeking of this data, and through the persistence gle room is key because such an aggressive minimum enforcement minimum such an aggressive is key because gle room crimi- countries to enforce compel member by default, will standard, to have can be proven where an individual to any case nal copyright holders’ interest. on the copyright an impact ing the standard, through careful discretionary balancing, member balancing, careful discretionary standard, through ing the to limit the prosecu- respective courts will be able countries and their as intended by only “the most egregious violators,” tion of its users to the DOJ. C Y 38980-swt_23-2 Sheet No. 23 Side A 05/15/2017 13:59:36 A 05/15/2017 23 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 23 Side B 05/15/2017 13:59:36 M K OF C Y . J. [Vol. 23 UR Willful- , 7 E 76 , Copyright Enforcement Therefore, if there is in , Reducing Digital Copyright In- 77 75 . 1345, 1351-53 (2004) (arguing that a EV . L. R TAN , 56 S note 15, at 457; Alexandra Giannopoulou note 74, at 1402. supra Mark A. Lemley & R. Anthony Reese supra 78 Sell, SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW see at 1403. at 1402-04. ; . (2012), http://ejlt.org/article/view/122/204. Though this growing invasion is definitely more intrusive is definitely this growing invasion Though By limiting enforcement efforts to each country’s “high-vol- efforts to each country’s By limiting enforcement 73 Id. Id. See generally Id. 74 ECH Second, if member country courts are able to determine the pre- Second, if member country courts First, member countries can avoid a miscarriage of justice First, member countries can Although drawing a rigid line to determine legality is not always a rigid line to determine legality Although drawing 77. 17 U.S.C. § 1291 (2012). 78. Lemley, 76. 75. 74. 73. combination of approaches will be most beneficial to limiting illegal file sharing and criminal prosecutions). Measures: The Role of the ISPs and the Respect of the Principle of Proportionality Measures: The Role of the ISPs and the Respect fringement Without Restricting Innovation L. & T cise volume of illegal file sharing to be considered criminal, they will cise volume of illegal file sharing to provide an ad-hoc analy- avoid wasting judicial time and resources unlikely that there will be a lot of sis for each individual case. It is through a volume standard by preventing the prosecution of those through a volume standard by copyright, [and] who genuinely who are “not in fact willfully infringing but instead, only prosecuting those believe that their conduct is legal,” of infringing activities. who partake in the highest volume 340 a longer is no device one’s and exiting entering data suit, the to file secret. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 14 15-MAY-17 13:45 ume” uploaders and downloaders, members can conform to minimum and downloaders, members can ume” uploaders of preventing wide- with the added benefit standards of enforcement of innocent infringers. scale criminalization than the intermediary involvement required before, it is nevertheless before, it is required intermediary involvement than the severity of to gauge the countries means for participating a beneficial of their a careful analysis This will require problem. their file-sharing public policy a balancing of coupled with file-sharing norms, country’s country. most egregious actors in each to determine the with a discretion- law, if this practice is coupled the best way to make can potentially scale proper notice to the public, it ary approach and of criminal prosecu- and decrease the number back illegal file sharing tions. fact evidence of a large volume of illegal uploads and downloads, then fact evidence of a large volume of uploaders are in fact en- it is “highly unlikely that these high-volume they were oblivious as to their gaged in legal conduct,” or that wrongdoing. ness, which is a prerequisite for criminal copyright infringement, can ness, which is a prerequisite for conduct. be inferred by the blatancy of one’s 38980-swt_23-2 Sheet No. 23 Side B 05/15/2017 13:59:36 B 05/15/2017 23 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 24 Side A 05/15/2017 13:59:36 83 82 79 341 Likewise, sufficient notice pro- Likewise, sufficient 81 note 12, arts. 18.74(8)-18.74(10). A recent study in Canada, for example, A recent study (May 25, 2015), http://www.huffingtonpost.ca/2015/05/21/online- 80 note 74, at 1413 (arguing that although the system can be gamed, it OST P Massive Drop In Canadian Online Piracy Under New Law, Copyright note 37, at 319. supra 84 supra UFFINGTON Lemley, at 1402-03. , H Id. See TPP Full Text, supra See Id. THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE Finally, by drawing a bright and clear line as to the precise vol- as to the precise and clear line by drawing a bright Finally, These three objectives not only prevent the widespread criminal- not only prevent the widespread These three objectives suggested here, like any Though the volume-based standard 84. 83. 80. Wolfe, 81. Daniel Tencer, 82. 79. M K does not necessarily mean that enforcement will become ineffective). Firm Says piracy-canada-ceg-tek_n_7372626.html. The threshold can potentially be manipulated if, for example, a mem- The threshold can potentially be provide notice that illegally sharing ber country’s judicial authorities that justifies criminalization, 1000 files is considered a “significant-act” limit their file-sharing to 999. How- thereby prompting file-sharers to would still be grounds for civil suit ever, illegally file-sharing 999 files for copyright holders to utilize. that allows a wide-range of remedies enforcement efforts since the risk of Therefore, it would not sterilize a deterrent inasmuch as criminal pun- steep civil damages can serve as ishment does. 2017] if the pre-estab- infringement of the severity as to the deliberation high. is set sufficiently criminal liability that triggers lished volume receive suffi- file-sharers will punishment, for criminal ume required which in against them, of punishment as to the certainty cient notice previously, stud- effective deterrent. As mentioned itself serves as an is more impor- found that “the threat of certainty ies have consistently tant than severity.” \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 15 15-MAY-17 13:45 illustrates that a significant drop in Canada’s piracy is attributable to significant drop in Canada’s piracy illustrates that a to users by ISPs. notices forwarded vides unaware infringers the opportunity to check their systems to the opportunity to check vides unaware infringers can potentially be or not their activities online make sure whether found criminal. a bright-line but the attributed notice in providing ization of users, and innocence may better further distinction between criminality than an expensive witch hunt. serve to the benefit of rights holders potentially allow the threshold to be threshold-based regulation, may effects do not severely hinder the worked-around by infringers, its enforcement mechanisms. ongoing fight for stronger international C Y 38980-swt_23-2 Sheet No. 24 Side A 05/15/2017 13:59:36 A 05/15/2017 24 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 24 Side B 05/15/2017 13:59:36 M K Y ’ C Y OL The . P [Vol. 23 85 513, 522, Copyright UB , 20 UCLA RTS Given the Fair Use: An Af- 88 such as criti- . J.L. & P , Ohio State Univ.: 260 (1944). 87 LA . J.L. & A ROPERTY OLUM , 27 U. F P , 39 C U.S.’s fair use protections, ITERARY 92 L . (Feb. 17, 2014), https://library.osu.edu/blogs/cop- TR Normative theories regarding memes 89 . C 91 ES OPYRIGHT AND . 685, 688-91 (2015); Daniel P. Fernandez et al., R C EV Fair Use 101: Why Do We Need Fair Use AW O F . L. R , L OPYRIGHT ASH . C ALL First World Problems: A Fair Use Analysis of Internet Memes IB Fair Use and the New Transformative . L , 90 W G. B Under this test, U.S. courts evaluate a question of fair Under this test, U.S. courts evaluate The U.S. fair use protections allow parties to use copy- protections allow parties to The U.S. fair use NIV 90 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW . 235, 244 (2013). 86 Jessica Meindertsa, U . at 256. ORACE EV See Id TATE Once a copyright holder demonstrates a likelihood of success on holder demonstrates a likelihood Once a copyright In the U.S., the Copyright Act of 1976 affords creators of deriva- creators of Act of 1976 affords the Copyright In the U.S., S . L. R 88. 17 U.S.C. § 107 (1976). 89. 87. Brian Sites, 92. 90. Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1163 (9th Cir. 2007). 91. Ronak Patel, 85. 17 U.S.C. § 107 (1976). 86. H HIO NT O 534-36 (2016). yright/2014/02/17/fair-use-101-why-do-we-need-fair-use/; Lydia Pallas Loren, firmative Defense? Infringement and the Fair Use Defense: Navigating the Legal Maze E 135, 138 (2016). an infringement claim, the burden of proof shifts to the defendant to an infringement claim, the burden work meets the fair use four- show that her use of the copyrighted factor test. 342 C. Content Protection of User-Made for Fair Use The Need a vital and professional, both amateur content, tive or transformative liability without incurring content to re-create copyrighted privilege “fair use” protections. applicable purposes through for specific \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 16 15-MAY-17 13:45 and their relationship under the fair use analysis widely support the and their relationship under the individuals will almost always notion that memes created by everyday suits. be protected against infringement righted material for limited “transformative” purposes, righted material of the copyrighted content is trans- use by looking at: whether the use being used, the amount and substan- formative, the nature of the work the market impact on the infringed tiality of the portion used, and work by the infringing work. as evolved through the judicial process and codified in the U.S. Copy- as evolved through the judicial process U.S. where copyrights are afforded right Act, show that even in the lengthy duration of copyright protection, fair use serves as a vital ex- of copyright protection, fair use lengthy duration rationale of copy- to serve the fundamental policy ception, intended innovation for the progress, creativity, and right law, “to promote as a whole.” benefit of society fair use defense is a “privilege in others than the owner of the copy- is a “privilege in others than the fair use defense manner without copyrighted material in a reasonable right to use the consent.” cism, comment and parody, without incurring liability. and parody, without incurring cism, comment 38980-swt_23-2 Sheet No. 24 Side B 05/15/2017 13:59:36 B 05/15/2017 24 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 25 Side A 05/15/2017 13:59:36 A- 343 C OPY- Q. 14, C HE ALL T , 34 T . 105, 124 (2012); EV OUNDATIONS OF Fair dealing, in Fair dealing, F 94 93 L. R L ’ NT Memes and GIFs: A New Cul- HOOK THE S . U. I M Citizens from these member Citizens from these ANADA , 28 A 96 C The U.S. Proposal for an Intellectual Property (Oct. 1, 2013), http://www.socialmedialawbulle It merely provides exemptions to spe- It merely provides OURT OF What the Trans Pacific Partnership Means for Fans What the Trans Pacific Partnership Means 95 C ULLETIN The TPP further lists out some safe- The TPP further lists out some 100 L. B UPREME note 12, art. 18.66. note 12, art. 18.77; Daniel Daniele, S EDIA Fair Use 2.0: The Rebirth of Fair Dealing in Canada, in Fair Use 2.0: The Rebirth of Fair Dealing in Canada, M The Trans-Pacific Partnership Free Trade Agreement 93-156 (Michael Geist ed., 2013) (analyzing the Canadian Copyright 93-156 (Michael Geist ed., 2013) (analyzing As cultural expression takes on new forms and As cultural expression takes on Although the use of copyrighted content often Although the 98 AW 97 OW THE OCIAL L note 94, at 93-94, 139-40. : H , S , Ariel Katz, 99 supra NADIAN Jean Dryden, RIGHT . at 138. OPYRIGHT TPP Full Text, supra Id See Id. TPP Full Text, supra Id. See, e.g. ENTALOGY C THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE As with the judicial flexibility allowed under the criminal enforce- As with the judicial flexibility allowed Though fair use is a highly cherished defense in the U.S., many in the U.S., cherished defense fair use is a highly Though P 98. 95. Katz, 96. 97. 99. 93. 94. 100. M K tural Phenomenon 14-15 (2016). (Nov. 13, 2015), http://www.transformativeworks.org/what-trans-pacific-partnership-means-fans/. Organization for Transformative Works, tin.com/2013/10/memes-and-gifs-a-new-cultural-phenomenon/. Act and Fir Use defense); Sean M. Flynn et al., Act and Fir Use defense); Sean M. Flynn et Chapter in the Trans-Pacific Partnership Agreement ment section, the TPP also expressly encourages member countries to ment section, the TPP also expressly in its copyright and related rights sys- “achieve an appropriate balance or exceptions . . . including those for tems . . . by means of limitations the digital environment.” 2017] memes such as expression for cultural vehicles protections, expansive protecting. uses are worth transformative and other international IP-related the TPP and other countries to participating but instead use protections, U.S. style fair do not follow agreements dealing.” known as “fair alternative model utilize an \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 17 15-MAY-17 13:45 cifically enumerated uses of copyrighted works, allowing them safe- uses of copyrighted works, cifically enumerated liability. guards against infringement stems from innocuous purposes, the potential for a meme to become purposes, the potential for stems from innocuous liability—duegrounds for criminal prejudicial im- to its “substantial pact”—poses for the evolving nature of cul- troubling consequences tural expression. to the rapid growth and expansion of becomes more easily shared, due language such as “significant non- the Internet, liability-triggering be balanced with greater fair use commercial acts” should at least protections. countries, with limited or no protections, are at a far greater risk for or no protections, are at countries, with limited countries with fair agreements than those from suit under TPP-like use protections. harbors that countries may use to exempt individuals from civil and harbors that countries may use contrast, is not an open-ended concept and is applied too rigidly to an open-ended concept and is applied contrast, is not times. keep up with changing C Y 38980-swt_23-2 Sheet No. 25 Side A 05/15/2017 13:59:36 A 05/15/2017 25 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 25 Side B 05/15/2017 13:59:36 M K C Y [Vol. 23 If the 103 : ACTICS 105 T ETTLEMENT S For further clarification, footnote clarification, For further 101 BUSIVE A ROLL T note 12, arts 18.65-18.66. Though this section does not expressly state that not expressly this section does Though supra , The third paragraph of “Article 18.74: Civil and Ad- The third paragraph of “Article 102 AMAGES AND 104 OPYRIGHT Paragraph five states that “each party shall provide that Paragraph five states that “each D . art. 18.74. C 106 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW . n.79. HE TEEP Id. Id. See id TPP Full Text Id. Id T Although the language “damages adequate to compensate for the Although the language “damages The final version of the TPP’s civil damages provisions nearly The final version of the TPP’s Each Party shall provide that, in civil judicial proceedings, its judi- Each Party shall provide that, in civil least to order the infringer to cial authorities have the authority at to compensate for the injury pay the right holder damages adequate of an infringement of that per- the right holder has suffered because an infringer . . . . son’s intellectual property right by 105. 106. 104. 103. 101. 102. . . . its judicial authorities have the authority to order the infringer ...... its judicial authorities have the authority to order the infringer ministrative Procedures and Remedies,” states the following: ministrative Procedures and Remedies,” injury” is fairly ambiguous, the following two paragraphs attempt to injury” is fairly ambiguous, the damages that would be considered create guidance as to the sorts of adequate. mirrors other existing and proposed international enforcement mea- mirrors other existing and proposed country courts are to calculate sures with respect to how participating copyright infringement claims by damages in civil proceedings for rights owners. 344 criticism; as . . . such purposes “legitimate including: liability, criminal [and] news reporting.” comment, \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 18 15-MAY-17 13:45 79 following this section states, “a use that has commercial aspects that has commercial states, “a use this section 79 following a legitimate to have be considered circumstances may in appropriate . . . .” purpose protected or works should be copyrighted use of underlying individual it is reasonably in- U.S. style fair use exceptions, be provided with to be exhaustive. provided are not meant ferred as the examples and Related Rights titled “Balance in Copyright Rather, this section guidance and flexibil- member countries some Systems,” is to provide for qualified cop- such as fair use defenses ity in providing safeguards, balanced against the the otherwise unlawful use is yright uses, where holder. prejudice” to the copyright degree of “unreasonabl[e] TPP’s provisions are indeed resurrected into future international cop- are indeed resurrected into future TPP’s provisions integrated into fu- the above discretion should be yright agreements, for member as it provides for an optimal opportunity ture agreements for individual protection. country courts to create better safeguards IV. S 38980-swt_23-2 Sheet No. 25 Side B 05/15/2017 13:59:36 B 05/15/2017 25 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 26 Side A 05/15/2017 13:59:36 345 110 REE F ATH TO P . 499, 508-13 (2011) US L. & B L ’ NT ARTNERSHIP AND THE 113 . J. I P W creates an opportunity for copy- creates an opportunity ACIFIC , 31 N . L.J. 61, 87 (2016) (explaining the importance of 112 -P CAD RANS Toward a Regulatory Model of Internet Intermediary Lia- Toward a Regulatory Model of Internet Intermediary . A As a general argument, using “market argument, As a general T ING HE 108 T Statutory Damages for Use of a “Counterfeit Trade Mark” and The threat of large court ordered damages, as The threat of large note 12, art. 18.74(6)-(10). in 276 (Peter C.Y. Chow ed., 2016). , 28 S , Further, paragraph four allows courts the added allows courts the paragraph four Further, 111 107 The Case for Flexible Intellectual Property Protections in the TPP: How The Case for Flexible Intellectual Property Protections ACIFIC However, the following provisions go further and following provisions go further However, the P 109 SIA A David Llewellyn, Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Cir. 2013); West Bay One, Inc. v. Righthaven LLC v. Hoehn, 716 F.3d 1166 (9th Sony BMB Music Entm’t v. Tenebaum, 719 F.3d 67 (1st Cir. 2013); Capitol Records Sony BMB Music Entm’t v. Tenebaum, 719 F.3d Christopher M. Swartout, See See See TPP Full Text, supra Id. Id. see also THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE A major problem with opening up the international arena to inte- A major problem with opening up 113. 112. 111. 110. 107. 108. 109. Ching-Yi Liu, M K RADE IN THE bility: File-Sharing and Copyright Enforcement for Copyright Infringement in Singapore: A Radical Remedy in the Law of Intellectual Property or One in Need of a Rethink Enid Eddings, 1:10-cv-00481-RMC (2010); Righthaven LLC v. Democratic Underground LLC, Enid Eddings, 1:10-cv-00481-RMC (2010); Righthaven v. DiBiase, 98 U.S.P.Q.2d 1598 (D. Nev. 2011). 791 F. Supp. 2d 968 (D. Nev. 2011); Righthaven prac- (explaining how exceedingly high damages create the conditions for coercive settlement tices); Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045 (D. Minn. 2010). Inc. v. Thomas-Rasset, 680 F. Supp. 2d 1045 can the US do it Correctly? in maintaining caps on the amounts that Singapore courts may award for infringement claims order to “avoid the possibility of Singapore becoming an attractive destination for copyright of trolls whose business model is based on mass threats of litigation resulting in the extortion excessive amounts from unsophisticated infringers”). state that judicial authorities are required to compel defendants to pay authorities are required to compel state that judicial addition to any stat- fees, court filing fees, in the prevailing attorney’s the infringement. damages resulting from utory or pre-established T This is where the damages for an illegally downloaded album can damages for an illegally downloaded This is where the grow astronomically. A. of Thriving Conditions Copyright Trolls: The Creation allowing copyright holders to bring grated enforcement measures and with ease, is the possibility of in- suit against international defendants problems that persist in originating fecting other countries with legal 2017] to attributable that are profits infringer’s the holder the right to pay the infringement.” \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 19 15-MAY-17 13:45 illustrated by several U.S. cases, illustrated by several discretion to use “the value of the infringed goods or services mea- goods or services of the infringed to use “the value discretion as a means retail price” or the suggested the market price, sured by damages. for measuring means of predictable arguably reasonably a common, and price” is measurement. right holders to make a “quick buck” through out-of-court settle- make a “quick buck” through right holders to introduce foreign opportunity for exploitation may ments, and this countries to the copyright troll problem. C Y 38980-swt_23-2 Sheet No. 26 Side A 05/15/2017 13:59:36 A 05/15/2017 26 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 26 Side B 05/15/2017 13:59:36 . M K L. EV C Y . L. AL One OWA L. R [Vol. 23 120 HAP , 100 I 86 S. C A copyright , 18 C 115 This often-successful . (Aug. 5, 2015), https://www.eff 121 IP as Metaphor OUND F RONTIER F Copyright Trolling, an Empirical Study Thus it can be said that the plaintiff here Thus it can be said 117 The Uneasy Case Against Copyright Trolls, note 115, at 1119-21, 1135-36. 119 LECTRONIC note 12, arts. 18.2-18.3, 18.67, 18.72, 18.74(1), 18.76. , E The main type of copyright trolls in the U.S. trolls in the type of copyright The main supra New TPP Leaked Text Reveals Countries’ Weakening Resistance to New TPP Leaked Text Reveals Countries’ Weakening 116 note 115, at 732. note 115, at 736-38; Brian L. Frye, note 115, at 1113-16. note 115, at 1111. Member country courts, however, should limit the Member country courts, however, supra supra supra supra 118 One problem that has drawn major criticism from copy- criticism major drawn that has problem One 114 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Sag, Sag, Jeremy Malcolm, See id. See See TPP Full Text, supra See See However permissible or legally tolerated the copyright troll However permissible or legally . 723, 738-39 (May 2013); Matthew Sag, . 1105, 1112-14, 1120 (2015). 121. 120. 119. 115. Shyamkrishna Balganesh, 118. Balganesh, 117. 116. Balganesh, 114. EV EV R R 735, 751-52 (2014-2015); Sag, .org/deeplinks/2015/08/new-tpp-leaked-text-reveals-weakening-resistance-maximalist-proposals. Copyright Maximalist Proposals abuse of the settlement system by using any authorized discretion to abuse of the settlement system by copyright holders, set maximum caps reserve the right to sue to only out of court settlement offers as on damages, and define aggressive “abuse” when permitted. right experts is the persistence of the copyright troll. of the copyright is the persistence right experts scheme may be, it encourages copyright holders to take advantage of scheme may be, it encourages copyright themselves and the defendant, thus the imbalance of power between of out of court settlements. allowing them to abuse the process 346 countries. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 20 15-MAY-17 13:45 can be described as a third-party entity who solicits litigious copyright solicits litigious entity who as a third-party can be described online, and upon for possible cases of infringement owners, searches “troll” acquires a infringement, the third-party discovering a potential to pursue its claim of copyright from the owner partial assignment right. under that particular entity with merely a owner per se, but rather, an is not the copyright large damages, ex- opening the arena to threats of right to sue. By making it easier for of copyright protection, and tending the duration measures invite found liable, imbalanced copyright individuals to be to coerce individuals right to sue the opportunity entities with a mere out-of-court settle- pocketbooks through aggressive to pry open their ment offers. settlement tactic, which relies heavily on the reality that both individ- settlement tactic, which relies heavily troll refers to “an entity whose business revolves around the system- revolves around whose business to “an entity troll refers a limited it has acquired copyright in which enforcement of atic legal interest.” ownership thing copyright trolls have in common is that they propose a settle- thing copyright trolls have in common backed up by a threat to litigate ment, seeking disproportionate fines, is threatened to be far greater than in court, where the amount sought offer. the amount proposed by the settlement 38980-swt_23-2 Sheet No. 26 Side B 05/15/2017 13:59:36 B 05/15/2017 26 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 27 Side A 05/15/2017 13:59:36 . EV 347 123 130 . L. R OLO , 85 U. C . 79, 98 (2012) (citing Julie E. In no way would this . L.J. 1, 17 (2006)). EV EO 128 . L. R NT , 95 G 126 note 113, at 513. , 19 UCLA E supra note 12, art. 18.2. note 12, art. 18.69(1). note 113, at 83. note 113, at 509. Copyright Trolls and Presumptively Fair Uses Likely, even defendants with a strong chance of with a strong chance even defendants Likely, Shedding Light on Copyright Trolls: An Analysis of Mass Copyright note 113, at 513. 122 supra supra Since settlements take place away from the public Since settlements What makes this even more troubling is that a large What makes this even more troubling supra 125 127 Judicial authorities of member countries should therefore Judicial authorities of member countries arts. 18.3, 18.71(1), 18.72(15), 18.75. it is not enough incentive for individuals to risk going incentive for individuals to it is not enough . at 1113, 1116; Swartout, 129 Llewellyn, Swartout, 124 See id. See TPP Full Text, supra See See See TPP Full Text, supra See id Pervasively Distributed Copyright Enforcement THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE For example, the following provision (Article 18.3), if incorpo- For example, the following provision The main problem with this business model is that such lawsuits The main problem with this business Although the TPP provides language that gives individuals basic gives individuals language that the TPP provides Although Tactics 130. 129. 126. 127. James DeBriyn, 128. Brad A. Greenberg, 125. 123. Swartout, 124. 122. M K Litigation in the Age of Statutory Damages 53, 72-79 (2014). Cohen., eye, they therefore fall short of providing notice of the repercussions fall short of providing notice eye, they therefore to the public at large. of infringement TPP and similar agreements in the utilize discretion allowed under the system and alleviating the imbal- interest of maintaining a fair court abusive damage measurements. ance created by the potentially through trial for the slight chance of earning the ability to recover the slight chance of earning the through trial for perspective, the fees. Additionally, from a policy attorney and court deter others from settlements arguably do not quiet nature of private infringement. even reach the injured party, but cut of purported damages do not party trolls. rather fall in the hands of third rated in future international agreements and actually exercised by rated in future international agreements B.Preventing Abusive Settlement Restricting the Right to Sue and “are used to encourage quick are not intended to deter, but instead settlements.” 2017] to avoid alternatives often seek holders and copyright ual defendants troll doors for the copyright opens the process, further the judicial to thrive. industry of enforcement pro- the copyright holder’s misuse protection against cedures, \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 21 15-MAY-17 13:45 scenario be “conducive to social and economic welfare, and to a bal- scenario be “conducive to social as the TPP’s objective attempted to ance of rights and obligations” establish. prevailing over the plaintiff would rather settle for a discount than risk settle for a discount would rather over the plaintiff prevailing fees. and court in addition to attorney damages, paying greater C Y 38980-swt_23-2 Sheet No. 27 Side A 05/15/2017 13:59:36 A 05/15/2017 27 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 27 Side B 05/15/2017 13:59:36 M K C Y [Vol. 23 prevent the abuse of prevent the Righthaven v. Hoehn: Bad News for or the resort to practices or the resort By utilizing these two discretionary By utilizing these 131 133 .” sufficient degree of certainty that the appli- sufficient degree note 115, at 739; Benjamin Marks, The model followed by the Ninth Circuit can serve The model followed by the Ninth 360 (May 21, 2013, 12:54 PM), http://www.law360.com/articles/443335/ 137 AW supra Righthaven, LLC, who is known to commentators as a Righthaven, LLC, who is known , L For example, this can be accomplished through the incor- can be accomplished through the For example, this arts. 18.72(1), 18.75(2). 135 132 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW art. 18.75(2) (emphasis added). . art. 18.3 (emphasis added). However, the Ninth Circuit found that in order to have stand- However, the Ninth Circuit found See id. Id. See id. Id 134 The matter of individual injury and whether copyright trolls have The matter of individual injury and In addition, courts should be insistent on making sure that the should be insistent on making In addition, courts Appropriate measures, provided that they are consistent with the are consistent with that they measures, provided Appropriate to may be needed of this Chapter, provisions rights holders property rights by intellectual affect the interna- trade or adversely restrain which unreasonably technology. tional transfer of 136 133. 134. 135. Righthaven LLC v. Hoehn, 716 F.3d 1166, 1168, 1171 (9th Cir. 2013). 136. Balganesh, 137. Righthaven LLC, 716 F.3d at 1169 (quoting 17 U.S.C. §501(b) (2000)) (citing Silvers v. 132. 131. Copyright Trolls righthaven-v-hoehn-bad-news-for-copyright-trolls. Sony Pictures Entm’t, Inc., 402 F.3d 881, 890 (9th Cir. 2005)). notorious copyright troll, had followed the well-known practice of ac- notorious copyright troll, had followed for the mere purpose of filing quiring a limited, revocable license suit. ing, Righthaven needed to be the exclusive rights holder under the ing, Righthaven needed to be the Copyright Act. poration of provisions such as “Article 18.75: Provisional Measures,” such as “Article 18.75: Provisional poration of provisions to require the ap- authorities have the authority which states, “judicial evidence in order to any reasonably available plicant . . . to provide with a satisfy themselves cant’s right is being infringed cant’s right is being proper standing was recently deliberated in the Ninth Circuit, where proper standing was recently deliberated is merely assigned a right to file suit the court held that an entity who infringement because it was not the does not have standing “to sue for in the news articles required for owner of any of the exclusive rights standing.” 348 copyright the to prevent so construed can be courts, party member which states: countries, in their respective troll problem or an official repre- is in fact the copyright holder party bringing suit sentative. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 22 15-MAY-17 13:45 provisions, courts may be able to define “abuse” to include coercive may be able to define “abuse” provisions, courts the party bringing suit be able to settlement offers, and further require party through a demonstration of identify themselves as the injured the language “applicant’s right” indi- the legitimacy of their claim. As to require that the applicant be the cates, the TPP allows for courts the rights violated are in fact her one to bring suit, and to show that own. 38980-swt_23-2 Sheet No. 27 Side B 05/15/2017 13:59:36 B 05/15/2017 27 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 28 Side A 05/15/2017 13:59:36 349 ONCLUSION THE TPP AND BEYOND: THE VITAL ROLE OF JUDICIAL DISCRETION OF JUDICIAL ROLE THE VITAL BEYOND: TPP AND THE Though, on its face, the TPP’s aggressive minimum standard of the TPP’s aggressive minimum Though, on its face, actually exercised, the turning However, even if discretion is M K 2017] con- unfavorable the and given courts, country member model for as a coun- that other member it is unlikely of copyright trolling, sequences limit these a decision to avoid making deliberately tries would tactics. coercive V. C its discretionary stirred a lot of debate and criticism, enforcement has it be for adopting been given enough credit. Whether language has not of fair-use criminal enforcement, implementation new standards of many key terms open damages, the TPP leaves policies, or calculating in its current form, application. Although the TPP, to discretionary past, its carefully and more as a thing of the begins to look more limitations and that allow member parties certain crafted concessions and the TPP, dis- not be ignored. As with TRIPS flexibilities should provisions will continue to cretionary safeguards in IP enforcement a party. Thus the key question is not exist, especially where the U.S. is to enjoy similar discretions in whether member parties will continue they will actually make use of them. the future, but instead whether enforcement in the following years point for international copyright countries to similar agreements and will depend on whether member fit their needs and demands while their courts will be able to better of enforcement. This can only be conforming to minimum standards of producer rights and individual in- achieved through a fair balance realities of normative enforcement terests, while keeping in mind the measures. \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 23 15-MAY-17 13:45 C Y 38980-swt_23-2 Sheet No. 28 Side A 05/15/2017 13:59:36 A 05/15/2017 28 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 28 Side B 05/15/2017 13:59:36 M K C Y \\jciprod01\productn\S\SWT\23-2\SWT202.txt unknown Seq: 24 15-MAY-17 13:45 38980-swt_23-2 Sheet No. 28 Side B 05/15/2017 13:59:36 B 05/15/2017 28 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 29 Side A 05/11/2017 09:52:06 R R R R R R R R R R R R ... 364 ...... 363 ...... 367 Michelle Lewis* ...... 361 ...... 363 CALES S ONSENT ...... 360 C ROADER ...... 370 B VALUATED 351 E FFIRMATIVE HELP CLOSE THE GAP HELP CLOSE A SEXUAL ASSAULT: HOW ASSAULT: SEXUAL ...... 370 ONSENT ONSENT ON AFEGUARDS ...... 351 ...... 357 C C S ...... 372 AFFIRMATIVE CONSENT CAN CONSENT AFFIRMATIVE ...... 368 UNIVERSITY ADJUDICATION OF ADJUDICATION UNIVERSITY Lawsuits by the Accused & Due Process Lawsuits by the Accused & Due Considerations Psychology Supports Affirmative Consent Psychology Supports Affirmative England Reforms Consent Standards Consent Canada’s Implementation of Affirmative the University Applying Affirmative Consent at Level FFIRMATIVE FFIRMATIVE ONCLUSION ACKGROUND ROCEDURAL NTRODUCTION MPLEMENTATION OF A. A. A. B. A. NTRODUCTION What appears to be an everlasting game of legislative tug-o-war What appears to be an everlasting I. I * J.D. Candidate, May 2017, Southwestern Law School. I would like to thank my family II. B V. I VI. P III. A IV. A M K VII. C regarding university adjudication of sexual assault has put an immense regarding university adjudication involved. Many wonder, why do uni- strain on the backs of all parties such as sexual assault? In an versities investigate a criminal matter of students and maintain safe effort to deter gender discrimination en- environments on university campuses, several western countries acted laws that require universities to investigate and punish gender- and friends who provided feedback and helped throughout the entire writing process. I would and friends who provided feedback and helped throughout the entire writing process. I also like to thank the professors and staff members of Law Journal for making this possible. I. I \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 1 3-MAY-17 9:34 C Y 38980-swt_23-2 Sheet No. 29 Side A 05/11/2017 09:52:06 A 05/11/2017 29 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 29 Side B 05/11/2017 09:52:06 , M K C Y . U. M [Vol. 23 A NOF ’ SS A 3 These misaligned 2 We also traditionally 5 Most recently, in the United in the recently, Most 1 , RAINN, https://www.rainn.org/statistics/campus- , http://www.consented.ca/consent/what-is-consent/ D E (Jan. 28, 2015), http://www.cps.gov.uk/news/latest_news/ . ERV ONSENT S §2016);(West 67386 Criminal Code, R.S.C. 1985, c. C-46, C Why Don’t Canadian Universities Want to Talk About Sexual As- Why Don’t Canadian Universities Want to Talk ODE . C DUC ROSECUTION (Oct. 30, 2014), http://www.macleans.ca/education/unirankings/why-dont-ca P see also CPS and Police Focus on Consent at First Joint National Rape Confer- S . E ’ AL C SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW EAN Rachel Browne, In the context of sexual assault, it is common for society to sexual assault, it is common for In the context of ROWN Title IX of the Education Amendments Act of 1972, 20 U.S.C. §§ Title IX of the Education Amendments Act 1681–1688 (2012); 4 L C See Campus Sexual Violence: Statistics See AAU Climate Survey on Sexual Assault and Sexual Misconduct, See AAU Climate Survey on Sexual Assault See See See See What is Consent, AC HE 6 Applying laws and qualifications that do not reflect current reali- Applying laws and qualifications In a world where our laws are shaped by our actions, it is impor- our laws are shaped by our actions, In a world where 6. 3. 2. 1. 4. 5. ,M ,T efforts leave the victim, the accused, and the university at a major loss. the university at accused, and the victim, the efforts leave rights groups are legislatures, and victims’ Consequently, universities, correct the imbal- to conjure up solutions to independently trying ances—but one can get it quite right. it appears that no perceive the crime of rape and sexual assault to play out as a masked perceive the crime of rape and sexual attacks a helpless woman in the mid- man who ambushes and violently the typical understanding of con- dle of the night. However, neither actually occurs more often than sent nor sexual assault reflects what campuses today—neithernot between young adults on college do our laws. States, Canada, and the United Kingdom, cases of campus sexual as- cases of campus United Kingdom, and the States, Canada, a lack of often handled with rise, but are to be on the sault appear consistency—varyingand concern protection insufficient victim from accused. for the procedural safeguards to lack of understand ‘consent’ to mean “no means no.” understand ‘consent’ sexual-violence (last visited Feb. 28, 2017). § 153.1(2)(Can.); ence sault ties of society is arguably one of the biggest issues surrounding the ties of society is arguably one of of sexual assault. Many of the mishandling of university adjudication on university campuses around the sexual assault cases that take place people who know each other or who world are scenarios between two may initially agree to be intimate became acquainted at a party and (last visited Feb. 19, 2017). tant that current statutory definitions and standards reflect current so- statutory definitions and standards tant that current universities include made by legislatures and cietal needs. Efforts of sexual assault: is really at the heart of the crime redefining what consent. Sexual Offences Act, 2003, c. 42 (U.K.). nadian-universities-want-to-talk-about-sexual-assault/. 352 assault. as sexual such offenses based \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 2 3-MAY-17 9:34 http://www.aau.edu/Climate-Survey.aspx?id=16525 (last visited Feb. 27, 2017). http://www.aau.edu/Climate-Survey.aspx?id=16525 cps_and_police_focus_on_consent_at_first_joint_national_rape_conference/ (U.K.). 38980-swt_23-2 Sheet No. 29 Side B 05/11/2017 09:52:06 B 05/11/2017 29 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 30 Side A 05/11/2017 09:52:06 . FF 353 305 OWN , U. A T Criminal Code, OLLEGE C , Jan. 10, 2016, at ST1. see also IMES YSTEM IN A S , N.Y. T USTICE J Ending Sexual Violence on Campus & L. 395, 409 (2012); 8 There exists a gross misunderstanding a gross exists There 7 ENDER APE AND THE G : R OF Affirmative Sexual Consent in Canadian Law, Jurisprudence, of the entire sexual encounter. The affirma- of the entire sexual encounter. Most take place in the victim’s residence or Most take place 9 . J. Campus Sex . . .With a Syllabus ISSOULA Because of these gaping discrepancies and, not to Because of these gaping discrepancies note 8, at 292. 12 OLUM , M 11 duration supra , , 23 C UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY RAKAUER Lucinda Vandervort, Jessica Bennett, K But what makes sexual assault so unlike any other crime and sexual assault so unlike any other But what makes . RAKAUER ON 10 See See Id Because of this typical scenario of sexual assault, it would follow Because of this typical scenario A recent survey of more than 4,000 Canadian college women of more than 4,000 Canadian A recent survey [Sexual assault] . . . is the only crime in which the victim is presumed . is the only crime in which the victim [Sexual assault] . . would we be was mugged in an alley . . . to be lying. If a person . . . because there weren’t any skeptical of the victim’s testimony eyewitnesses? A very old concept of rape prevails. According to this mind-set, prevails. According concept of rape A very old out A stranger jumps to rape: (1) only be two precursors there can up a the woman puts is no rape unless bushes; (2) There from the death if necessary. fight, to the 8. J 7. 9. Rosanna Tamburri & Natalie Samson, 12. 10. 11. K M K of acquaintance rape scenarios, as one scholar points out: as one scholar rape scenarios, of acquaintance off-campus living quarters and fewer than five percent are reported to quarters and fewer than five percent off-campus living police. mention, the significant psychological intricacies of sexual assault, the mention, the significant psychological both universities and govern- idea of affirmative consent is taking the current climate and misun- ments by storm in order to reconcile and Legal Theory so difficult to prove is that, so difficult to prove found that most rapes and attempted rapes occur when the victim is rapes and attempted rapes occur found that most partner, class- usually a boyfriend, former alone with the offender, mate, or acquaintance. verbal or nonverbal consent has that both parties understand that then maintain mutual consent been given and that the parties throughout the accuser and the accused to defend his tive consent ideal will allow the are no witnesses, by demonstrating or her position justly when there definitions of consent do not re- mutual participation. However, many to mean that sexual activ- flect this position, and are thus interpreted unless there is in fact denial ity is consensual between acquaintances or combat present. (2015). 2017] mind. their one changes until \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 3 3-MAY-17 9:34 R.S.C. 1985, c. C-46, § 265(3) (Can.); R. v. Jobdion, [1991] 2 S.C.R. 714, 715-17 (Can.) (the definition of consent in the sexual assault cases has previously been recognized in the Canadian Criminal Code as well as Canadian common law). (Oct. 20, 2014), http://www.universityaffairs.ca/features/feature-article/ending-sexual-violence- campus/. C Y 38980-swt_23-2 Sheet No. 30 Side A 05/11/2017 09:52:06 A 05/11/2017 30 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 30 Side B 05/11/2017 09:52:06 . M K C Y ENN [Vol. 23 (Aug. 29, IME equate to ,T do not § 609.341(4)(a) (2017); . § 13A-6-65 (2015); T Therefore, because NN The realization that 14 S.B. 967, 2013-14 Leg., Reg. ODE . A 17 The Neurobiology of Sexual As- The Crown Prosecution Service, . C TAT LA . S .A note 4; INN see also see generally supra But cf , In 1992, Canada changed its consent 16 ERVICE S note 12, at 411-12; (Dec. 3, 2012), https://nij.gov/multimedia/presenter/presenter- note 12, at 409-10. § 22-3001(4) (2017); M Campus Rape: The Problem With ‘Yes Means Yes’ ROSECUTION § 9A.44.010(7) (2016). supra ODE supra P . USTICE what equate to consent—instead what equate to of allowing varying J NN OF A ROWN are . C , D.C. C ODE NST HE laws should be revised to hold that active and enthusiastic revised to hold that active and laws should be e.g. Vandervort, SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Cathy Young, Vandervort, I T § 39-13-503 (2016) (providing examples of sexual assault statutes that refer to con- . C , . L 15 ’ EV NN See See See See See AT 13 Affirmative consent reform will help clear the murky waters sur- Affirmative consent reform will Opponents of affirmative consent believe that modifying consent consent believe that modifying Opponents of affirmative While sexual assault is far from a black and white issue, consent is white issue, consent from a black and assault is far While sexual . R note 4. . A ,N 17. 14. 15. 13. 16. ASH ODE supra however, there are many benefits to be afforded to the accused however, there are many benefits consent is one of the major issues surrounding the adjudication of sex- consent is one of the major issues for education codes to reflect affirm- ual assault underscores the need ative consent standards as well. of sexual assault—however,rounding university adjudication equality, must not escape new legislation fairness, and procedural safeguards legislation, such as the United and revised university policies. Federal correct an imbalance of gender dis- States’ Title IX, was enacted to against women in the work place crimination, namely, discrimination most statutes state that denial, combat, or silence that denial, combat, or silence most statutes state consent, laws to reflect affirmative standards, and most recently, the Crown laws to reflect affirmative standards, did the same. Prosecution Service in England participation triers of fact. run amok in the minds of applicable interpretations to favor of upholding victims’ rights—standards is yet another ploy in through consent reform as well. sault 2014), http://time.com/3222176/campus-rape-the-problem-with-yes-means-yes/. not. Universities can still put their best foot forward in making sure foot forward in put their best can still not. Universities what sexual assault match use to find sexual definitions they that the the traditional, legal actually look like. Not only are assault scenarios affirmative nature of at odds with capturing the definitions of consent opposite effect of but they also profoundly have the consensual sex, is lacking only if by construing that consent proving sexual assault of denial, combat, or silence. there is a presence campbell/pages/presenter-campbell-transcript.aspx; Sess. (Cal. 2014). C 354 broader on a consent and assault sexual surrounding derstandings scale. \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 4 3-MAY-17 9:34 sent, however, do not define consent). W 38980-swt_23-2 Sheet No. 30 Side B 05/11/2017 09:52:06 B 05/11/2017 30 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 31 Side A 05/11/2017 09:52:06 , N- 355 . I UB P In light of In light 19 ENTER FOR 22 ,C but they still have Apr. 2015), https://www2.ed 23 . ( DUC E Most university policies do Most university TOF ’ 21 Within its gamut, Title IX spe- Title its gamut, Within EP 18 , U.S. D (Sept. 29, 2014, 4:18 PM), http://www.huffingtonpost Many Universities Don’t Want You to Know How they OST P An Imperfect Process: How Campuses Deal with Sexual As- An Imperfect Process: How Campuses Deal with Regrettably, the strict implementation and ad- Regrettably, the A Lack of Consequences for Sexual Assault 20 For Students Accused of Campus Rape, Legal Victories Win Back For Students Accused of Campus Rape, Legal UFFINGTON Not only would procedural safeguards for the Not only would procedural ,H 24 Why Colleges Should Report Sex Crimes, Pronto, to Police and Prosecutors UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY . . Tovia Smith, TEGRITY (Aug. 28, 2015), http://www.chicagotribune.com/news/opinion/editorials/ct-sex-as . . See Id See Title IX and Sex Discrimination See id See id (Feb. 24, 2010, 12:00 PM), https://www.publicintegrity.org/2010/02/24/4360/lack-conse RIB Punishments rendered by universities are not nearly as severe as by universities are not nearly Punishments rendered , 15, 2015, 4:45 AM), http://www.npr.org/2015/10/15/446083439/for-students-ac NPR (Oct. , CNN (Dec. 21, 2015, 4:38 PM), http://www.cnn.com/2015/11/22/us/campus-sexual-assault- 20. 22. 23. Sara Ganim & Nelli Black, 18. 19. 21. 24. Kristen Lombardi, . T M K HI resulting in an abundance of lawsuits. resulting in an abundance those efforts, however, many of the current university policies only university many of the current however, those efforts, event that a in the to a complainant language that pertains contain is filed—but for sexual assault complaint of the accused not the rights or plan of recourse. the profound impact of encumbering the accused’s educational career the profound impact of encumbering however, expulsion remains to be and professional prospects. Notably, the accused in university sexual as- the most austere punishment for which does not warrant the use nor sault adjudication proceedings, constitutional due process rights af- necessarily afford the accused all forded in trial to criminal defendants—though opponents would as- sert otherwise. not contain language detailing clear guidelines about how sexual as- detailing clear guidelines not contain language the accused feel as are to proceed, which makes sault adjudications rights are falling by the wayside. though considerable cifically states that federally funded schools must investigate, punish, must investigate, funded schools states that federally cifically sexual assault. including gender-based offenses, and deter herence to outdated university policies indicate that the accused have university policies indicate that herence to outdated equation— left out of the sexual assault adjudication been completely accused be in the best interest of universities, but it would also help accused be in the best interest of sexual assault, and even reduce the with the process of adjudicating by the accused. backlash of lawsuits brought forth .com/2014/09/29/punish-sexual-assault_n_5894856.html. punishments rendered in criminal prosecutions, punishments rendered quences-sexual-assault; Tyler Kingkade, Punish Sexual Assault tribunals/; Editorial, Rights sault 2017] education. of higher institutions and \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 5 3-MAY-17 9:34 C .gov/about/offices/list/ocr/docs/tix_dis.html. cused-of-campus-rape-legal-victories-win-back-rights. sault-campus-crime-reporting-rape-police-edit-0830-jm-20150828-story.html. C Y 38980-swt_23-2 Sheet No. 31 Side A 05/11/2017 09:52:06 A 05/11/2017 31 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 31 Side B 05/11/2017 09:52:06 M K C Y And Out- [Vol. 23 So, if UARDIAN 28 (June 23, 26 ,G IME ,T Tyler Kingkade, (Aug. 12, 2016, 11:39), OST P see also The Law of Consent in Sexual As- However, statistics and sen- statistics and However, UFFINGTON While affirmative consent has 25 ,H 27 , Nov. 16, 2014, at SR1. , http://www.leaf.ca/the-law-of-consent-in-sexual- IMES UND F note 9. Sexual Assault Policies Lacking at Most Canadian Universi- , N.Y. T CTION supra (Mar. 7, 2016, 11:43 AM), http://www.cbc.ca/news/canada/british- . & A EWS Why Don’t Campus Rape Victims Go to the Police? Why Don’t Campus Rape Victims Go to the DUC Student Sues Oxford over Handling of Rape Complaints Student Sues Oxford over Handling of Rape Laura Kane, E Mishandling Rape EGAL , CBC N see also L S .; ’ SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Tamburri & Samson, Eliza Gray, See id See See OMEN Rising numbers of campus sexual assault cannot be traced back of campus sexual assault cannot Rising numbers Universities in the United Kingdom have yet to feel the repercus- to feel the have yet Kingdom in the United Universities ,W 26. Owen Boycott, 28. 27. 25. dated definitions of consent are at the root of this pervasive problem dated definitions of consent are for the accused significantly en- and inadequate procedural safeguards assault cases that currently plague able further mishandling of sexual sexual assault occur in the universities. Whether cases of university for comprehensive improvements is U.S., U.K., or Canada, the need of sexual assault will improve finally realized. University adjudication consent standards coupled with clear with the adoption of affirmative both parties to a sexual assault procedural safeguards that protect dispute. rising incidences of university sexual assault and their mishandling oc- of university sexual assault and rising incidences control the whether universities or local authorities cur regardless of changing university it follows that the need for matters exclusively, these mat- affirmative consent will help adjudicate policies to reflect ultimately deter them. ters efficiently and adjudicate but the means by which universities to one specific source, and structure. Because students’ them would provide more clarity it is important that universi- time on campuses is relatively short-lived, of sexual assault to uphold and ties investigate and reprimand cases foster a safe educational environment. been the national norm in Canada since 1992, the realization that uni- been the national norm in Canada policy is just now surfacing. versities must also enact similar timents amongst university students of rising incidences of sexual as- incidences students of rising amongst university timents is not the to local authorities the matter solely that leaving sault reveal best route either—largely agen- the police and government because manner. cases in an efficient or sensitive cies cannot resolve http://www.huffingtonpost.com/entry/rape-victims-report-police_us_57ad48c2e4b071840410b8d 6; Jed Rubenfeld, 2014), http://time.com/2905637/campus-rape-assault-prosecution/; 2014), http://time.com/2905637/campus-rape-assault-prosecution/; to Police People Ask Why Rape Victims Don’t Report assault/ (last visited Feb. 25, 2017). ties, Say Students sions from mishandling sexual assault complaints. This is partly due to This is assault complaints. mishandling sexual sions from should such as sexual assault, criminal matter, belief that a their strong to handle. for the police be left entirely columbia/canadian-universities-sex-assault-policies-1.3479314; sault (May 7, 2015, 8:07 AM), https://www.theguardian.com/law/2015/may/07/student-sues-oxford- rape-complaints-policy. 356 \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 6 3-MAY-17 9:34 38980-swt_23-2 Sheet No. 31 Side B 05/11/2017 09:52:06 B 05/11/2017 31 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 32 Side A 05/11/2017 09:52:06 , S- 357 ITLE A The T EOPLE 34 QUALITY P EXUAL , E (Aug. 2012), S OUNG NIT In 2006, the , Y U ILLIAMS AMPUS 30 C UIDANCE ABOUT W G HE RELAND I OLLY , T ]. P HALLENGE C 65-66 (Jan. 28, 2014), http://www ? ROVIDING USTICE ETTER ETWORK P J L see also N OF ITH IT QUALITY . ETTER W RISIS ,E O NST S L C I D L OLLEAGUE ’ APE HEI C AT OT TO ., R After exposure of this pervasive prob- After exposure EAR ., N OLLEAGUE G 31 C (Apr. 4, 2011), https://www2.ed.gov/about/offices/list/ocr/let- EAR ONSENT EELA ET AL note 34. ., D C In 2011, OCR sent out the famous “Dear Col- In 2011, OCR sent out the famous REBS ET AL S N ’ CHOOLS 32 AC DUC S supra HAT , E at 5-3 (Dec. 2007), https://www.ncjrs.gov/pdffiles1/nij/grants/221153.pdf. P. K M , : W TOF ’ UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY EX TUDY EP S ILLIAMS ´ ADRAIG P W SAULT Equality Act, 2010, c. 15, §§ 64-76 (U.K.); MPLICATIONS FOR COLLEGES AND . HRISTOPHER 33 However, unlike that of the U.S., nearly all discretion is left to However, unlike that of the U.S., ACKGROUND See Id See See Universities across the U.S., however, are no longer simply the U.S., however, are no Universities across 35 (CSA) S Similarly, the U.K. passed the Equality Act of 2010, which also Similarly, the U.K. passed the Equality Sexual assault is a serious crime and also serves as a form of sex serves as a form crime and also is a serious Sexual assault 29 EQUIREMENTS FOR 2010 I 35. 33. 34. 29. 20 U.S.C. §§ 1681-1688 (2012). 30. 31. C 32. U.S. D M K CT LCOHOL AND laws evolved to include sexual assault as a form of harassment and laws evolved to include sexual and investigate student allega- advocate that universities respond tions. National Institute of Justice conducted a study of campus sexual as- of Justice conducted a study National Institute reported attempted that only 19% of college women sault and found assault. or completed sexual lem, the Office of Civil Rights (OCR) has since enacted rigorous poli- Civil Rights (OCR) has since enacted lem, the Office of must follow when handling sexual cies and guidelines that universities assault complaints. league Letter,” which most notably required universities to use the league Letter,” which most notably standard of proof, a lesser standard, preponderance of the evidence evidence when adjudicating sexual instead of clear and convincing assault. http://www.ecu.ac.uk/wp-content/uploads/external/equality-act-2010-briefing-revised-08-12.pdf. universities without real oversight or repercussions—whichuniversities without real oversight result in procedure or confusing procedural either a total lack of policy and ters/colleague-201104.pdf [hereinafter D prohibits sex discrimination at institutions of higher education. prohibits sex discrimination at institutions discrimination on university campuses. Given the pressing needs for Given the pressing campuses. on university discrimination the United environment, learning to enjoy a hostility-free students which pro- Amendments, the 1972 Education Title IX of States passed educational institu- in any federally funded hibits sex discrimination tion. institutions of higher learning—butinstitutions of higher foster also environments that ripe conditions for partying that often create the heavy drinking and now prompt stricter regulations. sexual assault, which A IX R A 2017] II. B \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 7 3-MAY-17 9:34 .rcni.ie/wp-content/uploads/Whats-Consent-Full-A41.pdf. C Y 38980-swt_23-2 Sheet No. 32 Side A 05/11/2017 09:52:06 A 05/11/2017 32 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 32 Side B 05/11/2017 09:52:06 , M K 42 C Y The Not , USA LAN TO [Vol. 23 ULTURE NION OF 39 36 Sahm v. P C U L ’ AD Why I’m Suing AT CTION ,L ,N A N See generally 40 : A Most recently in TUDENTS 38 S KAY policies or regulations O Elizabeth Ramey, NION OF EVER any U N L S ’ ’ T AT see also , I N (Mar. 2015), http://docs.files.ontario.ca/docu 27 (May 7, 2015), http://www.telegraph.co.uk/women/ NTARIO see also Student Sexual Violence: ‘Leaving Each University to Student Sexual Violence: ‘Leaving Each University O (July 26, 2015, 2:27 PM), https://www.theguardian.com/ ARASSMENT ELEGRAPH Growing List of Colleges Facing Sexual Assault Lawsuits H 37 REMIER OF ,T note 28. UARDIAN P Due Process for Campus Sexual Assault is Not a Left/Right Issue ,G supra (July 9, 2015, 12:01 AM), http://www.washingtonexaminer.com/due-process- Kane, IOLENCE AND (2015), http://www.nusconnect.org.uk/resources/lad-culture-audit-report/down FFICE OF THE V SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW O Countries with universities on both ends of the spectrum are Countries with universities on both Anita Wadhawani, Ashe Schow, (July 27, 2015), https://www.nus.org.uk/en/news/press-releases/nus-announces-the- EPORT 41 XAMINER (Feb. 20, 2016), http://www.usatoday.com/story/news/nation-now/2016/02/20/growing- See NUS Announces the Next Phase of its Fight Against Lad Culture See NUS Announces the Next Phase of its Fight See See See, e.g., See EXUAL R At varying stages of enactment and implementation, universities’ of enactment and implementation, At varying stages Despite the implementation of affirmative consent in Canada’s of affirmative the implementation Despite . E S 37. 42. 39. 38. 36. Karen McVeigh & Elena Cresci, 40. Sexual Violence and Harassment Action Plan Act, S.O. 2016, c.2 (Can.). 41. ASH UDIT ODAY TOP TUDENTS far behind the U.S., the U.K is in the process of implementing more of implementing U.K is in the process the U.S., the far behind assault—withfor campus sexual requirements stringent affirmative on its agenda. consent 132, Sexual Violence in the 2016 passage of Bill action plan resulted accountable for Action Plan Act, holding universities and Harassment assault policies and procedures. implementing sexual 2015, Ontario published an action plan to stop campus sexual assault an action plan to stop campus 2015, Ontario published policies and proce- necessity that universities adopt that addressed the complainants. campus sexual assault and assist dures to combat facing backlashes from disgruntled students in the form of lawsuits. facing backlashes from disgruntled concerning incidences of university sexual assault. concerning incidences national criminal code, many Canadian universities are even further universities are many Canadian criminal code, national the U.S. and U.K, lacking behind those in in the fine details of the key issue: perfunctory efforts are deficient to tackle sexual assault efficiently consent. If universities are going must be outlined. Further, and correctly, proper consent definitions to policies coupled with unin- the lack of transparency and access profound effect of either dismissing formed administrators has had the and on the other end of the spec- valid complaints of sexual assault, their university without any real re- trum, expelling the accused from course. T womens-life/11588353/Rape-case-Why-Im-suing-Oxford-University.html. Deal with it Isn’t Working education/2015/jul/26/student-rape-sexual-violence-universities-guidelines-nus. for-campus-sexual-assault-is-not-a-leftright-issue/article/2567881. load_attachment. next-phase-of-its-fight-against-lad-culture/; Oxford University Over Rape S list-colleges-facing-sexual-assault-lawsuits/80689514/; S A 358 disputes. assault sexual resolve properly fail to that guidelines \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 8 3-MAY-17 9:34 ments/4136/mi-2003-svhap-report-en-for-tagging-final-2-up-s.pdf. W 38980-swt_23-2 Sheet No. 32 Side B 05/11/2017 09:52:06 B 05/11/2017 32 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 33 Side A 05/11/2017 09:52:06 47 45 359 do enough 46 note 36. On appeal, the On appeal, 44 did not supra Why Convictions in Sex Crime The judge ruled that the The judge 43 (Jan. 6, 2016), http://ucnet.university NET Additionally, prosecutors are Additionally, prosecutors 49 ,UC , 210 Cal. Rptr. at 484. McVeigh & Cresci, (Mar. 31, 2012, 10:19 a.m.), http://www.nydailynews Meredith Donovan, Most university students who complain Most university EWS 48 see also N see also AILY note 25; UC Implements New Student Model in Ongoing Progress Toward For these reasons, universities that implement For these reasons, universities 50 51 , EWHC at 4847 (Admin.). note 25; N.Y. D supra supra UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY Katherine Tam, State v. Daniel W. E., 142 A.3d 265, 280, 284-286 (Conn. 2016). State v. Daniel W. E., 142 A.3d 265, 280, 284-286 AZ v. Shinseki, Cir. 2013); State v. Navarro, 354 P.3d 731 F.3d 1303, 1313-14 (Fed. Gray, Kingkade, . . See See See See See Id Id See Oxford Univ. See Regents of the Univ. of California The inconsistencies and lack of proper definitions and guidelines The inconsistencies and lack of proper Overall, the crime of sexual assault is largely underreported. of sexual assault is largely Overall, the crime 50. 49. 51. 48. 47. 44. 45. 46. 43. M K court reversed and remanded the case in favor of the university. in favor of the the case and remanded court reversed university did not afford the accused adequate rights during the adju- rights during the accused adequate did not afford university judgment. dismissal of the resulting in a dication, reluctant to file sexual assault cases because of significant evidentiary reluctant to file sexual assault cases they are not very successful in ob- hurdles; when they do, however, taining convictions. of sexual assault do not go to local authorities because criminal prose- do not go to local authorities because of sexual assault and intrusive. cutions are too lengthy policies with affirmative consent models will be more equipped to of- policies with affirmative consent and efficient results without long, fer autonomy, sensitivity, fairness, public proceedings. Cases are so Hard to get, Addressing Sexual Violence and Sexual Harassment ofcalifornia.edu/news/2016/01/uc-implements-new-student-model-in-ongoing-progress-toward- addressing-sexual-violence-and-sexual-harassment-.html. morphed the adjudication of sexual assault into a revolving door with morphed the adjudication of sexual trying to play catch up with rising no easy solution. Universities are complaints of campus sexual assault—withefforts ranging from issu- students to flat out expulsions ances of no-contact orders between .com/opinion/convictions-sex-crimes-cases-hard-article-1.1053819. 22, 24 (Wash. Ct. App. Div. 1. 2015). Miami Univ., 110 F. Supp. 3d 774 (S.D. Ohio 2015); Doe v. Regents of the Univ. of California, Miami Univ., 110 F. Supp. 3d 774 (S.D. Ohio 2016); R. (on the application of Ramey) v. Oxford 210 Cal. Rptr. 3d 479, 484 (Cal. App. 4th Dist. Univ., [2014] EWHC 4847 (Admin). This is due to the very sensitive nature of the crime and the stereo- very sensitive nature of the crime This is due to the by society. types perpetuated 2017] the Uni- against ruled court district a San Diego the U.S., in Recently, of a ruling the dismissal Diego and ordered California San versity of of sexual assault. a student guilty that found Kingdom, a student University in the United Conversely, at Oxford in maintaining that the university was unsuccessful \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 9 3-MAY-17 9:34 to investigate her claim of sexual assault against a fellow student dur- claim of sexual assault against to investigate her her studies at their graduate school. ing the course of C Y 38980-swt_23-2 Sheet No. 33 Side A 05/11/2017 09:52:06 A 05/11/2017 33 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 33 Side B 05/11/2017 09:52:06 M K 54 EX- C Y S This [Vol. 23 58 R. v. J.A., EMALE F M.T.S., 609 A.2d see also ex rel. ISIONS OF ! V ES State Y While most laws do not While most laws 56 see also Butters v. James Madison Univ., No. ES MEANS , Y see also VALUATED ALENTI 20-21 (2008); E V note 9; note 9. APE note 57, at 26. R He states that if universities do not make a do not make that if universities He states supra supra ESSICA 53 supra note 12, at 440-45, 449-57, 459-65 (2012); , ONSENT & J ITHOUT Although issues that pertain to sexual assault to sexual issues that pertain Although C 52 W 55 supra Colleges Are Rewriting What Consent Means To Address Sexual As- (Sept. 11, 2014), http://www.huffingtonpost.com/2014/09/08/college-con ALENTI Sexual assault is a unique crime as it involves an act Sexual assault is a unique crime OST 59 ORLD RIEDMAN 57 & V P F SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Vandervort, & A W UAL Tamburri & Samson, Tamburri & Samson, . . FFIRMATIVE RIEDMAN ACKLYN Id Id See See See UFFINGTON OWER Many who oppose the adoption of affirmative consent by univer- Many who oppose the adoption Redefining sexual assault consent standards to reflect the affirm- assault consent standards to reflect Redefining sexual ,H P 57. J 54. 55. 56. 59. Tyler Kingkade, 58. F 53. 52. is not to say that affirmative consent will be ineffective, because it has is not to say that affirmative consent seems as though the small scale envi- proved to be the opposite, and it will allow a more focused approach ronments like those of universities assault based on the affirmative to educating and adjudicating sexual consent model. require mental behavioral adjustments on our part, society has so pro- adjustments on our part, require mental behavioral to fit into an imperfect ideal that foundly maimed traditional sex roles any new legislation regarding an af- perpetuates sexual assault that unnatural to those who comply with firmative consent model may feel skewed ideals. better effort to respond, “how can [universities] have really effective have really “how can [universities] to respond, better effort of environment?” discriminatory, sexist kind learning in an unsafe, amount to a problem on a much larger scale, they will not be solved scale, they will not a much larger to a problem on amount MacKay of Wayne according to Professor independently easily or University. Saint Mary’s that is natural to humans—soto re-learn a key compo- requiring us by its very own hardships. nent of a natural act is accompanied [2011] S.C.R. 440 (Can.). sault 1266, 1277 (N.J. 1992). sities believe that these standards now require two individuals to enter sities believe that these standards ative nature of consent not only makes logical sense, but is also reaf- not only makes logical sense, ative nature of consent studies and court cases. firmed by various 5:15-CV-00015, 2016 WL 5317695 at 13 (W.D. Va. 2016); Marshall v. Indiana Univ., 170 5:15-CV-00015, 2016 WL 5317695 at 13 (W.D. F.Supp.3d 1201, 1204-05 (S.D. Ind. 2016). sent-sexual-assault_n_5748218.html. III. A 360 on both of inadequacy, feelings with lingering students leave which the fence. sides of find the means and is, “[They] can’t. [They] have to The short answer the ways to do it.” \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 10 3-MAY-17 9:34 38980-swt_23-2 Sheet No. 33 Side B 05/11/2017 09:52:06 B 05/11/2017 33 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 34 Side A 05/11/2017 09:52:06 361 words note 57, at 20- “The [typical] supra , voluntary 66 ALENTI However, that could that However, 62 , http://affirmativeconsent.com/ 60 & V . Surprisingly, however, crit- . Surprisingly, however, ONSENT C RIEDMAN Consent standards that reflect F 67 The study ultimately revealed that The study ultimately revealed Affirmative consent is defined as: consent is defined Affirmative 64 see also FFIRMATIVE 61 ,A communicated note 30. supra (June 16, 2014), http://www.slate.com/blogs/xx_factor/2014/06/16/af- , note 12, at 404; . In the study, one female focus group noted that In the study, one female focus 5 Common Arguments Against Affirmative Consent & Why They’re 65 “No Means No” Isn’t Enough. We Need Affirmative Consent Laws to “No Means No” Isn’t Enough. We Need Affirmative LATE (Oct. 23, 2015), https://www.bustle.com/articles/119012-5-common-argu- supra ,S Therefore, to fully understand the subjective nature of understand the subjective nature Therefore, to fully UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY 63 USTLE EELA ET AL N ,B . . at 14, 69. . at 18. AC Id What is Affirmative Consent? Id Id A psychological study titled “Young People, Alcohol, and Sex: A psychological study titled “Young Affirmative consent highlights the importance of highlights the importance of Affirmative consent a knowing, voluntary, and mutual decision among all participants to all participants mutual decision among voluntary, and a knowing, by words or actions, can be given sexual activity. Consent engage in permission regarding create clear those words or actions as long as resis- or lack of sexual activity. Silence to engage in the willingness The definition does not demonstrate consent. tance, in and of itself, sexual ori- vary based upon a participant’s sex, of consent does not or gender expression. entation, gender identity, 63. Suzannah Weiss, 64. M 61. 62. 60. Amanda Hess, 65. 66. 67. Vandervort, M K ‘no means no’ standard places the onus on the targeted individual to ‘no means no’ standard places the for bodily integrity until an assault is protest and offers no protection threatened or already in progress.” not be further from the truth. from the not be further young adults’ descriptions of sexual encounters naturally mimicked af- young adults’ descriptions of sexual firmative consent. “Even if [consent] is not verbalized, it should be obvious that both “Even if [consent] is not verbalized, unless you get a clear yes, don’t just people want to be doing it . . . to do it”—meaningassume the other person wants that actions can in sexual scenarios. and do speak louder than words Actually BS communicated voluntarism, it is necessary to evaluate the way in it is necessary to communicated voluntarism, in sexual activities. which humans engage A. Psychology Supports Affirmative Consent It?” was conducted in 2014 by the What’s Consent Got To Do With National University of Ireland. 25 (defining the culture of rape and understanding and respecting a female’s sexual pleasure). whatisaffirmativeconsent/ (last visited Feb. 26, 2017). whatisaffirmativeconsent/ (last visited Feb. 26, Curb Sexual Assault firmative_consent_california_weighs_a_bill_that_would_move_the_sexual.html. or actions that are actively or actions that are consent and do by the semantics of affirmative ics are still confused natural sexual that the wording in fact matches not truly understand encounters. ments-against-affirmative-consent-why-theyre-actually-bs. 2017] sexual act. to any prior contract a written into \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 11 3-MAY-17 9:34 C Y 38980-swt_23-2 Sheet No. 34 Side A 05/11/2017 09:52:06 A 05/11/2017 34 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 34 Side B 05/11/2017 09:52:06 M K C Y note [Vol. 23 supra Bluntly , 73 show the show In the Irish do ALENTI 72 & V 1322, 1322-23 (2005). . EV RIEDMAN F . L. R AND see also , 58 V These findings suggest the impor- participants. Meaning, enthusiastic 70 But verbal assertions aside, these find- But verbal assertions aside, these note 30, at 7, 21. active note 30, at 14; 71 supra supra Most perplexing, however, is the fact that op- Most perplexing, however, is the , , . . From No Means No to Only Yes Means Yes: The Rational Results From No Means No to Only Yes Means Yes: 74 The study found that it is unacceptable for the The study found 69 EELA ET AL EELA ET AL This model is faulty because the he-said she-said nature the he-said is faulty because This model N N 68 AC AC . at 21, 24. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW M Nicholas J. Little, M . at 24. . at 21. . Id See See Id Id See id See These findings additionally reveal that while some people may These findings additionally reveal Moreover, affirmative consent reform is not aimed solely at ap- consent reform is not aimed Moreover, affirmative 73. 74. 68. 70. 71. 72. 69. stated, enthusiastic body language and active participation encompass stated, enthusiastic body language asserting new sexual positions, both sexual reciprocity: both parties another, and both parties responding moving in accordance with one positively to the acts. study, the male focus groups further revealed, “She should be an ac- study, the male focus groups further there nearly passed out.” tive participant, not just like lying tance for regular checking that the other person agrees to progress tance for regular checking that with further sexual activity. ings suggest that men and women alike understand consent to mean ings suggest that men and women that all parties involved are consent standards largely en- choose to verbalize consent, affirmative bodily communication. compass nonverbal, enthusiastic body language is conveyed by both parties throughout the encounter. body language is conveyed by both ponents of affirmative consent are fighting against a model that ponents of affirmative consent consent, contrary to popular, albeit mimics natural sex. Affirmative two people to sign a contract before incorrect belief, does not require accused to act on silence during a sexual encounter and that “A yes is silence during a sexual encounter accused to act on more important than saying no.” peasing complainants of sexual assault—itpeasing complainants ideals of encompasses the Irish sexual acts as well—whoinitiators of the The men. typically are the same senti- male focus groups that relayed study involved several ments as women. of sexual assault and lack of witnesses so often allow the accused to and lack of witnesses so often of sexual assault or protest, thus forg- the complainant did not scream simply claim that of consent. ing a false sense of an Affirmative Consent Standard in Rape Law 362 that actions or delineate not understand notion do this and there- with a sexual act, to go forward intent of parties subjective means no” that reality. “No to reflect should be modified fore consent consent, but attitudes toward reflect natural not only fail to standards on behalf of innocence lead toward absolute one-sided and tend to be the accused. \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 12 3-MAY-17 9:34 57, at 47-49 (describing how you can read consent through body language). 38980-swt_23-2 Sheet No. 34 Side B 05/11/2017 09:52:06 B 05/11/2017 34 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 35 Side A 05/11/2017 09:52:06 , ER- 363 S The USTICE 79 J ROSECUTION criminal codes P INISTRY OF Despite the fact 78 ROWN C HE national CALES T S note 4. see also 75 supra , ROADER B In 1992, Canada revised their criminal In 1992, Canada ERVICE Sex Assault Reporting on Canadian Campuses Worry- note 9. 76 S (Feb. 6, 2015), http://www.cbc.ca/news/canada/sex-assault- supra EWS Students Told to Take Photos with a ‘Consent Contract’ Before Students Told to Take Photos with a ‘Consent ONSENT ON (July 7, 2015), http://www.nationalreview.com/article/420870/col- . ROSECUTION C EV P , CBC N R L ’ ROWN AT UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY C Just recently, in January 2015, England changed its crimi- January 2015, England changed Just recently, in ,N While the United States has been the frontrunner in trying While the United States has been HE 77 Alison Saunders, Director of Public Prosecutions in En- Alison Saunders, Director of 81 Sexual Offences Act 2003, c. 42 § 74 (U.K.); Can. Crim. Code, R.S.C., c. C-46 Katherine Timpf, Sexual Offences Act 2003, c. 42 (U.K.); T Tamburri & Samson, Timothy Sawa & Lori Ward, VICE note 4. 80 . FFIRMATIVE Id See See See See See See The Crown Prosecution Service in England completely revised The Crown Prosecution Service Affirmative consent is not only on the agenda of universities. not only on the consent is Affirmative supra , 81. 78. 75. 77. 80. 79. 76. M K willingness of countries to completely revise their national, criminal to completely revise their willingness of countries difficult the adjudication of sexual standards of consent indicate how with more cases than ever, must assault is and that universities, faced revise their standards as well. A. England Reforms Consent Standards of consent to reflect affirmative their criminal prosecution standards consent. that many universities in both Canada and England are plagued with in both Canada and England that many universities their efforts on a burdens like that of the U.S., similar sexual assault something more—abroader scale implicate need for change. codes to reflect affirmative consent and several cases following this affirmative consent and several codes to reflect redefining consent demonstrated the importance of legislation have standards. nal code to an affirmative consent standard as well. nal code to an affirmative respect to consent—holdinggland, set forth new guidelines with that to ask how the suspect knew “Prosecutors are now being instructed that the complainant had consented—with capacity and freedom full to do so.” of sexual assault, it seems as though to tackle university mishandling reporting-on-canadian-campuses-worryingly-low-say-experts-1.2948321; M Both Canada and England have revised their Both Canada and consent. to reflect affirmative They Have Sex ingly Low, Say Experts 2017] sex—it and engaged, active, are participants both that simply holds any sexual act. proceed with willing to IV. A \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 13 3-MAY-17 9:34 § 153.1 (1985). An Overview of Sexual Offending in England and Wales (Jan. 10, 2013), http://webarchive.na tionalarchives.gov.uk/20160105160709/https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/214970/sexual-offending-overview-jan-2013.pdf (U.K.). lege-affirmative-consent-contract. C Y 38980-swt_23-2 Sheet No. 35 Side A 05/11/2017 09:52:06 A 05/11/2017 35 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 35 Side B 05/11/2017 09:52:06 M K 84 C Y Oct. 6, [Vol. 23 ( In re- 89 90 In 2014, 83 EBRIEF Because of , made signifi- ,D 86 R v. Esau and Finally, the Office of the Inde- Finally, the Office 85 Additionally, and most importantly, in Additionally, and most importantly, 88 note 26. 82 R v. M, R v. Park, supra What’s Your University Doing About Consent? note 12, at 433. note 12, at 398. The Criminal Code enacted by Parliament in 1992 The Criminal Code enacted by note 26. 87 , [2014] EWHC 4847 (Admin). supra supra Boycott, supra . Vicky Spratt, id SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW see also .; See Oxford Univ. Id Canada’s affirmative consent laws and following cases prove that Canada’s affirmative consent laws Three decisions rendered by the Supreme Court of Canada be- Three decisions rendered by the While England may be revising standards on a national level, on a national revising standards may be While England This concept of consent produces just results in the vast majority of This concept of consent produces just combating the stereotypes that cases. It has proved of great value in to sexual relations and under- historically have surrounded consent crime of sexual assault. mined the law’s ability to address the 88. R. v. Ewanchuk, [1999] 1 S. C. R. 330, 355 (Can.). 89. Vandervort, 90. R v. J.A., [2011] 2 S.C.R. 440, 464 (Can.). 86. Boycott, 87. Vandervort, 83. 82. See 84. 85. sponse to the new affirmative consent laws, Chief Justice McClachlin sponse to the new affirmative consent stated: of the Supreme Court of Canada Elizabeth Ramey, a student at Oxford University, unsuccessfully filed unsuccessfully at Oxford University, Ramey, a student Elizabeth rape. investigating campus and its policy on against Oxford a lawsuit governmental agencies’ inability to prosecute sexual assault cases like inability to prosecute sexual governmental agencies’ be able to maintain growing need that universities Ms. Ramey’s, the more paramount. at protecting all students is ever clear policies aimed B. Consent Implementation of Affirmative Canada’s right direction and can be for uni- affirmative consent is a step in the versities as well. pendent Adjudicator of Higher Education, who found Oxford’s poli- of Higher Education, who pendent Adjudicator case. reviewed Ms. Ramey’s cies to be inadequate, implementing this new standard, when the accused claims the com- implementing this new standard, must “believe that the complainant plainant gave consent, the accused word and/or her action.” effectively said, ‘yes’ through her states that “Consent means that the complainant had affirmatively states that “Consent means that her agreement to engage in sexual communicated by words or conduct activity with the accused.” tween 1992 and 1997, of common law jurisprudence cant contributions to the development their university policies considerably lag behind the U.S. considerably lag policies their university 364 sys- justice their criminal by updating the U.S. surpassed has England new ideals. tem to reflect but even after she the university to go to the police, She was told by never prosecuted. did, her case was \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 14 3-MAY-17 9:34 2016), http://www.thedebrief.co.uk/news/real-life/consent-at-university-2016-20161065185. 38980-swt_23-2 Sheet No. 35 Side B 05/11/2017 09:52:06 B 05/11/2017 35 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 36 Side A 05/11/2017 09:52:06 , 92 365 ob- not M.C. v Bulgaria (Apr. 20, 2012), https:/ EART For this reason, suc- H , the 16 year-old com- 16 year-old , the 98 confirms that submission is EALING R v. M R v. ,H In R v. M 91 The Court of Appeals quashed the trial of Appeals The Court 93 note 12, at 415. note 12, at 415. 96 Freezing During Rape is Normal supra supra UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY The Supreme Court later reinstated the trial court’s initial later reinstated the trial court’s The Supreme Court . . . . . at 416. 94 This realization is what necessitates that consent standards be This realization is what necessitates Further, the Court rephrased their holding to “focus on the rephrased their holding to Further, the Court Id Id Id Id Id 97 95 Non-affirmative definitions of consent offer inadequate protec- Non-affirmative definitions of consent The preconceived notions involving sexual assault make it diffi- notions involving sexual assault The preconceived 98. Vandervort, 92. 93. 94. 95. 96. 97. Kris Hannah, 91. Vandervort, M K for free will and basic human nature tells us just that. for free will and basic human nature the European Court of Human Rights “considered rape legislation the European Court of Human on proving the use of force, rather that focuses exclusively or unduly cessful adjudication of sexual assault must encompass not only that cessful adjudication of sexual assault consent, but that both individuals lack of protest and silence is not verbal or nonverbal communica- must be engaging in positive, active active and engaged, then there is no tive manners. If both parties are want to be performing these acts—reason to believe either does not In the case of tion for women against sexual violence. plainant did not resist sexual touching advanced by her stepfather. by her touching advanced did not resist sexual plainant verdict because the complainant did not resist the touching, and in the resist the touching, did not the complainant verdict because was that consent was no evidence of coercion, there absence tained. revised to reflect affirmative consent. Most university sexual assault revised to reflect affirmative consent. incidences are not violent or scary. conviction, holding that a lack of resistance is not equated with con- that a lack of resistance is not conviction, holding sent. /krishannah.wordpress.com/2012/04/20/freezing-during-rape-is-normal/. cult for the general public to conceptualize affirmative consent. Be- public to conceptualize affirmative cult for the general scream in the event that a complainant can kick and cause most think consent standards advances, they also believe that of unwanted sexual in most instances, victims of reflecting protest are sufficient. However, and distress that their bodies tense sexual assault are in so much shock any such physical or even verbal pro- and freeze over, thus inhibiting tests. not what in fact takes place during unwanted sexual advances—itnot what in fact takes place during is an of your body. intense fear for lack of control legal effect of non-communication by the complainant” and that “si- by the complainant” legal effect of non-communication lence means ‘no’.” 2017] in Canada. consent on affirmative was due her lack of resistance at trial was that presented The evidence her stepfather. to fear of \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 15 3-MAY-17 9:34 C Y 38980-swt_23-2 Sheet No. 36 Side A 05/11/2017 09:52:06 A 05/11/2017 36 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 36 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 The Supreme 102 The Istanbul Convention in- Convention The Istanbul May 11, 2011, C.E.T.S. No. 210 (entered 99 Countries around the world are around the world Countries 100 101 , she acutely detailed that: , she acutely detailed opened for signature While implied consent is no longer a valid de- While implied consent is no longer note 12, at 428. R v. M 103 , the trial court found that the complainant had not , the trial court found that the supra SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW . Id A deeper analysis and understanding of the social context of con- and understanding of the social A deeper analysis The significance of these two cases connotes the importance of The significance of these two cases Because the ways in which consent are communicated, laws must Because the ways in which consent consent standards for equality The implications from affirmative consent must be regarded from the standpoint of communication, consent must be regarded social act of the standpoint of a mental state: the rather than from by means of communication to another person, consent consists of permission to perform one or verbal and non-verbal behavior, of otherwise have a legal or non- more acts which that person would legal obligation to perform. 99. M.C. v. Bulgaria, 2003-XII Eur. Ct. H.R. 1, 35. 103. 101. R v. Park, [1995] 2 S.C.R. 836, 866 (Can.). 102. Vandervort, 100. Council of Europe Convention on Preventing and Combating Violence Against Women Court eventually held that “under Canadian law there is no defense of Court eventually held that “under implied consent.” corporated this judgment by requiring States Parties to adapt their States Parties to by requiring this judgment corporated on consent as rape to focus violence and legislation on sexual criminal the crime. element of a constituent focusing their efforts on redefining consent because it truly is at the because it truly redefining consent their efforts on focusing force to be an ele- While requiring the use of root of sexual assault. developed coun- is an outdated model in most ment of sexual assault under outdated realized that we have been operating tries, it is finally as well. consent models Justice L’Heureux- explain affirmative consent. In sent helps further in Dube’s opinion fense, in most jurisdictions, a defendant may still assert a defense that fense, in most jurisdictions, a defendant act. Because of this, affirmative the complainant consented to a sexual whether or not consent was in consent models would aid in clarifying parties were actively engaged. fact given by evidencing that both in response to a sexual advance. active, enthusiastic participation reflect and incorporate these notions. two stories of he-said she-said. In is significant and help in separating R v. Ewanchuk acts of the accused but ultimately consented to the unwanted sexual that the he may have believed acquitted the accused on the grounds “implied consent.” she consented on the grounds of into force Aug. 1, 2014). and Domestic Violence art. 36, 366 Euro- of the in violation to be victim, of the of consent the lack than Rights.” on Human pean Convention \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 16 3-MAY-17 9:34 38980-swt_23-2 Sheet No. 36 Side B 05/11/2017 09:52:06 B 05/11/2017 36 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 37 Side A 05/11/2017 09:52:06 367 Conse- (July 14, Emily Bazelon, ISCOURSE reality. . D see also UB ,P it was demonstrated Further, the eviden- These panels are not 104 105 how ONSENT C When College Sexual Assault Panels Fall The most significant causes of 107 note 32. (Apr. 29, 2014, 5:58 PM), http://www.slate.com/articles/ FFIRMATIVE supra , A LATE ,S note 23; Tovia Smith, ETTER L , NPR (May 1, 2014, 8:31 PM), http://www.npr.org/2014/05/01/308607 note 12, at 439. 106 supra The Trouble with Campus Rape Tribunals supra UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY OLLEAGUE C at 439-40. EAR Moreover, because police and prosecutors are unwilling to Moreover, because police and Id. MPLEMENTATION OF Canadian court cases that utilized affirmative consent reflect its Canadian court cases that utilized Much of the criticism surrounding affirmative consent policies surrounding affirmative Much of the criticism 108 105. Ganim & Black, 108. 107. Vandervort, 106. D 104. Robert Carle, M K much different than panels that hear incidences of student perjury or much different than panels that require more elaborate guidelines other similar misconduct, but may the offense. given the difficult intricacies of tiary burden exercised by universities requires “beyond a preponder- tiary burden exercised by universities the civil evidentiary standards held ance of the evidence,” similar to by many countries. haphazard disposal of sexual assault cases are due to a lack of aware- haphazard disposal of sexual assault requires, and failure to enforce the ness of what the law actually law. Short, and When They Help 420/when-college-sexual-assault-panels-fall-short-and-when-they-help; Washing Takes on College Rape 2014), http://www.thepublicdiscourse.com/2014/07/13369/. effectiveness in proving and disproving sexual assault cases, however, effectiveness in proving and disproving remains to be an obstacle on a implementation of affirmative consent court or independent review tribu- larger scale. Because no appellate prosecutors or judges, government nal review the actions of police, prosecute sexual assault based on officials continue to investigate and common law principles of consent. and laws deal with implementation. While universities are not legal implementation. While universities and laws deal with panels that are comprised of administrative tribunals, adjudications of culpability—withrender a final determination pun- the most severe university. ishment being expulsion from the double_x/doublex/2014/04/campus_sexual_assault_new_white_house_guidelines_won_t_solve_ the_ongoing.html. quently, the cases of sexual assault adjudicated by universities are real of sexual assault adjudicated by quently, the cases reflecting standards. of consent and must be held to instances of lack throughout a sexual encounter. Affirmative standards are not any standards Affirmative a sexual encounter. throughout accused: the are for the than they for complainants more designed reflect affirmative consent standards importance is that V. I 2017] go unde- to assault allow sexual that instances many are too There affirma- For those reasons, consent models. traditional tected under and the that complainants also require standards should tive consent consent and discuss who obtained accused \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 17 3-MAY-17 9:34 C Y 38980-swt_23-2 Sheet No. 37 Side A 05/11/2017 09:52:06 A 05/11/2017 37 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 37 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 How- XAMINER . E 109 ASH ,W 20 U.S.C. § 1681. see also For instance, a slightly intoxicated 112 In instances where a complainant is In instances where 110 note 9. Can Affirmative Consent Standards Fix the Problem of Alcohol supra 5 Problems with California’s ‘Affirmative Consent’ Bill 5 Problems with California’s ‘Affirmative Consent’ (Feb. 18, 2014, 12:27 PM), http://www.slate.com/blogs/xx_factor/2014/02/18/ The policy is not that the complainant bears the burden The policy is not that the complainant 113 114 LATE SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Amanda Marcotte, ,S . . Additionally, new definitions of consent can greatly protect Additionally, new definitions of Id Id See 111 In applying affirmative consent at universities, critics argue that it In applying affirmative consent at Educators and legislators have relayed their confusion as to how have relayed their confusion Educators and legislators 114. U.S. Dep’t of Educ., Know Your Rights: Title IX Prohibits Sexual Harassment and Sex- 112. 113. 109. Ashe Schow, 110. Tamburri & Samson, 111. ever, affirmative consent will clear up many gray areas in instances of consent will clear up many gray ever, affirmative campus sexual assault—mainly a sig- due to the fact that alcohol plays most cases. nificant role in complainant who positively engages in the activity will have a very complainant who positively engages that he or she has not demon- hard time convincing the university strated consent to the sexual activities—despite the complainant’s subjectivity. drunk, his or her lack of active participation through either verbal or lack of active participation through drunk, his or her he or she did not will clearly indicate that nonverbal communication consent in that moment—regardless conduct indicated other- if prior wise. of proof, but instead, that the university must evaluate all relevant of proof, but instead, that the both sides under the applicable defi- facts and evidence presented by ual Violence Where You Go to School (2011); the accused from false accusations and simply very gray encounters the accused from false accusations where some lines were crossed. would require a “burden shifting” upon the accused, thus making it an would require a “burden shifting” of Civil Rights, for example, re- unworkable model. The U.S. Office reasonably known incidents of quires schools to promptly investigate chooses not to file a formal sexual assault even if the complainant complaint. and Rape? alcohol_and_rape_it_s_time_to_embrace_affirmative_consent_standards.html. (Aug. 28, 2014, 8:00AM), http://www.washingtonexaminer.com/5-problems-with-californias-af firmative-consent-bill/article/2552537. 368 univer- that is imperative it assault, of sexual ideals to newer conform are not busy Universities such matters. able to adjudicate sities be and with paperwork stations back-logged offices or police government rape kits—they a fair and safe to upholding institutions devoted are deterring which requires for their students, environment educational amongst students. sexual assault and punishing A. University Level Applying Affirmative Consent at the standards. proven under affirmative consent consent will be \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 18 3-MAY-17 9:34 38980-swt_23-2 Sheet No. 37 Side B 05/11/2017 09:52:06 B 05/11/2017 37 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 38 Side A 05/11/2017 09:52:06 369 122 121 LAWG both B RAWFS (June 24, 2005, ! note 57, at 35. ,P Thomas MacAulay Aegis, Comment to LAS , https://www.change supra see ,A , ORG . see also ALENTI The “burden shifting” “burden The HANGE parties acted throughout 115 ,C & V both Updating definitions to state Updating definitions (Oct. 15, 2013), https://home.campusclarity RIEDMAN 118 F in , LARITY 119 C (May 19, 2014), http://www.thefeministwire.com/2014/ IRE AMPUS W Gomes v. Univ. of Me. Sys., 365 F. Supp. 2d 6, 16, 45 (D. Me. Gomes v. Univ. of Me. Sys., 365 F. Supp. 2d ,C Affirmative Consent and Burden Shifting, Take 2 EMINIST see also Why On Earth Do We Let Colleges and Universities “Handle” Their We Need Affirmative Consent Now F 116 HE ,T It has been purported that students are often reluctant It has been purported that students UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY Affirmative consent can finally allow a comprehensive Affirmative consent 120 117 . . . Id Id See Standards of Proof Id Toward a Performance Model of Sex Among concerns of implementation, some argue that allowing Among concerns of implementation, Traditional and often skewed views of consent uphold the narra- uphold the views of consent and often skewed Traditional 118. N.Y. Educ. Law §6441 (McKinney 2015). 119. Tamara Rice Lave, 117. Joelle Stangler, 121. 122. 116. 120. Kari O’Discoll, 115. M K argument is not entirely applicable as universities are not courts of are applicable as universities is not entirely argument no burden—universities complainants have law, and simply assess the a standard of under the relevant evidence equally and weigh dispute preponderance. that sexual assault has occurred “if accomplished without that per- that sexual assault has occurred ensure that, on a national level, no son’s affirmative consent” would such “burden shifting” occurs. to report rape and other sexual assaults to authorities because they to report rape and other sexual by the police investigation process. feel they will be re-traumatized discussion and investigation as to how discussion and investigation to be used by consent is the definition the encounter. Affirmative demonstrates that the accused. Meaning, the accuser the accuser and because the voluntarily and actively participating he or she was not hold that “a proposed affirmative consent definitions language of the all participants to en- and mutual decision among knowing, voluntary, be present. gage in sexual activity” .org/p/students-need-affirmative-consent-now (last visited Feb. 22, 2016); .org/p/students-need-affirmative-consent-now Fault if You Get Raped Yes Some Guys are Assholes, but It’s Still Your .com/standards-of-proof/; 2005). tive that sex is something “that belongs to one person and is taken by “that belongs to one person tive that sex is something another.” diminishes the seriousness of a universities to adjudicate sexual assault real crime. Own Rape Cases? 05/op-ed-earth-let-colleges-universities-handle-rape-cases/. (Sept. 8, 2015, 2:33 PM), http://prawfsblawg.blogs.com/prawfsblawg/2015/09/affirmative-consent- and-burden-shifting-take-2.html. It may initially feel safer to report a rape to someone on campus, but It may initially feel safer to report schools to police themselves? is this a good enough reason to allow not be adjudicating sexual as- Critics argue that universities should 2017] of the evidence. preponderance by a nitions \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 19 3-MAY-17 9:34 12:08 AM), http://amptoons.com/blog/?p=1628&cpage=5#comments; 12:08 AM), http://amptoons.com/blog/?p=1628&cpage=5#comments; Millar, C Y 38980-swt_23-2 Sheet No. 38 Side A 05/11/2017 09:52:06 A 05/11/2017 38 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 38 Side B 05/11/2017 09:52:06 M K 124 C Y (Dec. [Vol. 23 OST Without . P 125 ASH 123 , http://knowyourix (Dec. 7, 2014, 11:53 ,W However, the IX 127 These vast incon- LATE OUR ,S 126 Y NOW ,K note 24. The College Rape Overcorrection supra AFEGUARDS note 24. Colleges Reluctant to Expel for Sexual Assault S supra Emily Yoffe, Lombardi, SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW see also Lombardi, Nick Anderson, ROCEDURAL See See See Why Schools Handle Sexual Violence Reports See generally Lack of procedural safeguards for students who are accused of Lack of procedural safeguards for If universities are going to undertake the efforts to adjudicate going to undertake the efforts If universities are 126. 127. Doe v. Regents of Univ. of Cal., 210 Cal. Rptr. 3d 479 (Cal. App. 4th Dist. 2016). 125. 123. 124. clearer punishments in place, victims are forced, during an emotion- clearer punishments in place, victims their assaulter. ally difficult time, to live amongst Confrontation Clause of the U.S. Constitution is only applicable in Confrontation Clause of the U.S. sistencies within universities’ policies call for a strict adherence to sistencies within universities’ policies parties the necessary safeguards clear guidelines that afford both when adjudicating sexual assault. A. Lawsuits by the Accused & Due Process Considerations against their respective univer- sexual assault have resulted in lawsuits sued the University of California San sities. In California, one student M. Pressman held that the accused Diego. Superior Court Judge Joel was impermissibly prevented from student, identified as John Doe, his accuser. fully confronting and cross-examining 15, 2014), https://www.washingtonpost.com/local/education/colleges-often-reluctant-to-expel-for- sexual-violence—with-u-va-a-prime-example/2014/12/15/307c5648-7b4e-11e4-b821-503cc7efed9e _story.html; PM), http://www.slate.com/articles/double_x/doublex/2014/12/college_rape_campus_sexual_as sault_is_a_serious_problem_but_the_efforts.html. sexual assault, the policies and guidelines reflecting such efforts must policies and guidelines reflecting sexual assault, the The overcorrec- adequate procedural safeguards. afford both parties absolve the ac- has led universities to completely tion of one problem adjudication. rights in the event of sexual assault cused of his or her This is not to say that universities will now become the judge and jury, that universities will now become This is not to say to ask ques- that students must have the opportunities so to speak, but evidence. Moreo- present if requested, and review tions, have lawyers with universities’ enacted by universities are at odds ver, punishments the victim but Many are diligently trying to protect current efforts. wrist for the perpetrator. turn around with a slap on the 370 sault—however, prosecutions time consuming and the ineffectiveness of sexual not afford victims simply do take place otherwise that would a university can. efficiency that autonomy or assault the VI. P \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 20 3-MAY-17 9:34 .org/why-schools-handle-sexual-violence-reports/ (last visited Feb. 23, 2015). .org/why-schools-handle-sexual-violence-reports/ 38980-swt_23-2 Sheet No. 38 Side B 05/11/2017 09:52:06 B 05/11/2017 38 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 39 Side A 05/11/2017 09:52:06 371 In AMPUS 129 C 128 ROCESS AND P UE D (Jan. 12, 2015), http://prospect.org/ Board of Curators of University of UIDE TO G S While the OCR discourages While the OCR ROSPECT see also 130 . P However, courts have found that M note 32. ., FIRE’ 131 ,A DUC supra , . ] E UIDE ETTER 243, 265 (2001); thus establishing the basis for the court’s rul- the court’s basis for the establishing thus G L Fairness must not escape university policies Fairness must not escape university S IGHTS IN 132 L.J. Students and Due Process in Higher Education: Of Interests and 133 . R Sex, Lies and Justice the seriousness of the potential punishment.” the seriousness NDIV OASTAL OLLEAGUE I amend. VI. . C . C UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY FOR at 11-12. LA . ONST EAR One possible route to ensure an accused’s criminal rights One possible route to ensure an D , 2 F . that match (2017), https://www.thefire.org/fire-guides/fires-guide-to-due-process-and-campus-jus- OUND 134 Id See id. See Opponents of university adjudication of sexual assault hold that Opponents of university adjudication Due process concerns are at the forefront of the argument against of the argument at the forefront concerns are Due process 134. 132. Fernand N. Dutile, 131. 128. U.S. C 130. 133. Nancy Gertner, 129. F M K USTICE the U.S., students are notified of violations and are afforded the abil- are notified of violations and the U.S., students in addition to or rebut accusations against them, ity to explain and witnesses. presenting evidence cross-examining witnesses, the accused may still ask any questions cross-examining witnesses, the necessary to assert their position. the Fourteenth Amendment does not guarantee complete due process the Fourteenth Amendment does rendering certain university policies in university proceedings, thus sufficiently equitable. and “While we know from the Innocence Project that even these and “While we know from the they are at least more likely ‘tests’ can produce wrongful convictions, the opposite—ato produce reliable results than one-sided, adminis- investigator, judge, jury, and appeals trative proceeding, with a single court.” article/sex-lies-and-justice. Procedures implementing affirmative consent. Yet, school policies maintain school policies consent. Yet, affirmative implementing of sex- perjury or violation violation of it is the most blatant whether So why is still expulsion. severe punishment the most ual misconduct, consent and tooth and nail against affirmative are opponents fighting proceedings are criminal rights when these pushing for constitutional must be han- “Campus disciplinary proceedings not of that nature? manner—notdled in a . . . consistent chosen in an arbitrary manner particular case—[but]for this or that safe- must include procedural guards assault can be, it is “by question- however flawed narratives of sexual by sharing the evidence that has ing the witness, holding hearings, access to lawyers, by assuring a been gathered, by giving everyone neutral fact-finder.” tice/fires-guide-to-due-process-and-fair-procedure-on-campus-full-text/#__RefHeading__2480_ 2127946742 [hereinafter FIRE’ J 2017] prosecutions—criminal on appeal. of San Diego of the University ing in favor \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 21 3-MAY-17 9:34 Missouri v. Horowitz, 435 U.S. 78, 85 (1978); Regents of University of Michigan v. Ewing, 474 Missouri v. Horowitz, 435 U.S. 78, 85 (1978); Regents of University of Michigan v. Ewing, U.S. 214, 225 (1985). C Y 38980-swt_23-2 Sheet No. 39 Side A 05/11/2017 09:52:06 A 05/11/2017 39 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 39 Side B 05/11/2017 09:52:06 , M K C Y note [Vol. 23 supra The U.S. 136 135 note 32. July 1, 2015), http://college.usatoday.com/2015/07/01/for- 140 As these efforts often go unseen, another As these efforts Former UC Berkeley Students Sue University for Mishan- Former UC Berkeley Students Sue University supra , note 23. 137 C. ( note 129. ETTER supra supra ODAY L , UIDE USA T Jamie Altman, 138 G S Columbia University Sued by Male Student in ‘Carry That Weight’ Rape Case OLLEAGUE C As a solution, it would be relatively simple to have an inde- As a solution, it would be relatively Apr. 24, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/04/24/ SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW FIRE’ ( Gamin & Black, ONCLUSION 139 . . EAR OST See generally Id See Id See The current adjudication of sexual assault by universities is im- The current adjudication of sexual Many universities in the U.S. have Title IX compliance offices Many universities in the U.S. have Complainants and the accused are not the only “losers” in many only “losers” are not the and the accused Complainants . P 136. 140. 139. D 135. 138. 137. ASH Department of Education has launched more investigations, imposed has launched more investigations, Department of Education sexual assault than issued more guidelines on campus more fines, and many acknowledged schools to improve what ever before, pressuring in their handling of complaints—however,were serious flaws these be seen. efforts remain to concern is that “[w]hen you have unfair procedures it delegitimizes “[w]hen you have unfair procedures concern is that a joke. And people the whole process seem like the process, it makes of the result when the process don’t actually believe in the accuracy itself is unfair.” pendent coordinator, trained in sexual assault policies and guidelines, pendent coordinator, trained in In addition to allowing to oversee investigations and adjudications. access to evidence, and allowance students to have attorneys present, an independent coordinator to to question their complainant, hiring to resolve matters efficiently, but oversee sexual assault cases will help most importantly, correctly. dling Sexual Assault, proving, but largely at the expense of both the victim and the accused. proving, but largely at the expense not receiving the proper attention Complainants of sexual assault are cases of university adjudication of sexual assault that have gone awry. assault that have of sexual university adjudication cases of are forced to pay with lawsuits from both sides, Universities, plagued due to their procedural inadequacies. large sums of money assist students with discrimination on with administrators available to campus. VII. C 372 be for would is taken, action criminal the event in not violated are evidence and that any legislation holding to statutorily enact countries can- a university proceeding exposed in of culpability determination in a criminal prosecution. against them not be used \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 22 3-MAY-17 9:34 mer-uc-berkeley-students-sue-university-for-mishandling-sexual-assaults/; Boycott, mer-uc-berkeley-students-sue-university-for-mishandling-sexual-assaults/; columbia-university-sued-by-male-student-in-carry-that-weight-rape-case/?utm_term=.dd3788aa 1daa. 26; Sarah Kaplan, W 38980-swt_23-2 Sheet No. 39 Side B 05/11/2017 09:52:06 B 05/11/2017 39 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 40 Side A 05/11/2017 09:52:06 373 party accountable each UNIVERSITY ADJUDICATION OF SEXUAL ASSAULT SEXUAL OF ADJUDICATION UNIVERSITY M K 2017] the nec- given are not accused cases, the potential to commitment and universities. parties are suing and both safeguards, essary procedural sides to a will allow both consent standards affirmative Implementing place. Af- actually took whether consent case to prove sexual assault of sexual and realities reflects the attitudes consent not only firmative also holds but most importantly encounters, \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 23 3-MAY-17 9:34 for their actions. Consent is at the heart of sexual assault, which is why Consent is at the heart of sexual for their actions. are being made to by countries across the world overwhelming efforts successful adjudi- current climate of inconsistencies, fix it. Due to the clearer procedural assault at universities also requires cation of sexual Clearer policies will both parties’ rights are ensured. policies so that protect victims while approach that can both create a comprehensive while eliminating proper defense mechanisms affording the accused by either side error and future lawsuits brought the chances for adoption and for their mishandling. University against the university new guidelines to of affirmative consent would allow implementation the bodily and moral integrity of reflect real sexual scenarios, uphold ultimately lead to fairer adjudications students on campuses, and thus of sexual assault altogether. C Y 38980-swt_23-2 Sheet No. 40 Side A 05/11/2017 09:52:06 A 05/11/2017 40 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 40 Side B 05/11/2017 09:52:06 M K C Y \\jciprod01\productn\S\SWT\23-2\SWT203.txt unknown Seq: 24 3-MAY-17 9:34 38980-swt_23-2 Sheet No. 40 Side B 05/11/2017 09:52:06 B 05/11/2017 40 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 41 Side A 05/11/2017 09:52:06 R R R R R R R R R R R R ... 383 ..... 384 IVIL C Andrew Paster* OURT C OPYRIGHT IVIL OLICY IS IN EASONING FOR ...... 390 C P ATIONS AND R ELECTS THE : U.S. C ONTRACT AW AND ITS N S L C DROIT D’AUTEUR AW UBLIC RENCH ...... 391 P L F OOGLE ...... 378 S ’ 375 SSIGNMENTS . G NDERLYING ...... 380 V A HEN THE SSIGNMENT U OPYRIGHT OMMON RANCE UTEURS DES ARTS VISUELS ET DE AY INTO A C ...... 388 : W C A RETHINKING COPYRIGHT RETHINKING – F W ...... 376 ...... 392 AW ...... 378 (SAIF) ...... 394 BE RESOLVED BY FRANCE’S BE RESOLVED L TERMINATION IN A GLOBAL TERMINATION ...... 382 IXE ´ U.S. COPYRIGHT LAW COULD U.S. COPYRIGHT EDES UBLIC F ´ ET P AKES ITS ATIONS ONTRACTUS ERMINATION OF VERVIEW OF OCI MARKET: HOW A LIMITATION IN A LIMITATION HOW MARKET: M N C The Right of Withdrawal Reciprocity Reconciling Two Competing Ideologies in a Global Reconciling Two Competing Ideologies Market Agreement The Berne Convention: An International the World to Protect Authors’ Rights Throughout Common Law Nations Civil Law Nations O S MAGE L PPLICABLE N RDRE ARMONY WITH THE EVELOPMENT IN ONCLUSION FFECTUATING AN A AW EX AW ’I NTRODUCTION U.S. T A. B. C. D. L L E A O H D L A. B. I. I * Andrew Paster is a Southwestern graduate of the class of 2015, currently working in V. II. A VI. C III. L IV. M K Business & Legal Affairs at Interscope Geffen A&M Records. \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 1 3-MAY-17 9:46 C Y 38980-swt_23-2 Sheet No. 41 Side A 05/11/2017 09:52:06 A 05/11/2017 41 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 41 Side B 05/11/2017 09:52:06 M K C Y see also [Vol. 23 This 1 3, 4 (2012). UPERWOMEN IN . L.J. : S ECH ARRIORS Although this was . & T 8 W ROP . P INEMATIC NTELL C 9 After a series of setbacks and After a series 6 By creating Superman, Siegel and By creating Superman, 3 , 24 No. 8 I MAZONS AND Over time, they gave him a backstory, they gave him Over time, Upon this series of revisions, they even- Upon this series 2 7 A Copyright Termination for Noncopyright Majors: An Over- Instead, it was Siegel’s surviving heirs who Instead, it was Siegel’s surviving 5 11 TAINED -S To them, Superman was the solution, as he could To them, Superman Joseph Shuster, Cartoonist, Dies; Co-Creator of ‘Superman’ was 78, 4 NK 13-14 (2010). ,I 542 F. Supp. at 1103-04. and unfortunately, did not survive long enough to en- and unfortunately, did not survive 10 TULLER SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW 17 U.S.C. § 304(c) (2016) (provides the framework to terminate assignments made at 1105. YTHOLOGY (Aug. 3, 1992), http://www.nytimes.com/1992/08/03/arts/joseph-shuster-cartoonist- at 1104. at 1107. at 1104. at 1102. K. S M See Id. Id. See Siegel, Id. Id. Id. Id. IMES NTRODUCTION This was a great investment on DC Comics’ part, but the same This was a great investment on Once further developed, Siegel and Shuster began shopping Su- Siegel and Shuster began Once further developed, In 1932, two teenagers, Jerome Siegel and Joseph Shuster, cre- Joseph Shuster, Jerome Siegel and two teenagers, In 1932, 1.2d 1098, 1102 (C.D. Cal. 2008); Siegel v. Warner Bros. Entm’t, 542 F. Supp. 7. 8. 9. Edward E. Weiman et al., 2. 3. 4. 5. 6. 11. 10. Bruce Lambert, ODERN ENNIFER superhero began as just a man, but these two teenagers breathed an two teenagers a man, but these began as just superhero life into him. extraordinary quite a deal of money in the midst of the Great Depression, it abso- quite a deal of money in the midst more than $1 billion franchise that lutely pales in comparison to the Superman would eventually become. Shuster enabled an escape from the reality of despair that was the an escape from the reality of Shuster enabled Great Depression. strips for even- several weeks’ worth of comic changes, they created tual newspaper syndication. superhuman powers, an alter-ego, a love interest, and most important an alter-ego, a love interest, superhuman powers, “Superman.” of all, the name: in 1938, thereby assigning “‘all tually struck a deal with DC Comics exclusive right[s]’ to Superman ‘to [the] goodwill attached . . . and sum of $130.00. have and hold forever,’” for a transform from an ordinary man into a superhero to aid the “down- an ordinary man into a superhero transform from trodden and oppressed.” force the termination rights granted to them under Section 304 of the force the termination rights granted Copyright Act of 1976. before 1978). Termination rights cause a reversion of copyright after assignment, which can be before 1978). Termination rights cause a reversion of copyright after assignment, which J cannot be said for Superman’s creators, who lived in near destitute cannot be said for Superman’s conditions, ated a superhero that would change the world forever. would change superhero that ated a for acquisition. perman around dies-co-creator-of-superman-was-78.html. M 376 I. I N.Y. T \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 2 3-MAY-17 9:46 view of Termination Rights and Procedures 38980-swt_23-2 Sheet No. 41 Side B 05/11/2017 09:52:06 B 05/11/2017 41 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 42 Side A 05/11/2017 09:52:06 377 ON- Mar. C The , IMMER 15 Com- , N IMES 12 While the SSENTIAL IMMER 21 N.Y. T : E N 18 14 AVID REATORS & D C OOK IMMER B OMIC B. N C , June 2008, at 38. ELVILLE Termination is further discussed below, see discus- AW FOR AWYER Id. L 3 M HE , T , L.A. L see also ERGI S This conflict is problematic because when a U.S. This conflict is problematic because OE 206 (2015). 19 Ruling Gives Heirs a Share of Superman Copyright, J but any of the rights or interests acquired by DC rights or interests acquired by but any of the Taking it Back 16 542 F. Supp. 2d at 1142. , 542 F. Supp. 2d at 1142 (noting the right to termination leaves “undisturbed Therefore, Warner Brothers was not obligated to return Brothers was not obligated Therefore, Warner see also 542 F. Supp. 2d at 1114. 542 F. Supp. 2d at 1141-42 (holding that the termination notice is not effective as 542 F. Supp. 2d at 1141-42 (holding that the termination § 11.02[B][2] (2015) (“A grant of copyright ‘throughout the world’ is terminable Thus, the author cannot terminate his or her assignment to Thus, the author cannot terminate .; 17 PPLICATIONS 20 CEPTS AND 17 U.S.C. § 304(c)(6)(E) (2016). ON at 36. A Part II, Section A. However, litigation eventually ensued in 2004. ensued in litigation eventually However, RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING Id. See Siegel See Siegel, See Id. See id Siegel, Siegel, 13 In today’s global market, U.S. authors are in need of a remedy In today’s global market, U.S. authors This limitation of termination rights under U.S. copyright law is a termination rights under U.S. copyright This limitation of While Siegel’s heirs successfully terminated the 1938 assignment terminated heirs successfully While Siegel’s OPYRIGHT infra 21. 20. Bill Gable, 15. 16. Michael Cieply, 18. 19. 13. 14. 12. 17. C M K heirs recovered only the rights and interests to Superman within the only the rights and interests to heirs recovered United States, plying with the statute, Siegel’s heirs properly served notice of termi- served notice heirs properly the statute, Siegel’s plying with in (“Warner Brothers”) Entertainment Warner Brothers nation on 1997. assignee may be the owner of the author’s work in foreign jurisdic- assignee may be the owner of the the author has no redress. tions, this should not mean that rights in and to their work on a that will allow them to regain the author assigns his or her rights to a U.S. assignee, the author assigns author assigns his or her rights to of the U.S., which vests owner- the right to exploit the work outside foreign territory it chooses to exploit ship in the assignee in whichever the work. Comics, or later Warner Brothers, by exploitation in foreign nations Warner Brothers, by exploitation Comics, or later nation’s own cop- as they are governed by each were left undisturbed, yright law. its exploitation rights in territories outside of the U.S. in territories outside of the its exploitation rights U.S. copyright law. the assignee in those territories under after four years of litigation, the result was only a partial victory. only a partial the result was years of litigation, after four market, the ex- by many authors. In today’s global frustration shared jurisdiction, yet the property is not limited by ploitation of intellectual law governing it is. only with respect to uses within the geographic limits of the United States.”). the original grantee or its successors in interest’s rights arising under ‘federal law.’”) (citing 17 U.S.C. § 304(c)(6)(E) (2016)). to the remainder of the grant, that is, defendants’ exploitation of the work abroad under the to the remainder of the grant, that is, defendants’ aegis of foreign copyright laws); exercised by the original author of a work. 2017] in 1938. made assignment initial the to terminate suit brought \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 3 3-MAY-17 9:46 sion 29, 2008, at C3. C Y 38980-swt_23-2 Sheet No. 42 Side A 05/11/2017 09:52:06 A 05/11/2017 42 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 42 Side B 05/11/2017 09:52:06 . . M K S- AT C Y : E ECH but RINCI- T 24 [Vol. 23 Tyler T. : P , 84 J. P See ROPERTY ERKLEY P OPYRIGHT , 24 B C EVELOPMENT IN D Of Rights and Men: The Re- Emerging Divergences in the ATIONS NTELLECTUAL I N which is a concept that which is 22 AW NTERNATIONAL AW O F , I L L AW AND ITS (Catherine W. Ng et al. eds., 2010). IVIL L 3 OMMON C C UGENHOLTZ AVER HE Adam R Blankenheimer, T H V in See , ERNT AVID OPYRIGHT D 23 C & B ATIONS AND 909, 914-19 (2002); Lionel Bently et al., 20-21 (3d ed. 2013). N Y ’ ROFESSOR OC AW The Anti-Monopoly Origins of the Patent and Copyright Clause OLDSTEIN P . S L G RACTICE FF P O VERVIEW OF AUL SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW P SAYS IN AND PLES O ONOUR OF , N OMMON See H AW C Parts III through V will then explain why civil law nations should V will then explain why civil law Parts III through will closely analyze the de- For purposes of simplicity, this article Part II of this article will first compare the development of copy- will first compare the development Part II of this article The copyright laws of many common law nations, including the The copyright laws of many common , L RADEMARK 23. copyright because the author’s initial bar- Congress gave the author the right to regain 22. 24. The Statute of Anne was enacted in 1710 by the English Parliament, which imposed 321, 321 (2009). for purposes of this article, our analysis will begin with the U.S. Con- for purposes of this article, our analysis authorizes Congress “[t]o promote stitution. The Copyright Clause Arts, by securing for limited Times the Progress of Science and useful presumptively supports an author of a work to assert his or her natu- to assert his author of a work supports an presumptively over own- authorship While favoring to reclaim ownership. ral rights civil law and the principles of copyright law, at odds with U.S. ership is of copyright policy with the underlying are in harmony natural rights U.S. termination in the right law in both common law and civil law nations. This will provide a common law and civil law nations. right law in both different classifica- of how the law in these two better understanding underlying policies has evolved to a point where the tions of nations by the other. in one type of nation to be resolved allow for a limitation to recover his or her law to allow a U.S. author apply U.S. copyright in the U.S., and how effectuating a termination foreign rights when justify such application of U.S. copy- the policies of civil law nations right law in this context. of U.S. copyright law, exemplifying velopments and significant aspects law nations, and French copyright the traditional views of common law, representing the civil law nations. Alienability of Termination of Transfer Rights in Penguin Group v. Steinbeck Common Law of Intellectual Property gaining power may have been “weak.” II. A A. Common Law Nations back to the Statute of Anne, U.S., can trace its initial inception L.J. 378 such law nations, civil many such authors, for Fortunately scale. global over ownership, favor authorship as France, \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 4 3-MAY-17 9:46 & T limits on its copyright term and provided the framework for U.S. Copyright Law. Ochoa & Mark Rose, 38980-swt_23-2 Sheet No. 42 Side B 05/11/2017 09:52:06 B 05/11/2017 42 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 43 Side A 05/11/2017 09:52:06 . 31 AT 379 507, . EV & P . L. R note 24, at 915. ND Copyright Reform NVENTION I supra , 10 I OCIE ,D each time addressing 27 Gregory Troxell, ee which could be renewed for which could be 29 537 U.S. at 246; Ochoa, note 24, at 914. supra providing authors with a fourteen-year providing authors 28 Later, in the Copyright Act of 1909, the two Later, in the Copyright This single sentence is the foundation of U.S. foundation of sentence is the This single See also Eldred 30 25 U.S. copyright law has been amended numerous been amended law has U.S. copyright However, the applicable term for works created on or before Decem- 26 An Act for the Encouragement of Learning – Law Then and Copyright Id. art. I, § 8, cl. 8. “Authors” and “Writings” apply to copyright owners, while . 42, 44 (2015). 33 Y ’ TT ONST , http://www.docie.com/patenting-help/what-are-patents-trademarks-and-copyrights/ see also What are Patents, Trademarks, and Copyrights see also What are Patents, Trademarks, and Eldred v. Ashcroft, 537 U.S. 186, 204 (2003). at 43; Copyright Act of 1790, ch. 15, 1 Stat. 124 (repealed 1802). and (ii) granting the author the ability to terminate an earlier and (ii) granting the author the RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING Id. See 32 The Founding Fathers could never have fathomed today’s global fathomed today’s never have Fathers could The Founding However, the most significant revision to U.S. copyright law oc- significant revision to U.S. copyright However, the most more protection in and to These two changes afforded authors , 41 S.F. A 27. James Marion, 33. 17 U.S.C. § 203. 30. Copyright Act of 1790; 26. 28. 29. Copyright Act of 1790; Ochoa, 31. Copyright Act of 1909, Pub. L. No. 60-349, 35 Stat. 1075, 1080 (1909) (repealed 1976). 32. Copyright Act of 1976, 17 U.S.C. § 302(a) (2012). This applies to works created on or 25. U.S. C M K ARKETING newer needs of authors. The Copyright Act of 1790 first introduced authors. The Copyright Act of newer needs of the U.S., copyright laws in another fourteen years. another fourteen term of protection upon registration, term of protection fourteen-year terms were extended to two twenty-eight-year terms. were extended to two twenty-eight-year fourteen-year terms copyright law, from which all subsequent law is derived. all subsequent law, from which copyright as authors’ to amend the law Congress but wisely authorized market, needs developed. times since its inception in the Constitution, times since its inception assignment of copyright by complying with the statutory assignment of copyright by requirements. curred in the Copyright Act of 1976. This Act drastically changed cop- Act of 1976. This Act drastically curred in the Copyright to life of the author, extending the term of copyright yright law by: (i) later expanded to seventy years in plus an additional fifty years (and 1998); given before. By granting such an their works than they had ever been live to see their work enter the extended term, authors would never the author to exploit the work public domain, and thus, allowing even beyond. Of course, this exten- throughout his or her lifetime, and not hold much value for the authors sion of the copyright term would to their works if Congress did not who had assigned the rights in and terminate their earlier assignments. also provide them the ability to Now ber 31, 1977 is different. 17 U.S.C. § 304(c)-(d). M (last visited Feb. 25, 2017). after January 1, 1978. 2017] Writ- respective to their Right exclusive the Inventors and to Authors Discoveries.” ings and \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 5 3-MAY-17 9:46 519 (1976); “Inventors” and “Discoveries” apply to patent owners, s “Inventors” and “Discoveries” apply to patent of the Unpaid Manufacturer and the Author’s Right to “Vend”: The Case C Y 38980-swt_23-2 Sheet No. 43 Side A 05/11/2017 09:52:06 A 05/11/2017 43 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 43 Side B 05/11/2017 09:52:06 M K 38 36 C Y for 37 [Vol. 23 145, 149 . 123, 137-38 EV AW L . L. R at 554-55. NG Id. With the termi- With the 549, 551 (2006); Droit IVIL E 34 C EW . L.J. NT https://www.cia.gov/library/pub- AW AND & E , or “author’s rights” L Moral Rights Protection in the United , 14 W. N RTS A available at OMMON C ARDOZO . 423, 428 (1999). C.I.A., EV droit d’auteur 217, 230-31 (2006). , 24 C L. Brandi L. Holland, L . L. R The Tradition and Change: The Past and Future of Author’s The Tradition and Change: The Past and Future ’ ROPERTY IN P OMP Droit D’auteur Versus the Economics of Copyright: Implications see also & C An Authors’ Rights-Based Copyright Law: The Fairness and Morality An Authors’ Rights-Based Copyright Law: The From the Providence of Kings to Copyrighted Things (And French RANSNAT L ’ NT . J. T note 34, at 53 (noting that French law contains “one of the most compre- note 34, at 53 (noting that French law contains . I NTELLECTUAL I ND AND This was just one way in which the king’s centralized This was just one way in which supra in 39 , 9 I , SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Therefore, a number of bodies of law could be analyzed in of bodies of law could be Therefore, a number Mira T. Sundara Rajan, Christine L. Chinni, , 39 V 35 Id. See The World Factbook: Legal Systems, See When the Revolution began, revolutionaries sought to destroy When the Revolution began, revolutionaries Prior to the French Revolution (the “Revolution”), France’s cop- Prior to the French Revolution (the The majority of the world’s nations have adopted the civil law the world’s nations have adopted The majority of Termination signifies a radical departure from traditional U.S. traditional from departure a radical signifies Termination 40 40. 36. Rajan, 37. Jean-Luc Piotraut, 34. 35. 38. 39. Calvin D. Peeler, comparison. rights over their moral rights. yright law favored authors’ economic nation right, Congress expressly protected the author’s integrity and the author’s protected Congress expressly nation right, in U.S. copy- the first time detriment. For his or her assignee’s work to in initial bar- disparities the author’s Congress recognized right law, to undermine the his or her assignee, and sought gaining power with of authors—as interest, thus allowing the interest assignee’s economic the work’s originators—to prevail. B. Civil Law Nations system. powers enraged the French people and ultimately led to the Revolu- powers enraged the French people tion. (Toshiko Takenaka ed., 2013); States and the Effect of the Family Entertainment and Copyright Act of 2005 on U.S. International States and the Effect of the Family Entertainment Obligations this article. However, because no nation is as passionate about, nor because no nation is as passionate this article. However, rights than France, body of law defining moral has a more robust copyright law because the U.S. places a higher value on the economic value on U.S. places a higher law because the copyright of authors. the moral rights copyright than right of a all symbols of the former monarchy, “including cultural and artistic all symbols of the former monarchy, of French and American Law Compared Moral Rights lications/the-world-factbook/docs/notesanddefs.html?fieldkey=2100&term=Legal%20system 80 countries apply common law and 150 (last visited Mar. 8, 2017) (noting that approximately countries apply civil law “in various forms”). the world.”). hensive sets of provisions on moral rights in for American Law of Accession to the Berne Convention this article examines France’s selectively grant authors copyright During this time, the king would protection. 380 \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 6 3-MAY-17 9:46 (1992). Moral Rights) d’auter consists of authorial rights, as well as moral rights (droit moral). 38980-swt_23-2 Sheet No. 43 Side B 05/11/2017 09:52:06 B 05/11/2017 43 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 44 Side A 05/11/2017 09:52:06 381 43 TUDY OF S While French ISTORICAL 49 This relationship 50 : A H This new policy fo- This new Thus, the law grew as Thus, the law grew 42 48 Although an author’s 46 OPYRIGHT C RENCH F Because moral rights developed through Because moral . 1142, 1155-56 (1990). RITISH AND 47 EV , B . L. R OCK Heritage Preservation as a Public Duty: The Abbe Gregoire and the Heritage Preservation as a Public Duty: The note 38, at 151. 32-33 (2009). -L ICH distinctively separating it from its economic right distinctively separating it from note 39, at 432. note 38, at 152. note 39, at 429. 53 note 34, at 123. supra Despite the movement to protect authors’ rights during to protect authors’ rights Despite the movement , 88 M EILMANN 45 supra The most significant aspect of France’s codification of The most significant aspect of In response, a new cultural awareness of national heri- of national awareness cultural a new response, In supra supra supra T 51 52 41 MPLICATIONS Chinni, Joseph L. Sax, at 449. at 448. at 429. I TINA which were likely influenced by and modeled after both the after both by and modeled likely influenced which were RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING Id. Id. Id. Id. See Id. Id. See 44 The policies that shaped moral rights developed throughout the The policies that shaped moral In 1793, after the Revolution, France enacted its first copyright France enacted after the Revolution, In 1793, 44. S 48. 49. 50. 51. 52. Chinni, 53. Rajan, 45. Peeler, 46. 47. Peeler, 41. 42. 43. M K ESTHETIC courts freely interpreted moral rights issues as they arose, this was not courts freely interpreted moral rights French “rulers found a different problematic, as the post-Revolution predecessors.” relationship with culture than their differed from the past as it considered art to glorify the nation and differed from the past as it considered part of the author as the art’s that its creative elements were originator. cused on the author of the work, rather than just the work itself. than just the work work, rather the author of the cused on moral rights were not yet highly regarded under France’s early copy- not yet highly regarded under moral rights were but within would emerge, not statutorily, right laws, its significance system. the French court “social concerns about ethics and justice” evolved. “social concerns about ethics and the court system, they would continually be redefined and reinter- they would continually be redefined the court system, as to the proper arguments based on public policy preted by recurring of copyright protection. function and purpose the Revolution, early post-Revolution French copyright law still fa- early post-Revolution French copyright the Revolution, rights over moral rights. vored economic moral rights is its recognition that “[a]uthorship is the foundation of moral rights is its recognition that copyright law,” tage spread to prevent the destruction of art. the destruction to prevent tage spread English Statute of Anne and the more contemporary U.S. Copyright U.S. and the more contemporary Statute of Anne English Act of 1790. nineteenth and twentieth centuries and were eventually codified in nineteenth and twentieth centuries of France’s most recent cop- 1957 through the parliament’s ratification yright act. laws, Origins of an Idea A 2017] property.” \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 7 3-MAY-17 9:46 C Y 38980-swt_23-2 Sheet No. 44 Side A 05/11/2017 09:52:06 A 05/11/2017 44 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 44 Side B 05/11/2017 09:52:06 M K 62 C Y [Vol. 23 Because every While these dif- 58 61 60 whereas the economic whereas 56 Because France safeguards Because France , 24 F.3d 1088, 1098-99 (9th Cir. 1994); . 59 art. L121-1 (Fr.) (consolidated June 20, 57 note 22, at 365-66. supra , NTELLECTUELLE I For U.S. authors who are restricted from For U.S. authors who are restricted ´ E 63 ´ ET note 39, at 423. UGENHOLTZ ROPRI note 37, at 612. note 37, at 551. In France, moral rights are so revered that they are are so revered that moral rights In France, P note 39, at 454. 55 In the European Union alone, the harmonization of In the European Union alone, supra & H Moral rights are concerned with an author’s reputation author’s with an are concerned rights Moral 64 supra supra supra 54 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Peeler, at 434-35. . . at 455. OLDSTEIN ODE DE LA Id Id Id. See See id. While U.S. copyright law does not apply extraterritorially, While U.S. copyright law does Despite the fact that French copyright law is now codified, French is now codified, copyright law the fact that French Despite As demonstrated by the foregoing, modern U.S. and French poli- As demonstrated by the foregoing, 63. G 57. Piotraut, 58. Peeler, 59. 60. 61. Piotraut, 62. Subafilms, Ltd. v. MGM-Pathe Commc’ns Co 55. 56. C 54. 64. case that comes before the court is unique, the court may expand before the court is unique, the case that comes to invoke public the legislature’s initial intent upon the law beyond or political argument to consider any philosophical policy, and further, or of its own volition. by any litigant, ferences are at odds with each other, this is a benefit to the U.S. ferences are at odds with each author. right is subject to a limited term. to a limited right is subject authors by consistently providing them various remedies, it “con- providing them various authors by consistently cultural domination in the arts.” tinue[s] to exert regaining the foreign rights in and to their works under U.S. copyright regaining the foreign rights in and of moral rights allows them to as- law, the extraterritorial application but in various other civil law na- sert their rights not just in France, tions as well. “perpetual, inalienable, and imprescriptible,” inalienable, “perpetual, copyright law has accelerated the convergence between economic and copyright law has accelerated the but frequently overlap with economic rights, which relate to matters which relate economic rights, overlap with but frequently of exploitation. Armstrong v. Virgin Record, Ltd., 91 F. Supp. 2d 628, 632 (S.D.N.Y. 2000). 2008). courts continue to facilitate the development of moral rights laws, to facilitate the development of courts continue did during the nineteenth century. much like they cies regarding copyright law are drastically different. The U.S. empha- cies regarding copyright law are it does authorship, while France, sizes ownership more than over ownership. conversely, emphasizes authorship to all authors regardless of a treaty France “extend[s] moral rights point of attachment.” C. Market Reconciling Two Competing Ideologies in a Global 382 protections. \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 8 3-MAY-17 9:46 38980-swt_23-2 Sheet No. 44 Side B 05/11/2017 09:52:06 B 05/11/2017 44 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 45 Side A 05/11/2017 09:52:06 69 66 383 ROP- P With 68 ITERARY AND L NTELLECTUAL I 71 ROTECTION OF P NTERNATIONAL can trace its origins back to can trace its origins ,I 67 Berne made protection availa- ONG 70 The implications of the U.S. join- L 74 73 note 22, at 38. note 22, at 34. note 22, at 36. STELLE ONVENTION FOR THE E supra supra supra C , , , ORIS ERNE B The U.S. was the most commercially significant The U.S. was the most commercially at 79 (1987). & D 72 HE UGENHOLTZ UGENHOLTZ UGENHOLTZ ,T MATO & H & H & H With France being a forerunner in the continuing de- the continuing in a forerunner being France With 225 (1996). D’A 65 : 1886-1986, at 38-39. ICKETSON R ORKS ERTY at 21. NTHONY OLDSTEIN OLDSTEIN OLDSTEIN AM W RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING See id. Id. Id. Id. NTHOLOGY Authors’ Rights Throughout the World Authors’ Rights While there is no international copyright law per se, there are international copyright law per While there is no When Berne went into effect in 1886, Europe’s most powerful When Berne went into effect in A 74. 69. A 72. S 70. 71. G 65. 66. and Artistic Works, Sept. 9, 1886, 331 Berne Convention for the Protection of Literary 67. 68. G 73. G M K RTISTIC consideration of natural rights, Berne laid out many terms of protec- natural rights, Berne laid out many consideration of establishing “minimum standards” tion and national reciprocity by 1852, when, coincidentally, French legislation sought to establish uni- French legislation sought 1852, when, coincidentally, natural rights. law through the invocation of versal copyright ble to authors who were “nationals” of signatory countries, whether ble to authors who were “nationals” countries or not. their work was published in other affords U.S. authors the ability to ing Berne are significant, as it signatory nations, allowing them to substantively gain more rights in assert more of their rights abroad. country to refuse adherence to Berne. Although throughout its history country to refuse adherence to Berne. of bilateral copyright agreements on the U.S. has entered into a series adherence until 1989: 103 years a country-by-country basis, it evaded and today’s most economi- after some of the world’s most significant, cally important nations had joined. multiple treaties and agreements to which many nations are signato- and agreements to which many multiple treaties the Berne Conven- of these agreements is ries. The most significant Works (“Berne”). of Literary and Artistic tion for the Protection velopment of moral rights, many other nations are likely to follow in are likely many other nations of moral rights, velopment in various regain their rights U.S. authors to which may allow its place, territories. D. Agreement to Protect The Berne Convention: An International nations such as France, Germany, and the United Kingdom commit- nations such as France, Germany, ted to its obligations. A U.N.T.S. 217. Berne, which went into effect in 1886, Berne, which went by. for its signatory nations to abide 2017] rights. moral \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 9 3-MAY-17 9:46 C Y 38980-swt_23-2 Sheet No. 45 Side A 05/11/2017 09:52:06 A 05/11/2017 45 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 45 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 MAGE There- EIGHBOUR- ’I 78 N AW L OPYRIGHT AND C OURT C OPYRIGHT IVIL 1297 (2d ed. 2006). C NTERNATIONAL , I EYOND U.S. C B 79 : which provides U.S. authors with the which provides RENCH note 75, at 1299. 77 INSBURG F supra UTEURS DES ARTS VISUELS ET DE L , C. G OOGLE A ANE . G ONVENTION AND AY INTO V INSBURG C & J W ´ EDES ERNE & G ´ ET B ICKETSON While this language appears to preclude an author from appears to preclude an author While this language HE OCI (SAIF) 76 R SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW : T S ING AKES ITS ICKETSON AM A IXE As is inevitable in international copyright disputes, where na- disputes, where copyright in international As is inevitable See id. F M 75 With Berne being silent as to issues of transfers of ownership, a silent as to issues of transfers With Berne being A French Civil Court recently addressed a copyright infringement A French Civil Court recently addressed While Berne sets universal standards for its signatories to adhere signatories for its standards sets universal Berne While IGHTS 78. 79. Tribunal de grande instance [TGI] [ordinary court of original jurisdiction] Paris, 3e ch., 76. Berne Convention for the Protection of Literary and Artistic Works art. 5(2), Sept. 9, 77. R 75. S R fore, a U.S. author would not be prohibited by Berne from extraterri- fore, a U.S. author would not be in France. In fact, Berne’s torial application of U.S. termination may have been intended to grant silence on transfers of ownership to determine how they are to proceed individual nations such freedom While it is ultimately up to a in an ever-changing global market. may govern in such an instance, French court to decide which law and in consideration of other without any regulation to the contrary, below, U.S. termination could con- arguments, which shall be made allow a U.S. author to regain his or ceivably be applied in France to her French rights. basis to pursue U.S. termination in such an instance. basis to pursue U.S. law it sees fit to govern in- French court is free to apply whichever to terminate an earlier assignment, stances where a U.S. author seeks the copyright in France. and his or her assignee has exploited asserting his or her rights under U.S. copyright law extraterritorially, her rights under U.S. copyright asserting his or initial ownership, as to “questions of authorship, Berne is in fact silent ownership,” and transfers of tional sovereignty is monumental, choice of law conflicts are likely to of law conflicts choice is monumental, tional sovereignty as to some guidance 5(2) of Berne provides Article arise. However, in another. seeks redress of one nation do when a national what to as well as the means “the extent of protection, Article 5(2) provides: rights, to the author to protect his of redress afforded shall be gov- where protection is by the laws of the country erned exclusively claimed.” 1886, 331 U.N.T.S. 217. claim under a framework analogous to a termination of assignment in claim under a framework analogous to, its signatories are free to interpret its provisions with some free- provisions with to interpret its are free to, its signatories dom. May 20, 2008, 05/12117 (Fr.). III. L 384 \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 10 3-MAY-17 9:46 38980-swt_23-2 Sheet No. 45 Side B 05/11/2017 09:52:06 B 05/11/2017 45 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 46 Side A 05/11/2017 09:52:06 385 , https://www R 84 Under the fair 85 , SAIF.F which “had inter- Through its search Part II.D. 91 82 The Civil Court “noted 89 see supra alleged that the websites google.fr alleged that the 81 La Societe des Auteurs des arts visuels et de l’Image La Societe des Auteurs des arts visuels et de , note 82, at 5. ASLIN Interestingly, Google argued that such an Interestingly, Google argued that C 87 supra , 88 RENT 3 (2011) (“‘Thumbnail’ low-resolution images are typically small, ASLIN However, the issue arose in the context of the in- of the context arose in issue the However, & B L.J. 80 & C L 17 U.S.C. § 107 (2012). ’ NT PELMAN In order to prevail, the defendant must argue that the In order to prevail, the defendant . I SAIF alleged that the process violated its members’ exclu- the process violated its members’ SAIF alleged that S PELMAN 86 AL 83 see also ;S ; ATE RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING See id. See id. et de l’Image Fixe La Saif, Societe des Auteurs des artes visuels Id. Id. Id. Id. It then looked to the Court of Cassation, It then looked to the Court of , 19 C In 2005, the French artists’ society, SAIF, a collective organiza- artists’ society, SAIF, a collective In 2005, the French When the case went to trial in 2008, the Paris Civil Court agreed When the case went to trial in 2008, In turn, Google argued that the French Civil Court ought to apply that the French Civil Court In turn, Google argued 90 82. K 86. 17 U.S.C. § 107 (2012). 87. 88. TGI, Paris, 3e ch., May 20, 2008, 05/12117 (Fr.); 80. 81. 89. 90. 83. TGI, Paris, 3e ch., May 20, 2008, 05/12117 (Fr.). 84. 85. M K use doctrine, a defendant admits to an unauthorized use of a copy- use doctrine, a defendant admits against such alleged copyright in- righted work, but claims defense criticism, comment, news reporting, fringement “for purposes such as for classroom use), scholarship, or teaching (including multiple copies research.” preted the Berne Convention to require the application of the preted the Berne Convention engines, Google located online images and downloaded copies into its located online images and downloaded engines, Google database. that the Berne Convention did in fact control [its] choice of law analy- that the Berne Convention did in sis.” and images.google.fr had infringed its members’ copyrights by display- had infringed its members’ copyrights and images.google.fr images as search results. ing various thumbnail application of U.S. copyright law was justified under Article 5(2) of application of U.S. copyright law the Berne Convention. ternet, which is another prime example of how the exploitation of of how the exploitation prime example is another ternet, which began as a What to a single jurisdiction. is not limited copyright copy- a case of international developed into quickly French lawsuit corporation, internet pioneer made the U.S. and eventually right law a party. Google, visual artists, tion that represents .saif.fr/spip.php?page=saif2&id_article=90 (last visited Mar. 8, 2017). .saif.fr/spip.php?page=saif2&id_article=90 (last sive rights, specifically those of reproduction and display. those of reproduction and sive rights, specifically four factors the court must consider tip in favor of the use being “fair” four factors the court must consider and not an infringement. with Google and applied U.S. copyright law. with Google and applied U.S. copyright U.S. copyright law—specifically, the fair use doctrine. Fixe (SAIF) v. Google: A Parisian Story of the Berne Convention and Online Infringement Fixe (SAIF) v. Google: A Parisian Story of Claims 2017] market. a global \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 11 3-MAY-17 9:46 reproductions of full-sized images.”). C Y 38980-swt_23-2 Sheet No. 46 Side A 05/11/2017 09:52:06 A 05/11/2017 46 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 46 Side B 05/11/2017 09:52:06 M K 99 & & C Y RTS The [Vol. 23 A 94 PELMAN note 82, at , Michael H. note 82, at 5. supra ARDOZO , supra , see also The Visual Arts Rights , 18 C at 1147, 1169-70, 1176- ASLIN Since the alleged Since 97 ASLIN Id. 92 & C which was applied & C 96 PELMAN This decision not only ap- This decision not PELMAN 95 347, 393-97 (1993); Jill R. Applebaum, 93 L. J. UTGERS whereas the right of termination encom- whereas the right of termination See generally 98 , 24 R note 82, at 5. supra , Copyright Alienability Restrictions and the Enhancement of Author ASLIN & C note 82, at 5. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW (emphasis in original). Neil Netanel, 17 U.S.C. § 107 (2016). “The court analogized Google to a dictionary or directory providing cost-free and “The court analogized Google to a dictionary 93, 106-07, 106 n.75 (2000). PELMAN supra Id. Id. See See , The Screenwriter’s Indestructible Right to Terminate Her Assignment of Copyright: Once a This is a very significant outcome for the French courts and a very outcome for the French This is a very significant The Civil Court compared Google’s operation to that of a dic- to that Google’s operation Court compared The Civil . L. J. 93. TGI, Paris, 3e ch., May 20, 2008, 05/12117 (Fr.). 94. 92. 99. 98. 91. court. S The Court of Cassation is France’s highest 96. 1146, 1176 (9th Cir. 2007). The Ninth Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 97. S 95. (Fr.); S TGI, Paris, 3e ch., May 20, 2008, 05/12117 NT ASLIN Civil Court then went through the four steps of a fair use doctrine went through the four steps of Civil Court then such use to be “fair.” analysis and found harm was generated by Google’s search engine at its headquarters in engine at its headquarters Google’s search generated by harm was to govern law ought that U.S. copyright the court reasoned California, infringement. alleged case of such an extraterritorially by way of the Berne Convention. extraterritorially plied U.S. copyright law extraterritorially, but also expanded the hold- law extraterritorially, but also plied U.S. copyright U.S. fair use doctrine case, ing of a prior passes both the economic right as well as the author’s moral right. passes both the economic right universal access to information, and thus deserving of the ‘fair use’ protection.” S universal access to information, and thus deserving 5. Autonomy: A Normative Evaluation tionary, which warranted application of the fair use doctrine. application of which warranted tionary, who wish to apply for hopeful U.S. authors promising achievement the defense of provisions extraterritorially. While U.S. termination an earlier assign- distinct from the right to terminate fair use is quite provision in France raises hope that ment, the application of any U.S. rights as the author to regain an author can assert his or her natural abroad. One must also consider the ownership in his or her works termination may be treated even context of this decision with how and the fair use defense are more favorably. Copyright infringement right (i.e., that of reproduction primarily concerned with the economic and display) in a copyright, C 386 produced.” was the harm in which law country’s \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 12 3-MAY-17 9:46 E Davis, Story is “Pitched,” a Studio Can Never Obtain All Copyrights in the Story Circuit Court of Appeals found that “the copying function performed automatically by a user’s Circuit Court of Appeals found that “the copying a transformative use. Moreover, . . . a cache copies computer to assist in accessing the Internet is in Internet use . . . Such automatic background no more than is necessary to assist the user on Perfect 10’s rights, but a considerable public copying has no more than a minimal effect in favor of a fair use. benefit.” Thus, the four fair use factors weighed 77. 38980-swt_23-2 Sheet No. 46 Side B 05/11/2017 09:52:06 B 05/11/2017 46 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 47 Side A 05/11/2017 09:52:06 OR 387 PEL- supra . F stare It is , TR 106 . C 183 (1992) Y ASLIN ’ CH OL & C . L. S This inconsis- & P L ’ 228 (1939). Unlike fair use, 107 TAN NT ,S 104 PELMAN ANDS instead of the U.S. ;S L 102 Id. . U. J. I . M THER O , 8 A SAIF AR OF note 82, at 5. Loi sur la Confiance dans l’Economie Numer- B supra , ENCH AND ASLIN French case law still develops much like its French case law still develops much B HE & C 105 note 99, at 186-87. , T Who Said France Does Not Have Fair Use? While this foreclosed Google’s pursuit of applying While this foreclosed supra note 39, at 432. PELMAN note 105, at 228. URDICK 103 note 82, at 5. supra supra (Jan. 28, 2011, 3:41 AM), http://cyberlaw.stanford.edu/blog/2011/01/who-said- , L. B Y ’ supra , OC demonstrates the willingness of France’s Civil Court to ap- willingness of France’s Civil Court demonstrates the Google still prevailed over SAIF, but the Paris Court of over SAIF, but the Paris Google still prevailed Applebaum, Peeler, Zohar Efroni, MAN ILLIAM and when considering this, they may be more inclined to ap- more inclined to they may be considering this, and when URDICK & S 101 ASLIN RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING , France does not. See See See 100 SAIF While this was a major victory justifying the application of U.S. the application victory justifying was a major While this & C , or ‘LCEN’), which governs internet actors absent a more specific statute.” CA, Paris 1e ch., , or ‘LCEN’), which governs internet actors absent 107. B 101. Paris, 1e ch., Jan. 26, 2011, 08/13423; S Cour d’appel [CA] [regional court of appeal] 100. 106. 103. CA, Paris, 1e ch., Jan. 26, 2011, 08/13423. 104. 105. W 102. The Appeals Court found that since the al- CA, Paris, 1e ch., Jan. 26, 2011, 08/13423. M K NTERNET developed by judges who seldom cite case precedent. developed by judges who seldom tency benefits U.S. authors because no French court is bound by an- tency benefits U.S. authors because France does not have an equivalent legal protection that could sup- have an equivalent legal protection France does not to the U.S. and no The concept is unique plant U.S. termination. law. remedy exists in French copyright equivalent legal ply U.S. copyright law and what may happen when France has its own ply U.S. copyright law and what it is still unknown what may hap- equivalent legal remedy. However, is faced with a claim to which no pen when the Paris Court of Appeal supplant U.S. termination. French copyright law could sufficiently legal system operates very dif- Fortunately for U.S. authors, France’s Whereas the U.S. abides by ferently than the U.S. legal system. decisis fair use doctrine. law of moral rights developed prior to its codification in 1957. law of moral rights developed prior U.S. copyright law in France, this is only so because France has its own in France, this is only so because U.S. copyright law to uphold Google’s defense. equivalent protections note 82, at 5. Thus, the court held that “Google [was] not liable for copyright infringement under note 82, at 5. Thus, the court held that “Google ( the Law on Confidence in the Digital Economy ique Jan. 26, 2011, 08/13423; S (analyzing the Visual Artists Rights Act of 1990 based on the French doctrine of moral rights). (analyzing the Visual Artists Rights Act of 1990 copyright law abroad, it must be noted that SAIF appealed this deci- SAIF appealed must be noted that law abroad, it copyright decision was over- Court of Appeals, where the sion to the Paris turned. ply U.S. copyright law than the court in the court in copyright law than ply U.S. a French variation of fair use Appeals applied france-does-not-have-fair-use. leged harm was sustained in France, French law should apply. leged harm was sustained in France, French I Act of 1990: An Analysis Based on the French Droit Moral Act of 1990: An Analysis Based on the French 2017] economic the over moral right the author’s favor courts French right, \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 13 3-MAY-17 9:46 C Y 38980-swt_23-2 Sheet No. 47 Side A 05/11/2017 09:52:06 A 05/11/2017 47 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 47 Side B 05/11/2017 09:52:06 M K C Y ROP- P [Vol. 23 OPYRIGHT C All that is re- NTELLECTUAL I 110 FFECTUATING AN E AW PPLICABLE LAW IN L (which is almost nonex- , A ICENSING OF Several states’ laws could 113 , L 112 1, 6-9 (Oct.-Dec. 2005), http://portal.unes .” ONTRACT ULLETIN OHN J B C C PPLICABLE As many copyright professors have As many copyright A M. M 109 OPYRIGHT NVIRONMENT note 75, at 1324. E HEN THE TEPHEN lex contractus supra , : W IGITAL . & S D R ELECTS THE , UNESCO C J 108 S INSBURG UCAS L & G RATLER ASES IN THE ONTRACTUS D 111 C . NDRE AY C SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW J A ERTY ICKETSON SSIGNMENT EX See See See id L A Under U.S. copyright law, an assignment of copyright is ineffec- law, an assignment of copyright Under U.S. copyright this is rarely the case. In While only a simple writing is required, While the uncertainty of a ruling in France may be a drawback a ruling in France uncertainty of While the 8-9 (2014) (citing Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990)). 109. 17 U.S.C. § 204(a) (2012). 110. 112. R 108. 111. 113. 17 U.S.C. § 301 (2012). NFRINGEMENT quired is a simple writing, and no matter how simple it may be, the quired is a simple writing, and no with a fully binding contract of assignor and assignee are left assignment. istent), and is therefore implicitly acknowledged to govern any copy- istent), and is therefore implicitly right dispute that may arise. be applied, but in many instances (particularly in an entertainment be applied, but in many instances are California and New York. While context), the most popular laws reference to federal law, federal there may not always be an explicit law copyright law preempts state copyright emphasized when explaining the concept of assignment, the writing explaining the concept of assignment, emphasized when not be complex. effectuating such assignment need co.org/culture/en/files/29336/11338009191lucas_en.pdf/lucas_en.pdf. tive unless it is done in writing. tive unless it is done entertainment context), an assign- many instances (particularly in an of a much larger contract. Because ment of copyright is usually a part of contracts and the many possible of the complexities of these types arise from entering into such a legal scenarios that could potentially an applicable law to govern a contract, the parties always designate “choice of law” provision is com- dispute if and when it arises. This monly referred to as the “ I IV. 388 is termination as U.S. such concept a unique such and when other, can prevail. copyright law of U.S. before it, the application brought the author remedies, which exist contractual author, there for a U.S. law to of U.S. copyright the application and use to support may argue the event a in France, in of assignment a termination effectuate U.S. copyright law not be so willing to apply more French court would than it already has. \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 14 3-MAY-17 9:46 38980-swt_23-2 Sheet No. 47 Side B 05/11/2017 09:52:06 B 05/11/2017 47 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 48 Side A 05/11/2017 09:52:06 389 120 Public policy will 118 which allows parties which allows 114 To be effective, the court To be effective, 115 119 Once this has been determined, the Once this has been 116 note 75, at 1324. supra , INSBURG note 114, art. 3. & G The court will then consider the parties’ intentions, The court will supra 117 at 1325. ICKETSON RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING Id. Id. Id. Id. Returning to the entertainment contract discussed above, one can entertainment contract discussed Returning to the The nations of the European Union, including France, are signa- France, including Union, of the European nations The Following a thorough consideration of the contract, the court will Following a thorough consideration 114. Parliament and the Council of 17 June Regulation (EC) No. 593/2008 of the European 115. 116. R 117. 118. 119. 120. Rome I, M K also be a consideration of the court. also be a consideration to choose the law that will govern all or part of a contract, expressly or of a contract, govern all or part the law that will to choose terms of the by the is “clearly demonstrated so long as it implicitly, of the case.” or the circumstances contract must first determine whether the rights have been legitimately ac- have been legitimately the rights determine whether must first country. quired in the source court will then consult the choice of law designated in the contract and the choice of law designated court will then consult be narrowed using the scope of assignment should determine whether local laws. whether it be expressed or implied, and apply the law of the nation or implied, and apply the whether it be expressed relationship with the contract. that has the closest tories to the Rome I Regulation (“Rome I”), (“Rome the Rome I Regulation tories to a choice of law court may rule when considering see how a French U.S. author and a U.S. assignee. The clause in the context between a that assigns the author’s rights to court would first look to the contract contract, the court will see that the the assignee. Upon reading the the author’s rights in the source assignee has legitimately acquired The court will then see a choice country (for our purposes, the U.S.). by the terms of the contract.” of law that is “clearly demonstrated 2008 on the Law Applicable to Contractual Obligations (Rome I), art. 3, 2008 O.J. (L 177) 1, 2 2008 on the Law Applicable to Contractual [hereinafter Rome I]. Whether the contract selects the laws of New York or California to Whether the contract selects the two U.S. parties entered into a con- govern, the court will see that the to exploit the author’s rights in- tract granting the assignee the rights have mutually agreed upon a specific ternationally and that the parties that may arise from such ex- set of U.S. laws to govern any dispute elect to narrow the scope of assign- ploitation. The court might also necessary. ment using local laws, if determined policy and its connection to the then consider public policy. Public heart and soul of any argument for author’s moral rights is really the U.S. copyright law, whether a party the extraterritorial application of 2017] \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 15 3-MAY-17 9:46 C Y 38980-swt_23-2 Sheet No. 48 Side A 05/11/2017 09:52:06 A 05/11/2017 48 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 48 Side B 05/11/2017 09:52:06 . M K C Y NTER- stare I SAIF [Vol. 23 SAIF N : A ARMONY H ERFORMERS P which would mean 122 U.S. OLICY IS IN UTHORS AND P Public policy strengthens the A 124 UBLIC IGHTS OF P note 75, at 1299. Therefore, neither claim on its own Therefore, neither claim on its S EASONING FOR R ’ 171 (2006). 123 R supra , ORAL M SSIGNMENTS RANCE NALYSIS HE A A INSBURG , T – F note 105, at 228. to identify the U.S. as the country with the closest to identify the U.S. as the country 125 & G NDERLYING supra DENEY , A U UBLIC OMPARATIVE P WITH THE C at 1325. ICKETSON URDICK SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW B R and may not be so willing to consider the ruling of so willing to consider the ruling and may not be NATIONAL AND ¶ 8.28. LIZABETH RDRE 121 lex contractus Id. See See See id. ERMINATION OF T O What a U.S. author needs is support from French law itself; a What a U.S. author needs is support Both of the arguments made in Parts III and IV provide ample made in Parts III and IV Both of the arguments 125. 124. E 121. 122. 123. connection to the contract to justify the application of U.S. copyright connection to the contract to justify that its laws better suit the claim law, a French court could decide brought against the assignee. that French copyright law would govern and the author’s attempt to that French copyright law would France would come to a rather ab- implement U.S. copyright law in author could rely on the legal princi- rupt halt. Nevertheless, while an ple of moral right by indicating that it is a right that “upholds fundamental moral right by indicating that it values of society.” may be enough to persuade a French court to apply U.S. copyright may be enough to persuade a French law. French court to realize that its laws justification that would compel a copyright law in this particular in- are not a valid substitute for U.S. of French copyright law, in terms of stance and that the public policy application. The Court of Cassation an author’s rights, justifies this policy in recent years, applying it in has stressed the principle of public cases. both domestic and international Further, courts may very well decide to extend Article 5(2) of the Further, courts may very well decide of copyright, Berne Convention to assignments support to a U.S. author who is seeking to apply U.S. termination pro- author who is seeking to apply support to a U.S. upon the applica- Whether the author insists visions extraterritorially. a contract, or solely law without reference to tion of U.S. copyright doing so with- of assignment for its application, looks to the contract persuade a French for such application may not out other support not abide by mentioned, French courts do court. As previously decisis 390 in did Google like application upon its insisting suit brings assent in the contract. parties’ mutual relying on the above, or V. \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 16 3-MAY-17 9:46 38980-swt_23-2 Sheet No. 48 Side B 05/11/2017 09:52:06 B 05/11/2017 48 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 49 Side A 05/11/2017 09:52:06 391 note 39, at a principle in turn, al- supra 131 132 Peeler, see also What is interesting to note is interesting to note What is the reason for doing so lies 127 129 note 22, at 96. note 22, at 20; supra supra , , The French also revere the author’s moral also revere The French note 23, at 321. 126 UGENHOLTZ supra UGENHOLTZ & H note 124, at 195. & H note 39, at 432. supra , However, one must also consider the legislative intent However, one must also consider supra OLDSTEIN OLDSTEIN 130 G G Blankenheimer, at 85, 152-53. DENEY Such rights and needs have developed throughout time and needs have developed throughout Such rights and RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING See See Id. Id. See Considering the underlying legislative intent behind U.S. termi- Considering the underlying legislative As previously noted, French law developed and continues to de- to and continues law developed French noted, As previously A French court must first look to the U.S. termination provisions first look to the U.S. termination A French court must 128 128. 131. A 129. 130. 132. 127. 126. Peeler, M K France is familiar with. A. The Right of Withdrawal compare such a right with its own nation rights, a French court can moral right of withdrawal may moral right of withdrawal. The French moral right, as there is very little case actually be the least understood or to define its scope, law to flesh out its real meaning lowing a U.S. author to make a creative argument to establish a paral- lowing a U.S. author to make a creative of withdrawal allows the author to lel with termination. The right much deeper. The reason for termination is to “give the author a sec- much deeper. The reason for termination the author to renegotiate a possible ond bite at the apple,” and allow based on the actual worth of the extension of the initial assignment copyright. that the author’s rights and needs have not independently changed not independently and needs have author’s rights that the is the What has changed Revolution. since the French significantly copyright due to the of the economic rights of a drastic exploitation rights and needs the world economy. The author’s globalization of copyright exploita- adapt due to the global focus of have only had to tion. rights over his or her economic rights. his or her economic rights over for granting the author such a right. The right is more author-centric for granting the author such a right. so far as to provide an author the than it is economic-centric by going interest of its assignee; right to overcome the economic 428. France’s strong and protective measures to remedy an author are and protective measures to remedy France’s strong to better protect the another nation’s copyright law ready to embrace economy. author in a global proceed. Upon do- its underlying policy before it can and understand is definitely an economic component ing so, it will see that while there attached to the right of termination, velop through judge-made decisions, growing more sensitive to the more sensitive decisions, growing judge-made velop through time. author throughout 2017] \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 17 3-MAY-17 9:46 C Y 38980-swt_23-2 Sheet No. 49 Side A 05/11/2017 09:52:06 A 05/11/2017 49 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 49 Side B 05/11/2017 09:52:06 M K OR- C Y [Vol. 23 , 36 C note 124, at 195. Reciprocity empha- 140 supra , and may even be exercised and may note 75, at 1299. DENEY 134 Additionally, since French law since French Additionally, supra 136 , Whereas under U.S. copyright law, Whereas under 138 Essentially, it allows the author to end it allows the Essentially, 135 INSBURG The Role of Reciprocity in International Law note 69, at 121. The Right of withdrawal may only be note 69, at 121. The Right of withdrawal may note 69, at 415. 133 & G note 69, at 121. supra supra , , supra ONG note 124, at 196. , ONG ICKETSON note 124, at 196. R ONG & L & L supra note 39, at 427. , it may even be open to the application of U.S. termi- open to the application of U.S. it may even be See & L supra 137 , MATO MATO supra 93, 94 (2003). DENEY 139 MATO SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW D’A A NELL at 671. It should be noted that because the right of withdrawal is so closely associ- ; D’A L.J. DENEY L ’ See See Id. Id. NT While it is a moral right of the author to overcome an economic right of the author to overcome While it is a moral When considering the implications of applying U.S. termination When considering the implications important in a global mar- The concept of reciprocity is extremely Notably, the right of withdrawal may also override a contract also override a may the right of withdrawal Notably, I 134. D’A 138. 136. A 135. Peeler, 139. 140. Francesco Parisi & Nita Ghei, 137. 133. after publication of the work. of the after publication “does not indicate a proper choice of law in relation to the rights of [ a proper choice of law in relation “does not indicate ] withdrawal,” an author owes no compensation to the assignee, nor does he or she no compensation to the assignee, an author owes of assignment, the French even have to renegotiate an extension the author to indemnify the assignee moral right of withdrawal causes a disruption in the exploitation of of the economic interest for such the work. exploitation or utilization of the work, or utilization exploitation nation when supported by a choice of law provision already agreed by a choice of law provision nation when supported in the contract of assignment. upon by the parties the assignee is not by withdrawing their work, right of the assignee safeguards than as the assignee is provided more without redress, termination. under the right of ated with an assignment of economic rights in a work, no indication of a proper choice of law in ated with an assignment of economic rights in a work, no indication of a proper choice of the an international dispute could very well be attributable to the absence of assignments from Berne Convention. formed for purposes of exploitation. formed for authors a greater right than its own and seeing that it affords U.S. may be more interested in ex- right of withdrawal, a French court termination to assist U.S. authors panding upon the principles of U.S. because of the similar underlying in the global marketplace, simply policies of termination and withdrawal. B. Reciprocity in trade and therefore, a great ket where various nations are engaged could apply. number of individual nation’s laws exercised by the author against his or her assignee. A exercised by the author against his or her assignee. 392 assigned been rights have its economic even after work the reconsider by another. to and exploited \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 18 3-MAY-17 9:46 38980-swt_23-2 Sheet No. 49 Side B 05/11/2017 09:52:06 B 05/11/2017 49 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 50 Side A 05/11/2017 09:52:06 393 143 142 The Reci- 144 141 In this case, 145 at 626. Household wanted to Id. 147 The parties came to an agreement 148 Therefore, the court referenced various sections Therefore, the court referenced 151 Bodum, USA, Inc. v. La Cafetiere, Inc. Bodum, USA, Inc. at 95-96. Household sold a French-press maker that had a striking Household sold a French-press 149 at 628. at 625-26. Trade dress is a “form of trademark;” it is a product’s “distinctive appear- at 626. at 625. at 625. at 94-97. at 106. The parties agreed that the agreement would be interpreted The parties agreed that the agreement 146 RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING Id. Id. Id. Id. Id. Id. Id. Id. See id. See id. A French court should be willing to apply U.S. copyright law be- should be willing to apply U.S. copyright A French court Household continued its business and eventually established a Household continued its business Due to its implications, reciprocity has become imperative be- become imperative reciprocity has its implications, Due to 150 151. 149. 150. 148. 147. 144. 145. Bodum USA, Inc. v. La Cafetiere, Inc., 621 F.3d 624, 628 (7th Cir. 2010). 146. 143. 141. 142. M K concept of reciprocity is not limited to instances of trade, and courts is not limited to instances concept of reciprocity laws when ad- the application of another nation’s are free to consider judicating a dispute. application of Seventh Circuit Court of Appeal’s cause of the U.S. French law in procity promotes cooperation between nations by incentivizing each nations by incentivizing between cooperation procity promotes treatment. for reciprocal in expectations behave cordially other to the court was presented with a trademark dispute between Bodum, a with a trademark dispute the court was presented and Household of a successful French-press maker, French distributor British distributor of a French-press Articles Ltd. (“Household”), a maker. continue selling their French-press makers and entered into negotia- continue selling their French-press tions with Bodum to do so. whereby “Household would never sell one of its French-press makers whereby “Household would never use the trade names Chambord or in France [and] that it could not Melior.” of the French Civil Code and Commercial Code in reaching its conclu- of the French Civil Code and Commercial ance that enables consumers to identify a product’s maker.” similarity to Bodum’s French-press maker. similarity to Bodum’s French-press using French law. distributor in the U.S., which prompted Bodum to file suit against distributor in the U.S., which prompted and state law for trade dress viola- Household under U.S. federal tion. tween various nations with respect to international legal disputes. with respect to international tween various nations 2017] is also who nation another towards behavior specific one nation’s sizes in a similar instance. behavior to exhibit a particular expected action. is meant to discourage opportunistic Such a relationship \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 19 3-MAY-17 9:46 C Y 38980-swt_23-2 Sheet No. 50 Side A 05/11/2017 09:52:06 A 05/11/2017 50 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 50 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 This could only 153 154 art. 1156 (Fr.). .] IV justifying the application of U.S. termination in justifying the application of U.S. note 34, at 125. 155 [C. C supra IVIL C SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Rajan, at 628-30. ODE ONCLUSION By doing so, the court honored the agreement’s choice of law choice agreement’s the honored the court doing so, By See id. Id. See 152 As demonstrated in Part II, The Berne Convention does not state U.S. authors can overcome the territorial limitation of U.S. termi- U.S. authors can overcome the territorial While trademark law and copyright law are distinct areas of intel- law and copyright law are distinct While trademark While the court was silent as to its decision to apply French law, it to apply French as to its decision court was silent While the 153. 154. C 152. 155. strengthen the instance where the parties have explicitly set out their strengthen the instance where the the intention and written word of intention in their contract and thus, compelling the application of the the contract would be in harmony, when the underlying policy of law set forth in the contract, particularly with French public policy. U.S. termination is in harmony which nation’s laws ought to apply in the instance of copyright assign- France. The underlying policy of the reversion of rights under U.S. France. The underlying policy of the public policy of French moral termination is in harmony with of U.S. rights as a quintessen- rights. This policy recognizes reversion prevail over any economic interest tial right of an author that should rights to revert in France as well. of an assignee and cause the author’s provision, resolving this dispute under French law. dispute under French resolving this provision, nation rights by demonstrating that its underlying policy is in harmony nation rights by demonstrating that rights. Moral rights favor authorship with the various policies of moral over ownership, may be presumed that it was due to the parties’ mutual assent in their mutual assent was due to the parties’ that it may be presumed all disputes. govern any and law was to that French initial agreement encourages a precedent and decision sets of this The significance come before it and apply U.S. law when U.S. authors French courts to the intention that entered into under U.S. law with present a contract like it would in the to govern a dispute, very much it be the sole law discussed in Part IV. entertainment contract that where a U.S. they are similar enough to justify lectual property, dispute, a French apply French law in a trademark court decides to a copyright dispute. and apply U.S. law in court ought to reciprocate respect the parties’ lies in the court’s decision to The matter really law be the governing law, de- intention to have a particular nation’s Article 1156 of France’s Civil spite where the suit may be brought. intention when entering into a con- Code provides that the parties’ written word. tract ought to prevail over the VI. C 394 sion. \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 20 3-MAY-17 9:46 38980-swt_23-2 Sheet No. 50 Side B 05/11/2017 09:52:06 B 05/11/2017 50 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 51 Side A 05/11/2017 09:52:06 395 , because note 75, at 1299. note 22, at 19-21. supra supra , , and by comparing termination to the right comparing termination and by A French court may be even more com- A French court may be even more 157 art. 1156 (Fr.). Bodum, USA, Inc. v. La Cafetiere, Inc. Bodum, USA, Inc. v. La Cafetiere, SAIF INSBURG .] IV UGENHOLTZ & G Therefore, this position, if accepted and enacted, has Therefore, this position, if accepted [C. C & H 158 IVIL C ICKETSON R This allows a U.S. author to argue that U.S. termination that to argue author a U.S. allows This OLDSTEIN ODE RETHINKING COPYRIGHT TERMINATION IN A GLOBAL MARKET IN A GLOBAL TERMINATION COPYRIGHT RETHINKING See 156 While this article specifically addresses how a dispute ought to be While this article specifically addresses Additionally, as demonstrated in Part IV, the choice of law of a demonstrated in Part IV, the choice Additionally, as 157. C 156. 158. G M K of the parties’ mutual assent as set forth in their agreement. France of the parties’ mutual assent as cordially in hopes of further recipro- would be incentivized to behave cation by the U.S. in future instances. it is also intended to provide a resolved between the U.S. and France, authors of common law nations in framework for the protection of mentioned, France is a forerunner in civil law nations. As previously and the various nations of the Euro- the development of moral rights law to be in harmony with French pean Union develop their copyright copyright law. pelled to apply U.S. termination after recognizing the U.S.’s applica- pelled to apply U.S. termination tion of French law in the potential of substantively revising how business is conducted and the potential of substantively revising how business is conducted how rights are evaluated on a worldwide basis. ought to apply extraterritorially because of its intrinsic association of its intrinsic because apply extraterritorially ought to concept, is such a unique U.S. termination Because with assignment. could argue a U.S. author substitute that not have a valid France does its applica- could argue for a U.S. author court. However, in a French did in tion as Google of both termina- similarities between the policies of withdrawal. The an application of of withdrawal could justify such tion and the right remedy in France is particularly because no other U.S. copyright law, in such an instance. to supplant U.S. copyright law so comparable as a similar remedy court can see that it recognizes However, a French context so that its withdrawal) in a slightly different (i.e., the right of of applying be wholly unaware of the repercussions courts would not U.S. termination. of U.S. termination in France, as contract would justify the application at the time they entered into the it manifests the parties’ true intent author assigned his or her rights contract. By recognizing that a U.S. agreed that U.S. law is to gov- to a U.S. assignee and that the parties French court would be compelled to ern any dispute that may arise, a 1156 of France’s Civil Code would apply U.S. termination. Article law, as it is mostly concerned support the application of U.S. copyright with the parties’ intent. 2017] ment. \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 21 3-MAY-17 9:46 C Y 38980-swt_23-2 Sheet No. 51 Side A 05/11/2017 09:52:06 A 05/11/2017 51 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 51 Side B 05/11/2017 09:52:06 M K C Y \\jciprod01\productn\S\SWT\23-2\SWT204.txt unknown Seq: 22 3-MAY-17 9:46 38980-swt_23-2 Sheet No. 51 Side B 05/11/2017 09:52:06 B 05/11/2017 51 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 52 Side A 05/11/2017 09:52:06 R R R R R R R R R R R R R R R . 413 ... 409 ..... 403 ...... 408 AXIMIZE DOJINSHI Yoshimi M. Pelc* M ...... 412 SE TO NALYSIS U A OPYRIGHT ...... 405 ”...... 416 SE C AIR U F AIR ...... 401 397 ARODY DOPT ...... 415 “P EEMED AS A ...... 420 APAN D PARODY AND PARODY U.S. F J CAN PROTECT JAPANESE PROTECT CAN ...... 418 ...... 398 HOULD ...... 421 S ARODY ...... 417 ...... 401 ACHIEVING THE COPYRIGHT THE ACHIEVING P APAN ROTECTION FOR THE J The Fair Use Provision Should Explicitly Prohibit The Fair Use Provision Should Explicitly Worth of the Judges from Evaluating the Artistic Secondary Work The Amount and Substantiality of the Portion Used The Amount and Substantiality of upon the Value of The Effect of the Secondary Work the Original Work Use” as a Japan Should Incorporate “Transformative of the Fair Use Sub-Factor into the First Prong Factors of Japan Should Codify the Definition Prong of the Fair “Transformative Use” in the First Use Factors The Importance of Parody for the Japanese The Importance Culture Works Japanese Copyright Law and Infringing Dojinshi and Tolerated Uses Secondary Use The Purpose and Character of the The Nature of the Original Work P OW VERVIEW OF THE ONCLUSION APANESE NTRODUCTION NFRINGEMENT IN EQUILIBRIUM: HOW FAIR USE LAW HOW FAIR EQUILIBRIUM: C. C. D. A. B. I A. B. C. A. B. I. I * J.D., May 2017, Southwestern Law School. The author would like to thank Professor V. C II. J IV. H III. O M K Silvia F. Faerman, Professor Tigran Palyan, and Professor Robert C. Lind for their guidance and Silvia F. Faerman, Professor Tigran Palyan, and Professor Robert C. Lind for their guidance own. advice in writing this article. Any errors or omissions in the analysis are solely the author’s \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 1 11-MAY-17 9:19 C Y 38980-swt_23-2 Sheet No. 52 Side A 05/11/2017 09:52:06 A 05/11/2017 52 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 52 Side B 05/11/2017 09:52:06 M K 1 ¯ O C Y To 6 UNKA HIHY [Vol. 23 S (May 15, ], B IMES RESENCE IN THE 113 (2010); Salil HUPPAN T P NDUSTRY , S I APAN J UILDING TRONG ¯ OKAI ” Y , S B K RADE AND MAGE I , T ] 222 (2016) (Japan). The Japanese anime and The Japanese HUPPAN 5 S . 155, 158 (2002). ARKET CONOMY EV E M STABLISHMENT OF A ULTURE AND ENKOKU E C L. R NIME & Z A and over seventy percent of electronic and over seventy UTGERS INISTRY OF 3 UBLICATION ¯ UJO P [M OWARDS THE Exporting Culture via “Cool Japan , 55 R ENKY ¯ O [T . (Dec. 5, 2013, 9:02 AM), http://www.hollywoodreporter.com/news/ RAMES OF K Popular animation series, often based on original Popular animation ¯ Manga comprises around thirty percent of the Manga comprises OSH U.S. Reaches Trans-Pacific Partnership Trade Deal with 11 Pacific 4 2 EP , F U UKETE R ANGY H M AGAKU ] 6, 15-18, 22-23 (2010), http://www.meti.go.jp/policy/mono_info_service/ (2010), ] 6, 15-18, 22-23 S EPORT ON THE UE . J. (Oct. 5, 2015, 5:12 PM), http://www.wsj.com/articles/u-s-reaches-trade-deal- K R T -Y S EIZAI ZE Kazuaki Nagata, K SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW OLLYWOOD T NDUSTRY at 16. ALL IKKOKU NI NNUAL See HUPPAN ,H I Id. See See The Government Released Its First Official Measure of How Arts and Culture Affect the The Government Released Its First Official Measure R Copyright and Comics in Japan: Does Law Explain Why All the Cartoons My Kid , W [A ¯ NTRODUCTION The film industry as a whole is without question an important whole is without industry as a The film Many Japanese believed that the industry was being threatened Many Japanese believed that the O ¯ 3. S 6. William Mauldin, 2. 4. 5. 1. O ENP ONTENT ANGY 2012), http://www.japantimes.co.jp/news/2012/05/15/reference/exporting-culture-via-cool-japan/ #.WJaGDtlrldU. Mehra, Watches Are Japanese Imports? Nations hollywood-creative-industries-add-504-662691. Economy with-11-pacific-nations-1444046867. mono/creative/bunkasangyou.pdf (Japan). The Ministry of Economy, Trade and Industry of Ja- mono/creative/bunkasangyou.pdf (Japan). The Japan” to express its commitment to promote Ja- pan had adopted an unofficial slogan “Cool anime and manga contents both domestically and pan’s soft power including the popularity of overseas. N S C 398 I. I com- given that its revenue States economy, to the United contributor services. for goods and the country’s GDP percent of prises three exports, of America’s major serving as one films also With Hollywood the world. has a prominent presence throughout the U.S. film industry (the Japanese considers the animation and manga Similarly, Japan players in the industry as one of the important term for comic books) Japanese economy. \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 2 11-MAY-17 9:19 Japanese printing industry Japanese printing manga, boost sales of character products in neighboring industries, in- of character products in neighboring manga, boost sales and action figures. cluding video games book sales in Japan. economy, just as the is a star player in the Japanese manga industry film industry is in the U.S. part of the Trans-Pacific Partnership while Japan was negotiating to be trade agreement signed by twelve Pa- (TPP) agreement, a multilateral U.S. and Japan in October, 2015. cific Rim countries including the comply with the agreement, Japan needed to enact a law allowing the comply with the agreement, Japan copyright infringement complaints in Japanese police to file criminal without the copyright holder’s cases of commercial copyright piracy 38980-swt_23-2 Sheet No. 52 Side B 05/11/2017 09:52:06 B 05/11/2017 52 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 53 Side A 05/11/2017 09:52:06 14 399 UM- NTEL- [S I ¯ ¯ OTEI NO O ATIFICA- Y R AIY -K G Feb. 4, 2016 [here- AN NO ˆ ASHIPPU - ORUM FOR THE F ˆ ATON CCOMPANY THE ¯ ORITSU P A APAN ¯ H O For that reason, many For that reason, , J 11 which are often based on which are often AW S T O 9 ANSURU L opened for signature TTP (last visited Feb. 9, 2017), http:// Even though the newly cre- ANTAIHEIY K 13 ], K (p.m.a.) to seventy years p.m.a. . (Oct. 2016), http://www.cric.or.jp/english/csj/ They further argued that because They further argued EIBI NI ELEVANT TR 10 S ], 3 (2016), http://www.cas.go.jp/jp/houan/160308/ R . C NFO ECRETARIAT RANSPARENCY OF S note 7, art. 18.63. ¯ T ORITSU NO . & I ARTNERSHIP ES -H As a result, the argument to adopt fair use law As a result, the argument to adopt supra P R ABINET 12 Part II.A. STABLISHMENT OF [C ANKEI ¯ E O ACIFIC K infra SPECTS AND note 5, at 164. note 5, at 175-76. post mortem auctoris -P ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING ANB They feared that enforcement of such a law would dis- enforcement of such a law would They feared that A OPYRIGHT 8 K supra supra RANS , C OMONAU Although one might think that copyright holders would holders that copyright think might one Although T 7 T MARY OF discussion TPP Agreement, ILL FOR THE LECTUAL ROPERTY TION OF THE AIKAKU B P See Development of Copyright Protection Policies for Advanced Information and Communi- See Urgent Appeal on TPP Intellectual Property Provisions Urgent Appeal on TPP Intellectual Property However, their fear turned out to be unwarranted because the fear turned out to be unwarranted However, their 8. Mehra, 9. 7. Trans-Pacific Partnership Agreement art. 18.77, 12. N 10. Mehra, 11. 13. 14. M K EIKETSU NI thinktppip.jp/?page_id=713&lang=en. cation Networks csj3.html. siryou1.pdf (Japan). inafter TPP Agreement], https://ustr.gov/trade-agreements/free-trade-agreements/trans-pacific- partnership/tpp-full-text. T It also requires Japan to provide statutory damages to copyright in- It also requires Japan to provide 2017] initiation. \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 3 11-MAY-17 9:19 courage the creation of parodies in Japan, courage the creation was not brought up during the 190th session of the Diet, after which was not brought up during the 190th the bill was approved by the Cabinet. welcome such a law, it created a unique problem within Japan’s anime within Japan’s a unique problem such a law, it created welcome by which the that the manner been argued industry. It has and manga of parody the creation piracy could affect the scope of law defines exception to parody as an not recognize Japan does works because the countries, including like many other infringement copyright United States. manga series. popular anime and ated criminal copyright law might not significantly affect the creation ated criminal copyright law might still impose a negative effect be- of parody, the TPP agreement could for copyright owners. For cause of its overly protective characteristics Japan to extend its copyright term example, the agreement requires from fifty years parody is believed to play an important role in Japan’s anime and to play an important role in parody is believed creations could this potential chilling effect on parody manga industry, of the whole industry. undermine the success idea to introduce a creators actively supported the Japanese parody law. that is modeled on U.S. fair use fair use provision the bill to amend the Japanese Cabinet Secretariat, when submitting of Representatives, specifically Copyright Act to the Japanese House not include secondary works such stated that the scope of piracy will as Japanese parodies. C Y 38980-swt_23-2 Sheet No. 53 Side A 05/11/2017 09:52:06 A 05/11/2017 53 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 53 Side B 05/11/2017 09:52:06 . M K 18 EV . L. C Y . U. M AND [Vol. 23 . L. R , 28 A , 49 V OLUM in order to 19 , 70 C Most problem- 16 The SOPA-TPP Nexus Copyright, Designs and Patents Act, 1988, 17 U.S.C. § 107 (2012) (fair use defense). with note 5, at 179-80 (explaining that Japanese manga note 5, at 179-80 (explaining that Japanese Compare Jonathan Band, see Copyright and the First Amendment supra Infringement Nation: Copyright Reform and the Law/Norm Infringement Nation: Copyright Reform and 20 While these changes will certainly strengthen changes will While these Mehra, 17 Reexamining Copyrights Incentives-Access Paradigm . 537, 549 (2007). Paul Goldstein, EV which is known as a major cause behind increases in the in increases behind major cause as a is known which See generally John Tehranian, L. R 15 art. 18.74. see also . 31, 58-62. TAH SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW EV See, e.g., See id. A fair use provision will serve to maintain a balance between pro- A fair use provision will serve to Although the Trump Administration’s withdrawal from the TPP Administration’s withdrawal Although the Trump L. R Part II, many Japanese “parodies” fall outside the legal definition of a parody and will not . 483, 572; , 2007 U L 19. 17 U.S.C. § 107 (2012). 20. Although the United Kingdom’s fair dealing doctrine is also a viable candidate for a 16. 17. For more detailed discussion, 18. Glynn S. Lunney, Jr., 15. ’ EV NT R 983, 1006 (1970). and anime artists often draw characters from Japan’s collective heritage). the copyright exception, this article exclusively focuses on the U.S. fair use doctrine because scope of the fair dealing doctrine is more limited than that of the fair use doctrine. As explained infra likely fall within the fair dealing categories. c. 48, §§ 29-30 (U.K.) (fair dealing defenses) I Gap tecting the interests of copyright owners and allowing free access to tecting the interests of copyright encourages parody creations. In existing copyrighted materials that TPP agreement, Japan had consid- fact, prior to the entrance to the exception into its Copyright Act for ered the adoption of a fair use 400 fringement, it would inhibit works is unduly restricted, If the access to preexisting parodies. of expressive works, including the overall creation stand between the that the original agreement will made it less likely that the U.S. will at- countries, it is still possible remaining partner that is similar to a bilateral agreement against Japan tempt to impose In such a case, pro-copyright owner the TPP agreement in the future. could be included in the bilateral provisions of the TPP agreement should not disregard. In the case agreement, a possibility that Japan effect in any form—whetherwhere the TPP agreement takes through partnership, Japan should adopt multi-lateral partnership or bilateral U.S. fair use doctrine a fair use provision modeled on \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 4 11-MAY-17 9:19 number of copyright lawsuits and damages awarded. and damages of copyright lawsuits number should also copyright owners, copyright protection the protection for access to preexisting the public’s interest in free take account of to some extent. employ preexisting materials works, as all creations protect parody creations. atic is that the Intellectual Property (IP) chapter of the agreement, chapter of the Property (IP) the Intellectual atic is that safe-harbor omits important U.S. proposal, based on the primarily available to Act makes the U.S. Copyright exceptions that rules and defendants. individual 38980-swt_23-2 Sheet No. 53 Side B 05/11/2017 09:52:06 B 05/11/2017 53 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 54 Side A 05/11/2017 09:52:06 401 GENCY o [The . (Sept. 2011), AG However, the However, 21 (July 1, 2013), http:// One reason why NFRINGEMENT IN IME 24 I , T , WIPO M OPYRIGHT C The Manga Phenomenon EEMED AS D Given the nature of the TPP agreement, Japan Given the nature (last visited Feb. 9, 2017), http://www.bunka.go.jp/seisaku/bunkash- 22 Japan has formally acknowledged both manga and Japan has formally acknowledged Japan Spends Millions in Order to Be Cool ARODY 23 ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING P FFAIRS A Act. No. 11110, Dec. 2, 2011 (S. Kor.). Bunka Shingikai Chosakuken Bunkakai (dai 41 kai) Gijiroku Haifushiry Bunka Shingikai Chosakuken Bunkakai (dai ¯ FOR See APANESE APAN ULTURAL J Japan has recognized the importance of intellectual property in Japan has recognized the importance This article addresses both how and why Japan should adopt U.S. both how and why Japan should This article addresses 24. Roland Kelts, 22. Jeojakkwonbeop [Korean Copyright Act], Act. No. 3916, Dec. 31, 1986, art. 35-3, 23. World Intellectual Prop. Org., 21. C M K world.time.com/2013/07/01/japan-spends-millions-in-order-to-be-cool/. http://www.wipo.int/wipo_magazine/en/2011/05/article_0003.html. Minutes of 41st Meeting for the Council for Cultural Affairs Copyright Subdivision], A Minutes of 41st Meeting for the Council for ingikai/chosakuken/bunkakai/41/index.html (discussing the necessity and feasibility to adopt a ingikai/chosakuken/bunkakai/41/index.html (discussing the necessity and feasibility to adopt general copyright exception similar to American fair use doctrine). amended by A. the Japanese Culture The Importance of Parody for popularity of Japanese manga and recent years. With the increasing anime overseas, 2017] fruition. came to never its efforts though years, several \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 5 11-MAY-17 9:19 should follow suit and adopt a U.S.-modeled fair use exception. and adopt a U.S.-modeled fair should follow suit parodies. Part II pro- in its Copyright Act to protect fair use doctrine of, and the rela- information of the development vides background and copyright law. Part III tionship between, Japanese parody U.S. fair use doctrine codified in the explains the four factors of the application of that doctrine. Part IV U.S. Copyright Act and judicial the U.S. fair use doctrine into proposes how Japan should transplant V which offers the conclusion. its copyright law, followed by Part II. J anime as important industries, and has begun to focus on strategically anime as important industries, and markets. promoting these goods to international Japanese anime and manga are popular, both within and outside of Japanese anime and manga are cartoons and comic books, Japan, may be because unlike American enactment of the amended Japanese Copyright Act in response to en- Act in response Japanese Copyright of the amended enactment to the TPP similar or an agreement the TPP agreement, tering into the for Japan to reconsider opportunity creates a viable agreement, equilibrium order to achieve exception in adopt a fair use option to need to and the public’s copyright owners the protection for between Faced with a similar materials for new creations. access copyrighted ways parallels that of whose legal system in many need, South Korea, identical to the enacted a fair use provision almost Japan, recently trade agreement with when it entered into a free U.S. fair use doctrine the United States. C Y 38980-swt_23-2 Sheet No. 54 Side A 05/11/2017 09:52:06 A 05/11/2017 54 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 54 Side B 05/11/2017 09:52:06 M K 31 30 25 RT UL- C Y APAN A C J UTEUR [Vol. 23 /A featuring ANGA M RTIST APERS IN P A dojinshi DULT , A ANGA Campbell v. Acuff-Rose ORKING , M See W INSELLA Parody manga artists Parody manga K ). 28 Thus, the economic suc- Thus, the , https://missdream.org/sailor-moon- 26 ‘Manga’: Heart of Pop Culture, 111 (2000). URMUEHLIN HARON S REAM Z so that the artists can use the so that the artists D Sailor Moon OCIETY 29 ISS S see also ARILYN , M , M APANESE Thus, Japanese parody manga and anime Thus, Japanese parody manga and Minoru Matsutani, J 32 see also The Significance of Manga in the Identity-Construction of Young The Significance of Manga in the Identity-Construction note 5, at 164, 175; The Key to the Popularity of Japanese Manga Because only a handful of amateur manga artists Because only a 27 , 510 U.S. at 580; 17 U.S.C. § 107. note 5, at 164. ONTEMPORARY note 25, at 2. supra Sailor Moon Doujinshi C , supra supra , http://www.japanese-manga-artist.com/%EF%BD%81%EF%BD%92%EF% SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW TURE Mehra, Rena Seiya, DE OWER IN See Campbell See, e.g. See See ANGA The large base of Japanese artists who actively create these of Japanese artists who actively The large base (May 26, 2009), http://www.japantimes.co.jp/news/2009/05/26/reference/manga-heart-of- & P ., issue 1 art. 2, 2006, 2; 31. 32. 30. Mehra, 29. 28. to Japanese works that borrow characters I use the term ‘“parody”‘ to specifically refer 25. Hsiao-Ping Chen, 26. Chen, 27. M DU IMES characters from the popular manga/anime series doujinshi/ (last visited Feb. 9, 2017) (exhibiting translated version of Japanese Music, Inc., 510 U.S. 569, 580 (1994). BD%94%EF%BD%89%EF%BD%83%EF%BD%8C%EF%BD%85%EF%BC%91-the- visited Feb. 9, 2017). key-to-the-popularity-of-japanese-manga/ (last to depict their own stories. “Parodies” can include and storylines from popular anime and manga on the original. legal parodies, as long as they criticize or comment American Adults: A Lacanian Approach E T pop-culture/#.VlUc_n4vfIU. which requires the work to criticize or comment on the original. which requires the work to criticize on a pre-existing work’s origi- Rather, these “parodies” often expand stories by adding new elements or nal storyline or create derivative characters to the original. 402 their audience. as adults anime target and manga Japanese many accompa- detailed drawings, elaborate and often filled with They are complex plots. engaging and often nied by \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 6 11-MAY-17 9:19 can get their works commercially published, many of them privately commercially published, many can get their works known as “parody manga.” publish what is to increase the visibility of their own publicity of the original manga refer to these works as “parodies” work. While many Japanese people fit the legal definition of a parody, in Japanese, they actually do not cess of Japanese anime and manga is partly owed to the fact that many owed to the fact manga is partly anime and cess of Japanese as entertainment. can enjoy them regardless of age, people, fuel the success of and as amateur authors, works, both professionally by amateur art- and manga. In fact, manga creations Japanese anime of amateur artists are in Japan, as large numbers ists are visibly active the professional for the opportunity to enter constantly competing manga industry. often borrow characters and storylines from popular anime and and storylines from often borrow characters their own stories, manga to depict 38980-swt_23-2 Sheet No. 54 Side B 05/11/2017 09:52:06 B 05/11/2017 54 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 55 Side A 05/11/2017 09:52:06 , 36 34 403 See List ? 4 (Feb. 4, ? 4 (Feb. in Japan, it ARKET has continued M 33 OMIC C dojinshi dojinshi Some scholars believe For this reason, Japa- For this reason, 37 38 39 HAT IS THE , http://www.japaneselawtranslation.go.jp/ ., W First, the JCA protects creative OMM , are considered to be an important , are considered 41 C RANSLATION , https://en.wikipedia.org/wiki/List_of_films_based_on_ which is similar to the American Copy- which is similar to the American 40 dojinshi L. T REPARATIONS IKIPEDIA note 5, at 164 (noting that parody manga is most often produced note 5, at 164 (noting that parody manga is most Legal Fictions: Copyright, Fan Fiction, and a New Common Law Legal Fictions: Copyright, Fan Fiction, and a . P note 33, at 654, 664 (explaining that fan fiction is noncommercial note 33, at 654, 664 (explaining that fan fiction . 651, 655 (1997) (describing that fan authors creating fan fictions . 651, 655 (1997) (describing that fan authors , W APANESE KT J supra EV M supra market serves to develop young talent by securing a develop young talent by securing market serves to o [Copyright Act], Law No. 43 of 2012 (Japan) [hereinafter Japanese Cop- o [Copyright Act], Law No. 43 of 2012 (Japan) note 5, at 164. note 5, at 164. ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING OMIC . L. R Mehra, Berne Convention for the Protection of Literary and Artistic Works, arts. 1-21, supra supra , C NT Tushnet, which are typically sold at large-scale, organized commer- sold at large-scale, organized which are typically translated in Rebecca Tushnet, dojinshi 35 at 197. , with Id. See, e.g. Compare See . L.A. E Despite the massive economic success of Despite the massive economic Although parody manga possesses many characteristics similar to characteristics similar possesses many parody manga Although OY See generally 37. Mehra, 38. 39. by the manga industry because many In Japan, the anime industry is heavily affected 41. Because both Japan and the United States are signatories to the Berne Convention and 36. 40. Chosakukenh ¯ 35. Mehra, 34. 33. M K 2008), http://www.comiket.co.jp/info-a/WhatIsEng080528.pdf. studios are based on popular manga series. anime works professionally created by anime of Films Based on Manga law/detail/?ft=1&re=01&dn=1&x=49&y=20&co=01&ia=03&ky=%E8%91%97%E4%BD%9C %E6%A8%A9%E6%B3%95&page=13 (last visited Feb. 9, 2017). the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement, both countries are obligated to incorporate the minimum standards for copyright protection into their copyright law. Trade- Sept. 9, 1886, 25 U.S.T. 1341, 828 U.N.T.S. 221(revised July 24, 1971); Agreement on Related Aspects of Intellectual Property Rights art. 9, Apr. 15, 1994, 1869 U.N.T.S. 299. yright Law] for sale), and mostly nonprofit). 17 L manga (last visited Feb. 9, 2017). borrow characters and settings for use in their own writings). borrow characters and settings for use in their would most likely be deemed copyright infringement under the Japa- would most likely be deemed copyright nese Copyright Act (JCA), B. Works Japanese Copyright Law and Infringing 2017] fan-cre- rather sense, but a legal least in all, at parody at not is often fan fiction. are more akin to works that ated cartoon manga is is that parody difference the most significant fan fiction, are not. fan-fiction works American for profit, whereas often sold are called printed for sale that are privately parody manga Japanese dojinshi short-duration spot market for The commercial since its debut in the 1970s. to thrive in Japan \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 7 11-MAY-17 9:19 cial conventions, some of which attract nearly half a million visitors. some of which attract nearly half cial conventions, right Act (ACA) in many ways. part of Japan’s anime and manga industry. part of Japan’s anime that the nese “parodies,” especially nese “parodies,” place for them to improve their skills and foster creativity while re- improve their skills and foster place for them to to support themselves. couping some profit C Y 38980-swt_23-2 Sheet No. 55 Side A 05/11/2017 09:52:06 A 05/11/2017 55 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 55 Side B 05/11/2017 09:52:06 M K 48 C Y —a [Vol. 23 AIBANSHO ONOUR OF 17 U.S.C. Moreo- whereas S H 49 ¯ 50 O dojinshi Thus, when AIK see also 44 RITINGS IN : W Third, fictional char- Third, fictional AW 43 L 17 U.S.C. § 106(2). including copying for pri- 46 see also OPYRIGHT Instead, the JCA enlists a lim- http://www.courts.go.jp/app/hanrei_en/de- C 45 Part IV, these dissimilarities should be Part IV, these dissimilarities should APANESE ., J translated in infra ] Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930); Nichols v. Universal Pictures Corp., 45 F.2d ANEA ET AL G 58-61 (2005). note 5, at 175-76.; Japanese Copyright Law, arts. 30-49. see also Second, both the JCA and ACA accord copyright own- ACA accord both the JCA and Second, ETER o Saibansho [Sup. Ct.] July 17, 1997, 1992 (o) no. 1443, S o Saibansho [Sup. Ct.] July 17, 1997, 1992 42 As discussed AIBANSHO WEB supra , P 51 artist takes characters from an original anime or manga from an original anime artist takes characters and quotations for news reporting, criticism, or research. and quotations for news reporting, SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW CHRICKER [S Japanese Copyright Law, arts. 21, 27-28; Saik ¯ Japanese Copyright Law, arts. 2-(1)(i), 10-(1)(vii) (providing that JCA protects pro- Japanese Copyright Law, arts. 2-(1)(i), 10-(1)(vii) 47 , or parody in general, is relatively low in Japan, a limited , or parody in general, is relatively S ¯ U See See See, e.g. See Although the number of copyright infringement cases involving Although the number of copyright Despite these similarities, there are also dissimilarities between there are also dissimilarities Despite these similarities, 43. 44. 45. 17 U.S.C. § 107. 46. Mehra, 47. Japanese Copyright Law, art. 30(1). 48. Japanese Copyright Law, art. 32. 49. 50. Japanese Copyright Law, arts. 18-20. 51. Visual Artists Rights Act of 1990, Pub. L. No. 101-650, 104 Stat. 5089; 5128-33 (codified 42. dojinshi ANREISH ERHARD § 102(a) (2012). Warner Bros. Pictures v. Columbia Broad. Sys., 216 F.2d 945 (9th Cir. 1954). Warner Bros. Pictures v. Columbia Broad. Sys., duction in which thoughts or sentiments are expressed in a creative way); duction in which thoughts or sentiments are tail?id=1484 (Japan); as amended at 17 U.S.C. §106A). considered for “parody” protection. dojinshi G H These provisions are narrowly interpreted by Japanese courts, and These provisions are narrowly American fair use doctrine. thus, far from comparable to the 404 similar works, cinematographic and works such as literary expressions to the ACA. \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 8 11-MAY-17 9:19 ers exclusive economic rights, including the reproduction right and the reproduction including the economic rights, ers exclusive based on of derivative works the creation create or authorize right to right). (adaptation copyrighted works existing ited “laundry list” of permitted copying, ited “laundry list” of permitted vate use American law limits moral rights protection to narrow categories of American law limits moral rights visual arts. acters are protected both in Japan and the United States. in Japan and the protected both acters are ver, the JCA contains protection for the moral rights of the original ver, the JCA contains protection the work’s integrity, author, including the right to preserve a to create copyright holder’s permission work without the secondary work—hereproduction right or she would likely violate the under both Japanese right of the copyright owner and the adaptation and U.S. law. the creation of paro- Most notable and relevant to the JCA and ACA. to copyright does not include a general exception dies is that the JCA use provision offers rights, while the ACA’s fair owners’ exclusive flexible defenses to certain copying. 38980-swt_23-2 Sheet No. 55 Side B 05/11/2017 09:52:06 B 05/11/2017 55 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 56 Side A 05/11/2017 09:52:06 — 405 Many These AIBANSHO 55 S 56 . In addi- dojinshi 57 AIKO This incident Although the 52 Similarly, a To- 53 54 potentially violates potentially ) depicting characters of Thrilling Memorial dojinshi dojinshi ] 1, http://www.courts.go.jp/app/files/hanrei_ industry coexists and even thrives ¯ O ¯ OH o Dist. Ct.] Aug. 30, 1999, Hei 11 (wa) no. 15575, dojinshi oky ¯ AIBANREI J [S , the ] 1, http://www.courts.go.jp/app/files/hanrei_jp/283/053283_hanrei ¯ in a sexual manner was arrested and fined for arrested and manner was in a sexual U usually sell only some hundred copies for around usually sell only some hundred note 5, at 195. note 5, at 198. ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING artist who depicted original characters from the popu- characters from depicted original artist who o Saibansho [T ¯ dojinshi emon supra supra —most owners. In rights of copyright violate the likely AIBANSHO WEB Pok´ o Chih ¯ dojinshi o Saibansho [Sup. Ct.] Mar. 28, 1980, Sho 54 (o) no. 923, S o Saibansho [Sup. Ct.] Mar. 28, 1980, Sho [S at 165-66, 185-87. . dojinshi oky ¯ ¯ U Id. Id Despite the obvious copyright infringement issues associated with Despite the obvious copyright infringement dojinshi 57. 56. Mehra, 54. 55. T ¯ 53. Saik ¯ 52. Mehra, M K ANREISH HITEKI ZAISAN SAIBAN REISH may also violate the author’s moral rights. In 1966, a famous alpine the author’s moral rights. In 1966, may also violate C jp/668/013668_hanrei.pdf (Japan). .pdf (Japan). H 2017] “parodies”—includ- Japanese that suggest opinions of judicial number ing 1999, a \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 9 11-MAY-17 9:19 lar anime lar anime the plaintiff’s popular role-playing game, the plaintiff’s popular role-playing kyo court granted a permanent injunction to a Japanese video game kyo court granted a permanent from selling videocassettes of a company to prevent the defendant of “parody anime” (an anime version protection for the original authors’ cases highlight Japan’s strong moral rights in the context of “parodies.” C. Dojinshi and Tolerated Uses the creation of and resulting punishment indicates that indicates that punishment and resulting collage was clearly political speech that expressed the parodist’s criti- political speech that expressed collage was clearly of the Alpine re- warning of the over-development cism about and Amano violated the Supreme Court held that Mad sorts, the Japanese of his work. plaintiff’s right to maintain the integrity scholars have attempted to attribute different factors to reach a logical scholars have attempted to attribute One commonly cited reason is explanation for this odd phenomenon. economic sense in Japan, given the because litigation does not make fact that copyright infringement under criminal copyright law. criminal copyright infringement under copyright side-by-side with the mainstream anime and manga industry. side-by-side with the mainstream the copyright holder’s economic rights. Furthermore, other cases sug- economic rights. Furthermore, the copyright holder’s gest that “parodies”—both and as parodies in a legal sense five dollars each, making the damages amount quite low. five dollars each, making the damages photographer brought a copyright infringement action against a fa- a copyright infringement photographer brought he had overlaid an called Mad Amano because mous political parodist plaintiff’s black and Bridgestone tire onto image of a larger-than-life of a snowy alpine slope in Austria. white photograph C Y 38980-swt_23-2 Sheet No. 56 Side A 05/11/2017 09:52:06 A 05/11/2017 56 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 56 Side B 05/11/2017 09:52:06 M K N- C Y I au- au- . L. & has [Vol. 23 (Dec. 19, NVTL . E IMES dojinshi dojinshi T dojinshi note 5, at 179-80 EMP NTERNATIONAL note 9. Japanese Copyright , I APAN . 154, 159 (May 2013), supra , 21 T EE , J See industry could be L supra TUD Even manga artists Even manga , S Many corporate au- Many corporate 58 After all, 62 Mehra, 63 DWARD dojinshi ECEPTION & E note 5, at 184 (suggesting that main- see also do not usually take legal ac- do not usually take market. activities often exhibit general activities 61 HOW & R supra C.K. C dojinshi dojinshi UDIENCE Mehra, Many of the original authors take the Many of the original authors take 64 Like Holding a Bird: What the Prevalence of Fansubbing Like Holding a Bird: What the Prevalence of may well explain why the number of in- may well explain ANIEL , J. A , given the industry’s historical practice of practice industry’s historical , given the D 60 because they became professionals them- they became because see also See note 58, at 159 (suggesting that since dojinshi, as “amateur The Cultural Dynamic of Doujinshi and Cosplay: Local Anime The Cultural Dynamic of Doujinshi and Cosplay: authors because they believe that authors because note 5, 184. dojinshi supra Comiket, Where Otaku Come to Share the Love 84-85, 91 (West, 2nd ed. 2012); dojinshi supra dojinshi ROPERTY SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW P TELLECTUAL Lamerichs, Jun Hongo, Mehra, conventions to advertise their works. conventions to 65 See Urgent Appeal on TPP Intellectual Property Provisions See See See These reasons, coupled with the general tendency of Japanese coupled with the general tendency These reasons, However, this fragile relationship between the professional However, this fragile relationship Likewise, large corporate authors Likewise, large corporate . J. 131, 148 (2003). 59 65. 64. 59. along with the utilitarian theory and Confucianism is one of the theories of copyright, 63. 62. 60. Sean Kirkpatrick, Comment, 61. copyright law. Corporations can be authors under Japanese 58. Nicolle Lamerichs, ECH manga,” are often created as works of love). T 2013), http://www.japantimes.co.jp/culture/2013/12/19/general/comiket-where-otaku-come-to- share-the-love/#.VlWQKH4vfIU; stream manga publishers use dojinshi markets to advertise their works). http://www.participations.org/Volume%2010/Issue%201/10%20Lamerichs%2010.1.pdf. creations as the common heritage of people the natural right theory, which viewed intellectual through free access to them. Under Confucianism, that was necessary for proper socialization copying was regarded virtuous. Can Teach Us About the Use of Strategic Selective Copyright Enforcement Can Teach Us About the Use of Strategic Selective Law, art. 15. (noting the historical practice of “borrowing” of manga characters). (noting the historical practice of “borrowing” Fandom in Japan, USA and Europe manga and anime industry, and the amateur manga and anime industry, and the 406 are manga artists professional some disincentive, to the economic tion towards lenient \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 10 11-MAY-17 9:19 stance that they will tolerate the commercial activities of stance that they will tolerate the harm being done to the original thors so long as there is no obvious works. fringement cases involving “parodies” is low. fringement cases people to avoid litigation, people to avoid thors are often enthusiastic fans of the original works, and their fans thors are often enthusiastic fans are also fans of the original. tion against selves after their success in the their success selves after thors and copyright holders, including major publishing and entertain- holders, including major publishing thors and copyright attended large-scale such as Disney Japan, have ment companies dojinshi who have never participated in never participated who have tolerance towards tolerance some positive impact on their original works. some positive impact “borrowing,” which may be rooted in the traditions of Confucian- the traditions of be rooted in which may “borrowing,” ism. 38980-swt_23-2 Sheet No. 56 Side B 05/11/2017 09:52:06 B 05/11/2017 56 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 57 Side A 05/11/2017 09:52:06 66 407 Scott See . (July 25, . dojinshi EV R oritsu no Seibi ni could file a could file dojinshi SIAN A ], http://www.shugiin.go , it is still possible anyone IKKEI , N dojinshi However, after the enact- However, EPRESENTATIVES 67 fall outside the definition of fall outside the activities on the professional R OUSE OF dojinshi dojinshi [H otei no Teiketsu ni Tomonau Kankeih ¯ incident occurred because Nintendo, the occurred because incident Why Cosplay Fans Fear TPP ¯ UGIIN H series, filed a criminal complaint for copyright a criminal complaint series, filed emon ashippu Ky ¯ (July 27, 2015, 1:00 PM), http://www.crunchyroll.com/anime-news/ aton ˆ Pok´ emon Mariko Tai, , was one of the leading activists for the protection of Therefore, Japan should reconsider the option to Therefore, Japan should reconsider o P ˆ note 5, at 180. ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING 69 Pok´ see also supra RUNCHYROLL Love Hina , C Even though the definition of piracy is narrow enough in definition of piracy is narrow Even though the oritsuan [Bill for the Establishment of Relevant Laws to Accompany the Ratification oritsuan [Bill for the Establishment of Relevant 68 Manga Author Ken Akamatsu Renews Concerns About Trade Deal’s Effect on Doujinshi 67. Mehra, 68. TPP Agreement, art. 18.77. 69. Ken Akamatsu, a Japanese professional manga artist known for a popular manga and 66. is reserved until the agreement enters Japan’s obligation to abide by the TPP agreement M K 2015, 1:00 PM), http://asia.nikkei.com/Life-Arts/Life/Why-cosplay-fans-fear-the-TPP. .jp/internet/itdb_gian.nsf/html/gian/honbun/houan/g19005047.htm (last visited Feb. 10, 2017) (Ja- .jp/internet/itdb_gian.nsf/html/gian/honbun/houan/g19005047.htm the TPP agreement or an agreement similar to pan). Nevertheless, in this article, I assume that in the future and discuss Japan’s options. Accord- the TPP agreement will take effect upon Japan term “TPP agreement” to refer to both the original ingly, from this point of the article, I use the the original TPP agreement. TPP agreement and an agreement similar to anime series Green, and Cosplay 2015/07/27-1/manga-author-ken-akamatsu-renews-concerns-about-trade-deals-effect-on-doujin- shi-and-cosplay; into effect. Kantaiheiy ¯ Kansuru H ¯ of the Trans-Pacific Partnership], S 2017] agreement. the TPP with to comply obligation Japan’s by affected the For instance, \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 11 11-MAY-17 9:19 adopt a fair use exception to alleviate the potential negative effects to adopt a fair use exception to alleviate the creation of “parodies.” scope to exclude Japanese “parodies” like scope to exclude of piracy to include over time, expand the scope that courts would, the drafters of the to the original intention of parodies contrary of such “paro- possibility may deter the creation amendment. This Act expressly guar- even if the amended Copyright dies.” Moreover, parodies and anteed that legal author of the author of piracy, strengthened protection for the interests of secondary artists is protection for the interests piracy, strengthened the competing in- maintain proper balance between still necessary to secondary user, which will be tilted terests of the rights holder and the the TPP Agreement. Although the in favor of copyright holders by actual impact of “parody” and ment of the criminal copyright prosecution law, prosecution the criminal copyright ment of criminal complaint for alleged copyright infringement deemed as infringement alleged copyright complaint for criminal piracy. infringement with the Japanese police. with the Japanese infringement anime and manga industry is unknown, many Japanese people, even anime and manga industry is unknown, believe that the success of authors of original works, firmly progress of Japanese anime and has a positive contribution to the manga culture. C Y 38980-swt_23-2 Sheet No. 57 Side A 05/11/2017 09:52:06 A 05/11/2017 57 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 57 Side B 05/11/2017 09:52:06 . M K C Y Miya court NTELL [Vol. 23 is the under , I 71 75 see also .; Campbell Id Part III of this To determine 73 74 Some commentators ar- Some commentators NALYSIS 70 A SE U AIR , 510 U.S. at 577. U.S. F U.S. 76 Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, See Japanese Copyright Law Reform: Introduction of the Mysterious Anglo- Japanese Copyright Law Reform: Introduction see also Campbell . at 577 (quoting Stewart v. Abend, 495 U.S. 207, 236 (1990)). Id , Part II.B. , Parts III. & IV. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW 17 U.S.C. § 107. The preamble lists criticism, comment, news reporting, teaching, However, implementing the U.S. fair use doctrine would be the U.S. fair use doctrine However, implementing . The fair dealing doctrine only applies to: (1) research and private study, (2) criticism, . The fair dealing doctrine only applies to: (1) VERVIEW OF THE 72 See supra Id See infra See Even without regard to the TPP agreement, Japan is still in need Japan is still the TPP agreement, regard to Even without Under Section 107 of the U.S. Copyright Act, certain uses of of the U.S. Copyright Act, Under Section 107 (1) including whether such the purpose and character of the use, is for nonprofit educational use is of a commercial nature or purposes; (2) the nature of the copyrighted work; (3) portion used in relation to the amount and substantiality of the the copyrighted work as a whole; and (4) market for or value of the effect of the use upon the potential the copyrighted work. . Q. 2014, 1, 40-70 (comparing the fair use doctrine of the U.S. with an E.U.-style approach . Q. 2014, 1, 40-70 (comparing the fair use doctrine 75. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577-78 (1994). The 76. 17 USC § 107; 70. 71. c. 48, §§ Copyright, Designs and Patents Act, 1988, 28-30 (Eng.). 72. 73. 74. ROP P review and news reporting, and (3) incidental inclusion of copyright material. review and news reporting, and (3) incidental is not scholarship, and research as examples of permitted purposes of secondary use, but fair use limited to these examples. 561 (1985). of states that “[t]he fair use doctrine thus ‘permits and requires courts to avoid rigid application law is the copyright statute when, on occasion, it would stifle the very creativity which that designed to foster.” Sudo & Simon Newman, Divine Intervention via Competition Law? American Fair Use Doctrine or an EU Style to copyright regulation in Japan). 408 III. O current Japa- because copyright protection exceptions to of broader the form of speech in not protect political law does nese copyright with Mad Amano. as was the case parody, \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 12 11-MAY-17 9:19 more appropriate than using the U.K’s fair dealing doctrine because than using the U.K’s fair dealing more appropriate serves the policy goal of copyright. the former better gue that adopting the United Kingdom’s fair dealing doctrine the United Kingdom’s fair dealing gue that adopting whether an unauthorized appropriation of a copyrighted work consti- whether an unauthorized appropriation case on a case-by-case basis tutes fair use, courts analyze each four statutory factors: better option due to both its similarity to U.S. fair use doctrine and to both its similarity to U.S. better option due categories of doctrine being limited to certain the scope of the works. use doctrine, and the current state of the U.S. fair article describes policy goal how Japan can achieve its copyright Part IV explains of a U.S.-modeled fair use exception. through adoption as fair use. copyrighted materials are permitted 38980-swt_23-2 Sheet No. 57 Side B 05/11/2017 09:52:06 B 05/11/2017 57 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 58 Side A 05/11/2017 09:52:06 78 409 Thus, 80 A secondary 88 Additionally, if 86 87 . 1105, 1111 (1990) (discuss- EV —i.e., secon- whether the . L. R 82 ARV Campbell v. Acuff-Rose Music Campbell v. Acuff-Rose , 103 H Although secondary works created Although secondary 83 it cannot be the sole determining factor it cannot be the sole determining 84 court has adopted Judge Leval’s definition of “transformative” court has adopted Judge Leval’s definition of , 471 U.S. at 562. Campbell ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING note 79, at 1110-11. note 79, at 1111. Toward a Fair Use Standard . art. I, § 8, cl. 8. , 510 U.S. at 584. , 510 U.S. at 578. supra First, the statute suggestively calls for inquiry into whether suggestively calls for inquiry into First, the statute ONST , supra 81 The following sections discuss each of the four factors and the four factors discuss each of sections The following at 585. at 584. at 579. The 77 Thus, commercialism is merely a single consideration within Thus, commercialism is merely Campbell Id. Id. Harper & Row Campbell Id. —to Arts.” Progress of Science and useful promote “the 85 The central inquiry under the first factor according to Judge The central inquiry under the The U.S. Supreme Court in The U.S. Supreme 79 80. U.S. C 82. 17 USC § 107(1). 83. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 562 (1985). 84. 85. 86. 87. 88. Leval, 81. Leval 77. 78. 510 U.S. 569 (1994). 79. M K ing “transformativeness” and its significance to fair use analysis). ing “transformativeness” and its significance Leval, an influential figure in the development of the modern fair use Leval, an influential figure in the is “transformative.” doctrine, is whether the new work use. Pierre N. Leval, 2017] to- be weighed must all of them and are interrelated, factors These gether. under the first factor purpose of the assessment noted that the central of copyright the secondary use fulfills the objective is to see whether law \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 13 11-MAY-17 9:19 the secondary use is commercial in nature the secondary use bar a finding of fair use solely based the first factor, and courts cannot secondary work. on the commercial nature of the the courts’ analyses under these factors. analyses under the courts’ A. Use of the Secondary and Character The Purpose because whether the commercial nature of the secondary work affects because whether the commercial depends on the context of each the outcome of the fair use analysis case. relevant, courts may account for the propriety of the nature of the relevant, courts may account for weighs against a finding of fair use if secondary user’s conduct, which an immoral way. he acquired the original work in if the new work adds something work can be deemed transformative meaning, or message, rather than valuable through new expression, dary user intended to profit from exploitation of the original work to profit from exploitation dary user intended a licensing fee. without paying for commercial use (as opposed to noncommercial use) tend to weigh (as opposed to noncommercial for commercial use against a finding of fair use, courts are to assess the following sub-factors in light of the copyright the following sub-factors in courts are to assess objective. C Y 38980-swt_23-2 Sheet No. 58 Side A 05/11/2017 09:52:06 A 05/11/2017 58 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 58 Side B 05/11/2017 09:52:06 . M K EV C Y . J.L. [Vol. 23 L. R OLUM William W. Campbell If the sec- If the 89 , 31 C ORDHAM was not par- But cf. courts usually 93 , 77 F 91 , which retold the Court emphasized 1659, 1768-79. Accordingly, being . 95 EV from the black slaves’ This means that courts 96 . L. R note 89, at 1768-69 (analyzing “trans- note 79, at 1111. Campbell ARV supra Catcher in the Rye supra Unbundling Fair Uses , 101 H This is an important element be- an important element This is 90 Fisher, Leval, In contrast, the U.S. District Court for In contrast, the U.S. District Court took substantial portions of protected 94 The Wind Done Gone The Wind Done But cf. Although the see also Gone with the Wind 92 Pamela Samuelson, Transformativeness and the Derivative Work Right see also note 79, at 1111. , 510 U.S. at 581. , 510 U.S. at 579. , 510 U.S. at 579; supra at 583; SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW The Wind Done Gone Salinger v. Colting, 641 F. Supp. 2d 250, 256-68 (S.D.N.Y 2009). SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269-76 (11th Cir. 2001). Reconstructing the Fair Use Doctrine See See Campbell See id. Campbell Campbell 467, 485 (2008). What is notable about judicial analyses involving “transforma- about judicial analyses involving What is notable How courts determine whether the secondary work is transform- How courts determine whether the RTS 96. R. Anthony Reese, 95. 94. 91. 92. 93. 90. Leval, 89. & A 2537, 2550 (2009) (reiterating the presumption that parodies have an “obvious claim to 2537, 2550 (2009) (reiterating the presumption that parodies have an “obvious claim transformativeness”). formativeness” as a somewhat subjective, rather than static, element). formativeness” as a somewhat subjective, rather Fisher III, 410 work. of the original off free-riding or superseding merely work is trans- courts tend to presume the secondary tive” use is that a parody. formative if it is \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 14 11-MAY-17 9:19 the Southern District of New York found that an unauthorized novel the Southern District of New York that depicted a sequence of the novel work reserved for the original au- ody, but rather a kind of derivative use protection. thor, and thus not entitled to fair deemed as a parody in a legal sense would significantly increase the deemed as a parody in a legal sense to be protected as fair use. likelihood for secondary works courts typically focus on the ative varies by jurisdiction. However, user’s purpose in using the origi- transformativeness of the secondary content that has been added by the nal work, rather than the actual work. secondary user to create the secondary ondary work is transformative, this sub-factor weighs in favor of the weighs in this sub-factor is transformative, ondary work use adds that the secondary of the new value user because secondary to the original—exactly to protect intends the fair use doctrine what society.” enrichment of “for the needs to be analyzed transformative work, still that parody, a highly use, three factors to qualify for fair under the other the works fair use. Therefore, following find highly-parodic for the Eleventh Cir- the U.S. Court of Appeals Court’s instructions, novel titled cuit held that a story of the famous novel cause the more transformative the secondary work is, the less signifi- work is, the the secondary more transformative cause the such as commercialism, become. cant other factors, to fair use defense, despite the perspectives, was a parody and entitled fact that elements of the original work. 38980-swt_23-2 Sheet No. 58 Side B 05/11/2017 09:52:06 B 05/11/2017 58 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 59 Side A 05/11/2017 09:52:06 see 411 105 Cariou v. Under this ap- Under this 97 which is precisely 103 99 104 . L.J. 445 (2015). ECH . T A Critique of the Reasonable Observer: Why Fair Use OLO , 13 C ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING Shoshana Rosenthal, Thus, the reproduction of an entire concert poster in a of an entire concert poster Thus, the reproduction 98 However, this approach has received much criticism because However, this approach has received concluded that, in comparing the appropriationist-defen- concluded that, in comparing at 707-08. Cariou v. Prince, 714 F.3d 694, 706-08 (2d Cir. 2013) (implying that the content of Cariou v. Prince, 714 F.3d 694, 706-08 (2d Cir. . The Second Circuit has noted that although derivative works . The Second Circuit has noted that . Some courts went even further and conducted a side-by-side even further and conducted Some courts went 102 101 See generally Id. Id See 100 Additionally, the Second Circuit court’s analysis is particularly in- Additionally, the Second Circuit On the other hand, recent cases show that more and more courts recent cases show that more On the other hand, 97. 98. 1146, 1165 (9th Cir. 2007). Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 99. Ltd., 448 F.3d 605, 609 (2d Cir. 2006). Bill Graham Archives v. Dorling Kindersley Twin Peaks Prods. v. Publ’ns Int’l, Ltd., 996 F.2d 1366, 1376 (2d Cir. 1993). 103. 104. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903). 105. Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 143 (2d Cir. 1998); 101. 714 F.3d 694 (2d Cir. 2013). 102. 100. M K Fails to Protect Appropriation Art also the secondary work is significant in determining transformativeness). it allows judges to act as art critics to an extent, it allows judges to act as art critics analysis, comparing aesthetic similarities between the plaintiff’s and aesthetic similarities between analysis, comparing the Second Circuit in defendant’s work. For example, Prince photographer plaintiff’s original pho- dant’s collage paintings with the works were transformative tographs side by side, the secondary “employ[ed] new aesthetics with because the defendant’s artworks distinct from” the plaintiff’s pho- creative and communicative results why their aesthetics are dif- tographs, without giving any explanation ferent. structive to transformativeness analysis involving parodic works or structive to transformativeness dojinshi “a new mode of presentation,” such transform an original work into that are not transformative. works take expression for purposes are focusing on the contents of the secondary work to determine if it is contents of the secondary work are focusing on the transformativeness, ascertain the secondary work’s transformative. To focusing on its pur- its contents, rather than these courts evaluate pose. 2017] if the secondary transformative are works that secondary to find tend purpose than different work for a completely the underlying user uses the original. she created author when of the original \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 15 11-MAY-17 9:19 biography of a musical group which hosted the concert, for instance, group which hosted the biography of a musical under this approach. would be transformative what Justice Holmes intended to prevent since the early development what Justice Holmes intended to analysis. of the Supreme Court’s copyright proach, courts may find transformativeness even though the secon- even though transformativeness courts may find proach, at all, as the original work the content of has not altered dary user of the origi- from that some degree different purpose is to long as the nal author. C Y 38980-swt_23-2 Sheet No. 59 Side A 05/11/2017 09:52:06 A 05/11/2017 59 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 59 Side B 05/11/2017 09:52:06 M K C Y note [Vol. 23 supra For this Creative 113 § 13.05[A][2][a] 110 is deemed trans- is deemed OPYRIGHT C dojinshi Publication of an original 112 IMMER ON note 110, § 13.05[A][2][b]). , N Therefore, this factor tends to This is especially true in cases in- supra , IMMER 111 116 N Conversely, if a work is transformative, if a work is Conversely, IMMER AVID 106 note 110, § 13.05[A][2][a] n.136.2. & N & D 114 supra the more creative the original work is, the more the more creative , IMMER IMMER 109 , 150 F.3d at 143. 108 IMMER , 510 U.S. at 586. The underlying principle of this factor is that not all principle of this factor is that not The underlying B. N Part III.A. , 510 U.S. at 586. —courts generally give little weight to this second factor 107 & N Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 586 (1994); Leval, Campbell v. Acuff-Rose Music, Inc., 510 U.S. 115 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW ELVILLE Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 345-48 (1991). Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., at 551 (citing N IMMER Id. Id. Campbell See supra See Campbell See See Castle Rock See id; However, it is important to note that because the significance of However, it is important to note As copyright law accords greater protection to creative works accords greater protection to As copyright law The second fair use factor calls attention to the original work. use factor calls attention to the The second fair 112. Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 564 (1985). 113. 114. 111. 115. 116. N 110. 4 M 108. 109. 106. 107. (2015). 79, at 1122. works are equally protected by copyright; some works are more wor- protected by copyright; some works are equally use defenses less than others, thus rendering fair thy of protection likely to succeed. in their overall fair use analysis. this factor tends to be affected by the other factors—especiallythis factor tends to be affected the first factor than factual works, 412 must be works transformative Circuit, Second to the according Thus, derivative works. more than \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 16 11-MAY-17 9:19 it is not a derivative work. Accordingly, if Accordingly, a derivative work. it is not a derivative work. it will not be formative, B. Original Work The Nature of the the underlying courts will consider: (1) whether Under this factor, work is published or or factual and (2) whether the work is creative unpublished. weigh against a finding of fair use when the secondary use involves a weigh against a finding of fair use unpublished works receive creative or expressive work. Similarly, works. greater protection than published it should be protected against unauthorized copying. it should be protected against by the original author would work by a third party prior to publication right to decide when and whether seriously interfere with the author’s use cannot be called fair. to make the work public, so the reason, the fact that the original work is unpublished tends to negate reason, the fact that the original the defense of fair use. works are considered to be “closer to the core of intended copyright works are considered to be “closer protection” than factual works. 38980-swt_23-2 Sheet No. 59 Side B 05/11/2017 09:52:06 B 05/11/2017 59 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 60 Side A 05/11/2017 09:52:06 . at 413 127 id Courts 118 , 471 U.S. at 565). It is more difficult to 123 Perfect 10, Inc. v. Amazon Harper & Row The portion taken must be “no more The portion taken 119 117 Therefore, an extensive copying could qualify Therefore, an extensive copying , 471 U.S. at 565-66. 124 Furthermore, this factor may also be influenced Furthermore, this note 79, at 1123. note 79, at 1122. 122 ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING note 79, at 1123 (interpreting supra supra Part III.D. where the Ninth Circuit held that Google’s thumbnail where the Ninth Circuit held that , 510 U.S. at 588-89). Generally, the more transformative the secondary work, more transformative the secondary Generally, the supra 126 , Cariou v. Prince, 714 F.3d 694, 710 (2d Cir. 2013) (referencing Bill Graham Cariou v. Prince, 714 F.3d 694, 710 (2d 121 Leval, at 1123; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578 (1994) (citing ; Leval, The extent of permissible copying varies depending on the copying varies depending The extent of permissible . at 1165-67. This notion is well illustrated in This notion is well illustrated in see infra Id. See Harper & Row Id See See Id. 120 Campbell 125 Courts seem to primarily focus on the degree of transformative- Courts seem to primarily focus The third factor asks whether the amount and substantiality of and substantiality the amount factor asks whether The third 123. 125. Leval, 124. 122. 126. 508 F.3d 1146 (9th Cir. 2007). 127. 121. 119. Enters., 471 U.S. 539, 564 (1985). Harper & Row Publishers, Inc. v. Nation 120. Grp., Inc., 150 F.3d 132, 144 (2d Cir. 1998) Castle Rock Entm’t, Inc. v. Carol Publ’g 117. U.S. 569, 586 (1994). Campbell v. Acuff-Rose Music, Inc., 510 118. M K 1110-11); Archives v. Dorling Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006)). (citing analysis of the first factor: “the purpose and character” of the secon- factor: “the purpose and character” analysis of the first dary use. portion of the a taking of a large and substantial the more reasonable original becomes. images fell under fair use because it reproduction of Perfect 10’s full artistic expression to improve access was transformative; it altered the served the public’s interest, and to information on the internet, which images would supersede Per- the danger that Google’s reduced-size of the images was “incidental.” fect 10’s cell phone download use ness of the secondary work to determine how much of and when a ness of the secondary work to Some courts strictly apply this taking is reasonable in a given context. 2017] publicly copy invariably “almost parodies because parody volving expressive works.” known, C. Used of the Portion and Substantiality The Amount copying. is justified by the purpose for the the secondary use \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 17 11-MAY-17 9:19 by the analysis of the fourth factor, which considers the danger of ad- the fourth factor, which considers by the analysis of work. verse market impact on the original than necessary” to serve the legitimate purpose of the secondary to serve the legitimate purpose than necessary” work. of a work if there is danger of justify a taking of even a small portion market substitution. and no adverse market im- as fair use if there is strong justification pact. .com, Inc. look at both quantity and quality of the portion used in relation to the and quality of the portion used look at both quantity as a whole. copyrighted work C Y 38980-swt_23-2 Sheet No. 60 Side A 05/11/2017 09:52:06 A 05/11/2017 60 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 60 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 131 For exam- Harry Potter 128 the court con- the court 129 , According to the Court, 137 132 Court noted that to serve the parodic Court noted that Court held that the defendant’s copying Court held that the defendant’s Courts are to balance the substantiality of the Courts are to balance the substantiality Once enough has been taken to assure identifi- Once enough has been taken to Campbell 135 , 268 F.3d at 1273-74. 134 Campbell , 510 U.S. at 588-89. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Warner Bros. Entm’t, Inc. v. RDR Books, 575 F. Supp. 2d 513, 546-49 (S.D.N.Y. Warner Bros. Entm’t, Inc. v. RDR Books, at 548-49. at 546-49. Because the purpose of each of these books were very simi- of each of these books were Because the purpose Warner Bros. Entm’t Inc. v. RDR Books Bros. Entm’t Inc. Warner Thus, the Id. Id. See Campbell See SunTrust Bank Id. Id. See In summary, although copying cannot be excessive in relation In summary, although copying 130 133 On the other hand, courts generally employ a lenient standard for courts generally employ a lenient On the other hand, 136 131. 132. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 588 (1994). 133. 134. 135. SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1271 (11th Cir. 2001). 136. 137. 129. 575 F. Supp. 2d 513 (S.D.N.Y. 2008). 130. 128. 2008). to the purpose and character of the parody, fairly modest amounts of to the purpose and character of parodies. copying are generally allowed for lar, the court assumed that any borrowing for purposes more than re- that any borrowing for purposes lar, the court assumed author. facts was reserved for the original porting fictional this factor when a highly transformative work is involved, especially in a highly transformative work is involved, this factor when The cases of parody. to “conjure up” work, it must copy enough purpose of the secondary the original to make its target recognizable. 414 the secondary of of transformativeness degree the when standard to serve more than necessary copying that is low, finding any work is secondary user. against the purpose the transformative \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 18 11-MAY-17 9:19 cation, any further taking must specifically serve the parodic goal of cation, any further taking must the secondary work. copied, while also taking into ac- parodic purpose against the portion serving as a substitute for the origi- count any danger of the parody nal. ducted a detailed inquiry into whether the amount and value of the the amount and into whether detailed inquiry ducted a purpose the transformative in relation to was reasonable portion used original reference guide to the of creating a complete official companion creative expressions from the series that took book. features—thetaking the most distinctive or memorable “heart” of the original—does excessive if it is necessary for the not make the copying will know which work was paro- parodist to make sure the audience died. of the opening riff and the first line of the plaintiff’s song “Oh, Pretty of the opening riff and the first line —allegedly the “heart” of the song—wasWoman” necessary to create “conjures up” the original song in the parody because it most readily the listener’s mind. ple, in 38980-swt_23-2 Sheet No. 60 Side B 05/11/2017 09:52:06 B 05/11/2017 60 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 61 Side A 05/11/2017 09:52:06 415 , 150 F.3d Court’s however, 145 146 Castle Rock note 110, § 13.05[A][4]). Campbell supra , Some courts, especially 147 IMMER The main focus here is the focus here is The main Some courts have acknowl- 138 & N 144 Notably, the Second Circuit has 148 IMMER Courts must also consider whether “un- Courts must also Court noted that the protectable derivative Court noted that This inquiry is only as to the market in which This inquiry is only Furthermore, courts must take account of not Furthermore, courts 140 142 141 , 471 U.S. at 566. This is provided that copying to criticize the original This is provided , 510 U.S. at 591. , 510 U.S. at 591-93. ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING Campbell 139 , 510 U.S. at 578). , 510 U.S. at 590 (quoting N .; Cariou v. Prince, 714 F.3d 694, 704 (2d Cir. 2013) (quoting The (quoting Harper & Row Pub., Inc. v. Nation Enters., 471 U.S. 539, 568 (1985)). (quoting Harper & Row Pub., Inc. v. Nation . at 592. Campbell Id. Harper & Row Id See Campbell See id Id. See Campbell Campbell 143 Original Work Original The fourth factor is even more interrelated with the first factor The fourth factor is even more The last factor is “the effect of the use upon the potential market the potential of the use upon factor is “the effect The last 143. 144. 145. 146. Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 145 (2d Cir. 1998) 147. 148. 142. 138. 17 U.S.C. § 107(4). 139. 140. 17 U.S.C. § 107(preamble). 141. M K (quoting at 145). because the degree to which the secondary work is transformative af- because the degree to which the fects the likelihood of market substitution. 2017] D. the Value of the Work upon of the Secondary The Effect work.” of the copyrighted for or value \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 19 11-MAY-17 9:19 work, which would likely harm the market for the original, is a typical likely harm the market for the work, which would use. example of fair the secondary user conduct of the sort” by restricted and widespread the potential mar- substantially adverse impact on would result in “a ket” for the original. edged that this is the most important factor of all four; edged that this is the most important work is transformative, it is not a established that if the secondary only any potential harm to the original, but also of harm to the market harm to the original, but also of only any potential for derivative works. license others to de- would generally develop or the original author velop. danger of market substitution, not mere harm to the market for the harm to the market not mere market substitution, danger of original work. the Second Circuit, are of the opinion that if the secondary work is the Second Circuit, are of the opinion danger of market substitution be- transformative, there is no apparent cause it targets different markets. market does not include the market for criticism, including parody, market does not include the market original authors will license critical because of the unlikelihood that reviews or lampoons of their works. based on the other courts take a contrary stance, recognition that “[a]ll [factors] are to be explored, and the results recognition that “[a]ll [factors] purposes of copyright.” weighed together, in light of the C Y 38980-swt_23-2 Sheet No. 61 Side A 05/11/2017 09:52:06 A 05/11/2017 61 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 61 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 In doing and thus 151 154 AXIMIZE THE M the four fair use factors, which As the JCA aims for a note 49, at 11. court found this factor in this factor found court SE TO 153 supra U ., AIR Folsom v. Marsh, 9 F. Cas. 342, 344 (C.C.D. Cariou F Folsom v. Marsh See note 59, at 84-85. hand, has Japan, on the other ” ANEA ET AL DOPT supra Thus, transformative works are generally works Thus, transformative , A ARODY EE 150 in order to achieve the goal of promoting in order to achieve the goal of “P & L 152 ), which deems that author’s rights extend to their creations as a HOULD HOW For example, the example, For S 149 17 U.S.C. § 107 (2012). . art. I, § 8, cl. 8. Part III.A. APAN , 714 F.3d at 706, 709. ONST J droit d’auteur see also SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW OW ROTECTION FOR See supra Cariou P Japan should introduce a fair use provision to promote its copy- a fair use provision to promote Japan should introduce Some people might argue that U.S. copyright law’s utilitarian Some people might argue that [t]he purpose of this Law is, by providing for the rights of authors and the rights neigh- [t]he purpose of this Law is, by providing for as performances, phonograms, broadcasts boring thereon with respect to works as well of the rights of authors, etc., having regard and wire diffusions, to secure the protection products, and thereby to contribute to to a just and fair exploitation of these cultural the development of culture. 151. JCA Article 1 provides its purpose as follows: 152. Judge Joseph Story first established in 153. U.S. C 154. The United States’ copyright theory is the utilitarian approach, which provides authors 149. 150. adopted the “author’s right” approach. G were encoded into the current Copyright Act. were encoded into the current Copyright Act. Mass. 1841); Japanese Copyright Law, art. 1. with financial incentives through copyright to create new works that serve a larger end for the with financial incentives through copyright to create new works that serve a larger end of “au- public good, whereas continental European countries’ approach is based on the tradition thor’s right” ( matter of natural right. C right goal: “to contribute to the development of culture.” to the development of right goal: “to contribute 416 work. derivative \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 20 11-MAY-17 9:19 “the Progress of Science and Useful Arts.” “the Progress of Science and Useful similar goal, adopting the four factors of the U.S. fair use doctrine similar goal, adopting the four its copyright goal. would benefit Japan in achieving right” approach, goal is different from Japan’s “author’s favor of the appropriationist who transformed the plaintiff’s black and the plaintiff’s who transformed the appropriationist favor of and beauty of Rastafarians the “natural depicting white photographs color col- and provocative” into “hectic environs” their surrounding towards en- were marketed because they placed on canvas lage works audiences. tirely different found to pose little risk of market substitution for the original and its risk of market substitution for found to pose little likely find this fac- and the Second Circuit will most derivative works, secondary work is the secondary user when the tor in favor of transformative. IV. H so, Japan should adopt the four statutory factors stipulated in the so, Japan should adopt the four permitted uses under the U.S. fair use ACA to capture the spirit of the these four factors over the cen- doctrine. U.S. courts have developed incentives to create works and the turies to balance authors’ economic expressions upon which they can public’s interest in accessing existing expand new creations 38980-swt_23-2 Sheet No. 61 Side B 05/11/2017 09:52:06 B 05/11/2017 61 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 62 Side A 05/11/2017 09:52:06 417 158 does 156 Moreover, As the fair 159 162 Therefore, the JCA Therefore, the 160 However, the fact that U.S. copy- the fact that U.S. However, the secondary work must be suffi- which clearly distinguishes between distinguishes which clearly . 155 Id 163 157 note 49, at 11-12. supra ., note 79, at 1109, 1136. and an adoption of a U.S.-modeled fair use excep- and an adoption ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING 161 supra Part II.B. .; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, n.10 (1994). . at 1111. ANEA ET AL G Leval, . at 12. authors’ moral rights and economic In contrast, the monistic approach links Japanese Copyright Law, art. 1. See id See id See Id. See supra Id See See into the First Prong of the Fair Use Factors. into the First Prong of the Fair Use Although each of the four factors of the U.S. fair use doctrine Although each of the four factors be made to the U.S. fair use doc- One key adjustment that should 163. 162. 161. 160. By placing the word “thereby” preceding the phrase “to contribute to the development 158. 159. 157. 155. Japanese Copyright Law, art. 1. 156. M K of culture,” JCA suggests that contribution to “the development of culture” is its ultimate pur- of culture,” JCA suggests that contribution to “the development of culture” is its ultimate pose. rights to a non-separable bundle of rights. 2017] protec- the “to secure be enough not would use doctrine fair the U.S. rights of the authors.” tion of the would not sig- level of economic rights protection Thus, changing the as previously dis- moral rights protection. In fact, nificantly affect strong. rights protection is already cussed, Japan’s moral \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 21 11-MAY-17 9:19 ciently transformative so that it can be considered as a new creation, ciently transformative so that it economic rights on the one hand, and moral rights on the other. on the one hand, and moral rights economic rights goal. that the JCA can achieve that tion will help ensure adjustments need to be made in should be adopted by Japan, minor within Japanese copyright law.order to make them work effectively I described in the subsequent propose the following three adjustments sections. A. Use” as a Sub-Factor Japan Should Incorporate “Transformative use” as a sub-factor under the trine is to incorporate “transformative of the secondary work first factor, because the transformativeness in fair use analysis. should be the central consideration has an objective similar to that of the ACA, which is benefitting soci- similar to that of the ACA, which has an objective ety as a whole, right law does not protect the “author’s rights” or moral rights or moral the “author’s rights” does not protect right law the language of JCA Article 1 clearly suggests that “the development JCA Article 1 clearly suggests that the language of of the rights of ultimate end and “the protection of culture” is the a means to achieve that end. authors, etc.” is use exception aims to promote new creations that benefit the ad- use exception aims to promote vancement of arts and culture, not mean that adopting a U.S.-modeled fair use exception into the fair use exception a U.S.-modeled that adopting not mean Japan has protection. First, moral rights jeopardize Japan’s JCA would the dualistic approach, adopted C Y 38980-swt_23-2 Sheet No. 62 Side A 05/11/2017 09:52:06 A 05/11/2017 62 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 62 Side B 05/11/2017 09:52:06 M K 164 C Y [Vol. 23 There- 168 Furthermore, the 167 On the other hand, when 170 the proposed fair use exception should re- should fair use exception the proposed 166 are also relevant to the first factor. However, con- first factor. However, relevant to the are also —will constitute infringement on his or her integrity 165 Part III.C. SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW art. 20. Japanese Copyright Law, arts. 20, 28. Thus, a creation of a derivative work based on a pre-existing Thus, a creation of a derivative dojinshi . at 592. Id. See supra See Id 169 Most importantly, the new fair use exception should codify the the new fair use exception should Most importantly, Moreover, this distinction between transformative works and de- Moreover, this distinction between the First Prong of the Fair Use Factors. the First Prong of 170. 168. 169. 164. Folsom v. Marsh, 9 F. Cas. 342, 348 (C.C.D. Mass. 1841) (No. 4901). 165. 17 U.S.C. § 107(1). 166. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 167. work without the original author’s permission—whichwork without the original author’s is often the case of 418 work. original the that “supersede[s]” work derivative a not merely element that is the only transformativeness not mean that This does such as other elements under the first factor; be considered needs to commercialism \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 22 11-MAY-17 9:19 flect the importance of the transformative use. Therefore, Japan of the transformative use. flect the importance under the first transformative use as a sub-factor should stipulate factor. B. Use” in the Definition of “Transformative Japan Should Codify This codification is use in its provision. definition of “transformative” works from deriva- it distinguishes transformative important because in Part III.D., the line-drawing be- tive works. As already discussed mere derivative works affects the tween transformative works and market substitution includes potential fourth factor because the risk of that the original authors “would harm to the derivative work market to develop.” in general develop or license others right if the creation constitutes a “distortion, mutilation, or other right if the creation constitutes will. modification” against the author’s the original author’s right of the secondary work is transformative, sidering that the degree of the transformative use affects the weights use affects of the transformative that the degree sidering other factors, given to degree of transformativeness of the secondary work would also affect degree of transformativeness of of permitted copying. the reasonable amount and quality fore, defining “transformative” use within the proposed fair use provi- fore, defining “transformative” use analysis of other fair use factors. sion would substantially affect the for Japan because of its strong rivative works is particularly important the author’s right of integrity. protection of moral rights, especially a derivative work of the original, When the secondary work is merely integrity extends to the derivative the original author’s right of work. 38980-swt_23-2 Sheet No. 62 Side B 05/11/2017 09:52:06 B 05/11/2017 62 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 63 Side A 05/11/2017 09:52:06 419 to dojinshi typically are Under this defi- 174 Dojinshi . dojinshi because Japanese courts have indicated Japanese courts because to the copyrighted work, and which also to the copyrighted work, and which creator. Thus, it is critical for creator. Thus, it 173 note 49, at 57. supra dojinshi dojinshi ., ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING Part II.B. Part II.A. However, it is not a “transformative” work under the However, it is not a “transformative” most likely infringes upon the original author’s right of the original infringes upon most likely Therefore, if the proposed fair use exception properly de- fair use exception if the proposed Therefore, ANEA ET AL 175 G which would lead to the second and fourth factors being to the second and fourth factors which would lead 171 as transformative works, which qualify them as fair use, as- as transformative works, which 172 Id. See supra See supra See dojinshi Taking account of this concern, Japan should adopt the definition Taking account of this concern, Japan Importantly, the proposed definition could cover parodies and Importantly, the proposed definition For these reasons, the definition of a transformative work should the definition of a transformative For these reasons, 175. 171. 172. 173. Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). 174. M K unauthorized derivative works for sale that exploit expressive works for sale that unauthorized derivative works, the weighed against movie’s purpose is not transforma- proposed definition because the tive—contrarily, the elements of the original its purpose is to re-cast such a way that it accurately repre- novel through different media in novel. Nor does the movie add new sents the world of the original novel; it merely traces the original meaning or message to the original media. As demonstrated, the pro- meaning or message in a different transformative works from posed definition effectively distinguishes derivative works. dojinshi copy- suming that they do not “supersede” the original works and the fines a “transformative” use, it could also resolve the issue associated resolve the issue use, it could also fines a “transformative” right of integrity strong protection for the author’s with the JCA’s its moral rights provisions. without amending works to ensure works from derivative differentiate transformative “parodies” including the protection of 2017] because work the transformative to not extend does arguably integrity a signifi- would have work. This distinction the author’s it is no longer for cant implication \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 23 11-MAY-17 9:19 be deemed as a transformative work to escape infringement liability. transformative work to escape infringement be deemed as a work that adds a “new mean- of a transformative work as a secondary ing, message, or purpose” falls outside the scope of derivative works. Under current Japanese falls outside the scope of derivative that has adopted pre-existing ma- law, a derivative work is a creation creative elements. terial and includes newly-added that integrity. nition, a movie based on a novel is a derivative work because it is an nition, a movie based on a novel with new creations such as the actors’ adaptation of the original novel of the novel’s “sentiments and performances, music, and depictions thoughts.” C Y 38980-swt_23-2 Sheet No. 63 Side A 05/11/2017 09:52:06 A 05/11/2017 63 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 63 Side B 05/11/2017 09:52:06 M K 177 C Y will [Vol. 23 dojinshi dojinshi . Court’s reasonable Id Campbell Other types of Other types 178 and (2) whether that meaning, 179 Under this assumption, legal parodies most likely most parodies legal this assumption, Under 176 that uses original characters to depict the original to depict original characters that uses , 510 U.S. at 581-83. Parts III.C. & D. , 510 U.S. at 582. This approach parallels the This will prevent Japanese courts from playing the role of This will prevent Japanese courts SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW 180 dojinshi SunTrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1269-71 (11th Cir. 2001). Campbell See supra See Campbell See In addition, the provision concerning the transformative use In addition, the provision concerning Evaluating the Artistic Worth of the Secondary Work. Evaluating the Artistic Worth of 179. 180. Japanese Copyright Law, art. 1. 176. 177. 178. observer approach to determine whether the secondary work is a parody. an art critic to subjectively determine whether the new work is artisti- an art critic to subjectively determine Under this instruction, courts are to cally different from the original. alleged legitimate purpose can be objectively determine whether the evidence, including the sec- reasonably perceived from circumstantial not to focus on the value of the new ondary work itself. Courts ought users to determine whether the new elements added by the secondary prevent courts from conducting a work is transformative. This would creations, which requires expertise side-by-side comparison of the two in order to fairly determine whether in the subject matter of the works of significance or value. These the secondary work adds something with the proposed instruction, aforementioned adjustments, coupled effectively assist Japanese courts in objectively determining whether 420 reasonable. ing is Thus, a \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 24 11-MAY-17 9:19 qualify as fair use because they use the original work for a new pur- original work for they use the fair use because qualify as original. comment on the to criticize or message, namely pose and story from a new perspective, offering a new interpretation of the a new interpretation offering a new perspective, story from as parody. work, could be protected original message, or purpose will help “to contribute to the development of message, or purpose will help “to culture.” could qualify as transformative works if, for example, they depict the transformative works if, for example, could qualify as a different genre in a new storyline that falls under original characters and meaning original. It arguably adds new message from that of the exchanges be- it draws interactions and emotional to the original as perspectives. Moreo- placed in new settings and tween the characters work because as an to “supersede” the original ver, it is unlikely for the original it would unlikely act as a substitute entirely new work, and works. Thus, qualifying “parodies” or its derivative likely be protected under this proposed definition. likely be protected C. Explicitly Prohibit Judges from The Fair Use Provision Should courts should only determine (1) should explicitly state that Japanese or purpose can be reasonably per- whether a new meaning, message, ceived from circumstantial evidence 38980-swt_23-2 Sheet No. 63 Side B 05/11/2017 09:52:06 B 05/11/2017 63 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 64 Side A 05/11/2017 09:52:06 421 The 185 Excessive that contrib- 184 (Nov. 11, 2008), http:// Y ’ OL because “parodies” dojinshi P 183 but also could ultimately but also could OREIGN 182 , F Japan’s Gross National Cool ACHIEVING THE COPYRIGHT EQUILIBRIUM COPYRIGHT THE ACHIEVING Part II.A. Part II. Part I. ONCLUSION See supra See supra See supra which could create a chilling effect on all creations of secondary a chilling effect on all creations which could create Japan needs to adopt a U.S.-modeled fair use exception to miti- use exception U.S.-modeled fair to adopt a Japan needs As evidenced in Japan’s cultural history, free flow of information As evidenced in Japan’s cultural 181 184. 185. 181. 182. Japanese Copyright Law, art. 1. 183. Douglas McGray, M K foreignpolicy.com/2009/11/11/japans-gross-national-cool/. works. This stunted growth of new creations would not only under- growth of new creations would works. This stunted of culture,” mine Japan’s “development 2017] to contributes use that fair a legitimate issue is use at the secondary of culture.” the “development V. C would likely be cre- chilling effect on “parodies” that gate the possible Agreement. Japan’s compliance with the TPP ated through Japan’s of its copyright pro- agreement will tilt the balance entrance into the and copyright own- the overprotection of authors tection towards ers, \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 25 11-MAY-17 9:19 affect Japan’s so-called “gross national cool” affect Japan’s so-called power. pillars of Japan’s soft are one of the important protection for copyright owners’ exclusive rights must be avoided be- owners’ exclusive rights protection for copyright law. We must always remember cause that is not the goal of copyright copyright law is to promote that the ultimate objective of Japanese must also remember that all new “the development of culture.” We materials, whether they are unpro- creations are based on pre-existing Thus, we need to ensure that tected ideas or protectable expressions. creators upon which they can enough materials are left for future build new creations. creativity, resulting in active cre- enhances artists’ inspiration and Japan’s copyright objective. ations that are essential to achieve fair use exception proposed in this article will properly strike the bal- fair use exception proposed in this rights of copyright owners and the ance of protection between the rich in arts and culture. This will public interest in having a society “parodies” and necessarily protect the deserving culture.” ute to Japan’s “development of C Y 38980-swt_23-2 Sheet No. 64 Side A 05/11/2017 09:52:06 A 05/11/2017 64 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 64 Side B 05/11/2017 09:52:06 M K C Y \\jciprod01\productn\S\SWT\23-2\SWT205.txt unknown Seq: 26 11-MAY-17 9:19 38980-swt_23-2 Sheet No. 64 Side B 05/11/2017 09:52:06 B 05/11/2017 64 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 65 Side A 05/11/2017 09:52:06 R R R R R R R R R R R R R R U- F NERGY E Some U.S. 2 (Sept. 2, 2014, 4:52 ONSERVE Shannon Royster* ODAY , C ...... 427 , USA T ...... 434 NTERESTS ...... 437 I ...... 439 ...... 436 423 ...... 434 RIVATE ...... 428 ...... 443 . P DESIGNS SURROUNDING DESIGNS ATER ...... 432 ...... 439 ...... 430 California’s 100-Year Drought ...... 441 W PRIVATE WATER DELIVERY PRIVATE 40 Interesting Facts About Water Pollution OOD VS IGHTS G ...... 423 R Under these circumstances, it is no surprise that water Under these circumstances, it is ...... 444 1 CONTRACTING FOR BLUE GOLD: FOR BLUE CONTRACTING Economic Globalization Violations No Punishment Water “Markets” Blue Gold The Fallout The Importance of Democracy Contracts and Treaties These Great United States Doyle Rice et al., UMAN EMOCRATIC AN EXAMINATION OF THE LEGAL OF THE AN EXAMINATION OMMON TURE A. B. C. A. B. C. A. B. C. See California’s historic mega-drought has lasted five years with little California’s historic mega-drought I. C , http://www.conserve-energy-future.com/various-water-pollution-facts.php (last visited Jan. 2. Rinkesh Kukreja, * J.D., May 2016, Southwestern Law School. 1. II. D III. H M K ONCLUSION NTRODUCTION NTRODUCTION PM), http://www.usatoday.com/story/weather/2014/09/02/california-megadrought/14446195. 28, 2017). C I sign of relief. \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 1 11-MAY-17 9:22 receives vast coverage by news outlets across the United States. Water receives vast coverage by news outlets 1.2 trillion pounds of waste are re- conservation is a trending topic; sources every year. leased directly into U.S. freshwater water sources are so polluted that they cannot support life, and local water sources are so polluted that I C Y 38980-swt_23-2 Sheet No. 65 Side A 05/11/2017 09:52:06 A 05/11/2017 65 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 65 Side B 05/11/2017 09:52:06 M K E- 12 , at C Y R [Vol. 23 Ram- ROFIT note 5, at ATER 3 ONITORING P Several 8 W M supra (June 12, 2015, AND , , ASIN B HIVA S AZEERA ONTROL OF J IVER L people everywhere people C OLLUTION 6 R , A see also , P However, at its core it ; EGAL 13 Id. ISSOURI Though drought-stricken Though ., L 5 , M 11 ET AL Governments often grant rights Governments often . 9 RIVATIZATION R GENCY : P , J A ARS Privatisation of Water in Southern Africa: A Human W Farmers Fight Coca-Cola as India’s Groundwater Dries Farmers Fight Coca-Cola as India’s Groundwater ONTROL note 7, at 14. HOMPSON . L.J. 218, 220 (2004). C TS ATER Usable water sources are dwindling, and in- dwindling, and water sources are Usable (5th ed. 2013) (discussing the various schemes state govern- (5th ed. 2013) (discussing the various schemes 4 supra . R H. T , W ., UM 1 (2014), https://www.pca.state.mn.us/sites/default/files/wq-ws3- In the U.S., there are two main legal schemes for In the U.S., there 7 OLLUTION HIVA . H ATERIALS ARTON . P S FR B EPORT M INN R ,4 A ,4 California Orders Large Water Cuts for Farmers (Oct. 8, 2014, 11:30 AM), http://www.bloomberg.com/news/articles/2014-10-08/ , Archana Chaudhary, , M , at 172–73. at 802–03. ANDANA Although most state governments legally reserve the dis- Although most state governments HOMPSON ET AL V SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW T SOURCES 10 ASES AND Danwood Mzikenge Chirwa, AND : C See, e.g. See See generally See, e.g. See id. See id. See id. See See See, e.g. SSESSMENT at 14. Under prior-appropriation theory, on the other hand, whoever is first to put water at 14. Under prior-appropriation theory, on While state and local governments generally control water rights While state and local governments Allocating water is a complex task for any government; every is a complex task for any government; Allocating water LOOMBERG 6. 9. 7. 4. 8. the owner of the land on which the water In riparian doctrine, water rights belong to 5. 3. Id. A 10. 11. 12. 13. ,B vii–ix, 1–2 (2002). 21–23. 5:12 PM), http://america.aljazeera.com/articles/2015/6/12/california-orders-large-water-cuts-for- farmers.html. 10170204b.pdf. Up Rights Perspective ments use to allocate water). sits. to a “beneficial use” gains the right to use that water source. farmers-fight-coca-cola-as-india-s-groundwater-dries-up. Privatization is a term with varying meanings. Privatization is a term with varying within their jurisdictions, most states have passed legislation that al- within their jurisdictions, most states their water delivery systems. lows local governments to “privatize” 424 use. for human as unfit many have condemned governments \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 2 11-MAY-17 9:22 cretion to deny a permit for water use that is not in the public interest, cretion to deny a permit for water this option is rarely, if ever, exercised. stances of water conflicts are increasing. of water conflicts stances rights: riparian and prior-appropriation. allocating water Californians are already grappling with the issue, grappling with the are already Californians the right-holder to state permit schemes that allow to use water under location for a term amount of water at a particular withdraw a specific of years. states have systems for allocating water that draw from both theo- for allocating water that draw states have systems ries—a system” of water rights. “dual pant pollution drives the search for clean water underground. Yet, water underground. search for clean drives the pant pollution groundwater pump Coca-Cola Corporation) (such as the water users rate. at an unsustainable who owns our water? should be asking: govern water owner- set of laws and codes that country has its unique ship and use rights. 38980-swt_23-2 Sheet No. 65 Side B 05/11/2017 09:52:06 B 05/11/2017 65 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 66 Side A 05/11/2017 09:52:06 See 425 , 13 HAL- RIEF- . C UARDIAN MANUELE began OC E - A B 18 ,G Naren Prasad, See 16 See Popular Capitalism’ , 6 L.J. S . J. 217, 225–26 (2007). RIVATISATION EV P & D ATER T ’ , Paul Grout, ‘ (Oct. 16, 2013), http://theconversa- NV E , UK W See, e.g. AW NIT The Privatization of Residential Water Supply . U , 3/2 L ONVERSATION Thatcher’s program was politically Thatcher’s program ES ., http://www.margaretthatcher.org/essential/biogra- 20 R ,C L ’ In the water context, public to private context, public In the water NT 14 The U.K. government, starting with the The U.K. government, OUND . I 21 the godmother of privatization, the godmother F 17 note 7, at 802–03. reforms during the nineteen eighties in the reforms during ERVS 19 A Short History of Privatisation in the UK: 1979-2012 . S CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING supra UB note 13, at 221. HATCHER ., note 18, at 225. , P T supra supra ALL —subsequently the Water Act that privatized passed What Is Wrong With Full-Fledged Water Privatization? H . J. 37, 44 (1999)). 22 Privatization is inseparably linked to other neoliberal, free- linked to other is inseparably Privatization ARGARET AVID LAN 15 Richard Seymour, Chirwa, Prasad, LENGES ING P , M HOMPSON ET AL See See See & D 99, 107 (2004) (citing Isabelle Fauconnier, Margaret Thatcher, 5 (2001), http://www.archives.gov.on.ca/en/e_records/walkerton/part2info/partieswithstand- (1) full-fledged water privatization, meaning an actual transfer of assets and opera- (1) full-fledged water privatization, meaning (2) public ownership of assets combined tional responsibilities to the private sector; or management contracts . . . , leases . . . with private provision of services under service and transfer schemes where local govern- or concessions . . . ; and (3) build, operate and operate an infrastructure facility . . . . ment contracts with a private entity to build 19. policy that deemphasizes government “Neoliberal” refers to an economic and political 22. 16. 17. British politician and member of the Margaret Hilda Thatcher was the late prominent 18. to support privatization, Thatcher’s program Perhaps the most prominent public figure 21. This type of program is often referred to as “popular capitalism”; however, some com- 15. T 20. 14. Privatization comes in various forms, including: M K ERKELEY OBINA tion.com/popular-capitalism-of-the-80s-returns-via-royal-mail-and-lloyds-19168. regulation in the market and aims for reductions in government spending. regulation in the market and aims for reductions Conservative Party who served as Prime Minister of the United Kingdom from 1979-1990. Conservative Party who served as Prime Minister Biography phy.asp (last visited Jan. 29, 2017). neoliberal and Hayekian ideas. undoubtedly stemmed from Chicago-school Privatisation of Water: A Historical Perspective mentators doubt the validity of the theory in practice. ing/pdf/CUPE18UKwater.pdf. (Mar. 29, 2012), http://www.theguardian.com/commentisfree/2012/mar/29/short-history-of-privati sation. L Jennifer Naegele, 2017] a private to of its assets one selling of a government action is the a corporation. party, usually of the ‘80s Returns via Royal Mail & Lloyds \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 3 11-MAY-17 9:22 and Sanitation Services: Social Equity Issues in the California and International Contexts and Sanitation Services: Social Equity Issues B United Kingdom as a means to raise state revenue and reduce govern- as a means to raise state revenue United Kingdom the economy. ment intrusion in transfer can occur in various degrees that range from the total sale of range from the degrees that can occur in various transfer privatization, forms of to less invasive and infrastructure, water rights (“PPPs” private institutions public and partnerships between such as or “P3”). of already profitable industries—namelyde-nationalization telecom- munications market principals such as deregulation and liberalization. market principals popular because it encouraged widespread ownership of private prop- it encouraged widespread ownership popular because of shares. erty in the form pushing for neoliberal C Y 38980-swt_23-2 Sheet No. 66 Side A 05/11/2017 09:52:06 A 05/11/2017 66 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 66 Side B 05/11/2017 09:52:06 M K 25 see C Y FOR OOL 24 . F ADDON- [Vol. 23 TR Privatiza- C ,H L ’ OTLEY AT ,M ,N 1, 5–6 (discussing the allocation (2002) On Nov. 4, Haddonfield Voters Decide Y ’ OL P . 561, 601 (2005) [hereinafter Arnold, EV ATER Water Governance and Water Users in a Privatised 4W . L. R 38, 44 (2005). in Privatization of Public Water Services: The States’ Role in EPP , Following the U.K.’s example, many coun- many example, U.K.’s the Following Water is an Economic Good: How to Use Prices to Promote ATER Moreover, proponents argue that private con- Moreover, proponents 23 , 32 P 26 Although water privatization has been a rising Although water privatization has J. W L ’ note 18, at 225–27. 27 note 5, at 99–100. NT How to Profit from America’s Crumbling Infrastructure supra ]. supra , 3 I , Public-Private Partnerships: A Solution for Infrastructure Public-Private Partnerships: A Solution for (Jan. 30, 2013), http://www.ncpa.org/sub/dpd/index.php?Article_ID=22790; , The commodification of water is in direct conflict with the The commodification of water is HIVA SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW S 28 Peter Rogers et al., Prasad, Craig Anthony Arnold, Ben Page & Karen Bakker, FIELD (Oct. 20, 2014), https://haddonfieldsun.com/on-nov-4-haddonfield-voters-to-decide- NALYSIS See See See See, e.g. See See UN Privatization is popular not only as an outgrowth of neoliberal not only as an is popular Privatization Inseparably linked to water privatization, water commodification Inseparably linked to water privatization, A S Y ’ 28. 27. 24. 25. 26. 23. Justin K. Lacey, OL Equity, Efficiency, and Sustainability of water through the imposition of tariffs). tion of Public Water Water Industry: Participation in Policy-Making and in Water Services Provision: A Case Study of Water Industry: Participation in Policy-Making England and Wales also whether-to-sell-boroughs-water-and-sewer-rights-to-new-jersey-1ea2da13b088#.ckyb0tqmx we pulled wooden pipe out of the ground there. (“We recently redid the utilities on Pamona and We’ve come across 125-year-old pipes on Maple.”). Ensuring Public Accountability P (Jan. 19, 2014, 10:48 AM), http://www.fool.com/investing/general/2014/01/19/how-to-profit-from- americas-crumbling-infrastructu.aspx; Tim Ronaldson, Furthermore, large water corporations contend that, by benefitting water corporations contend Furthermore, large they are in a of scale and corporate water expertise, from economies water quality and than local governments to assure better position users. water access for Rights to New Jersey American Water Whether to Sell Borough’s Water and Sewer 426 in 1989. delivery water asso- to alleviate problems touted as a way policy but is also economic water qual- scarcity and infrastructure, water aging water ciated with in aging private investment contend that water advocates ity. Private local gov- is the only way for financially-strapped water infrastructure old water infra- restore America’s 100-year ernments to successfully wooden pipes). (some towns still have structure system \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 4 11-MAY-17 9:22 trol over water—whichits price—will means private control over con- waste water when it people would be less likely to serve water because is more expensive. are not without their costs. trend, these purported benefits borne by water users. The com- is a private water cost that is chiefly water is treated as an economic modification of water means that forces as any other good available good, subject to the same market derives from supply and demand for sale, by which the price of water market forces—we this at play in the bottled-water have already seen industry. tries have adopted legal schemes that support water privatization. schemes that support adopted legal tries have 38980-swt_23-2 Sheet No. 66 Side B 05/11/2017 09:52:06 B 05/11/2017 66 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 67 Side A 05/11/2017 09:52:06 29 427 ORPORATE C TOP S IGHT TO F HE : T OLD G LUE Because corporations exist to corporations Because NTERESTS , B 30 I LARKE C RIVATE ONY 3, 86–87 (2002). . P & T CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING ATER W S ’ ARLOW OOD VS B G ORLD at 127. AUDE W M See id. See OMMON Experience shows that private water regimes, which value water Experience shows that private water This paper argues that the legal procedures governments use to that the legal procedures governments This paper argues 30. 29. M K HEFT OF THE T as an economic commodity, subordinate the public good in favor of as an economic commodity, subordinate private companies’ fiduciary duties private corporate interests due to that although private water systems to shareholders. Part A contends markets are the best way to dis- operate on the premise that water good among society, actual mar- tribute water’s value as an economic rare. Thus, a government’s wholesale kets for water are exceptionally that faith in water markets can work against its citizens. Part B argues and private water companies with large amounts of capital to invest, of with the cooperation of government officials, benefit at the expense 2017] due to good, as a social or commons,” in “the is held that water idea on Earth. for all life of being essential characteristic water’s unique pri- a profitable commodity, primarily as is characterized When water market price can charge the water in charge of distributing vate actors is under gov- than it it vastly more expensive often making for water; regimes. subsidized ernment-run, \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 5 11-MAY-17 9:22 make profits, the social and ecological values of water are in danger of social and ecological values of water make profits, the as a moneymaking when water is valued primarily being washed away tool. instruments that private water regimes are the same erect and support to the public of private water and work damage exacerbate the ills of human rights. government, and to the sanctity good, to democratic that private contends experience demonstrates Part I of this paper of private corpo- the public good in favor water regimes subordinate fiduciary duties to sharehold- rate interests due to private companies’ that private arbitration and ers. Part II argues experience illustrates to erode the transparency required statute modification often work Part III claims experience reveals for democratic water management. encourage water companies to that international trade agreements problems regarding the enforcement enter new markets, but serious allow water corporations to escape of international human rights law in those same markets. The punishment for human rights violations of water privatization makes a legal armor available to proponents water delivery systems difficult to government’s decision to privatize damage. reverse without suffering collateral I. C C Y 38980-swt_23-2 Sheet No. 67 Side A 05/11/2017 09:52:06 A 05/11/2017 67 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 67 Side B 05/11/2017 09:52:06 M K ., 31 see CO- C Y Id. (Jan. E [Vol. 23 NALYSIS AND OGERS ET AL A OCIAL AND R S Int’l Conference on ENEFIT ETER See 36 P Water is essential -B 32 See OST C ATER AS A in 741, 741 (2002). , , W 9 (1998). . 317, 324 (2000) (“Such markets . . . ARTH EV E R for its value. Water is Not an Ordinary Economic Good, Y RACTICE ’ 35 OMMITTEE P OL C HEMISTRY . L. & P DVISORY & C The Importance of Getting Names Right: The Myth of Mar- 46, 65 (Roy Brouwer & David W. Pearce eds., 2005); 46, 65 (Roy Brouwer & David W. Pearce A NVTL RINCIPLE INTO P E note 27, at 5. Water as an Economic Good HYSICS The existence of the bottled water industry sug- The existence of the bottled water The Dublin Statement on Water and Sustainable Development The Dublin Statement on Water and Sustainable Hubert H.G. Savenije, ARY note 32, at 741. 37 supra , 27 P ECHNICAL UT THE note 27, at 2. P ANAGEMENT T . & M supra M ; see also M supra As an economic good, these professionals argue that As an economic good, these OW TO , John Briscoe, at 14 34 , 25 W : H SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Savenije, Joseph W. Dellapenna, NOMIC Rogers et al., Many economists and water managers maintain that these and water managers maintain Many economists ARTNERSHIP ESOURCES OOD 33 See, e.g. See See See See id. P R G However, the premise that water markets exist and operate like However, the premise that water The 1992 Dublin Conference on Water and the Environment Conference on Water and the The 1992 Dublin 34. 37. 33. 36. 35. “Full-cost price” is an economic term of art, which means that basic economics requires 31. Environment was a meeting of water experts The Dublin Conference on Water and the 32. Rogers et al., ATER LOBAL G kets for Water have been used to transfer fairly small quantities of water among similar users in close proximity to each other . . . .”). also the price of a service match the cost of providing that service. W to discuss water-related problems, which convened on January 31, 1992. to discuss water-related problems, which convened Water and the Environment, solidified the idea that water is an economic good. solidified the idea is flawed. According to Professor markets for other consumer goods “market” to describe the context in Joseph Dellapenna, using the term of the word—truewhich water transfers occur is a misuse markets for water are quite rare. or Why the Girl is Special 428 to en- designed terms contract via favorable population general the governments even if local C asserts that profits. Part sure corporate financial left with the same they are often corporate pacts, exit their Private their water system. before privatizing that they had difficulties concept that with the largely incompatible of water is management obliga- fiduciary due to the profit-centered necessary for life water is tions of corporations. A. Water “Markets” \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 6 11-MAY-17 9:22 gests that water markets exist effectively. However, the bottled water gests that water markets exist effectively. qualities make water’s “economic good” characterization a foregone qualities make water’s “economic conclusion. when water is traded in water mar- water is allocated most effectively kets with users paying full-cost price 31, 1992), www.ircwash.org/sites/default/files/71-ICWE92-9739.pdf. Participants produced the 31, 1992), www.ircwash.org/sites/default/files/71-ICWE92-9739.pdf. Development,” or the “Dublin Principles.” “Dublin Statement on Water and Sustainable to human life. There will always be a demand for it, and it can be will always be a demand to human life. There Thus, water sup- that demand via delivery networks. supplied to meet supply-demand par- a price for water based upon the pliers can charge adigm. 38980-swt_23-2 Sheet No. 67 Side B 05/11/2017 09:52:06 B 05/11/2017 67 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 68 Side A 05/11/2017 09:52:06 ıos . J. 429 ANK ES B 39 . R NTERNA- I AT ORLD 40 Monica R´ 44 In Chile, ,W 41 , 49 N ODEL FOR Water privatiza- M Supported by the 38 See generally 45 AW AS A L [D.O.] (Chile). The Unintended Consequences of Trad- ATER 49, 51 (2005). W T FICIAL ’ O NV HILEAN IARIO . & E : C ES ONG . R S Stephen E. Draper, AT IREN , 20 N , S CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING see also The Market for Water Rights in Chile: Major Issues The Market for Water Rights in Chile: Major Dams and Markets: Rivers and Electric Power in Chile AUER , Octubre 29, 1981, D is the longest-running, and arguably most successful, is the longest-running, and arguably 43 J. B . 285 (1995). 32 (2004); GUAS O at 322–23. at 320. at 1–2. ARL N . A C at 322. TIONAL Chile’s tradable water rights system, established by the Water Chile’s tradable water rights system, ´ OD EFORM 42 See See id. See id. Id. See id. APER R Private property is protected from government regulation in Private property is protected When governments make this error, it is often its citizens who make this error, it is often When governments water users will be able to negotiate over the price of water and the price of water negotiate over will be able to water users seek will be able to provider, providers [the lowest-cost] seek out engage in the user . . . and both will . . . out the [highest-paying] markets are that give rise to the expectation that sorts of activities use of water. the . . . most economically efficient likely to generate . P 45. 44. Carl J. Bauer, 40. 41. not only the delivery of water, but also Chile offers a strong example, as it has privatized 39. 42. 43. C 38. M K ECH 583, 643–51 (2009). water rights themselves, which are freely purchased and sold by users. water rights themselves, which are freely purchased Brehm & Jorge Quiroz, T Chile; thus, decisions about water use are made without regard to how Chile; thus, decisions about water by private users who have the those uses may affect third parties water rights. purchase-power necessary to amass suffer. Consider, for example, the Chilean experience. suffer. Consider, able Property Right to Water 2017] water bulk raw of possibilities to the compared is minuscule market sector. water resources and the entire transactions primarily a market water and at what price is not Who gets to use social one. it is a legal, administrative, and decision, rather, \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 7 11-MAY-17 9:22 Code of 1981, to date. Although this free-mar- privatization experiment in the world to cure water scarcity issues, many ket legal framework was meant than it has solved. argue that it has created more problems tion proposals seldom create a real working market scenario—a a real working seldom create tion proposals situa- tion where: are given private be freely bought and sold; they water rights can code, creating a by the constitution and civil property protection by any other country in the “market” for water that exists unmatched world. legal framework, big business interests have collected a majority of legal framework, big business interests to the direct disadvantage of family Chile’s water rights. This has been no longer have access to water be- farmers and rural populations that from their communities for use in cause it has been transferred out C Y 38980-swt_23-2 Sheet No. 68 Side A 05/11/2017 09:52:06 A 05/11/2017 68 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 68 Side B 05/11/2017 09:52:06 , , , . M K C Y A CON As THER 51 55 . E [Vol. 23 O IN , 3 J. F ORPORATIONS AND Many Chilean citi- Many Chilean 47 , C Some Chileans’ only Chileans’ Some Chilean Town Withers in Free 46 50 HOMPSON Michael C. Jensen & William H. Meckling, B. T note 51, at 6. OBERT see also see also Proyecto de Ley Busca Nacionalizar el Agua see also Proyecto de Ley Busca Nacionalizar Alexei Barrionuevo, supra & R , In the words of one Chilean water activist, In the words of 49 Laissez Faire Water Laws Threaten Family Farming in Chile Laissez Faire Water Laws Threaten Family see also ELLEY , Mar. 15, 2009, at A12. Conflicts of Interest: Efficiency, Fairness and Corporate Structure Mining and Logging Companies Are Leaving All of Chile Without Mining and Logging Companies Are Leaving HOMPSON note 46. note 46. note 45, at 605; IMES 6 (6th ed. 2010); to act in the best interests of the firm’s shareholders to act in the best interests of the & T R.T. O’K supra supra 54 supra Furthermore, corporations owe a fiduciary duty to Furthermore, corporations owe This means that managers of the firm owe a binding This means that managers of the . (May 27, 2015), http://www.ipsnews.net/2015/05/laissez-faire-water-laws- , 52 (Apr. 24, 2013, 7:17 AM), http://www.theguardian.com/global-development/ 53 . 738, 780 (1978). , N.Y. T ELLEY ERV EV HARLES AUER S These people urge that the current legal framework “favors that the current legal framework These people urge SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Marianela Jarroud, C O’K Jarroud, Jarroud, B SSOCIATIONS A.G. Anderson, (Mar. 20, 2008), http://www.lanacion.cl/noticias/vida-y-estilo/proyecto-de-ley-busca- at 154. 48 A UARDIAN RESS See See Id. See See See See See Businesses are often thought of as a “nexus of contracts.” thought of as a “nexus of Businesses are often P ,G ACION 52. 51. 53. 54. In Justice Cardozo’s words, the “punctilio of an honor . . . .” Meinhard v. Salmon, 164 55. 50. 48. 47. 49. Marianela Jarroud, 46. N USINESS A NTER 305, 311 (1976). 25 UCLA L. R N.E. 545, 546 (N.Y. 1928). I 2013/apr/24/mining-logging-chile-without-water. Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure Water threaten-family-farming-in-chile; Market for Water L nacionalizar-el-agua/2008-03-19/ 220549.html. B B. Blue Gold 430 operations. or hydro-electric logging mining, \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 8 11-MAY-17 9:22 “Chile’s [economic] development cannot come at the cost of sacrific- development cannot come at “Chile’s [economic] local communities . . . .” ing the water of their owners. legal obligation buying that firm’s stock. who, collectively, own the firm through profits and the wealthy.” zens are calling for a restructuring of the laissez-fare water rights re- laissez-fare water of the calling for a restructuring zens are the public return water to government to insisting the gime and domain. a shareholder in a corporation, one is legally entitled to a share in the a shareholder in a corporation, one shareholder wealth from profitable firm’s profits. Thus, maximizing access to drinking water comes via truck delivery; these populations delivery; these comes via truck drinking water access to defecation of toilets for plastic bags instead and use forego showers water. to potable they have lost access because business’s primary method of operations is via contract; it contracts method of operations is via business’s primary to achieve its goals. individuals, and governments with other business, corporation separates its owners and By legal design, a publically held its managers. 38980-swt_23-2 Sheet No. 68 Side B 05/11/2017 09:52:06 B 05/11/2017 68 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 69 Side A 05/11/2017 09:52:06 , 3 59 61 & 431 OM- C EVEL NVESTI- I L ARLOW B LOBAL G Investing in Water VALUATION OF THE see also RISES AND THE The two water- C 60 ONSORTIUM OF ., E C RG L ’ Additionally, some Additionally, ATER 2 (2015), https://www.robeco O NT 58 W , I One such term allowed UTURE EALTH F 64 LOBAL For example, the 1989 con- For example, the . (Oct. 1, 2014), http://www.energyand H G 63 AP MPROVEMENTS AT THE . (Jan. 28, 2015), http://www.energyandcapi Investing in Desalination Stocks: A Boring note 29, at 117. I HE ORLD note 29, at 118. AP : T & C , W supra , & C supra note 51, at 7. , ARKET OF THE NERGY 38–40 Press 2008) (2007); (New ANITATION ALLER note 29, at 103. Jeff Siegel, M OVENANT supra LARKE S , E NERGY H , C LARKE ATER , E supra & C Water Stocks: Don’t Overlook This $1 Trillion Opportunity Water Stocks: Don’t Overlook This $1 Trillion , LUE W see also & C , B ATER THE ATER AND AURENCE HOMPSON CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING note 14, at 112. LARKE ARLOW Cholera and the Age of Water Barons This capital becomes an effective bargaining chip This capital becomes W B IGHT TO ARLOW 62 & T & L ARLOW B R (Feb. 3, 2003), http://www.icij.org/projects/waterbarons/cholera-and-age- & C supra SAM, W B (Feb. 16, 2013), http://moneymorning.com/2013/02/06/water-stocks-dont-over 56 ELLEY , David Zeiler, see also OTTON note 29, at 103. ; AUDE see also ARLOW ENEFITS OF OBECO H B O’K M R ING Bill Marsden, Naegele B GATIVE ORNING UY OURNALISTS A year after the contract was signed, the company argued the A year after the contract was signed, supra See, e.g. See id. See See See See id. See See , See For every one U.S. dollar spent on water systems, the economic spent on water one U.S. dollar For every M J 65 The global water industry is worth an estimated 591 billion dol- 591 billion is worth an estimated water industry The global As a result of this bargaining power, contracts between private bargaining power, contracts As a result of this ATTLE FOR THE 57 59. 61. 58. G 62. 63. 60. 65. 57. is slated to be worth one trillion According to 2014 estimates, by 2025, the industry 64. 56. B M K ONEY LARKE OSTS AND (2004), http://www.who.int/water_sanitation_ health/wsh0404.pdf. (2004), http://www.who.int/water_sanitation_ M C capital.com/articles/investing-in-water-desalination-stocks/4604; Jeff Siegel, capital.com/articles/investing-in-water-desalination-stocks/4604; Stocks: This is BETTER Than Oil! .com/images/RobecoSAM_Water_Study.pdf. tal.com/articles/investing-in-water-stocks/4731. dollars. water-barons; look-this-1-trillion-opportunity; C 2017] traded publically modern of objective the prime is decisions business corporations. lars. dominate the water industry. Ten major corporations are in control of tre- even the smaller ones, Private water companies, mendous capital. \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 9 11-MAY-17 9:22 when negotiating with governments. when negotiating flexible, allow for and governments tend to be very water companies favor the company. renegotiations, and return can be as high as twenty-eight dollars. twenty-eight be as high as return can demands” that poor government was making “extra-contractual immediately and it could not af- neighborhoods receive water service Way to Make a Crap Ton of Money! Aguas Argentina to file for a rate increase if its costs became too Aguas Argentina to file for a rate high. market analysts contend that the water business sector is one of the business sector that the water contend market analysts best current investments—the a “sleeper hit.” economic version of least 130 countries. and Suez, operate in at giants, Vivendi Universal tract between the Argentinian government and Suez-led consortium tract between the Argentinian government advantageous terms that pro- Aguas Argentina contained several margins. tected the corporation’s profit C Y 38980-swt_23-2 Sheet No. 69 Side A 05/11/2017 09:52:06 A 05/11/2017 69 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 69 Side B 05/11/2017 09:52:06 M K 68 C Y Id. OCIAL [Vol. 23 S Corporations ROMISES AND 66 P ROKEN Citing increased costs, Citing increased 69 : B —flexible terms that bene- 67 IASCOS F note 29, at 111 (noting that, in Europe, “[p]lagued by note 29, at 111 (noting that, in Europe, “[p]lagued RIVATIZATION note 29, at 103–04 (noting that profit margins for Aguas Rate hikes such as these, stemming from Rate hikes such P supra 71 note 14, at 110 (noting that a private water company in Chile note 14, at 110 (noting that a private water , 13, 2015, 5:00 AM), http://america.aljazeera.com/articles/2015/7/ In Pennsylvania City, The Poor are Paying the Price for a Bad In Pennsylvania City, The Poor are Paying supra ATER (Oct. 21, 2015), http://crossroads.newsworks.org/index.php/local/ , u, supra What Your City Can Learn About the Cost of Water in Coatesville, , W LARKE (July LARKE & C ITIZEN ROSSROADS & C AZEERA . C , Naegele, J C at 102–03. disconnection and A price hike of 13.5 percent for consumption, L UB ARLOW SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW P B , A ARLOW 3 (2003), https:// www.citizen.org/documents/privatizationfiascos.pdf. The Pennsylvania Public Utility Commission granted every re- Public Utility Commission granted The Pennsylvania while private companies can access private capital to fund while private companies can access B Cf. Id. See See, e.g. See id. 70 72 EYSTONE This favorable-contract scenario has played out in the United out in the scenario has played This favorable-contract Because these contractual modifications result in extreme rate Because these contractual modifications 69. Aaron Miguel Cant ´ 68. 71. 72. 67. 70. Laura Benschoff, 66. ,K URMOIL Argentina were beyond excellent—two higher than margins by private water and a half times companies in England and Wales). demanded, as a condition imposed by the World Bank, a 33 percent return on its investment); demanded, as a condition imposed by the World see also PA constant wrangling since [a privatization] contract was first signed, one senior Budapest city constant wrangling since [a privatization] contract of privatization was a mistake.’”).official reflected: ‘it is now clear that this kind Water Deal reconnections, and a 42 percent increase in an infrastructure surcharge. Prior to these increases, reconnections, and a 42 percent increase in an of 25 percent and 29 percent, respectively. there had already been hikes in 1991 and 1992 13/in-coatesville-the-poor-are-paying-the-price-for-a-bad-water-deal.html. keystone-crossroads/87370-what-your-city-can-learn-from-the-cost-of-water-in-coatesville-pa. T 432 bills; Ar- water increasing without improvements those to make ford demands. the company’s acquiesced to gentina system to sold its water city of Coatesville well. In 2001, the States as Company (PAWC) Pennsylvania-American Water the publically held municipal debt and to raise revenue, alleviate for 38 million dollars aging water infrastructure. overhaul the city’s \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 10 11-MAY-17 9:22 quest, even though a water bill for a single-family household could be a water bill for a single-family quest, even though dollars. higher than 100 of private water sys- are a common feature contract re-negotiations, tems; pick up the tab over the long-term. projects, it seems that water-users C. The Fallout exit these private contracts prema- hikes, many governments often pieces. For example, in Atlanta, turely and are left picking up the United Water entered into a 20- Georgia, a Suez subsidiary named with the Atlanta government to con- year, 428 million dollar contract fit the corporation are a hallmark of water privatization contracts. privatization hallmark of water are a fit the corporation PAWC requested nine rate increases over the duration of its tenure in nine rate increases over the duration PAWC requested for re-negotia- on flexible contract terms allowing Coatesville based tions. demand high returns on their investment high returns on demand 38980-swt_23-2 Sheet No. 69 Side B 05/11/2017 09:52:06 B 05/11/2017 69 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 70 Side A 05/11/2017 09:52:06 . A 78 75 433 , G Corpora- 80 76 Notwithstanding 79 United Water billed an ex- Water billed an United Furthermore, Aguas Argen- Furthermore, Aguas 74 77 Under United Water’s management, At- management, Water’s United Under 73 note 72, at 2. Many Questions Remain for Atlanta After United Water CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING Id. supra , . (Jan. 30, 2003), http://www.georgiapolicy.org/2003/01/many-questions-re- ITIZEN . C (“[United Water] billed an extra $37.6 million for additional service authoriza- (“[United Water] billed an extra $37.6 million OUND UB P F Geoffery F. Segal, Y ’ See id. Id. See id. See See Id. Id. See id. OL The situation was similar in Buenos Aires. Contractual re-negoti- similar in Buenos Aires. Contractual The situation was Although private water systems operate on the premise that the Although private water systems . P 78. 79. 80. 76. 77. 73. 74. 75. M K UB P tions, capital repair and maintenance costs, and the city paid nearly $16 million of those costs.”). tions, capital repair and maintenance costs, and updates, the company failed to provide accept- In addition to neglecting critical infrastructure able sanitation for the city’s drinking water—there numerous “boil water advisories” dur- were ing United Water’s tenure. main-for-atlanta-after-united-water (“It’s a shame Atlanta decided to cut ties with United Water, main-for-atlanta-after-united-water (“It’s a shame Atlanta decided to cut ties with United ultimately tying the hands of the city well into the future.”). When the private water deal eroded, 95 percent of the city’s sewage water deal eroded, 95 percent When the private into the Rio de la Plata River. was dumped directly 2017] 1998. in water delivery trol Atlanta situation was bleak: contract, the exited the When Atlanta infrastructure that urban population, a crumbling still had a sprawling who lost faith the expanding city, and constituents could not support needs. ability to provide for their in the government’s that were “borne a 20 percent rise in water prices ations produced by the urban poor.” disproportionately \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 11 11-MAY-17 9:22 lanta’s water bills increased an average of 12 percent a year before the 12 percent a year an average of bills increased lanta’s water in 2003. from the contract city withdrew tions, guided by market principles, are designed to prioritize short- tions, guided by market principles, to no regard to the effects of their term monetary gains with little actions on citizens or the government. distribute water’s value among economic market will most effectively of that belief is inherently flawed. society, a government’s adoption negotiations results in con- Unequal bargaining power in privatization to the private water corporation, tract terms that are overly favorable without regard to the customers it allowing it to maximize profits the contractual relationship, it is serves. Even if the government ends entering into the privatization often no better off than it was before obvious long-term costs associated with pollution, financing the up- obvious long-term costs associated completed or neglected would grades that Aguas Argentina partially and the taxpayers. be left to the Argentine government tra 37.6 million dollars on top of the contract price for work that was price for work top of the contract million dollars on tra 37.6 practices. suspicious billing engaged in other it also never completed; to construct. the sewage treatment plant it agreed tina never built C Y 38980-swt_23-2 Sheet No. 70 Side A 05/11/2017 09:52:06 A 05/11/2017 70 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 70 Side B 05/11/2017 09:52:06 M K . & C Y M Al- 82 [Vol. 23 , 33 W 81 LOBALIZATION G Water Privatization Water Privatization ENEFITS OF B ISKS AND R Craig Anthony Arnold, HE ., T NST see also For instance, literacy is often cited as For instance, literacy is often cited . I 83 note 29, at 89 (“Management of water resources . . . is note 29, at 89 (“Management of water resources AC 5 (2002), http://pacinst.org/app/uploads/2013/02/new_eco Availability of clean and affordable water Availability of clean and affordable ., P 84 supra . 785, 804 (2009) [hereinafter Arnold, ATER , EV W ATER R Y note 14, at 114; ’ LARKE RESH W LEICK ET AL OL F supra & C H. G . L. & P ARLOW ETER SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW B P Naegele, AND NVTL EMOCRATIC See Id. See See ]. E RIVATIZATION OF This section argues that private arbitration and legislative enact- that private arbitration and This section argues democratic control of water The very nature of water demands P 84. 82. 83. 81. ARY M nomy_of_water3.pdf. based on market dynamics of increasing consumption and profit maximization, rather than on based on market dynamics of increasing consumption for future generations.”). long-term sustainability of a scarce resource Trends in the United States: Human Rights, National Security, and Public Stewardship Trends 434 value which regimes, water that private shows Experience agreement. good in the public commodity, subordinate an economic water as fiduci- to private companies’ interests due private corporate favor of a private conscientiously No matter how to shareholders. ary duties enterprises such commercial its business, carries out water company principles in mind. with egalitarian not designed are simply II. D for democratic to erode the transparency required ments often work control of water Part A contends that democratic water management. management. Part to ensure citizen-centered water assets is necessary private arbitration—oftenB asserts that, internationally, a term in Bi- Treaties—works to remove transparency in water Investment lateral many local legisla- C argues that, domestically, administration. Part allow finalization of privatization tures have proposed measures that stripping the privatization process agreements without a popular vote, Less democratic oversight allows of critical democratic oversight. without adequate checks and water corporations to pursue profits balances. A. The Importance of Democracy citizen-centered water manage- assets so that governments can ensure recognized as an economic good, is ment. Water, in addition to being a public good (or, social good). also recognized by academics as \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 12 11-MAY-17 9:22 a social good, because the ability to read does not just affect the im- a social good, because the ability mediate individual—it level of education and sophistica- increases the tion for the entire society. though there is no single definition of a public good, public goods though there is no single definition often have “spillover” effects. 38980-swt_23-2 Sheet No. 70 Side B 05/11/2017 09:52:06 B 05/11/2017 70 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 71 Side A 05/11/2017 09:52:06 , 88 435 RO- , P ISKS R EDUCING Though access to 92 34, 35 tbl.1 (2005). Project- , U.N. ESCOR Comm’n on Privatization of Public Water Y ’ 2002: R OL EPORT R note 82, at 789. . L. & P EV supra D EALTH Thus, decisions regarding water , 91 H More than two billion live without two billion More than 86 Potable water systems greatly reduce water systems Potable ORLD 87 W USTAINABLE HE . 147, 161 (2013) (citing Arnold, , 5 S Improving Water Governance Through Increased Public Access Improving Water Governance Through Increased EV ., T Analyzing the Implications of Water Privatization: Reorienting the Analyzing the Implications of Water Privatization: RG CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING note 14, at 107. The process of supplying water must be accounta- The process of supplying note 5, at 35. O 90 9 (2002), http://www.who.int/whr/2002/en/whr02_en.pdf. See id. note 14, at 114. supra Water Privatization Trends IFE supra EALTH , L supra , 6 NUJS L. R H Policy-making decisions include: participation in the formulation of regional HIVA S Karin M. Krchnak, MOTING Pankti Vora et al., Naegele, Arnold, ORLD EALTHY 89 See See See See The Realization of Economic, Social and Cultural Rights The Realization of Economic, Social and Cultural See H 85 See id. Accepting the premise that clean and affordable water is neces- that clean and affordable Accepting the premise In addition to having social, cultural and religious significance, cultural and to having social, In addition note 26, at 564 (“The more important issues involve identifying under what conditions note 26, at 564 (“The more important issues 88. W 91. 87. 86. 92. 89. Naegele, 90. 85. M K policies, plans and programs; questions on the timeliness and scope of public notice; breadth of policies, plans and programs; questions on the timeliness and scope of public notice; breadth consultation in drafting and formulation; lead-time for public comments on proposals; feedback and transparency in communication of final decisions; and accessibility of performance monitor- ing review procedures. Misplaced Debate related decisions include: participation in concessions; facility siting; transparency of award pro- related decisions include: participation in concessions; facility siting; transparency of award proce- cess and final decision on award; and accessibility of performance monitoring and review dures. to Information and Participation Hum. Rts., 52d Sess., Agenda Item 4, at 3, U.N. Doc. E/CN.4/Sub.2/2000/NGO/19 (2000) (“Irre- Hum. Rts., 52d Sess., Agenda Item 4, at 3, U.N. and the degree of involvement of private spective of the form of water service management must exercise control over the operations of the companies in the service, the public authorities service management. This includes, in particu- various public or private bodies involved in water water, continuity of the service, pricing, drafting of lar, the financing of works, the quality of the participation.”). specifications, degree of treatment and user supra and accountability mechanisms should be water privatization should occur and what safeguards provided to protect the public.”)). sary for society to prosper, the task of overseeing water management prosper, the task of overseeing sary for society to whom the system is assumed by the people for should be primarily designed to serve. 2017] at population as the as well user the individual on benefits confers large. itself. essential to life water is lakes and rivers; to drink, people turn to polluted Without clean water illness from doing but to accept the risk of fatal they have no choice water is a social good of Jennifer Naegele, “above all, so. In the words use among all in order to ensure equitable and should be regulated users.” \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 13 11-MAY-17 9:22 ble to the larger public interest. instances of water-borne illnesses, saving millions of lives per year. millions of lives illnesses, saving of water-borne instances this information may be lacking in public water systems, private con- this information may be lacking management must be open to public scrutiny. In order for the people management must be open to public information about the to attentively examine water management, be accessible. choices water providers make must access to sanitation services. access to C Y 38980-swt_23-2 Sheet No. 71 Side A 05/11/2017 09:52:06 A 05/11/2017 71 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 71 Side B 05/11/2017 09:52:06 , M K C Y [Vol. 23 Private 97 Another distinc- Concerned Citizens Coali- 99 see also see also Bilateral Investment Treaty This transparency deficit starts deficit This transparency 93 These malleable terms facilitate a These malleable These agreements allow a corpora- 94 98 note 82, at 801–02; note 29, at 176; note 29, at 176. note 29, at 207–08. supra supra , supra supra , , , note 91, at 162. LARKE LARKE LARKE note 91, at 162. supra ., https://www.law.cornell.edu/wex/bilateral_investment_treaty (last vis- & C & C & C CH supra Hence, these contracts provide significant leeway to the provide significant leeway Hence, these contracts , Part I.B. 95 . L. S Moreover, private water concessions are often set to run water concessions are often Moreover, private ARLOW ARLOW ARLOW SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW B B B 96 NIV Vora et al., In Stockton, for instance, “[a]fter independent analyses showed that a contract was In Stockton, for instance, “[a]fter independent U See See See supra Id. See See Water Privatization Trends Contract terms between governments and water providers are de- governments and water Contract terms between Many water corporations also escape public accountability Many water corporations also 98. 97. 94. 95. Vora et al., 96. 99. 93. ORNELL based on underestimated inflation figures, overestimated energy expenditures, and overstated based on underestimated inflation figures, overestimated California Environmental Quality Act] required capital cost savings, courts determined that [the the city to engage in thorough environmental impact analysis before approving the contract.” Arnold, tion of Stockton v. City of Stockton, 26 Cal. Rptr. 3d 735, 737 (Ct. App. 2005). C ited Jan. 31, 2017). 436 to democratic antithetical by its nature, is, delivery over water trol openness and transparency. goals of \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 14 11-MAY-17 9:22 corporation to “flout” contract targets and escape responsibility for contract targets and escape corporation to “flout” doing so. for decades; the water company stands to benefit from a lack of ac- water company stands to benefit for decades; the of the investment project. countability throughout the life with the initial contract, as terms are bargained for behind closed bargained for behind as terms are initial contract, with the doors. B. Treaties Contracts and and flexible. liberately left general a country if the host country cancels a tion to bring legal action against prematurely. contractual investment relationship system that does not hold private water providers accountable for not hold private water providers system that does supply is so com- “the . . . management of water their actions. Because are often left parameters of the scheme plex . . . , the performance vague . . . .” tive feature of these contracts is the private-arbitration clause. These tive feature of these contracts is to bypass domestic judicial systems; clauses allow investor-companies water regimes are generally designed in such a way that protects the water regimes are generally designed interests of the corporation. Treaties (BITs). Broadly through the use of Bilateral Investment establishes the terms and conditions speaking, a BIT is a contract that and corporations of one nation-state for private investment by citizens rights of investors from each coun- in a different nation-state, granting try to access the other’s markets. 38980-swt_23-2 Sheet No. 71 Side B 05/11/2017 09:52:06 B 05/11/2017 71 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 72 Side A 05/11/2017 09:52:06 & Id. 437 106 L ’ supra , NT LARKE & C , 38 B.C. I ARLOW B Although the exact To gain rights under 107 See 102 Globalization of Water Privatiza- Law May Give Residents No Say on 100 (Nov. 20, 2015), http://www.pressofatlanticcity ITY The Water Infrastructure Protection . C 105 TL Unlike the judicial proceedings of many Unlike the judicial Nicholas Huba, A 103 see also Julien Chaisse & Marine Polo, RESS OF §2016). (West 58:30 CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING ,P NN Legal maneuvering by private water advocates that by private water advocates Legal maneuvering see also . A 104 TAT at 171. at 171; at 177. As a result, the company gained “the right to sue Latin America’s poorest at 177. As a result, the company gained “the . 1, 15, 20 (2015). Not only does the tribunal meet in secret, it is comprised of . 1, 15, 20 (2015). Not only does the tribunal Assemb. B. 3628, 2014 Leg., 216th Sess. (N.J. 2014), http://www.njleg.state.nj.us/ N.J. S EV Part III.A. at 155, 177. at 177. After popular protest resulting from a failed private water from a protest resulting After popular See See id. See id. Id. See Id. See id. See id. 101 infra For example, Bolivia and the Netherlands signed a BIT that facil- signed a BIT that the Netherlands Bolivia and For example, Legal mechanisms that diminish transparency are at play in the Legal mechanisms that diminish . L. R 105. 104. 102. 103. 106. 101. 107. 100. M K OMP 2014/Bills/A4000/3628_R1.htm; tion: Ramifications of Investor-State Disputes in the “Blue Gold” Economy tion: Ramifications of Investor-State Disputes A.C. Water Utility’s Future C note 29, at 176. in global water privatization will further be dis- The World Bank’s involvement cussed country at the World Bank’s International Centre for Settlement of Investment Disputes.” country at the World Bank’s International Centre .com/communities/atlantic-city_pleasantville_brigantine/law-may-give-residents-no-say-on-a-c- water/article_329e91c6-8fe7-11e5-8c0c-1bafc7ef5395.html. officials from the World Bank. This is significant because the World Bank was an instrumental officials from the World Bank. This is significant in the first place. part of Aguas del Tunari’s presence in Bolivia contract, the Bolivian government canceled its Cochabamba contract its Cochabamba canceled the Bolivian government contract, a subsidiary of Bechtel. with Aguas del Tunari, One of these criteria is the determination that the municipality’s water One of these criteria is the determination damage.” infrastructure has suffered “material 2017] an inter- by in secret adjudicated are legal claims a company’s instead, panel. investment arbitration national govern- against the Bolivian legal action Corporation’s itated Bechtel ment. \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 15 11-MAY-17 9:22 countries that are open to the public, these proceedings are adjudi- open to the public, these proceedings countries that are cated in secret. Act allows New Jersey cities to privatize their water delivery services Act allows New Jersey cities to meets one of six conditions. without public input if the municipality condition of New Jersey’s water infrastructure is unknown, it is well condition of New Jersey’s water reduces public accountability is not limited to the developing world. is not limited to the reduces public accountability C. These Great United States 2015, New Jersey governor Chris United States as well. In February removed a public-vote requirement Christie signed a bill into law that from existing state water laws. the Bolivia-Netherlands BIT, Bechtel moved one of its holding com- BIT, Bechtel moved one the Bolivia-Netherlands in order to submit Cayman Islands to the Netherlands panies from the government after legal claim against the Bolivian a 40 million dollar cancelled. the contract was C Y 38980-swt_23-2 Sheet No. 72 Side A 05/11/2017 09:52:06 A 05/11/2017 72 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 72 Side B 05/11/2017 09:52:06 , M K . & C Y ATER TS , http:// [Vol. 23 . R W RS ’ UM NG such that such E GAINST ,5 H ,5 114 108 A IVIL C Although private YOF ’ TRUGGLE 112 OC S . S HE M : T , A State and local legislative 1 (2013). 113 ATER W ANADA C ONTESTED Taking a Road Trip This Summer? Enjoy America’s Crum- Taking a Road Trip This Summer? Enjoy America’s , C It seems that America’s water delivery is water delivery that America’s It seems TATES AND What It Will Take to Fix America’s Crumbling Infrastructure? What It Will Take to Fix America’s Crumbling Water Privatisation: Diminished Accountability 109 AM), http://www.theguardian.com/travel/ (July 27, 2015, 7:00 S OBINSON NITED 233, 238 (2011). U UARDIAN Despite this victory, the vote was unsuccessful; Stock- Despite this victory, the vote was L. R ,G 111 , Benjamin Preston, at 3. ISCOURSE at 3–4. OANNA J D SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW . R. (May 11, 2015), https://hbr.org/2015/05/what-it-will-take-to-fix-americas-crum- With democratic accountability being one of the main fo- accountability being one of the With democratic Nicholas McMurry, US See See See id. See id. See id. See 2013 Report Card for America’s Infrastructure See, e.g. 110 Rosabeth Moss Kanter, EGAL Many states do not even have a vote-requirement to privatize not even have a vote-requirement Many states do . B L L ’ 110. 114. 111. 112. 113. 109. 108. ARV RIVATIZATION IN THE NT I www. infrastructurereportcard.org/water-infrastructure (last visited Feb. 1, 2017) (stating that, www. infrastructurereportcard.org/water-infrastructure are more than 100 years old and in need of replace- “[e]ven though pipes and mains [in the U.S.] ment, outbreaks of disease attributable to drinking water are rare.”). 2015/jul/27/america-infrastructure-roadways-highways-funding (“Few things are more American 2015/jul/27/america-infrastructure-roadways-highways-funding than hitting the open road—the those roads suffer from underfunding.”); problem is, so many of see also bling Infrastructure H bling-infrastructure. cuses, those opposed to the plan organized a ballot initiative and to the plan organized a cuses, those opposed vote on the priva- signatures to qualify for a public gathered enough tization issue. P 438 is crumbling, infrastructure water America’s that known \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 16 11-MAY-17 9:22 ton sold off its water system to a multi-national water consortium, ton sold off its water system to dollar contract. OMI-Thames, for a 600 million water proponents had urged that Stockton citizens would not be nega- water proponents had urged that privatize, in 2008, citing a lack of tively affected by the decision to spills, the city council resumed transparency, rate hikes and sewage control over Stockton’s water system. procedures—orbodies that repeal public accountability that simply do not have them in the first place—contribute to a lack of democratic Indeed, a goal of privatization is to oversight in private water systems. the allocation of water. reduce political “interference” in already materially damaged. Not only have New Jersey residents lost New Jersey Not only have materially damaged. already it stands to decisions, in water privatization to participate the ability will be in the future of water systems privatization reason that streamlined. worked to introduce across the country have water systems. Groups decision to privatize that give the public a voice in the ballot initiatives and city council of example, in 2003, the mayor water delivery. For the city’s water de- announced a plan to privatize Stockton, California livery. the American Society of Civil Engineers assigned a “D” grade to assigned a “D” Civil Engineers Society of the American water pipes. America’s 38980-swt_23-2 Sheet No. 72 Side B 05/11/2017 09:52:06 B 05/11/2017 72 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 73 Side A 05/11/2017 09:52:06 439 In- 116 note 29, at 81 (“In this global market economy, every- supra , The General Agreement on Tariffs and Trade CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING 115 LARKE IGHTS & C R at 83. ARLOW B UMAN See id. See This section argues that international trade agreements histori- This section argues that international rules aid global corporate water The current international trade Democratic control of water delivery systems is necessary to en- to is necessary systems delivery of water control Democratic 116. 115. M K thing is now up for sale, even areas of life once considered sacred, such as health and education, culture and heritage, genetic codes and seeds, and natural resources, including air and water.”). cally encourage water companies to enter new markets, but serious cally encourage water companies of international human rights problems regarding the enforcement escape punishment for human rights law allow water corporations to A contends that the current interna- violations in those markets. Part global corporate water investment, tional trade framework facilitates corporations. Part B argues that providing increased revenue to water significant human rights violations in water corporations often commit that water corporations often es- the pursuit of profits. Part C asserts abuses because enforcement of cape punishment for human rights at all, is lax. Private water com- human rights laws, if any even exists human rights violations if such panies have an incentive to commit earnings for the company and its violations will result in higher shareholders. A. Economic Globalization entrance into new private water investment, facilitating corporations’ of trade barriers by international delivery markets. The dismantling eco- trade rules to facilitate a single global economy is referred to as nomic globalization. 2017] In- water management. and citizen-centered accountability sure public private arbitration—aternationally, feature of BITs—works central to Domesti- administration. in water democratic transparency remove account- removing public that pass legislation governments cally, local first place, measures in the do not enact such or that ability measures, Private arbitra- process of democratic oversight. strip the privatization that diminish trans- (or inactions) by legislatures tion and actions necessary in water the public accountability parency erode corporations to democratic oversight allows water management. Less Often, this lack adequate checks and balances. pursue profits without violations of human corporations to commit of safeguards allows liability for doing so. rights laws and escape III. H \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 17 11-MAY-17 9:22 (GATT) was seminal in the advancement of a global economy. C Y 38980-swt_23-2 Sheet No. 73 Side A 05/11/2017 09:52:06 A 05/11/2017 73 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 73 Side B 05/11/2017 09:52:06 M K ., 117 C Y RG ORLD O [Vol. 23 These ,W RADE 121 T ORLD , W WTO rules serve 123 Thus, the WTO’s classifica- Thus, the WTO’s 122 GATT is still an operational GATT 118 119 See A Summary of the Final Act of the Uruguay note 29, at 165. supra , ., https://www.wto.org/english/docs_e/legal_e/ursum_e.htm#General LARKE RG O See Understanding the WTO – Guide Overview: A Navigational & C RADE at 177. T at 165 (“This means that if a water-rich country placed a ban or even a quota on at 170 (“Although the WTO cannot directly command a member nation-state to ARLOW ., https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm1_e.htm (last visited ., https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm1_e.htm SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW B The WTO’s rules mandate that any constraint on the trade of mandate that any constraint on The WTO’s rules RG ORLD See id. See id. See id. See See The General Agreement on Tariffs and Trade (GATT 1947) See The General Agreement on Tariffs and Trade 120 O , W The WTO has an active hand in facilitating the privatization of active hand in facilitating the The WTO has an The policies of major international financial institutions build The policies of major international 118. Also known as the “Uruguay round.” 123. 122. 121. 119. WTO, including: umbrella (the Agreement There are several main treaties under the 120. 117. RADE the export of bulk water for sound environmental reasons, that decision could be challenged under the WTO as a trade-restrictive measure and a violation of international trade rules.”). https://www.wto.org/ english/docs_e/legal_e/gatt47_01_e.htm (last visited Feb. 1, 2017). https://www.wto.org/ english/docs_e/legal_e/gatt47_01_e.htm Round change its laws, the threat of economic sanctions creates . . . a ‘chill effect’ that compels govern- ments to review and revise their legislation for fear of being targeted by a WTO tribunal.”). (last visited Feb. 1, 2017). (the Multilateral Agreements on Trade in Goods Establishing the WTO); goods and investment Investment Measures (TRIMS)); services including the GATT 1994 and the Trade-Related intellectual property (Agreement on Trade- (General Agreement on Trade in Services (GATS)); (TRIPS)); dispute settlement (Dispute Settle- Related Aspects of Intellectual Property Rights governments’ trade policies (Trade Policy Review ment Understanding (DSU)); and reviews of Mechanism (TPRM)). Feb. 1, 2017). goods (water being included in this definition) is a “trade restrictive included in this definition) goods (water being tribunal. subject to adjudication by a WTO measure” that is T 440 inter- established that treaty multilateral was a GATT in 1947, stituted nations. twenty-three rules between investment national created the negotiations round of GATT in 1994, a Importantly, over the assumed control (WTO), which Organization World Trade trade. of international regulation Under the WTO’s in all corners of the world. water delivery services is identified as a tradable commodity—antrade rules, water economic good. \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 18 11-MAY-17 9:22 to remove trade barriers so that private water corporations are able to to remove trade barriers so that seek profits in new markets. promoting privatization and en- upon these free-trade rules, explicitly providers. The two most important suring the success of private water tion of water makes it incredibly difficult for nations to place restric- it incredibly difficult for nations tion of water makes if such restrictions are enacted for tions on the trade of water, even or social reasons. valid and compelling ecological treaty under the WTO framework, but it is no longer the primary in- is no longer the but it the WTO framework, treaty under agreement. ternational investment lawsuits can be worth billions of dollars. lawsuits can be worth 38980-swt_23-2 Sheet No. 73 Side B 05/11/2017 09:52:06 B 05/11/2017 73 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 74 Side A 05/11/2017 09:52:06 . Id. 124 441 ERVS Full S 126 Id. SSENTIAL E These institutions General Comment General Comment No. 15: 125 ETWORK ON 127 The right to water cap- ’ N 128 note 82, at 815. ITIZENS ,C supra , , states that the right to potable water , states that the right to potable The Roles of the IMF, the World Bank, and the WTO in Liberali- The Roles of the IMF, the World Bank, and the CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING Arts. 11 and 12 of the International Covenant on Economic, Social and Water Privatization Trends ( Violations of these rights in private water regimes are Violations of these rights in private 129 at 7. This is referred to as a “structural adjustment program.” at 7. This is referred to as a “structural adjustment ), ¶ 1, U.N. Doc. E/C.12/2002/11 (Jan. 20, 2003). . at 9–10. Like the so-called “‘boilfrog method’ . . . . [the structural adjustment the ¶ 2. Arnold, Nancy Alexander, Id. See See id. See id See Backed by international financial institutions and a friendly sys- financial institutions and Backed by international 129. 127. 128. U.N. ESCOR, Comm’n on Econ., Soc. & Cultural Rights, 125. 126. 124. M K program] assumes that, just as a frog will not jump out of water if it comes to a boil gradually, so program] assumes that, just as a frog will not jump out of water if it comes to a boil gradually, too, water users will not rebel if full cost recovery is introduced gradually over several years.” at 10. The Right to Water Cultural Rights 3 24212101-The-roles-of-the-imf-the-world-bank-and-the- (Oct. 21, 2005), http://docplayer.net/ wto-in-liberalization-and-privatization-of-the-water-services-sector-1.html. zation and Privatization of the Water Services Sector zation and Privatization of the Water Services 2017] (IMF); Fund Monetary International and the Bank World are the When ex- nations. loans to developing large private they provide loan pro- Bank conditions the World aid to foreign countries, tending its national nation privatize that the receiving a requirement ceeds on system). water delivery (including its industries \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 19 11-MAY-17 9:22 unfortunately too common. tures not just the necessity of clean water, but also its affordability, tures not just the necessity of clean and physical accessibility for do- availability in sufficient quantities, mestic uses. Number 15, The Right to Water an adequate standard of living; it is a is an essential part of the right to other human rights” and “indispen- “prerequisite for the realization of dignity.” sable for leading a life in human also insist on “full cost recovery,” which means that governments are means that governments which on “full cost recovery,” also insist insolvent individuals offering subsidies to financially forbidden from rates. the private water company’s increased that cannot afford cost recovery ensures maximization of profits for corporate water maximization of profits cost recovery ensures agreements often finds its way into privatization providers and themselves. B. Violations revenue by corporations goes beyond tem of trade rules, the pursuit of advantageous contract terms—many commit egregious human rights The human right to water has been violations in the pursuit of profits. agreements. The most power- established in a variety of international United Nations Committee on Eco- ful statement was issued by the in 2002. nomic, Social and Cultural Rights C Y 38980-swt_23-2 Sheet No. 74 Side A 05/11/2017 09:52:06 A 05/11/2017 74 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 74 Side B 05/11/2017 09:52:06 M K C Y HESE . 537, T [Vol. 23 EV N , I . L. R NVTL Even though E 133 One of the loan One of 130 ORDHAM Not a Drop to Drink (Apr. 8, 2002), http://www.new , 18 F ORKER If water bills were not paid, If water bills were Y 134 EW ,N Even those who had built wells on Even those who 135 Water company Aguas del Tunari was Aguas Water company 132 The Bolivian parliament quickly legalized parliament The Bolivian note 72, at 5. note 72, at 5. Leasing the Rain 131 The Human Right to Water note 14, at 109 (citing Kristie Reilly, supra supra , , supra The citizens opposed the hikes immediately. Protests The citizens opposed the hikes ITIZEN ITIZEN 136 . C . C UB UB SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW P P at 565. Naegele, William Finnegan, Aguas del Tunari’s outrageous price increases were violations Aguas del Tunari’s outrageous See Id. Id. See See Id. See Another story tainted of flagrant human rights violations by a Another story tainted of flagrant The situation of Cochabamba, Bolivia provides a provocative il- a provocative provides Bolivia of Cochabamba, situation The (Oct. 11, 2002), http://inthesetimes.com/article/131/not_a_drop_to_drink). A policy Id. 137 133. 131. 132. 136. 134. 137. 135. 130. Malgosia Fitzmaurice, IMES 564 (2006). yorker.com/magazine/2002/04/08/leasing-the-rain. evolved into a series of violent riots in Cochabamba and surrounding evolved into a series of violent riots a young boy was shot by the po- cities, injuring 175 people, including lice. life; potable water was neither af- of the human rights to water and fordable, nor accessible. South Africa. In 1999, a concession water corporation takes place in water company, Biwater, for a 30- contract was awarded to a British bills “grossly inflated,” but re- year term. Not only were the water it did not flow into their homes. sidents also paid for water even when started tallying how much a cus- Home meters, installed by Biwater, on; however, most taps do not tomer uses once the tap was turned after it has been turned on—dispense water for up to ninety minutes T recov- against subsidization in this context appears in private-public water contracts as “full cost ery.” 442 138 million of Bolivia lent the government In 1998, the IMF lustration. growth. economic aid in the country’s dollars to \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 20 11-MAY-17 9:22 the sole bidder for the contract in one of Bolivia’s largest cities: Co- the contract in one of Bolivia’s the sole bidder for Tunari dramatically subsequent months, Aguas del chabamba. In the the city’s water in- in order to finance updates to raised water prices frastructure—in cases by 100 to 200 percent. some the privatization of water. the privatization the monthly income be about twenty five percent of water bills could that Bolivia could family, IMF policy mandated for a working-class to these citizens. not provide subsidies water withdraws; the privatization were charged for their land before exclusive rights to Aguas del Tunari complete and contract granted supply water. conditions required Bolivia to sell its public enterprises, including the enterprises, to sell its public required Bolivia conditions system. water delivery access to water was shut off. access to water 38980-swt_23-2 Sheet No. 74 Side B 05/11/2017 09:52:06 B 05/11/2017 74 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 75 Side A 05/11/2017 09:52:06 443 It 142 143 is contained in (Aug. 18, 2002, 6:01 PM), UARDIAN , G General Comment 15 General Comment Though taps were turned on and cus- taps were turned Though 138 note 114, at 236, 238. note 130, at 559. note 130, at 549–51. CONTRACTING FOR BLUE GOLD FOR BLUE CONTRACTING supra note 13, at 222–28. The United Nations has declared that “the prime The United Nations Turning Off the Tap for Poor supra supra Thus, the state has a duty to take action to protect Thus, the state 139 supra 140 , McMurry, Chirwa, Fitzmaurice, Fitzmaurice, Often, nation-states are forced into privatization agreements, Often, nation-states are forced into See, e.g. See See See 141 The current international trade rules facilitate global investment The current international trade Water corporations often escape punishment for human rights often escape punishment for Water corporations 142. 143. 140. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Soci- 141. 139. 138. Nick Mathiason, M K the concession contract required users in the poorest segments of soci- segments poorest in the users required contract the concession ety to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, G.A. Res. 53/144, Annex pmbl., U.N. Doc. A/RES/53/144 (Mar. 8, 1999). https://www.theguardian.com/business/2002/aug/18/theobserver.observerbusiness10. or seek them out in order to fulfill their own human rights obligations or seek them out in order to fulfill Many academics criticize the cur- to provide clean water to citizens. international human rights law. rent responsibility-paradigm in by water corporations, allowing them to maximize revenue. Transna- by water corporations, allowing commit violations of human rights in tional water corporations often can escape liability for human pursuit of revenue. These corporations are no significant international legal rights violations because there International trade laws en- mechanisms to hold them accountable. new markets, but serious problems courage water companies to enter human rights law allow regarding the enforcement of international for human rights violations water corporations to escape punishment companies have an incentive to com- in those markets. Private water 2017] for this “air time.” ety to pay \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 21 11-MAY-17 9:22 responsibility and duty to promote and protect human rights lie with duty to promote and protect responsibility and the State . . . .” by private corpora- rights violations committed citizens from human tions. tomers were paying, there was no water flow provided to thirsty flow provided was no water were paying, there tomers residents. C. No Punishment is lax, if any exists at of human rights law abuses because enforcement the fact that all. Notwithstanding rights framework instrument, international human a nonbinding legal violations suffered hold nations responsible for rights is constructed to by their citizens. plainly fails to provide satisfactory redress for violations committed by plainly fails to provide satisfactory in the measures that they can corporations, but nations are limited because private water con- take to hold such corporations accountable as a central feature. tracts limit democratic involvement C Y 38980-swt_23-2 Sheet No. 75 Side A 05/11/2017 09:52:06 A 05/11/2017 75 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 75 Side B 05/11/2017 09:52:06 M K C Y [Vol. 23 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Experience demonstrates that private water regimes subordinate that private water demonstrates Experience not only California, but also As drought continues to devastate ONCLUSION monetary or otherwise. 444 in higher result will violations if those rights violations human mit and its shareholders. for the company earnings C due to corpora- in favor of private corporate interests the public good experience has duties to shareholders. Additionally, tions’ fiduciary actions (or inaction) arbitration and legislative revealed that private required for demo- accountability and transparency work to erode the shows that interna- Moreover, experience cratic water management. to enter new encourage water companies tional trade agreements of interna- problems regarding the enforcement markets, but serious escape punishment law allow those companies to tional human rights The legal proce- violations in those same markets. for human rights deploy in the con- of private water delivery dures that proponents water regimes are the same struction and maintenance of private so damaging to the public good, instruments that make private water to the sanctity of human rights. to democratic government, and is only natural for citizens to engage communities around the world, it be managed in order to provide for the question of how water will water privatization is not new, future needs. The debate surrounding such as desalination, the debate but with technological advancements large corporations have the capital is brought into new focus. Because projects, private corpora- required to invest in expensive desalination more water than ever. Though water tions may control the delivery of of the planet, transnational corpora- is essential to humans and the life tions prefer to focus on other considerations—namely, their bottom guaranteed immunity for acts they line. Corporations are essentially acts as egregious as human rights commit in pursuit of profits, even available to proponents of water violations. Thus, the legal armor decision to privatize water deliv- privatization makes a government’s suffering collateral damage—ery systems difficult to reverse without \\jciprod01\productn\S\SWT\23-2\SWT206.txt unknown Seq: 22 11-MAY-17 9:22 38980-swt_23-2 Sheet No. 75 Side B 05/11/2017 09:52:06 B 05/11/2017 75 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 76 Side A 05/11/2017 09:52:06 R R R R R R R R R R R R R R R R R ... 450 NITED Ava Shahani* U AWS AND ORWAY NITED L . N UDICIAL : U J RUG INIMUMS AND PPROACH TO D M OALS A TATES VS S G ’ AVOR OF S F PPROACH FOR THE ...... 457 ...... 458 ...... 462 ...... 463 OVERNING 445 YSTEM A NITED ANDATORY S G ...... 450 : U HEM IN M ...... 457 ETTER T OW ...... 463 ...... 458 B NCARCERATION USTICE ...... 463 ...... 458 ...... 460 N OF JUDICIAL DISCRETION OF JUDICIAL ...... 457 ...... 462 ...... 446 I J SA ORWAY ELIMINATING MANDATORY ELIMINATING TS OSED BY ...... 452 I NTIL I DRUG OFFENDERS IN FAVOR DRUG OFFENDERS P . N MINIMUMS FOR NONVIOLENT FOR MINIMUMS U ...... 454 LIMINATING EVELOPMENT OF RIMINAL E C D Rehabilitation Retribution Incapacitation Deterrence The United States Norway 2. Norway 1. The United States 1. The United States 2. Norway 1. The United States 2. Norway 1. The United States CHIEVING OW ISCRETION HE HE OLICIES ROBLEMS TATES TATES VS NTRODUCTION D. S A S A. B. C. P A. B. H D I. I * J.D. Candidate, May 2017, Southwestern Law School. I would like to thank my mother, THE TIME DOES NOT FIT THE CRIME: NOT FIT TIME DOES THE II. T IV. T III. P M K Feri, for her unconditional love and support throughout my life. I would also like to thank Ryan Feri, for her unconditional love and support throughout my life. I would also like to thank of Harold, Sherron Wiggins and Brett Haber for their constructive feedback on various drafts this article. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 1 11-MAY-17 9:22 C Y 38980-swt_23-2 Sheet No. 76 Side A 05/11/2017 09:52:06 A 05/11/2017 76 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 76 Side B 05/11/2017 09:52:06 R R M K 1 . L. C Y ENN [Vol. 23 . L. 1, 4, 5 . L. J. 315, 332 OMP RB , 114 U. P U & C L ’ NT ORDHAM . J. I A , 24 F https://www.bop.gov/about/statistics/ , 27 G , RISONS According to the Federal Bureau P 7 38 (2013), https://www.researchgate.net/publica 2 This approach to incarceration re- This approach 3 Because European countries are cul- Because European countries are 4 NGAGE UREAU OF 1 E . B ...... 465 ED In the Belly of the Beast: A Comparison of the Evolution and The General Preventive Effects of Punishment , F ...... 466 Incarceration Within American and Nordic Prisons: Comparison of Incarceration Within American and Nordic (Aug. 24, 2012), http://www.theatlantic.com/international/archive/2012/ note 5. . at 959-73. With 189,214 people in federal custody, 46.4% were With 189,214 people in federal custody, 6 Towards a Compassionate and Cost-Effective Drug Policy: A Forum on the A Different Justice: Why Anders Breivek Only Got 21 Years For Killing 77 A Different Justice: Why Anders Breivek Only supra 2. Norway TLANTIC What naturally follows from mandatory prison sentences What naturally follows from mandatory 5 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW A ONCLUSION HE Population Statistics See generally id T NTRODUCTION The American criminal justice system is the latter—developedThe American criminal What is the ultimate goal of incarceration? Is it to punish or to Is it to punish of incarceration? the ultimate goal What is 6. Harding, 7. 5. Roberta M. Harding, 4. Katie Ward et al., 1. Johannes Andenaes, 2. 3. Max Fisher, . 949, 959, 966 (1966). V. C EV R (1998); Don Johnson, Impact of Drug Policy on the Justice System and Human Rights (1997). population_statistics.jsp (last updated Jan. 26, 2017). National and International Policies, tion/235948052. Status of Prisoners’ Rights in the United States and Europe 08/a-different-justice-why-anders-breivik-only-got-21-years-for-killing-77-people/261532/. People, with the objective of punishing those who have committed crimes, of punishing those who have with the objective them. rather than rehabilitating 446 I. I future criminal offender in pursuance of preventing rehabilitate the between cultures. goals of incarceration differ activity? The societal for incarceration and their respective aims These cultural differences maintain public developing to enforce rules, result in some systems revolve around wrongdoers, while other systems safety, or rehabilitate punish offenders. the objective to \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 2 11-MAY-17 9:22 and decreasing parole eligibility is an inevitable increase in the num- and decreasing parole eligibility ber of prisoners. charged with drug related offenses. of Prisons (BOP), 82,415 inmates are currently serving time for drug of Prisons (BOP), 82,415 inmates sults in the United States having the largest number of incarcerated sults in the United States having persons per capita in the world. turally similar to the U.S., this statistic is notable, if not surprising. turally similar to the U.S., this incarceration statistic is likely This unprecedented and ever increasing of rigorous legislation aimed at a firsthand result from the passage institution of mandatory minimum fighting the “War on Drugs,” the 1980s, and the stringency of parole sentences for drug offenses in the eligibility. 38980-swt_23-2 Sheet No. 76 Side B 05/11/2017 09:52:06 B 05/11/2017 76 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 77 Side A 05/11/2017 09:52:06 . 9 10 447 1-2 NST In I 15 , Oct. 7, BROAD AKER IMES A , B ROM F , N.Y. T Meanwhile, the 11 ESSONS : L ECIDIVISM R NCARCERATION AND In the same month, the Justice Department In the same month, the Justice The federal government has indicated that it is The federal government has indicated , I U.S. to Release 6,000 Inmates from Prisons 16 The legislation by the U.S. Congress condemns The legislation 14 note 5, at 331. 12 DOJ to Release 6,000 Prisoners: What You Should Know THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE EADY note 15. What results is an inhumane system. 13 supra W. D , supra at 331, 350. This, as this article will argue, can be directly attributed to attributed directly can be will argue, article as this This, Even with these steps being taken, and those 6,000 inmates Even with these steps being taken, 8 Johnson, . at 321, 331. . at 331-32. . 17 AROLYN Id. Id Id See id. Id See Due to the mandatory sentences and the federal “War on Drugs” Due to the mandatory sentences Mandatory minimum sentences in the U.S. primarily targets ma- primarily targets in the U.S. minimum sentences Mandatory (Oct. 8, 2015), http://blog.chron.com/bakerblog/2015/10/doj-to-release-6000-prisoners- 8. 9. 15. Michael S. Schmidt, 16. James A. Baker, 11. 12. 13. 14. C 10. 17. Schmidt M K LOG (2014), https://www.salve.edu/sites/default/files/filesfield/documents/Incarceration_and_Recidiv ism.pdf. B 2015, at A1. what-you-should-know/. They are able to use this information to be granted leniency in their use this information to be granted They are able to all. minimal prison time, if any at charge, and serve 2017] offenses. legislation to crack for the failure of the original A possible reason be credited to them and high level dealers could down on the kingpins other criminals. in the form of information about having leverage \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 3 11-MAY-17 9:22 aware of the issue and is taking steps to address the problem. aware of the issue and is taking would be released from federal announced that about 6,000 inmates prisons. indeed being released, there remains a great deal of work to be done. indeed being released, there remains policy, which run contrary to studies that indicate incarceration is not policy, which run contrary to studies the U.S. is now faced with the most effective means of deterrence, overcrowded prisons. the aforementioned “War on Drugs” policy, coupled with the institu- coupled with on Drugs” policy, “War the aforementioned sentences. minimum tion of mandatory purpose be- to serve its but has failed dealers and kingpins, jor drug and users are level dealers of cases, the low the vast majority cause in rarely serve time. major drug dealers and kingpins sentenced, while the small-scale offenders instead of the big kingpins, and doing so the small-scale offenders instead crimes or circumstances surround- without any real knowledge on the ing the offense. small-scale dealers, who are ordinarily poor individuals trying to earn who are ordinarily poor individuals small-scale dealers, sentences and make ends meet, receive outrageous a little cash and serve 20 plus years. October 2015, new sentencing guidelines were introduced by a biparti- October 2015, new sentencing guidelines mandatory minimum sentences for san group of senators to reduce nonviolent offenders. C Y 38980-swt_23-2 Sheet No. 77 Side A 05/11/2017 09:52:06 A 05/11/2017 77 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 77 Side B 05/11/2017 09:52:06 M K C Y The (Dec. [Vol. 23 23 NSIDER Thus, it is Thus, it . I 18 US What results is , B note 21. 26 Though drug use 19 , supra (Aug. 3, 2011), http://www.cnn ICE Norway has an estimated Norway has an 20 , V They differ, however, in their manner of They differ, however, in their manner This finding suggests that the Norwegian This finding suggests 25 22 Why Norway’s Prison System Is So Successful note 4, at 38 (recidivism is the tendency for a criminal to reoffend. note 4, at 38 (recidivism is the tendency for note 4, at 38-39. note 14, at 3. note 14, at 3. note 3. supra supra Both punish for the crime committed and attempt to Both punish for the crime committed 24 supra supra , , supra 27 SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW EADY EADY Further, at 20 percent, Norway has one of the lowest recidi- Norway has one of the Further, at 20 percent, Id. Id. See Inside Norway’s Progressive Prison System Id. 21 Unlike the U.S., where judges have been stripped of their author- Unlike the U.S., where judges have Additionally, the U.S. has the highest recidivism rates in the recidivism rates has the highest the U.S. Additionally, 22. D 21. Christina Sterbenz, 19. D 25. 26. 27. 23. 24. Fisher, 20. Ward et al., 18. Ward et al., 11, 2014), http://www.businessinsider.com/why-norways-prison-system-is-so-successful-2014-12 compared to the US, according to the Bureau (“Norway also has a relatively low level of crime reported to police there are theft-related inci- of Diplomatic Security. The majority of crimes dents, and violent crime is mostly confined to areas with drug trafficking and gang problems”). .com/2011/WORLD/europe/08/02/vbs.norwegian.prisons/; Sterbenz The American incarceration rate is at over 714 per 100,000 citizens, compared to western Euro- The American incarceration rate is at over 714 pean countries at 95 per 100,000 citizens). ity in terms of determining the length of an offender’s sentence, ity in terms of determining the 448 be ex- take will needs to government that the steps additional These this article. plored in current system. of the the ineffectiveness world, signifying \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 4 11-MAY-17 9:22 achieving these goals. Norway has not implemented mandatory mini- achieving these goals. Norway has the term of incarceration are mums, meaning when they incarcerate, crime committed. proportionate to the severity of the vism rates in the world. vism rates in the than the U.S. recidivism more effectively prison systems reduces rehabilitate the offender. population of 5 million people, yet there are less than 4,000 incarcer- million people, yet there are less population of 5 ated. are similar in terms of the goals of U.S. and Norwegian penal systems incarceration. a system more concerned with effective rehabilitation and release of a system more concerned with effective that do not fit the crime prisoners, not in doling out punishments committed. and trafficking are prevalent in Norway, as they are in the U.S., their prevalent in Norway, as they and trafficking are is a far better treatment of inmates humane and compassionate rehabilitation goals. method of achieving time to explore the successful components of other European prison of other European components explore the successful time to With the low- to establish a more effective approach. systems in order Norway, are consid- Scandinavian countries, like est recidivism rate, effective incarceration practices. ered models of 38980-swt_23-2 Sheet No. 77 Side B 05/11/2017 09:52:06 B 05/11/2017 77 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 78 Side A 05/11/2017 09:52:06 449 (May , N.Y. Part ERGEN IFELONG 33 B IME OF In addi- , T 30 : A L , U. 31 . (Mar. 26, 2015), https:// DUCATION AG E M The Norwegian system Norwegian The note 21. RISON IMES 28 P supra , N.Y. T ORDIC , N Thus, instead of punishment, the of punishment, Thus, instead 29 INISTERS Norway Mass Killer Gets the Maximum: 21 Years Norway Mass Killer Gets the Maximum: 21 note 29; Sterbenz, M Norway Builds the World’s Most Humane Prison Norway Prisons Rehabilitate Criminal Offenders supra THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE 15, 123 (2009), http://epeamalta.org/uploads/3/0/6/4/3064611/nordic OUNCIL OF note 5, at 332. note 3. C supra supra ORDIC ERSPECTIVE N Hilde K. Kvalvaag, William Lee Adams, P See See See A good starting point for the shift is to abolish mandatory mini- point for the shift is to abolish mandatory A good starting The American criminal justice system must shift its focus from justice system must shift The American criminal , Aug. 25, 2012, at A3. 32 30. Fisher, 31. 32. For purposes of this paper nonviolent crimes include drug offenses such as possession, 33. Johnson, 28. 29. M K EARNING IMES 10, 2010), http://content.time.com/time/magazine/article/0,9171,1986002,00.html; Jessica Benko, 10, 2010), http://content.time.com/time/magazine/article/0,9171,1986002,00.html; Prison The Radical Humaneness of Norway’s Halden www.nytimes.com/2015/03/29/magazine/the-radical-humaneness-of-norways-halden-prison.html. possession with intent to distribute, manufacture, sale, and trafficking of controlled substances. _prison_education.pdf; Benko, T L (Aug. 24, 2016), http://www.uib.no/en/news/100126/norwegian-prisons-rehabilitate-criminal-of- fenders; Mark Lewis & Sarah Lyall, 2017] power. this retained have in Norway judges drug offend- particularly for nonviolent punishment to rehabilitation, ers. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 5 11-MAY-17 9:22 mums that remove judicial authority to take into account facts judicial authority to take mums that remove force judges to crime and the criminal, and instead surrounding the by statute. for a set period of time specified sentence offenders main objective of Norway’s prison system is rehabilitation. prison system of Norway’s main objective meaning of normalization,” the “principle advocates tion, Norway that recently that ensure includes programs rehabilitation that their society. can easily integrate back into released prisoners U.S. and Norwegian will examine the background of II of this paper laws and poli- examines the current governing drug laws and further with mandatory minimums and cies. Part III will analyze the problems a superior method. Part IV will com- explain why judicial discretion is the U.S. criminal justice system with pare the incarceration goals in of the Norwegian criminal justice Norway’s to determine what aspects in the U.S. Although members of system may be reasonably adopted decrease the duration of mandatory Congress are coming together to them altogether in favor of minimum sentences, I propose eliminating judicial discretion. views criminals as individuals who have made mistakes and who are made mistakes who have as individuals views criminals of being rehabilitated. capable C Y 38980-swt_23-2 Sheet No. 78 Side A 05/11/2017 09:52:06 A 05/11/2017 78 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 78 Side B 05/11/2017 09:52:06 M K EN- C Y , 26 C [Vol. 23 ST 21 . 411, 414-15 TUD S EGAL Some Reflections on the AWS AND . L ORWAY L ATH . N ORRECTIONS IN THE 41 C RUG https://www.bop.gov/about/statistics/ , , 44 J. C D These changes in sentencing TATES VS RISONS 40 P S Further, President Reagan focused Further, President 1, at 14 (2001), https://www.ncjrs.gov/pdffiles1/nij/ Population Growth in U.S. Prisons, 1980-1996 We Have Been Losing the War On Drugs for Four We Have Been Losing the War On Drugs for ENTENCING AND 38 OVERNING , S NITED UREAU OF In response, President Nixon declared a In response, President G UTURE 37 : U . B F ED Tough on Crime or Tough Luck for the Incarcerated? Explor- Tough on Crime or Tough Luck for the Incarcerated? Race, Morality, and the Law: The Lingering Effects of the War Race, Morality, and the Law: The Lingering . 253, 255-56 (2015); Karim Ismaili, OW ACKENZIE , F EV (Jan. 27, 2015), http://www.huffingtonpost.com/herron-keyon-gas- M N . R OST note 38, at 256. P note 5, at 321. In 1951, Congress enacted two-year mandatory min- In 1951, Congress NTIL AYTON TAGE FOR THE 35 Nevertheless, drugs became the symbol of youthful Nevertheless, drugs (Mar. 3, 2015), https://www.theguardian.com/commentisfree/2015/mar/03/ S L See Offenses SYCHOL U 36 supra supra EVELOPMENT OF . 17, 43 (1999). ORIS & P SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW D In the 1930s, Congress formed the Federal Bureau of Nar- formed the Federal Bureau In the 1930s, Congress UFFINGTON Robert C. NeSmith, Nick Clegg & Richard Branson, D TURY UARDIAN UST 34 AW , H Between 1980 and 1996, only 12 percent of the incarceration Between 1980 and 1996, only 12 Id. See See See HE OLICIES , G ETTING THE 39 & J P One of the main culprits responsible for more than half of the One of the main culprits responsible The United States has been at war with drugs for decades, but it drugs for decades, at war with States has been The United : S 39. NeSmith, 40. Alfred Blumstein & Allen J. Beck, 36. 37. Herron Keyon Gaston, 35. Johnson, 38. 41. 34. , 39 L RIME (2005). C statistics_inmate_offenses.jsp (last updated Dec. 24, 2017). ing the Adverse Psychological Impacts of Mandatory Minimum Sentencing and Pushing for Ac- ing the Adverse Psychological Impacts of Mandatory tion Decades 189106-2.pdf. The proportion of drug offenders in federal prison has declined only marginally federal since 1996. At the time this article went into press, drug offenders compose of 46% of the prison population. ton/race-morality-and-law-the_b_6544286.html. in the U.S. Origins and Implications of Mass Imprisonment on Drugs war-on-drugs-british-politicians-nick-clegg-richard-branson. U.S. prison population being incarcerated for drug offenses is the U.S. prison population being incarcerated 450 II. T A. States The United evidence of to produce any as it has failed a losing battle has been success. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 6 11-MAY-17 9:22 cotics to better enforce the then criminal prohibition of alcohol and enforce the then criminal prohibition cotics to better other narcotics. late 1960s. rebellion in the presence of drug 1971, increasing both the size and war on drugs in further extended and enacting legislation that control agencies, sentences. mandatory minimum increases in crime—therate increase was due to actual remaining 88 to the institution of certain sanctions percent of the increase was due and mandatory minimum sentences. policy resulted in more than half of the population in federal prisons policy resulted in more than half offenses. being incarcerated for drug related imum sentences, doubling down on the ill-perceived effectiveness of doubling down on the ill-perceived imum sentences, incarceration. on “Getting Tough” on drugs, from which incarceration rates skyrock- on drugs, from which incarceration on “Getting Tough” eted. 38980-swt_23-2 Sheet No. 78 Side B 05/11/2017 09:52:06 B 05/11/2017 78 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 79 Side A 05/11/2017 09:52:06 50 US- 451 J The 49 EPORT TO NCARCERA- RIMINAL I , R N ’ C This disparity OMM 44 C 47 (2014). EDERAL ROWTH OF F G HE ., T ENTENCING Because of this arbitrary Because of this 2010, at 3, 7 (2015). In order to combat mass ONSEQUENCES 46 CADS 48 C A L CT OF ENALTIES IN THE ’ P A This is the result of a combina- AT 51 N AUSES AND INIMUM C M ENTENCING Under this framework, the mandatory this framework, Under S 42 note 42. Therefore, it is obvious that enactment of Therefore, it is obvious that enactment AIR 47 OUNCIL OF THE For example, the 1986 Act distinguished be- Act distinguished the 1986 For example, F XPLORING C 43 ANDATORY supra : E , N , M ’ THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE N ’ note 5. note 5. TATES OMM ESEARCH S OMM R . C supra supra Congress established this ratio, however, due in large this ratio, however, due Congress established L MPACT OF THE C ’ 45 : I NITED ENT AT 23 (2011). N U at 25. at 23, 25. TICE THE TION IN THE See id. See Id. Id. Id. YSTEM ONGRESS In sum, more drug offenders are going to prison because the U.S. In sum, more drug offenders are ENTENCING S 45. 46. 47. 48. Harding, 49.Act, 21 U.S.C. §Sentencing Fair 801 (2010); U.S. S 50. 51. Harding, 44. 43. U.S. S 42. 99-570, §§ Anti-Drug Abuse Act of 1986, Pub. L. No. 1002- 1302, 100 Stat. 3207 (1986); C M K criminal justice system perceives no other option for these individuals criminal justice system perceives aside from sending them to prison. U.S. S 2017] frame- the basic “established which of 1986, Act Abuse Anti-Drug to federal applicable penalties currently mandatory minimum work of offenses.” drug trafficking \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 7 11-MAY-17 9:22 tween powder cocaine and crack cocaine by treating quantities of and crack cocaine by treating tween powder cocaine for purposes of sen- than powder cocaine crack cocaine differently “100-to-1” ratio as specified statute. tencing using the than powder that crack cocaine was more affordable part to the fact increasing in popularity. cocaine, and thus minimums “ranged from five years without parole to life imprison- parole to life five years without “ranged from minimums [varying] minimums triggering mandatory “the quantities ment” with drugs.” for [different] tion of the reduction in treatment and legislation requiring mandatory tion of the reduction in treatment ratio and related legislation, imprisonment rates continue to rise as ratio and related legislation, imprisonment crime rates have fallen. the “War on Drugs” and the stringent legislation aimed at fighting has led to an increased number of “Get Tough on Crime” policies offenses. incarcerations for drug related Act sought to reduce mandatory minimum sentences for drug related Act sought to reduce mandatory mandatory minimum to 15 years, offenders by reducing the 20 years mandatory minimum to 25 years. and reducing the life imprisonment incarceration, Congress passed the Fair Sentencing Act of 2010. incarceration, Congress passed the is evidenced by the “mandatory minimum of five years imprisonment the “mandatory minimum of five is evidenced by grams of crack co- which involved at least five for trafficking offenses cocaine required offenses involving powder caine, whereas trafficking the same mandatory of the substance to trigger at least 500 grams minimum.” C Y 38980-swt_23-2 Sheet No. 79 Side A 05/11/2017 09:52:06 A 05/11/2017 79 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 79 Side B 05/11/2017 09:52:06 M K A- C Y P 58 [Vol. 23 ITHOUT . L.J. 315, 320- W RB . 217, 221 (2007). IFE U Similar to the : L UST 55 & J It is also similar in It is also similar EATH ORDHAM 56 D RIME , 24 F IVING 36 C 60 [Civil Code] pt. II, ch.14, § 162 (Nor.). , ACLU, A L TRAFFELOV S UNTING Sections 162 of the GCPC states: 59 B 201 (Vanita Gupta ed., 2013). ILL Penal Policy in Scandinavia, The sheer number of those incarcerated for incarcerated of those number sheer The 52 a, & W FFENSES al ¨ However, unlike the U.S., which has mandatory However, unlike the U.S., which O 57 § 162 (Nor.). Towards a Compassionate and Cost-Effective Drug Policy: A Forum on the Towards a Compassionate and Cost-Effective LMINDELIG BORGERLIG URNER 53 T These liberal policies are evidenced by Scandinavia’s aban- are evidenced by Scandinavia’s These liberal policies SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW United States v. Williams, 788 F. Supp. 2d 847, 871 (N.D. Iowa 2011). United States v. Williams, 788 F. Supp. 2d 847, ONVIOLENT ROLE FOR at 222. 54 at 221. . at 225; A . at 261. N TRAFFELOV ENNIFER Id Id Id. Id. See Norwegian laws prescribe reasonable minimum and maximum Norwegian laws prescribe reasonable offense is judged as serious de- Further, “[w]hether or not a drug Norway, along with Denmark, Finland, Iceland, and Sweden, with Denmark, Finland, Iceland, Norway, along Any person who unlawfully manufactures, imports, exports, ac- Any person who unlawfully manufactures, substance that pursuant to stat- quires, stores, sends or conveys any drug shall be guilty of a drug utory provision is deemed to be a for a term not exceeding felony and liable to fines or imprisonment shall be punishable by impris- two years. An aggravated drug felony years. onment for a term not exceeding 10 58. 55. 56. 57. 54. Tapio Lappi-Sepp ¨ 59. J 60. S 53. Symposium, 52. 324, 326, 333 (1997). Impact of Drug Policy on the Justice System and Human Rights Impact of Drug Policy on the Justice System and penalties for each offense. its quantity and the nature of the pends on the type of drug involved, 452 sentences. minimum B. Norway in many respects due to as Scandinavia, stand out commonly referred position on drug justice policies and moralistic to its liberal criminal offenses. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 8 11-MAY-17 9:22 donment of the idea of a “drug-free society” as “unrealistic” and im- idea of a “drug-free society” as donment of the “based on harm reduction ideas.” plementing policies drug related offenses indicate that the war on drugs has failed. Be- war on drugs has that the offenses indicate drug related question: asking the same are increasingly this, criminologists cause of of offender to its goals run counter U.S. penal system does the rehabilitation? minimum sentencing, Scandinavia’s “sentencing is preserved as an minimum sentencing, Scandinavia’s making, guided by valid sources of area of normal judicial decision Civil Penal Code (GCPC).” sentencing law such as the General U.S., Norway is divided between judicial, executive, and legislative divided between judicial, executive, U.S., Norway is which is mutually independent. branches, each of as their laws are “codified and the terms of law and court structure, regional appellate courts, and a court systems consist of local courts, Supreme Court.” 38980-swt_23-2 Sheet No. 79 Side B 05/11/2017 09:52:06 B 05/11/2017 79 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 80 Side A 05/11/2017 09:52:06 , 66 62 453 OR- TRAF- N HE AUST TO F ., T MPLEMENTA- ES I ROM R ND : F . L. 55, 60 (Swed.) A This is largely § 162 (Nor.)). TUD 69 . 199-201 (2011); S . S ESIGN DDICTION (2015). UST A – D ., 283, 303 (2014). OR NFORMATION EV TUDY & J F I TRAFFELOV F S TUDY The Norwegian criminal The Norwegian O L.J. 186, 204 (1990). RIME S 64 L CANDINAVIAN ’ ENTRE GE U. L. R OHORT NT C , https://www-rohan.sdsu.edu/faculty/rwin- L ’ A Y I , 2 S ’ , 40 C C 61 What results is a justice system AT HE As a result, milder sentences are As a result, milder DDICTION 67 OCT T 65 N A , 9 N I ORDHAM ORWEGIAN ND & S A ROSPECTIVE ., N , 14 F P The system has recognized that crime is a The system has RIME C 63 ND EALTH ENTENCING A H Nordic Youth Justice , S The European Convention on the Compensation of Victims of Vio- Choice of Punishment a, AS UKTEN ET AL Norwegian Penal Norms: Political Consensus, Public Knowledge, Suit- al ¨ THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE note 63. A URVEY In Sentencing Criminals, Is Norway Too Soft? Or Are We Too Harsh? In Sentencing Criminals, Is Norway Too Soft? B ENTRAL S note 64. supra NNE M RANKO supra F ATIONAL (Aug. 28, 2012), https://www.thenation.com/article/sentencing-criminals-norway- Su-Syan Jou, 99 (2005). WEGIAN at 68; A FELOV FFENDER 68 TION ATJA See Id. Norway Criminal Codes, A N O F ATION § 46, 55 (Nor.). Although the crime rates in Norway are high, similar to other Although the crime rates in Norway However, unlike the U.S. mandatory minimum sentencing laws, sentencing mandatory minimum unlike the U.S. However, O N 62. K 68. Segura, 69. Nicholas C. Katsoris, 67. 65. Andenaes, 66. 63. Johannes Andenaes, 61. 64. Liliana Segura, M K ACINTOSH HE (1958); Tapio Lappi-Sepp ¨ lent Crimes: A Decade of Frustration able Sentiment and a Hierarchy of Otherness slow/europe/norway.html (last visited Jan. 26, 2017) (citing S slow/europe/norway.html (last visited Jan. 26, too-soft-or-are-we-too-harsh/. M T The courts in Norway, unlike the courts in the U.S., have realized that unlike the courts in the U.S., The courts in Norway, justice, provides better dividends in leniency, rather than traditional the form of quicker reintegration. rates are among the lowest industrialized countries, the imprisonment due to their commitment to liberal in Western democracies largely policymaking. Although the length values, human rights, and rational the courts still punish the offender of sentencing is milder in Norway, by the offender. while compensating those harmed 2017] be im- will imprisonment significant’ is ‘very quantity If the offense. to 15 years.” a period of 3 posed for GCPC are discretionary. set forth in the guidelines the sentencing Norwegian factors, the and traditional by both rational Influenced and consid- criminal charges details justice system thoroughly criminal personal characteris- as “age, former behavior, and ers factors such statutes. tics” beyond the \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 9 11-MAY-17 9:22 result of innate propensities in the individual, of upbringing, and nu- propensities in the individual, of result of innate influences. merous other environmental justice system has recognized that “these various factors do not oper- recognized that “these various justice system has but are woven to- independently of one another, ate separately or pattern.” gether in a complicated that functions effectively by being fair to its criminals, rather than sim- that functions effectively by being the circumstances surrounding their ply punishing them irrespective of offense. handed down after understanding the reasons behind the offense. understanding the reasons handed down after C Y 38980-swt_23-2 Sheet No. 80 Side A 05/11/2017 09:52:06 A 05/11/2017 80 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 80 Side B 05/11/2017 09:52:06 M K ?, 75 C Y [Vol. 23 OW H The U.S. should take The U.S. should 74 INIMUMS AND Thus, not only is there no Thus, not UDICIAL 72 note 54, at 223. M J Why Does Norway Have a 21-Year Maxi- supra a, al ¨ PPROACH FOR THE A AVOR OF ANDATORY F Bob Cameron, M (Aug. 24, 2012 4:04 PM), http://www.thelocal.no/20120824/ ETTER See B OCAL To them, deprivation of freedom is enough of a freedom is enough deprivation of To them, HEM IN Why Does Norway Have a 21-Year Maximum Prison Sentence L 70 SA T note 29. HE OSED BY I note 5, at 4-5. note 5, at 324 (Mandatory minimum sentencing means that the judge has note 67. ,T P § 162 (Nor.); Lappi-Sepp ¨ § 17 (Nor.); TATES supra S supra supra supra Although it is rare, the 21-year imprisonment can be “ex- the 21-year imprisonment Although it is rare, Bob Cameron, SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Benko, Jou, Further, instead of utilizing mandatory minimum sentencing mandatory instead of utilizing Further, 73 ISCRETION NITED LIMINATING TRAFFELOV TRAFFELOV ROBLEMS 71 See See See The passage of mandatory minimum laws in the U.S. have re- The passage of mandatory minimum E D U (May 7, 2013), http://www.slate.com/blogs/quora/2013/05/07/why_does_norway_have_a_ The American criminal justice system’s decades of relentless The American criminal justice 76 72. S 73. S 74. 71. 75. Harding, 76. Johnson, 70. LATE S little to no discretion, and must give the sentence that the legislators have determined is appro- little to no discretion, and must give the sentence that the legislators have determined is priate, based on the quantity of the drug). why-norways-maximum-sentence-is-just-21-years. mum Prison Sentence? 21_year_maximum_prison_sentence.html. “War on Drugs” and “Tough on Crime” policies have fueled the pas- “War on Drugs” and “Tough on laws such as mandatory mini- sage of unnecessarily long sentencing possibility of parole (LWOP). mum penalties and life without drug offenders are generated Prolonged prison terms for nonviolent associated limits on judicial discre- by these mandatory sentences and tion. 454 un- are socially for vengeance a desire anger and that to the fact due in Norway. desirable \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 10 11-MAY-17 9:22 sulted in the statutory requirement that judges punish people by sulted in the statutory requirement minimum number of years in sentencing them to at least a mandatory punishment, and thus there is a major focus on rehabilitation of in- focus on rehabilitation is a major and thus there punishment, mates. laws, Norway has defined the maximum sentence for a particular of- sentence for a the maximum has defined laws, Norway extensions. 21 years with possible fense as while the of- increments” if prison authorities, tended in five-year offender is not “determines that an fender is in treatment, the end of the initial term.” rehabilitated by death penalty in Norway, it has abolished the life sentence and re- Norway, it has abolished the death penalty in crimes—even21-year maximum term for most placed it with a mass murder. note of Norway’s penal system, which has achieved its incarceration penal system, which has achieved note of Norway’s on rehabilitat- inmate populations low by focusing goals while keeping them by use of inmates, rather than simply punishing ing and releasing lengthy prison terms. III. P 38980-swt_23-2 Sheet No. 80 Side B 05/11/2017 09:52:06 B 05/11/2017 80 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 81 Side A 05/11/2017 09:52:06 84 455 85 For instance, Federal 83 As of 2012, the BOP and De- As of 2012, the 80 In cases reviewed by the American 82 note 59, at 2. supra , THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE UNTING On the other hand, these laws have vastly assisted pros- these laws have vastly assisted On the other hand, & B 79 at 331. at 332 (consideration that can be taking into account include: former behavior, at 332 (consideration that can be taking into at 115 (Judge McClendon reasoned in a concurring opinion that she did not However, there is no direct correlation between the of- between correlation no direct there is However, By enacting these mismatched laws, the American criminal laws, the these mismatched By enacting at 74. at 4. at 331. URNER 81 77 78 Id. Id. Id. Id. See id. See id. Id. See id. By requiring judges to apply mandatory sentences, the judges’ to apply mandatory sentences, By requiring judges I think a life sentence for what you have done in this case is ridicu- I think a life sentence for what you any discretion about it. I do not lous. It is a travesty. I do not have record to be clear on that. This agree with it, either. And I want the any choice. is just silly. But as I say, I do not have 83. 84. 85. 80. 81. T 82. 79. 77. 78. M K agree with the mandatory sentence, but was forced to follow the mandate of the legislature). environment, guilt, personal characteristics, etc.). During the man’s sentencing, Honorable Judge Spencer stated: During the man’s sentencing, Honorable hands are tied and they have to sentence offenders to a certain term in hands are tied and they have to sentence not the judge agrees that the sentence prison, regardless of whether or is in the best interest of justice. 2017] prison. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 11 11-MAY-17 9:22 fender’s role in the offense and term of imprisonment; thus, the of- imprisonment; and term of role in the offense fender’s sentence to the minimum is irrelevant blameworthiness fender’s length. out their pro- from carrying inhibited judges has unduly justice system the offend- surrounding the circumstances that is, to evaluate fession, they find most cases and assign the punishment ers’ individual appropriate. ecutors through empowering them to control the fates of offenders by empowering them to control the ecutors through with a sentenc- discretion to charge a defendant giving them inherent that triggers LWOP. ing enhancement District Judge James R. Spencer is one of many judges who have District Judge James R. Spencer sentences. He went on record to voiced their opposition to mandatory who was a drug addict, to a protest while sentencing a man, had sold small amounts of crack mandatory LWOP because the man few weeks to support his addition. cocaine out of a hotel room for a Civil Liberties Union (ACLU), the sentencing judges went on record, Civil Liberties Union (ACLU), the mandatory sentences as being dis- time after time, and objected to the that they had no discretion to proportionately severe but declared account. take individual circumstances into partment of Corrections estimates that approximately 79% of the estimates that approximately partment of Corrections for nonviolent drug serving LWOP are 3,278 federal prisoners crimes. C Y 38980-swt_23-2 Sheet No. 81 Side A 05/11/2017 09:52:06 A 05/11/2017 81 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 81 Side B 05/11/2017 09:52:06 M K C Y ASON J [Vol. 23 MPRISON- I We can AND , 88 ATIONAL AND ERSUS ? N V CHIRALDI S REATMENT T INCENT NCARCERATION I 89 RUG , V D AY V C M REATMENT OR AVINGS OF OUG S 86 , T OST 87 note 59, at 4, 80. C NSTITUTE I supra , OLICY note 5, at 332; D FFICACY AND note 5, at 324. note 14, at 3. P UNTING E supra supra & B , supra , USTICE , J SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW MENT EADY URNER INDINGS THE F 6 (2004). In light of these stories, there is a great deal of injustice being stories, there is a great deal of In light of these minimum sentences in favor of I propose abolishing mandatory Honorable Judge Robert Sweet has also voiced his opposition for his opposition voiced has also Sweet Robert Judge Honorable for nonvi- people were sentenced to LWOP Other cases in which acting as a go-between in the sale of $10 of marijuana to an under- in the sale of $10 of marijuana acting as a go-between sale of two verbally negotiating another man’s cover officer . . . [,] . . [,] having a crack to an undercover officer . small pieces of fake minute it was in clothes pockets that was so trace amount of cocaine pipe . . . [,] eye . . . [,] possession of a crack invisible to the naked bone marrow to pay for a lifesaving and [selling] methamphetamine his son. transplant . . . for 88. Johnson, 86. Johnson 89. D 87. T IEDENBURG TATE Z S done by the American criminal justice system. When considering the done by the American criminal has had on human rights and the impact that American drug policy that mandatory minimum sentences U.S. justice system, it is clear minimums, the American criminal have failed. Instead of mandatory rational humane treatment of the justice system should focus on the its education on the different individual offender, while continuing institutions. treatment facilities offered by various and just sentences in proportion allowing judges to award appropriate In the spirit of the law, to the offender’s guilt and circumstances. discretionary guidelines. We should mandatory minimums should be punishment based on a sense of permit judges to decide an offender’s of individual cases. Many what is just by considering the circumstances what a nonviolent drug offender Americans disagree, but frequently, prolonged imprisonment. truly needs is rehabilitation, not 456 a ten-year to of an eighteen-year-old sentencing his compelled impose such for having to was outraged term. Judge Sweet mandatory at a who was employed first-time offender sentence for a a lengthy guard. as a security dispensary include the following: olent drug crimes \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 12 11-MAY-17 9:22 learn from other countries such as Norway, which emphasizes rehabil- learn from other countries such as itation as its primary goal of incarceration. 38980-swt_23-2 Sheet No. 81 Side B 05/11/2017 09:52:06 B 05/11/2017 81 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 82 Side A 05/11/2017 09:52:06 . 93 EN- UB 457 P Unlike . J.L. P 95 INIMUM ARV M CHIEVING A 94 . 27 H ANDATORY . 67, 71. : M EV TATES VS . L.J. 35, 68-69 (2010). S NT PPROACH TO . L. R . I ONGRESS A C UB TAN S ’ NITED 58 S Those in favor of retribution be- Second, the objective behind inca- Second, the objective : U 97 91 YSTEM 20 B.U. P 13 (1991). S 703, 723 (2013). EPORT TO THE OALS R G YSTEM EFORM S “And I Don’t Know Why it is That You Threw Your Life Away”: “And I Don’t Know Why it is That You Threw USTICE PECIAL Retribution: The Central Aim of Punishment, J , S A Victimless Sex Crime: The Case for Decriminalizing Consensual N USTICE ’ . J.L. R Punishment Purposes, THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE note 74. J note 14, at 3. ICH OMM First, retribution, or punishment, focuses on atoning First, retribution, supra . C supra RIMINAL EDERAL 90 , Which is a more effective system? Is it the U.S. with a Which is a more effective system? ENT F NCARCERATION 96 C 46 U. M Third, the idea surrounding deterrence is to educate the of- surrounding deterrence is to educate Third, the idea ALTIES IN THE I at 70. EADY ORWAY HE 92 TS Id. I N Throughout history, the primary goal of the American criminal the primary goal of the American Throughout history, When an offender is incarcerated, judicial systems around the systems around judicial offender is incarcerated, When an 1. The United States Sentencing Commission, “the According to the United States 21, 23 (2003). Y ’ 94. 95. Cameron, 96. D 91. Gerard V. Bradley, 93. Richard S. Frase, 97. U.S. S 90. Leslie Patrice Wallace, 92. Joanna R. Lampe, M K OL P Abolishing Life Without Parole, The Supreme Court in Graham v. Florida Now Requires States to Abolishing Life Without Parole, The Supreme Give Juveniles Hope, for a Second Chance, Finally, rehabilitation focuses on training and preparing offenders for focuses on training and preparing Finally, rehabilitation prison. once they are released from a “crime-free” life those who commit crimes. justice system has been to punish 2017] IV. T on to imprisonment focused their approach historically world have deterrence, and re- retribution, incapacitation, four distinct principles: habilitation. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 13 11-MAY-17 9:22 Teen Sexting, fender and the public about the consequences surrounding criminal public about the consequences fender and the committing crimes. the general public from activity, and to dissuade goal of criminal punishment, or the Norwegian system with a goal of goal of criminal punishment, or of how each country achieves its criminal rehabilitation? An analysis question. goals is required to answer this A. Retribution mandatory minimum penalties is the most commonly-voiced goal of “justness” of long prison terms.” for the wrongdoings of offenders. for the wrongdoings the U.S., however, Norway has been proactive in approaching their the U.S., however, Norway has primary goal of rehabilitating their criminal justice system with the offenders. lieve that punishing offenders is warranted because the wrongdoer de- lieve that punishing offenders is pacitation is to inhibit criminal offenders from committing future inhibit criminal offenders from pacitation is to crimes. C Y 38980-swt_23-2 Sheet No. 82 Side A 05/11/2017 09:52:06 A 05/11/2017 82 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 82 Side B 05/11/2017 09:52:06 M K U- 99 101 : A C Y In . L. & Due 98 ARS , 33 J [Vol. 23 , https:// RIM B 104 . C Disproportion- EHIND NST . I ICTIONARY B M D ATION , J. A EGAL , N ATCH , U.S. L But in reality, do they? But in reality, do . 541, 542 (2004). W EV 102 IGHTS . L. R R OD Incapacitation As the world’s model of fairness and model of As the world’s UMAN , 67 M 100 Dirk van Zyl Smit & Andrew Ashworth, The Retributive Theory of “Just Deserts” and Victim Partici- The Retributive Theory of “Just Deserts” and . L.J. 853, 866 (1992). Even outside the criminal justice system, the Even outside the criminal justice From Retribution to Prevention and Social Restoration see also ND Making the Punishment Fit the Crime 103 note 63, at 69; Legal Punishment as Civil Ritual: Making Cultural Sense of Harsh Legal Punishment as Civil Ritual: Making Cultural Let’s Abolish Mandatory Minimums: The Punishment Must Fit the Let’s Abolish Mandatory Minimums: The Punishment note 99, at 43. 7-9 (May 4, 2008), https://www.hrw.org/sites/default/files/related_ma , 67 I supra supra . L.J. 1, 5 (2013); H . 4 (2009); note 67, at 304. ISS TS OLUTION S . R 159 (1921). supra The Journal of Crime and Justice has noted that incapacita- The Journal of Crime and Justice SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Andenaes, Spear It, UM RIST Molly M. Gill, L. Harold de Wolf, David A. Starkweather, , 82 M IGHTS 105 See Id. See See See See R 2. Norway approve of the the Norwegian culture does not Unlike the U.S., 1. The United States is often defined as the offend- Incapacitation, or imprisonment, , 36 H 25, 47 (1973); Spear It, 99. 98. 102. John Alan Hamilton, 101. 100. 103. Jou, 104. 105. UMAN RIMINOLOGY H C definitions.uslegal.com/i/incincapacitat-sentencing/ (last visited Jan. 25, 2017). Crime pation in Plea Bargaining terial/2014_US_Nation_Behind_Bars_0.pdf. tion is a “social experience that places offenders in a unique social tion is a “social experience that domain – the “society of captives” –and that it qualitatively restruc- 458 committed. have they the crimes for reprimanded to be serves is argue that punishment retribution system critics of the Conversely, just. revenge than it is more so prison sentences, in- many circumstances, long-term However, in too that a criminal justice do not serve the objectives cluding life sentence, achieve.system strives to followed by many is that A basic principle [should] fit the crime.” “the punishment \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 14 11-MAY-17 9:22 ate Sentences as Human Rights Violations Norwegian community has a strong disregard for retribution. Norwegian community has a strong justice, the American criminal justice system, should strive more. In- should strive justice system, American criminal justice, the imposes ruth- criminal justice system horrifically stead, the American rights laws. abuse many of the basic human less penalties that concept of vengeance. Punishment addition, those in favor of retribution believe long-term sentencing is long-term of retribution believe those in favor addition, community. for the affected provide closure and a way to “payback” to this, the Norwegian criminal justice system is able to more justly to this, the Norwegian criminal and objectively sentence its offenders. B. Incapacitation them from committing new ers’ physical detention to prevent crimes. 38980-swt_23-2 Sheet No. 82 Side B 05/11/2017 09:52:06 B 05/11/2017 82 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 83 Side A 05/11/2017 09:52:06 459 114 STI- RIME RENDS : E T 24 (2011- . 115, 125 , 20 C 111 RISONS UST P ARKETS & J ATIONWIDE M IR N RIME EDERAL -A F ACTS PEN F , 38 C O RUG 2015, at 15 (2016). , D Nevertheless, since the U.S. Nevertheless, since FFENDERS IN 6 (2015). With that being said, of the EALING IN 109 BUSE O D ATA 115 Also, the Bureau of Justice Sta- A RUG D RISONERS IN RUG 113 RUG , D D INKED ON L . OUGH The Prevalence of Drug Use in the United States NST H note 97. According to the social learning theory, a learning theory, to the social According 108 I L Imprisonment and Reoffending ’ IKE , NCJ248648, D , NCJ 250229, P 107 ASED ON AT supra B , N & M N ’ USTICE THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE note 63, at 72. USTICE J J OMM OF OF see also supra . . . C AROCOPOS EPT EPT For example, the average prison sentence for federal drug For example, the average prison ENT In direct contradiction to its intended purpose, many argue its intended purpose, contradiction to In direct H Thomas M. Mieczkowski, HARACTERISTICS MATES OF 112 at 126. at 125-26. at 1. 106 The system creates a cynical effect, where drug dealers who a cynical effect, where drug The system creates LEX C Id. Id. Id. See 110 . 349 (1996); In addition, individuals in support of incapacitation argue that the in support of incapacitation In addition, individuals lose their value because of- In addition, lengthy prison sentences UST 109. U.S. S 108. 113. U.S. D 107. 112. Andenaes, 114. 115. U.S. D 110. 111. A 106. Daniel S. Nagin et al., M K (2009). 2012), https://ric-zai-inc.com/Publications/cops-p067-pub.pdf. are eventually incarcerated are simply replaced by new ones. are eventually incarcerated are offenders in the U.S. is 11.3 years. that by confining the offenders together, they expose each other to they expose each together, confining the offenders that by an envi- inherently creates influence, which of criminal further levels are both thought processes ideals, skills and where criminal ronment and hardened. learned & J (June 2015), https://d14rmgtrwzf5a.cloudfront.net/sites/default/files/drugfacts_nationtrends_6_15 .pdf. Furthermore, as of October 2015, 49.5 percent of federal inmates have Furthermore, as of October 2015, been incarcerated for drug offenses. best way to extinguish the drug epidemic in the U.S. is to imprison the drug epidemic in the best way to extinguish long periods of time. drug offenders for adapt and endure the pun- fenders serving these sentences eventually ishment. 2017] con- substantial ones of to of freedom ones from their lives ture straint.” \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 15 11-MAY-17 9:22 entire drug offender population, only 18 percent of those inmates entire drug offender population, nonviolent drug offender’s likelihood of living a criminal life post-re- offender’s likelihood of living a nonviolent drug time with other increased once they have spent lease is significantly criminals in confinement. thus far been proven on Drugs,” this strategy has has begun its “War high as it has ever use in America today is as ineffective, as drug been. tistics estimates 35 percent of federal drug offenders have either no tistics estimates 35 percent of federal at most a minimal criminal history. prior record of imprisonment or C Y 38980-swt_23-2 Sheet No. 83 Side A 05/11/2017 09:52:06 A 05/11/2017 83 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 83 Side B 05/11/2017 09:52:06 M K 118 116 C Y (1999), [Vol. 23 Y 117 ’ OL P Therefore, The liberal 123 125 ONTROL C (Nor.), http://www.krimi RUG Correctional facilities D L ’ 121 AT N OF . FF , O at 9. , 119 note 113, at 5. For example, in Norway, prisoners do not For example, in Norway, prisoners note 59 124 The Professionalization of Crime: How Prisons Create More The Professionalization of Crime: How Prisons supra , supra , While offenders who have committed and been While offenders About The Norwegian Correctional Service 122 120 USTICE J note 14, at 5. UNTING OF J. 81, 83-84 (2014). . supra & B , ORE EPT SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Michael Neminski, at 4. EADY URNER , 23 C Id. Breaking the Cycle of Drugs and Crime See Id. Id. Id. There are certainly other methods to decrease drug related of- other methods to decrease There are certainly 2. Norway system considers incapacitation The Norwegian criminal justice It seems as if the American criminal justice system would rather system would criminal justice as if the American It seems 121. D 119. 120. 123. Kriminalomsorgen, 124. 125. 117. 122. 118. T 116. U.S. D https://www.ncjrs.gov/ondcppubs/publications/policy/99ndcs/iv-d.html (such efforts are deployed https://www.ncjrs.gov/ondcppubs/publications/policy/99ndcs/iv-d.html trafficking; drug-related crime and violence; and to reduce illicit drug use, manufacturing and drug-related health consequences). Criminals nalomsorgen.no/information-in-english.265199.no.html. fenses that are not as excessive as the methods currently being em- as excessive as the methods fenses that are not ployed by the U.S. of a punishment. itself, a limitation of freedom, enough 460 of weapons. the involvement of because as violent, labeled were crime. way to combat inefficient as a this system is Therefore, them. to rehabilitating for life as opposed the offender incarcerate described LWOP have who are serving drug offenders Nonviolent painful death,’ ‘a as ‘“a slow death sentence,’ ‘a slow, their experience without the one death,’ ‘akin to being dead, slow, horrible, torturous ‘You are dead. You to suffer any more,’ . . . [and] benefit of not having . . . .’”do not exist anymore \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 16 11-MAY-17 9:22 serve their sentences in conditions stricter than necessary, by placing serve their sentences in conditions of the security system. the offender in the lowest level convicted of a crime should face repercussions, imposing these cruel should face repercussions, convicted of a crime them does not fit the crime. sentences upon should instead focus their efforts on educating the offenders in order their efforts on educating the should instead focus skills they need once they are re- to provide them with the help and leased from prison. the sentencing court does not further limit any other rights, and ac- the sentencing court does not further exactly the same rights as every cordingly, criminal wrongdoers have other Norwegian citizen. 38980-swt_23-2 Sheet No. 83 Side B 05/11/2017 09:52:06 B 05/11/2017 83 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 84 Side A 05/11/2017 09:52:06 461 126 IMES UARDIAN (July 12, ELEGRAPH T , G IME , N.Y. T T 129 The cells also have bar- The cells also have 131 ., http://www.thestoryinstitute.com/halden/ For offenders who are addicted At the core of this belief is the At the core of NST I 134 128 (Sept. 16, 2016), http://fusion.net/story/340235/nor- TORY S Inside, prisoners are given flat screen Inside, prisoners USION 130 F Norway’s Prisons Are Doing Something Right note 123. Sentenced to Serving the Good Life in Norway, Sentenced to Serving the Good Life in Norway, In some circumstances, inmates are allowed to In some circumstances, inmates supra The old debate: punish prisoners, or rehabilitate them? THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE 133 note 14, at 3. The Norwegian Prison where inmates are treated like people The Norwegian Prison where inmates are treated Inside the Most Humane Prison in the World, Where Inmates Have Flat- Furthermore, inmates at Halden have access to the Furthermore, inmates at Halden 132 supra , 135 In addition, the Norwegian approach suggests that the hu- that the approach suggests the Norwegian In addition, EADY 127 Id. Id. Inside Norway’s Halden Prison, An excellent example of this is Halden, one of Norway’s newest of this is Halden, one of Norway’s An excellent example The Norwegian penal philosophy is that the traditional, repres- the traditional, is that penal philosophy The Norwegian 131. 132. 133. 134. Eleanor Muffitt, 129. Gerhard Ploeg, Opinion, 128. Kriminalomsorgen, 135. Casey Tolan, 126. Erwin James, 127. D 130. William Lee Adams, M K 2010), http://content.time.com/time/magazine/article/0,9171,2000920,00.html. (last visited Jan. 23, 2017). way-halden-prison-most-humane/. mane treatment of prisoners will greatly improve the inmates’ chances of prisoners will greatly improve mane treatment upon release. of rejoining society and even a recording studio, in library, computers, hygienic facilities, and programs that will help inmates addition to educational training develop life skills. screen Tvs and Cells are like Dorms, (Dec. 18, 2013), http://www.telegraph.co.uk/news/uknews/crime/10514678/The-old-debate-pun- ish-prisoners-or-rehabilitate-them.html. (Feb. 25, 2013), https://www.theguardian.com/society/2013/feb/25/norwegian-prison-inmates- treated-like-people. (Dec. 18, 2012), http://www.nytimes.com/roomfordebate/2012/12/18/prison-could-be-productive/ norways-prisons-are-doing-something-right. maximum-security prisons. maximum-security 2017] is an of liberty loss prisoners’ that the suggests in Norway attitude the crime. of the nature of regardless form of punishment, adequate after goals, the sought not work to achieve system does sive prison to the com- to return for the offender the goal of sentencing one being munity. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 17 11-MAY-17 9:22 to drugs, the inmates can enter into agreements with authorities who to drugs, the inmates can enter in exchange for regular drug will provide them with more privileges counseling. televisions and refrigerators in every cell. televisions and refrigerators enjoy the overnight stay of guests. principle of normalization. This entails the preservation of all rights, This entails the preservation principle of normalization. life to bear a re- of movement, and allows prison except the freedom release, the offender outside of prison, so that upon semblance to life journey reintegrating into society. will have an easier less windows, which allows for more sunlight, and are given commu- less windows, which allows for more order to create a sense of family and nity living space and kitchens in togetherness. C Y 38980-swt_23-2 Sheet No. 84 Side A 05/11/2017 09:52:06 A 05/11/2017 84 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 84 Side B 05/11/2017 09:52:06 M K 139 C Y To [Vol. 23 144 Inmates are 140 143 CNN (May 24, 2012), http://www note 136. Another example of how Bastoy Another example Inmates are given a monthly allowance Inmates are given supra 141 142 . With no armed guards or fences, inmates and or fences, inmates armed guards With no 136 Welcome to the World’s Nicest Prison, note 126. note 126; Sutter, Deterrence theorists purport that offenders calculate Deterrence theorists purport that note 93 note 136. note 136. 146 supra supra supra supra supra SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Located on an island, Bastoy provides ocean views and hous- provides ocean on an island, Bastoy Located Prisons such as Bastoy and Halden teach their inmates to be- Prisons such as Bastoy and Halden 137 See id. See id. Id. Id. Id. 145 1. The United States on the prevention of crime Unlike retribution, deterrence focuses Now, why treat prisoners this humanely when they are incarcer- Now, why treat prisoners this humanely Bastoy, founded in 1982, is another example of a successful of example another 1982, is in founded Bastoy, 8:30 a.m. to Bastoy is assigned a paid job from Every inmate at 138 143. Sutter, 144. 145. 146. Frase, 139. Sutter, 140. 141. 142. James, 137. 138. James, 136. John D. Sutter, .cnn.com/2012/05/24/world/europe/norway-prison-bastoy-nicest/. come better citizens. Thus, this model of open prisons where inmates come better citizens. Thus, this model citizens should be used by the are given a chance to live like regular American criminal justice system. C. Deterrence in the future. ing accommodations for up to six inmates with each holding their own with each holding up to six inmates for ing accommodations key. ated for crimes such as murder, drug trafficking or rape? This is be- ated for crimes such as murder, the offender and get them cause the goal in Norway is to rehabilitate normal, law-abiding citizens. ready to rejoin the population as 462 Norway. prison in trees for firewood. gardening, farming, and cutting 3:30 p.m. such as that are utilized interesting job is supervising horses An example of an various supplies around the island. to cart wood and \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 18 11-MAY-17 9:22 guards are not assigned uniforms and are encouraged to dress are encouraged uniforms and are not assigned guards freely. meal per day is given for life outside is that only one prepares inmates hall. in the prison’s dining where they can shop at the island’s supermarket for food where they and dinner. purchase food and prepare breakfast not required to wear shackles or electronic monitor bracelets, at times shackles or electronic monitor not required to wear supervision. without guard dehumanize prisoners is to take away their ability to survive on their dehumanize prisoners is to take own. 38980-swt_23-2 Sheet No. 84 Side B 05/11/2017 09:52:06 B 05/11/2017 84 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 85 Side A 05/11/2017 09:52:06 463 150 147 (Aug. 22, ORAGE F Although it is EWS 153 , N Nevertheless, the over- Nevertheless, 148 In turn, Norwegian citizens tend to ab- In turn, Norwegian citizens tend In response to critics of the Norwegian 151 note 106. note 97, at 13. 152 supra note 54, at 350. supra , N ’ THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE supra a, OMM note 129. al ¨ . C supra ENT This understanding of “deterrence” is not conducive to dis- of “deterrence” is not conducive This understanding at 351. 149 Id. Id. The Norwegian Prison Where Inmates are Treated like People 1. The United States to “any measure taken to Rehabilitation, or treatment, refers 2. Norway meaning. takes on an entirely different In Norway, deterrence 153. Ploeg, 151. 152. 150. Lappi-Sepp ¨ 149. 148. U.S. S 147. Daniel S. Nagin et al., M K 2013), http://www.newsforage.com/2013/08/the-norwegian-prison-where-inmates-are.html. couraging current inmates from committing further crimes. inmates from committing further couraging current There, it is believed that the concept of deterring crime can be mani- that the concept of deterring There, it is believed the development of a collective fested, not through fear but through sense of morals and values. 2017] crime. a to commit choose they when outcome as an prison incar- to keep inmates are proposed minimum sentences Mandatory to discourage crimes, and not commit future so that they do cerated, similar crimes. from committing citizens \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 19 11-MAY-17 9:22 unclear whether this approach would work in the U.S., because Nor- unclear whether this approach would people are vastly different than that way’s cultural beliefs and trust in consider. in the U.S., it is a possibility to D. Rehabilitation habits, or behavior patterns so as to change an offender’s character, stain from criminal activity because it goes against the moral fiber of stain from criminal activity because the criminal act would be followed the community, and not because by a horrid punishment. view it as being too lax, the Norwe- criminal justice system who often “Prisoners are required to take re- gian Ministry of Justice has said, sponsibility for their actions –present and future, we believe that past, to want to stay away from crime than it is more effective for a person away from it.” for our system to try and scare them flowing American prison population has come to represent the failure come to represent population has prison flowing American future Rather than prevent justice system. U.S. criminal that is the fearful popula- system is predicated on a resulting victims, our justice fears, and a punitive class that validates the public’s tion, a political their families and regards retribution by victims, approach that highly society. C Y 38980-swt_23-2 Sheet No. 85 Side A 05/11/2017 09:52:06 A 05/11/2017 85 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 85 Side B 05/11/2017 09:52:06 M K C Y In 2005: ACRED 158 [Vol. 23 S With- REATMENT In com- 157 T 11 (Marshall TATES IN 163 RUG According to According 30 S 159 155 UNISHMENTS P , TRIAD D ELEASED IN R According to the BOP re- RISONS Instead of mainly focusing Instead HOICE OF P 161 156 C RISONERS HE While there are many strategies are many there While P : T 154 Their research concluded that 49.9 UREAU OF 162 . B note 160. USTICE J ED ECIDIVISM OF note 59, at 200. supra OING , , R . 156 (2005). , D supra UB , RISONS . P USTICE The Challenge of Prison Overcrowding and Recidivism, in The Challenge of Prison Overcrowding and P IRSCH J AC 2010, at 7 (Apr. 2014), https://www.bjs.gov/content/pub/pdf/rprts05p05 H note 14, at 2; F 13 (2000). note 14, at 4. . F TO UNTING These statistics highly suggest that drug treatment These statistics highly suggest ON UST 164 V supra supra The BOP has confirmed the importance of treatment in The BOP has confirmed the importance & B . J 2005 , , UREAU OF UREAU OF ROJECT at 2. 160 P RIM SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Pearl Jacobs, . B . B at 13. at 11. at 3. 165 NDREW EADY EADY URNER ED ED Id. Id. Id. See Id. See id. U. C Unfortunately, Americans want their prisoners punished first and want their prisoners punished Unfortunately, Americans 164. 165. 155. T 163. 159. 162. 161. F 156. F 160. D 157. D 158. 154. A EART VALUATION ATTERNS FROM P Cohen et al. eds., 1976). 10.pdf. reducing recidivism and future drug use. reducing recidivism and future drug H E rehabilitated second, despite the fact that research proves that certain despite the fact that research rehabilitated second, the risk of future have been shown to reduce forms of rehabilitation offending. 464 propensities.” criminal his diminish \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 20 11-MAY-17 9:22 programs have a significant impact on the inmates’ post-release programs have a significant impact lifestyle. percent of male inmates who fulfilled the drug abuse program were percent of male inmates who fulfilled after being released. likely to use drugs within 36 months to accomplish this goal, the U.S. criminal justice system is geared to- justice system the U.S. criminal this goal, to accomplish rather than rehabilitation. offenders wards punishing ports, studies on drug use show that prisoners who participated in a ports, studies on drug use show program were less likely to have evi- residential drug abuse treatment dence of post-release drug use. on punishing prisoners, the U.S. should implement more rehabilita- implement more the U.S. should prisoners, on punishing which build life as education and workshops, tion programs such rate is generally because the high recidivism skills. This is necessary education. lacking basic life skills and attributed to parolees who did not participate in the treat- parison, 58.5 percent of inmates drugs in the same amount of time ment program were likely to use after release. the BOP report, three out of four prisoners involved in drug related involved in of four prisoners report, three out the BOP five years. are rearrested within offenses out such resources, nonviolent drug offenders are most likely to resort nonviolent drug offenders are out such resources, the first place. that put them in prison in to the same behaviors to keep prisons overcrowded. turn, this will continue 38980-swt_23-2 Sheet No. 85 Side B 05/11/2017 09:52:06 B 05/11/2017 85 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 86 Side A 05/11/2017 09:52:06 465 In 168 . L. 423, (Dec. 25, OMP & C L ’ LYMPIAN NT O No matter what HE . J. I 170 T RIZ Treating Drug Abuse and Ad- 33 A 169 , 301 JAMA 183, 184 (2009). note 59, at 12. They Don’t Do It Like My Clique: How Group Loyalty Shapes There are scholars who argue that the Norwe- There are scholars who argue that supra This is achieved by great emphasis on rehabili- This is achieved by great emphasis , 175 Prisoners Deserve Chance at New Life, note 14, at 3. The ACLU has documented numerous examples, numerous has documented The ACLU 173 THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE 167 UNTING note 129. supra , & B supra Further, the imprisonment of inmates is unjustified be- of inmates the imprisonment Further, EADY D Sean K. Moynihan, at 5. 166 Imprisonment is used less frequently and for shorter dura- Imprisonment is used less frequently URNER See See Id. Id. Id. Id. For those offenders who end up in prison, incarceration is For those offenders who end 174 171 This approach has a very successful result in terms of reducing This approach has a very successful 2. Norway progressive ap- criminal justice system has a very The Norwegian Further, LWOP for nonviolent drug crimes does not consider the consider not crimes does drug nonviolent for LWOP Further, 172 171. 172. 169.Nora Volkrow, Redonna Chandler, Bennett Fletcher & 170. Willow Robinson, 173. 174. 175. Ploeg, 167. 168. 166. T M K the Criminal Justice Systems in the United States and Norway, 2016), http://www.theolympian.com/opinion/letters-to-the-editor/article122679274.html. 429 (2016). diction in the Criminal Justice System geared toward reducing an offender’s risk of returning to a life of geared toward reducing an offender’s crime after release. tions because nonviolent drug offenders are given sanctions, tions because nonviolent drug instead of incarceration if it is feasi- probation and community service ble. cause of dwindling community drug treatment programs and mental programs drug treatment dwindling community cause of health resources. the risk of re-offense. proach to sentencing. The criminal justice system in Norway priori- The criminal justice system proach to sentencing. is proven to reduce as their primary strategy, as it tizes rehabilitation those who have gone off on the recidivism. It aims to ensure that to come back. wrong track in life get a fair chance 2017] public safety to provide and fails ability for rehabilitation inmates’ benefits. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 21 11-MAY-17 9:22 where offenders violated the law due to a drug addiction; however, a drug addiction; the law due to violated where offenders drug treat- offered these offenders state-sponsored the state never to treatment. the offenders were agreeable ment even though tation and teaching life skills rather than focusing on punishment tation and teaching life skills rather alone. horrific crime they have committed, prisoners are treated as normal horrific crime they have committed, to be treated fairly and compassion- citizens and maintain their right ately. sum, rehabilitation aimed at treating inmates’ drug addiction, will re- aimed at treating inmates’ drug sum, rehabilitation and crime rate. duce both recidivism C Y 38980-swt_23-2 Sheet No. 86 Side A 05/11/2017 09:52:06 A 05/11/2017 86 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 86 Side B 05/11/2017 09:52:06 . M K M 179 C Y A Bas- OF [Vol. 23 177 . J. RIT 2 B When compared 178 With a major focus 180 181 Criminal Punishment and the Pursuit of Justice, note 171. note 14, at 4-5. note 136. supra supra , supra ., 263, 293 (2013). For example, only 20 percent of inmates who serve time in who serve time of inmates only 20 percent For example, SOUTHWESTERN JOURNAL OF INTERNATIONAL LAW Mike C. Materni, EADY 176 TUD ONCLUSION Id. Id. See S What are the fundamental goals of incarceration? Theoretically, goals of incarceration? What are the fundamental punishment for wrongdoers, In determining the appropriate 177. Sutter, 178. 179. 180. 181. Moynihan, 176. D EGAL L Norway’s prisons reoffend within two years of being released. within two years prisons reoffend Norway’s V. C American justice system are retribu- the goals of incarceration in the and rehabilitation. In reality, how- tion, incapacitation, deterrence, are successfully accomplished. In ever, not all of these objectives implementation of these theoretical order to guarantee the successful must shift its focus from punish- goals, the U.S. criminal justice system for nonviolent drug offenders. ment to rehabilitation, particularly is rehabilitation, not prolonged im- What these offenders really need this senseless system is to elimi- prisonment. The first step in changing for nonviolent drug offenders to nate mandatory minimum sentences has proved to be a successful method enable judicial discretion, which in Norway. the circumstances surrounding judges in Norway primarily evaluate employ sentencing guidelines to their individual cases, and secondarily justice system does not promote discretion. The Norwegian criminal it is guided by righteousness and per- or utilize severe punishment, but goals in Norway are bet- ceived fairness. The reason that incarceration and humane treatment ter accomplished is due to their compassionate criminal justice system sets out of inmates. Further, the Norwegian 466 to its crime due on and weak is too lax system justice criminal gian suggest oth- but the numbers rehabilitation, compassion and focus on erwise. that every prisoner criminal justice system assures The Norwegian welcomed back in society. feels respected and \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 22 11-MAY-17 9:22 on rehabilitation, Norwegian prison systems fight crime by giving the Norwegian prison systems fight on rehabilitation, of society and avoid to be productive members offenders the tools release. crime upon their to U.S.’s recidivism rate of 40 percent, the data suggests that Norway’s data suggests that of 40 percent, the recidivism rate to U.S.’s penal system. much better than the American penal system works toy’s recidivism rate, at 16 percent, is even lower. 16 percent, is even rate, at toy’s recidivism 38980-swt_23-2 Sheet No. 86 Side B 05/11/2017 09:52:06 B 05/11/2017 86 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 87 Side A 05/11/2017 09:52:06 467 THE TIME DOES NOT FIT THE CRIME NOT FIT TIME DOES THE Bearing in mind America’s long history of its war on drugs and of its war on drugs long history in mind America’s Bearing M K 2017] offenders their rehabilitate appropriately to resources and guidelines into society. reintegrate may successfully so that they of soci- and other members political leaders values, numerous cultural superior ap- to this have intense objections almost certainty ety would places a Norway, and which workable in which has proven proach, on punishment. The on rehabilitation rather than greater emphasis results in tremen- justice system’s desire to punish American criminal the offender. effects on both society and dous counterproductive Sta- available alternatives has proven that there are other tistical evidence crime. Perhaps pun- at significantly reducing that are more effective wrongdoer is not to purpose to punish a ishment with a predominant Shouldn’t the it is just a cover to attain retribution. serve justice, but more than that? justice system aspire to achieve American criminal better citizens, which should be to make prisoners The goal in the U.S. rate, crime rate, and ultimately the will, in turn, reduce the recidivism prison population. \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 23 11-MAY-17 9:22 C Y 38980-swt_23-2 Sheet No. 87 Side A 05/11/2017 09:52:06 A 05/11/2017 87 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 87 Side B 05/11/2017 09:52:06 M K C Y \\jciprod01\productn\S\SWT\23-2\SWT207.txt unknown Seq: 24 11-MAY-17 9:22 38980-swt_23-2 Sheet No. 87 Side B 05/11/2017 09:52:06 B 05/11/2017 87 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 88 Side A 05/11/2017 09:52:06 M K C Y 38980-swt_23-2 Sheet No. 88 Side A 05/11/2017 09:52:06 A 05/11/2017 88 Side Sheet No. 38980-swt_23-2 38980-swt_23-2 Sheet No. 88 Side B 05/11/2017 09:52:06 M K C Y 38980-swt_23-2 Sheet No. 88 Side B 05/11/2017 09:52:06 B 05/11/2017 88 Side Sheet No. 38980-swt_23-2