Denver Journal of International Law & Policy Volume 43 Number 1 Fall Article 6 April 2020 Vol. 43, no. 1: Full Issue Denver Journal International Law & Policy Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation 43 Denv. J. Int'l L. & Pol'y (2014). This Full Issue is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],dig- [email protected]. Denver Journal of International Law and Policy VOLUME 43 NUMBER 1 FALL-2014 TABLE OF CONTENTS THE SPAGHETTI BOWL REVISITED IN THE CONTEXT OF CORRUPTION: UNDERSTANDING How CORRUPT COUNTRIES COULD SUBVERT THE WTO's RULE-ORIENTED SYSTEM THROUGH PREFERENTIAL TRADE AGREEMENTS .......................... Paul Sarlo 1 THE OPTIMAL USE OF COMPARATIVE LAW ........ Shai Dothan 21 ICONGRAPHY OF TORTURE: GOING BEYOND THE TORTUOUS TORTURE DEBATE ................ Dr. Thomas W. Simon 45 BETTING ON BOWLERS: THIS JUST ISN'T CRICKET .......... Erin Gardner Schenk 91 Denver Journal of International Law and Policy VOLUME 43 NUMBER 1 FALL-2014 BOARD OF EDITORS ALICIA GUBER Editor in Chief SAMANTHA PEASLEE BREANN PLASTERS KATELYNN MERKIN Senior Managing Editor Executive Editor Online Editor in Chief ALEXANDRA JENNINGS KATELIN WHEELER BAILEY WOODS Managing Editor Business Editor Candidacy Editor KATHERINE McAULEY CHEYENNE MOORE TERESA MILLIGAN Candidacy Editor Survey Editor Events Editor SAMUEL CLAYCOMBE CASEY SMARTT Projects Editor Training/Cite& Source Editor STAFF EDITORS LAURA BRODIE BRIXTON HAKES EMILY BOEHME JACLYN COOK SCOTT PETIYA JULIE MARLING RICHARD EDMONDSON JEYLA ZEYNALOVA LEONARD LARGE ALICIA GAUCH ALISON HAUGEN FACULTY ADVISOR VED P. NANDA ADVISORY BOARD THEODORE L. BANKS LARRY JOHNSON BRUCE PLOTKIN M. CHERIF BASSIOUNI FREDERIC L. KIRGIS GILBERT D. PORTER UPENDRA BAXI RALPH B. LAKE WILLIAM M. REISMAN IAN B. BIRD JOHN NORTON MOORE DANIEL L. RITCHIE SHERRY B. BRODER EKKEHART MOLLER-RAPPARD DOUGLAS G. SCRIVNER SID BROOKS JAMES A.R. NAFZIGER DAVID P. STEWART EDWARD GORDON JAMES A. NELSON CHARLES C. TURNER 2014-2015 University of Denver Administration Rebecca Chopp, Chancellor Gregg Kvistad, Provost Craig W. Woody, Vice Chancellorfor Business and FinancialAffairs Kevin A. Carroll, Vice Chancellor of Marketing and Communications Barbara J. Wilcots, Associate Provost for Graduate Studies Paul H. Chan, University General Counsel Martin J. Katz, Dean of the Sturm College of Law Viva Moffat, Associate Dean of Academic Affairs and Professor of Law Joyce Sterling, Associate Dean for Faculty Scholarship and Professor of Law Patricia Powell, Associate Dean of Student Affairs and Lecturer Catherine E. Smith, Associate Dean for Institutional Diversity and Inclusiveness and Associate Professor of Law Eric Bono, Assistant Dean for Career Opportunities lain Davis, Assistant Dean of Student FinancialManagement and Admissions Laura E. Dean, Assistant Dean of Alumni Relations Clint Emmerich, Assistant Dean of Budget and Planning Meghan S. Howes, Assistant Dean of the Office of Communications Daniel A. Vigil, Assistant Dean of External Relations and Adjunct Professor Susan D. Daggett, Executive Director of the Rocky Mountain Land Use Institute and Lecturer Ricki Kelly, Executive Directorof Development John Wilson, Director of the GraduateProgram in Taxation and Associate Professor of Taxation Julie Gordon, Registrar Molly Rossi, Human Resources Manager Lauri Mlinar, Director of Events Sturm College of Law Faculty List David Akerson Rashmi Goel Raja Raghunath Robert Anderson Robert M. Hardaway Paula Rhodes Rachel Arnow-Richman Jeffrey H. Hartje Edward J. Roche Debra Austin Mark Hughes Tom I. Romero, II Rebecca Aviel Timothy Hurley Laura Rovner Tanya Bartholomew Sheila K. Hyatt Nantiya Ruan Brad Bartlett Scott Johns Thomas D. Russell Arthur Best Jos6 R. (Beto) Juarez, Jr. Ann C. Scales (1952-2012) Jerome Borison Sam Kamin David C. Schott Stacey Bowers Hope Kentnor Michael R. Siebecker Kelly Brewer Tamara L. Kuennen Don C. Smith J. Robert Brown, Jr. Margaret Kwoka John T. Soma Teresa M. Bruce Jan G. Laitos Michael D. Sousa Phoenix Cai Christopher Lasch Mary A. Steefel Bernard Chao Nancy Leong Robin Walker Sterling Fred Cheever Kevin Lynch Kate Stoker Allen Chen Justin Marceau Celia Taylor Roberto Corrada Lucy A. Marsh David Thomson Patience Crowder Michael G. Massey Kyle C. Velte Stephen Daniels Kris McDaniel-Miccio Ann S. Vessels K.K. DuVivier Suzanna K. Moran Eli Wald Nancy Ehrenreich Ved P. Nanda Lindsey Webb Ian Farrell Stephen L. Pepper Annecoos Wiersema C6sar Cuauht6moc Garcia Justin Pidot Edward Ziegler Herndndez THE SPAGHETTI BOWL REVISITED IN THE CONTEXT OF CORRUPTION: UNDERSTANDING HOW CORRUPT COUNTRIES COULD SUBVERT THE WTO's RULE-ORIENTED SYSTEM THROUGH PREFERENTIAL TRADE AGREEMENTS PAUL SARLO* I am still convinced that it is in the national interest of every trading nation to abide by the rules, which were accepted as valid for good times and bad. One of the major benefits of international [trade] is that [it] offer[s] equal opportunities and require[s] ....[t]hose who believe in the open trading system .. [to] correct those rigidities in their economic and social systems which obstruct ...economic growth ....I Bribery and corruption have become a scourge on international trade. [They epidemic ....[They have] literally become an 2 have] a deleterious effect on trade and create[] unfair and unbalanced situations. I. INTRODUCTION Coined by Professor Jagdish Bhagwati of Columbia University, the term 3 "spaghetti bowl" refers to the proliferation of free trade agreements-the nearly two hundred regional and bilateral trade agreements that exist today and that comprise a "maze of free-trade areas . .. and customs unions . .."4 Sanctioned under the World Trade Organization ("WTO") Charter, in particular under Article XXIV of the General Agreement on Tariffs and Trade ("GATT"), free trade agreements arise when "countries extend [their] preferences in different directions." 5 In more direct terms, countries engage a particular country or region with which they would like to trade, at the exclusion of all other countries or regions. Free trade agreements are, therefore, also known as "preferential trade * LL.M., Georgetown University Law Center J.D., Stetson University College of Law; B.A., Vanderbilt University. I. Press Release, Address by Arthur Dunkel, GATT Director-General at "Ostasiatisches Liebesmahl," GATT/1312 at 7 (Mar. 5, 1982) (alteration in original). 2. The Future of U.S. Trade Policy: Perspectivesfrom Former U.S. Trade Representatives: Hearing before U.S. S. Comm. on Fin., 110 Cong. 17 (2008) [hereinafter Future of U.S. Trade Policy] (statement by Mickey Kantor, Former U.S. Trade Rep. and Sec'y of Com.) (alteration in original). 3. JAGDISH N. BHAGWATI & ANNE 0. KRUEGER, U.S. Trade Policy: The Infatuation Free Trade Areas, in THE DANGEROUS DRIFT TO PREFERENTIAL TRADE AGREEMENTS 1,2 (1995). 4. Caroline Freund, Third-Country Effects of Regional Trade Agreements, in PREFERENTIAL TRADE AGREEMENTS: A LAW AND ECONOMICS ANALYSIS 40, 40 (Kyle W. Bagwell & Petros C. Mavroidis eds., 2011); MATTHIAS HERDEGEN, PRINCIPLES OF INTERNATIONAL ECONOMIC LAW 191 (2013). 5. BHAGWATI & KRUEGER, supra note 3, at 2. DENV. J. INT'L L. & POL'Y VOL. 43:1 agreements" ("PTAs"). Because these agreements depend on national preferences, 6 the reasons countries enter into them are not always clear-one country's motivation for seeking a PTA may be different from another's. The WTO Charter does not require countries to disclose their rationales for entering into a PTA. In fact, the lone condition tied to a PTA is that it must liberalize territories, 7 meaning that it must substantially all the trade between 8the constituent account for the bulk of their trade. While many scholars have considered the theory, consequences, and positives and negatives of PTAs, 9 few have addressed the reasons why countries pursue them and why they pick the partners they do.10 Indeed, authors of recent literature on PTAs implicitly assume that these agreements are similar.'" But in today's age,2 when culture, goods, and money "cross borders more than at any time in history," 1 PTAs are more likely to be some of the most diverse instruments in the world, rather than near facsimiles of each other. To be sure, the majority of them vary not only in content but also in form, reflecting "sharp differences in the objectives of the countries seeking them."' 3 These objectives include increased market access, the implementation of domestic policy reform, the creation of leverage in bilateral or multilateral bargaining power, and the formation of strategic linkages, some of which may be related to national security.' 4 But this list is hardly exhaustive, considering the profound differences in national institutions, economic conditions, and socioeconomic backgrounds around the world. This Article proposes that some countries could have far more nefarious objectives in their pursuit of PTAs-corruption-and that corrupt schemes involving PTAs could threaten the rule-oriented infrastructure of the WTO and the 6. Professor Bhagwati writes "[flree trade areas are inherently preferential" and "[e]conomists interested in the quality of public discourse should perhaps take a pledge henceforth to rename free trade areas as 'preferential' trade areas." Id. (emphasis in original). 7. General