Cuba, the United States, and the World Trade Organization

Relic of the Cold War in a New Age of Trade

By Peter M. Stecker
Peter Stecker, a third-year law student at Albany Law School, did his undergraduate work at Fordham University where majored in History and spent a summer studying at Heythrop College in London. While in law school, he worked for a year as an intern in the Low-Income Taxpayer Clinic,  and he has held several positions with state and local governmental entities, including his current clerkship with Judge Rachel Kretser of the City of Albany Criminal Court. This past winter, he competed in the Jessup International Moot Court Competition in New York City.
This paper, prepared for Professor Harrington’s Fall 2012 International Organizations class, was a journey of self-discovery for Peter. He is half-Cuban, and a descendant of the Menendez family who founded the world-renowned Montecristo cigar brand.

The following is a story of revolution, retribution, and rum.

The World Trade Organization’s (“WTO”) General Council meeting on July 25, 2012 was relatively unremarkable.  Like so many other WTO meetings the topics of discussion were activities of States that required WTO action, progress reports on organizational initiatives, and other assorted proposed internal policy changes.

After the planned portion of the WTO’s July 25th gathering, however, the unremarkable turned fascinating in the “other business” phase of the meeting.  At this point, a representative from the Cuban government addressed the General Council and reiterated that the United States (“U.S.”) was still not in compliance with a Dispute Settlement Body (“DSB”) order from 2002 to change a 1998 U.S. law designed to prevent trademark protection for items seized by the Cuban government after the Communist Revolution of the late 1950s.

After shortly recapping this situation, the Cuban representative posed a complex question to the General Council: “what guarantee of industrial property rights does the [U.S.] offer in their territory to the Members of this Organization and, in particular, to Cuba?”

This paper focuses on the history of the Cuba-U.S. trademark dispute, how it has been handled by the WTO, and its current status.  Also, this paper addresses the issue of the WTO’s lack of power, the questionable validity of Cold War legislation, and the nebulous treatment of international intellectual property protection.

Finally, this paper examines the impact that this dispute will have on the most potent of all Cold War relics, the U.S.-Cuba trade embargo.

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To read the paper, open HERE.

Impermissible Subsidization of State-Owned Enterprises (SOE's)

Alternative Methods of Assessing in the WTO Dispute Settlement Body

By John R. Forbush

John Forbush, a third year student at Albany Law School, is a senior editor on the Albany Law Review. He is a graduate of Union College and Carnegie Mellon's Heinz School.

He prepared this paper for Professor James Gathii's course, International Business Transactions, Fall 2011.

A March 2011 World Trade Organization (WTO) Appellate Body decision, overturning the United States’ issuance of countervailing duties on specific Chinese imports, established that a mere showing of a firm’s majority “state-owned” status is not, on its own, sufficient to justify the imposition of countervailing measures. The prominence of state-owned enterprises (SOEs) in the Chinese economy presents challenges to established methods for deciphering, calculating, and punishing foreign subsidization of U.S.-bound imports.

Although the decision wisely accommodates the existence of state-owned enterprises, this evidentiary standard is devoid of guidance in terms of delineating when state ownership and support of firms “crosses the line” and becomes “actionable” by way of countervailing measures. For countries seeking to impose countervailing measures on SOE imports, the lack of transparency that characterizes many SOEs poses significant challenges in assessing when an SOE is being impermissibly subsidized and used as an instrumentality of the state.

This paper examines how application of alternative legal standards might produce different and, ideally, more satisfactory results for the United States in efforts to defend the future imposition of countervailing measures against subsidized state-owned enterprises.
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To read the entire paper, open HERE.