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.

The CISG's Doctrine of Fundamental Breach

Should We Part Ways with the UCC's Perfect Tender Rule for Domestic Sales

By Christopher J. Konieczny

Chris Konieczny is a 2012 graduate of Albany Law School. He did his undergraduate work at RPI. In law school, he was a senior editor of the Albany Law Review, and he prepared this paper for Professor James Gathii's International Business Transactions class in the fall of 2011.  

The United Nations Convention on Contracts for the International Sale of Goods (CISG) incorporates a doctrine of fundamental breach. That doctrine does not provide sufficient certainty or predictability for application to U.S. domestic sales of goods. It should, therefore, not be applied to contracts arising under Article 2 of the Uniform Commercial Code (UCC). 

Moreover, the purpose and main goal of Article 25 of the CISG—avoidance of excessive economic waste in the international community—is largely inapplicable in a domestic setting. The bright line provided by the UCC's perfect tender rule offers both legal certainty and predictability in a field of law which thrives on such concepts.

Part I of this paper will introduce and give a brief overview of the CISG; Part II will briefly outline the similarities and differences between the CISG’s fundamental breach doctrine and the UCC’s perfect tender rule; Part III will outline the CISG approach in detail; Part IV will outline the UCC approach in detail; Part V will discuss the disadvantages of the CISG’s fundamental breach doctrine; Part VI will discuss the advantages of the CISG’s fundamental breach doctrine; Part VII will briefly discuss the disadvantages of the UCC’s perfect tender rule; Part VIII will briefly discuss the advantages of the UCC’s perfect tender rule; finally, Part IX will conclude and briefly outline why the perfect tender rule is more advantageous in the context of a domestic contract for the sale of goods.*
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* Citations to references in this introduction are available in the paper.
To read the entire paper, open HERE.