The Brussels effect

Northwestern University Law Review

Volumn 107, Issue 1, 2012, Pages 1-68

  Bradford, Anu ^a  

^a Columbia Law School ^*  (United States)

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EID: 84870795327     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (442)

1. Charles Grant, How to Make Europe's Military Work, FT.COM (Aug. 16, 2009, 6:53 PM), http://www.ft.com/intl/cms/s/0/f32e0e98-8a8b-11de-ad08-00144feabdc0.html#axzz2Bwh5garO.
2. Philip Stephens, Europe's Leaders Recoil from Unity, FT.COM (Dec. 2, 2010, 10:44 PM), http://www.ft.com/intl/cms/s/0/1301e064-fe53-11df-abac-00144feab49a.html#axzz29D0EJCei.
3. Charles Grant, The Unraveling of the EU, PROSPECT, July 2009, at 48, 48 "Russian, Chinese[, and] Indian policy-makers...view it as a trade bloc that had pretensions to power but has failed to realize them because it is divided and badly organised.").
4. David Scheer, For Your Eyes Only-Europe's New High-Tech Role: Playing Privacy Cop to the World, WALL ST. J., Oct. 10, 2003, at A1.
5. Brandon Mitchener, Standard Bearers: Increasingly, Rules of Global Economy Are Set in Brussels, WALL ST. J., Apr. 23, 2002, at A1.
6. Editorial, Regulatory Imperialism, WALL ST. J. (Oct. 26, 2007), http://online.wsj.com/article/SB119334720539572002.html.
7. COMP/M.5984, Intel/McAfee, EUR-Lex 32011M5984 (Jan. 26, 2011).
8. Council Directive 76/768/EEC, of 27 July 1976 on the Approximation of the Laws of the Member States Relating to Cosmetic Products, 1976 O.J. (L 262) 169.
9. Regulation (EC) 1829/2003, of the European Parliament and of the Council of 22 September 2003 on Genetically Modified Food and Feed, 2003 O.J. (L 268) 1.
10. Consolidated Version of the Treaty on the Functioning of the European Union arts. 101 & 102, Mar. 30, 2010, 2010 O.J. (C 83) 47, 88-89 [hereinafter TFEU].
11. See Directive 95/46/EC, of the European Parliament and of the Council of 24 October 1995 on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data, 1995 O.J. (L 281) 31 [hereinafter Data Protection Directive].
12. See id.
13. See Directive 2002/95/EC, of the European Parliament and of the Council of 27 January 2003 on the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment, 2003 O.J. (L 37) 19 [hereinafter Directive 2002/95/EC].
14. See Regulation (EC) 1907/2006, of the European Parliament and of the Council of 18 December 2006 Concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), Establishing a European Chemicals Agency, 2007 O.J. (L 136) 3 [hereinafter REACH]; Directive 2005/84/EC, of the European Parliament and of the Council of 14 December 2005 Relating to Restrictions on the Marketing and Use of Certain Dangerous Substances and Preparations (Phthalates in Toys and Childcare Articles), 2005 O.J. (L 344) 40.
15. See, e.g., Kyoto Protocol to the United Nations Framework Convention on Climate Change, Dec. 11, 1997, 2303 U.N.T.S. 162.
16. The United States, for example, has imposed sanctions to compel other countries to adopt stricter rules in areas such as antiterrorism and drug enforcement.
17. Gary Clyde Hufbauer et al., ECONOMIC SANCTIONS RECONSIDERED 11 (3d ed. 2009) (discussing foreign-policy use of economic sanctions generally).
18. Lori Wallach & Michelle Sforza, WHOSE TRADE ORGANIZATION?: CORPORATE GLOBALIZATION AND THE EROSION OF DEMOCRACY, at 9, 11 (1999).
19. Alan Tonelson, THE RACE TO THE BOTTOM: WHY A WORLDWIDE WORKER SURPLUS AND UNCONTROLLED FREE TRADE ARE SINKING AMERICAN LIVING STANDARDS 14-15 (2002)
20. "[G]overnments and workers all over the world have been forced into a competition for productive investment that is most often won by scrapping or forswearing most of the laws and regulations that complicate business operations and lower short-term profits, but that also ensure that living wages are paid, that workplaces are safe, and that pollution is controlled.". For a general discussion of this dynamic.
21. Dale D. Murphy, THE STRUCTURE OF REGULATORY COMPETITION: CORPORATIONS AND PUBLIC POLICIES IN A GLOBAL ECONOMY (2004), in particular Parts I, II, and V.
22. David Vogel & Robert A. Kagan, Introduction to DYNAMICS OF REGULATORY CHANGE: HOW GLOBALIZATION AFFECTS NATIONAL REGULATORY POLICIES 4-5 (David Vogel & Robert A. Kagan eds., 2004) [hereinafter DYNAMICS OF REGULATORY CHANGE].
23. Debora L. Spar & David B. Yoffie, A Race to the Bottom or Governance from the Top?, in COPING WITH GLOBALIZATION 31, 31-51 (Aseem Prakash & Jeffrey A. Hart eds., 2000).
24. David Vogel, Trading Up and Governing Across: Transnational Governance and Environmental Protection, 4 J. EUR. PUB. POL'Y 556, 563 (1997).
25. Vogel & Kagan, supra note 15, at 2-8.
26. Elizabeth R. Desombre, FLAGGING STANDARDS: GLOBALIZATION AND ENVIRONMENTAL, SAFETY, AND LABOR REGULATIONS AT SEA (2006) (seeking to identify conditions under which a race to the top, race to the bottom, and a race to the middle take place).
27. John C. Coffee Jr., The Future of Corporate Federalism: State Competition and the New Trend Toward De Facto Federal Minimum Standards, 8 CARDOZO L. REV 759, 761-763 (1987).
28. David Vogel, TRADING UP: CONSUMER AND ENVIRONMENTAL REGULATION IN A GLOBAL ECONOMY (1995).
29. Vogel & Kagan, supra note 15, at 9.
30. For an example of a California regulation that prompted firms to adopt the California standard and alter their production nationwide, see Safe Drinking Water and Toxic Enforcement Act of 1986, CAL. HEALTH & SAFETY CODE §§ 25249.5-.13 (West 2006) (on labeling requirements in the presence of carcinogenic or reproductive toxins in consumer products or food).
31. Vogel, supra note 16, at 562.
32. See generally VOGEL, supra note 18 (discussing a similar phenomenon in federal systems).
33. Interaction Between Trade and Competition Policy, WORLD TRADE ORG., http://www.wto.org/english/tratop_e/comp_e/comp_e.htm (last visited Nov. 5, 2012).
34. Anu Bradford, When the WTO Works, and How It Fails, 51 VA. J. INT'L L. 1 (2010) (discussing the WTO's failure to facilitate global cooperation on antitrust issues).
35. Daniel W. Drezner, Globalization, Harmonization, and Competition: The Different Pathways to Policy Convergence, 12 J. EUR. PUB. POL'Y 841, 841-859 (2005).
36. Beth Simmons, The International Politics of Harmonization: The Case of Capital Market Regulation, in DYNAMICS OF REGULATORY CHANGE, supra note 15, at 42, 50-52.
37. Vogel & Kagan, supra note 15, at 6, 9.
38. See VOGEL, supra note 18.
39. Katharina Holzinger & Thomas Sommerer, 'Race to the Bottom' or 'Race to Brussels'?: Environmental Competition in Europe, 49 J. COMMON MARKET STUD. 315, 329 (2011) (concluding that empirical evidence demonstrates a "far-reaching upward trend in environmental regulation from the 1970s until today").
40. Vogel & Kagan, supra note 15, at 10.
41. Fritz W. Scharpf, Negative and Positive Integration in the Political Economy of European Welfare States, in GOVERNANCE IN THE EUROPEAN UNION 15, 28-29 (Gary Marks et al. eds., 1996).
42. Peter P. Swire, The Race to Laxity and the Race to Undesirability: Explaining Failures in Competition Among Jurisdictions in Environmental Law, 14 YALE L. & POL'Y REV. 67, 67-110 (1996) (discussing regulatory-regime exportation in the context of environmental protection).
43. Jonathan R. Macey, Regulatory Globalization as a Response to Regulatory Competition, 52 EMORY L.J. 1353, 1359, 1361 (2003) (arguing that regulatory globalization does not take place in the area of consumer protection, where regulators are assumed to have complete autonomy to regulate their domestic markets).
44. John Braithwaite & Peter Drahos, GLOBAL BUSINESS REGULATION 518-519 (2000) (discussing both race to the bottom (RTB) and race to the top (RTT), and arguing that RTT is a result of countries adopting as "best practices" those that they consider to be in their interest).
45. Simmons, supra note 23 (canvassing research focusing on conditions under which other regulators have the incentive to adjust); Vogel & Kagan, supra note 15, at 14 (focusing on de jure trading up as the foreign country switches its standards as a result of RTT).
46. See Drezner, supra note 23, at 841.
47. Id. at 850.
48. Simmons, supra note 23, at 49.
49. Lloyd Gruber, RULING THE WORLD: POWER POLITICS AND THE RISE OF SUPRANATIONAL INSTITUTIONS (2000).
50. Gruber contests the positive-sum models of international cooperation and explains why states join institutions that are not Pareto-improving for them. When states that win from some cooperative arrangement are in a position to proceed even without the support of the losing states, losing states' interest calculation changes and they join the new institution even though they would have preferred that such an institution was never set up in the first place. A movement or change that is Pareto-improving is one that makes at least one participant better off without making any participant worse off.
51. Leslie H. Gelb, GDP Now Matters More than Force: A U.S. Foreign Policy for the Age of Economic Power, FOREIGN AFF., Nov./Dec. 2010, at 35.
52. Drezner, supra note 23, at 847 ("[uscourts.gov/uscourts/Statisticsasonable conjecture would be to say that the public good benefits from regulatory coordination depend upon the size of the newly opened market.").
53. David A. Wirth, The EU's New Impact on U.S. Environmental Regulation, 31 FLETCHER F. WORLD AFF. 91, 96 (2007) ("If [a] jurisdiction's market share is sufficiently large, [its] regulatory requirements can affect an even larger area, including those under the control of other sovereign authorities.").
54. Drezner, supra note 23, at 843.
55. See id.
56. Vogel & Kagan, supra note 15, at 13
57. Sebastiaan Princen, The California Effect in the EC's External Relations: A Comparison of the Leghold Trap and the Beef-Hormone Issues Between the EC and the US & Canada (June 2-5, 1999) (unpublished manuscript), available at http://aei.pitt.edu/2367/.
58. European Union, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-worldfactbook/geos/ee.html (last visited Nov. 5, 2012).
59. The GDP figure is based on purchasing power parity (PPP).
60. See id.
61. WORLD TRADE ORG., WORLD TRADE REPORT 25 (2011), available at http://www.wto.org/english/res_e/booksp_e/anrep_e/world_trade_report11_e.pdf.
62. United States, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-worldfactbook/geos/us.html (last visited Nov. 5, 2012).
63. China, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-factbook/geos/ch.html (last visited Nov. 5, 2012).
64. Japan, CIA WORLD FACTBOOK, https://www.cia.gov/library/publications/the-world-factbook/geos/ja.html (last visited Nov. 5, 2012).
65. The GDP figures are PPP-based.
66. Alasdair R. Young, Political Transfer and "Trading Up"? Transatlantic Trade in Genetically Modified Food and U.S. Politics, 55 WORLD POL. 457, 459 (2003).
67. The EU's population exceeds 500 million, and its GDP per capita is approximately $34,000. European Union, supra note 40. The United States is relatively more affluent (GDP per capita of $48,100), but its consumer market is smaller (population of 313 million). United States, supra note 43. China, on the other hand, has a larger consumer market (population of 1.3 billion), but is relatively less affluent (GDP per capita of $8,400). China, supra note 43.
68. David Bach & Abraham L. Newman, The European Regulatory State and Global Public Policy: Micro-Institutions, Macro-Influence, 14 J. EUR. PUB. POL'Y 827, 831 (2007).
69. See id. at 832.
70. Colin Kirkpatrick & David Parker, Infrastructure Regulation: Models for Developing Asia 40-41 (Asian Dev. Bank Inst. Discussion Paper No. 6, 2004), available at http://www.adbi.org/files/2004.05.06.dp006.infrastructure.asia.pdf (describing the difficulties developing countries face in implementing an effective regulatory regime, including an economy's "institutional endowment").
71. For instance, China adopted a domestic antitrust law in 2008, vesting the authority to enforce the law among three different agencies.
72. Xiaoye Wang, Highlights of China's New Anti-Monopoly Law, 75 ANTITRUST L.J. 133, 145 (2008).
73. Prior to 2008, China had no capacity to exercise regulatory power in antitrust matters. Still, even after enacting the law and creating an institutional structure to enforce the law, it will be a while before the regulatory clout of the new agencies will match that of the United States (which has been enforcing antitrust laws since 1890) and the EU (which has been enforcing antitrust laws since 1957). Sherman Antitrust Act, ch. 647, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§ 1-7 (2006)); Treaty Establishing the European Economic Community (Treaty of Rome) arts. 85, 86, Mar. 25, 1957, 298 U.N.T.S. 11.
74. Sophie Meunier & Kalypso Nicolaïdis, The European Union as a Conflicted Trade Power, 13 J. EUR. PUB. POL'Y 906, 907-08 (2006).
75. Giandomenico Majone, The Rise of the Regulatory State in Europe, W. EUR. POL., July 1994, at 77, 83-101.
76. Margot Horspool & Matthew Humphreys, EUROPEAN UNION LAW 39-70 (6th ed. 2010) (providing an overview of the various institutions of the European Union).
77. COUNCIL EUR. UNION, http://www.consilium.europa.eu/homepage.aspx?lang=en (last visited Nov. 5, 2012).
78. EUR. COMMISSION, http://ec.europa.eu/index_en.htm (last visited Nov. 5, 2012).
79. EUR. PARLIAMENT, http://www.europarl.europa.eu/portal/en (last visited Nov. 5, 2012).
80. See, e.g., Single European Act art. 6, Feb. 17, 1986, 1987 O.J. (L 169) 1 (granting the European Parliament a cooperative role in regulating Europe's economy and implementing qualified majority voting); Treaty on European Union art. G, Feb. 7, 1992, 1992 O.J. (C 191) 1, 5-44 (same); Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter Treaty of Lisbon] (same).
81. Compare TFEU arts. 3-4 (listing the exclusive and shared competences of the EU, respectively), with id. art. 6 (describing competences that are reserved to the member states and where the EU's role is merely supportive).
82. J. Luis Guasch & Robert W. Hahn, The Costs and Benefits of Regulation: Implications for Developing Countries, 14 WORLD BANK RES. OBSERVER 137, 138 (1999).
83. Ragnar E. Löfstedt & David Vogel, The Changing Character of Regulation: A Comparison of Europe and the United States, 21 RISK ANALYSIS 399, 400-401 (2001).
84. Zaki Laïdi, The Unintended Consequences of European Power 8 (Les Cahiers Européens de Sciences Po. No. 5, 2007), available at http://www.cee.sciences-po.fr/erpa/docs/wp_2007_5.pdf ("Up to [the late 1980s], it was the United States that set the norms since theirs were the strictest. Since then the roles have been reversed.").
85. R. Daniel Keleman & David Vogel, Trading Places: The US and the EU in International Environmental Politics 1-2 & tbl.1 (Sept. 2007) (unpublished manuscript), available at http://www.princeton.edu/~smeunier/kelemen%20vogel%20trading%20places%20sept%2007.pdf (describing how the EU's and United States' respective regulatory preferences have switched over time).
86. The EU's commitment to the social market economy is explicitly mentioned as a common objective for Europe, added by Article 1 of the new Lisbon Treaty. Treaty of Lisbon art. 1(4) ("[The Union] shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy,...and a high level of protection and improvement of the quality of the environment.").
87. See Laïdi, supra note 56, at 8.
88. EUROPEAN COMM'N, SPECIAL EUROBAROMETER 217: THE ATTITUDES OF EUROPEAN CITIZENS TOWARDS ENVIRONMENT 31-32 (2005), available at http://ec.europa.eu/public_opinion/archives/ebs/ebs_217_en.pdf (noting that close to 90% of Europeans believe environmental policies are just as important as social or economic ones).
89. David Vogel, THE POLITICS OF PRECAUTION: REGULATING HEALTH, SAFETY, AND ENVIRONMENTAL RISKS IN EUROPE AND THE UNITED STATES 31-32 (2012).
90. Communication from the Commission on the Precautionary Principle, COM (2000) 1 final (Feb. 2, 2000).
91. Sarah Harrell, Beyond "REACH"?: An Analysis of the European Union's Chemical Regulation Program Under World Trade Organization Agreements, 24 WIS. INT'L L.J. 471, 481-489 (2007) (contrasting the United States' "strict risk-assessment approach" with Europe's "precautionary principle").
92. However, purely hypothetical risk is not sufficient grounds for regulatory intervention. See Case T-13/99, Pfizer Animal Health SA v. Council, 2002 E.C.R. II-3318, para. 142.
93. See, e.g., Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. (The Benzene Case), 448 U.S. 607, 642-46 (1980); see also Exec. Order No. 13,563, 3 C.F.R. 215, 215 (2011) (laying out general principles for regulation in the United States, including reliance on the "least burdensome tools for achieving regulatory ends").
94. See 3 C.F.R. 215.
95. However, there are examples of regulatory areas where the United States prefers a stricter rule. For instance, the United States is more concerned than the EU is about the adverse effects of smoking.
96. Paulette Kurzer, European Citizens Against Globalization: Public Health and Risk Perceptions 5-12 (April 2004) (unpublished manuscript), available at http://www.lehigh.edu/~incntr/publications/documents/kurzer.pdf.
97. See also infra text accompanying notes 292-94 (discussing U.S. financial regulation).
98. International capital mobility is contingent on numerous factors and assumes limited exchange controls and the ability of foreign corporations and individuals to engage in foreign direct investment (FDI) and invest in foreign stock markets. See also infra note 294 (discussing whether stock exchange listings are indeed elastic).
99. In the wake of the financial crises in the Eurozone, the Commission has proposed to impose a financial transaction tax. However, the U.K., among others, is vehemently opposed.
100. Joshua Chaffin, Business Attacks Transaction Tax Plan, FT.COM (Sept. 28, 2011, 6:36 PM), http://www.ft.com/intl/cms/s/0/f9d2188a-e9ec-11e0-a149-00144feab49a.html#axzz1rOJUmpsd.
101. See also infra notes 295-96 (discussing the limits of the Brussels Effect in case of elastic targets including financial transactions).
102. Drezner, supra note 23, at 844-45.
103. David Lazer, Regulatory Interdependence and International Governance, 8 J. EUR. PUB. POL'Y 474, 476-478 (2001).
104. VOGEL, supra note 59, at 16.
105. Anu Bradford, Antitrust Law in Global Markets, in RESEARCH HANDBOOK ON THE ECONOMICS OF ANTITRUST LAW 283, 308-311 (Einer Elhauge ed., 2012).
106. Ryan Singel, EU Tells Search Engines to Stop Creating Tracking Databases, WIRED (Apr. 8, 2008, 9:25 AM), http://www.wired.com/threatlevel/2008/04/eu-tells-search/ (discussing how EU privacy rules on search engines' data retention practices extend to the United States "due to technical difficulty of determining whether a particular user is or isn't a citizen of an EU country").
107. REACH, supra note 10, arts. 5-7.
108. See infra notes 134-38.
109. Joel Waldfogel, THE TYRANNY OF THE MARKET: WHY YOU CAN'T ALWAYS GET WHAT YOU WANT (2007) (discussing the distinct advantage of being a standard setter with respect to products where the markets can only bear one standard).
110. In such a case, a consumer with a minority taste will receive no product. The ability to tip the market in your favor is therefore the only way to ensure that products that you value are being produced.
111. Note that this Article does not argue that labor standards cannot be exported to other jurisdictions through other means. The argument is only that to the extent they are divisible, labor standards are not amenable to the Brussels Effect.
112. Brian Greenhill et al., Trade-Based Diffusion of Labor Rights: A Panel Study, 1986-2002, 103 AM. POL. SCI. REV. 669, 678-680 (2009).
113. Bradford, supra note 68, at 310.
114. Id.
115. Id. at 309.
116. Gunnar Niels & Adriaan ten Kate, Introduction: Antitrust in the U.S. and the EU-Converging or Diverging Paths?, 49 ANTITRUST BULL. 1, 11-15 (2004).
117. Deborah Platt Majoras, Deputy Assistant Attorney Gen., Antitrust Div., U.S. Dep't of Justice, Remarks on GE-Honeywell: The U.S. Decision, Before the Antitrust Law Section, State Bar of Georgia 16 (Nov. 29, 2001), available at http://www.justice.gov/atr/public/speeches/9893.pdf ("In the United States, we have much greater faith in markets than we do in regulators....[T]he European Union comes from a more statist tradition that places greater confidence in the utility of governmental intervention in markets.").
118. See Commission Decision of 3 July 2001 Declaring a Concentration to be Incompatible with the Common Market and the EEA Agreement, Case COMP/M.2220-General Electric/Honeywell, 2004 O.J. (L 48) 1. In contrast, for the position of U.S. regulatory authorities.
119. Press Release, U.S. Dep't of Justice, Justice Department Requires Divestitures in Merger Between General Electric and Honeywell (May 2, 2001), available at http://www.justice.gov/atr/public/press_releases/2001/8140.pdf.
120. Note that not all antitrust decisions are characterized by nondivisibility. For instance, a company may be able to retain different distribution systems in different markets. Thus, if the EU bans certain vertical agreements between a manufacturer and its dealer, the manufacturer can often hold onto a similar arrangement in another jurisdiction. See also infra note 300 (noting Microsoft's decision to offer an unbundled product only in the EU as an example of divisibility).
121. See Bradford, supra note 68, at 299.
122. Eleanor M. Fox, GE/Honeywell: The U.S. Merger that Europe Stopped-A Story of the Politics of Convergence, in ANTITRUST STORIES 331, 339-340 (Eleanor M. Fox & Daniel A. Crane eds., 2007) (describing the concerns motivating EU antitrust regulators in the case).
123. For instance, see the EU's decision to block the acquisition of De Havilland by the Avions de Transport Régional, which had been approved by the Canadian authorities. Commission Decision of 2 October 1991 Declaring the Incompatibility with the Common Market of a Concentration, Case IV/M.053-Aerospatiale-Alenia/de Havilland, 1991 O.J. (L 334) 42.
124. Boeing Co. et al., Joint Statement Closing Investigation of the Proposed Merger, 5 Trade Reg. Rep. (CCH) ¶ 24,295 (July 1, 1997).
125. Commission Decision of 30 July 1997 Declaring a Concentration Compatible with the Common Market and the Functioning of the EEA Agreement, Case No. IV/M.877-Boeing/McDonnell Douglas, 1997 O.J. (L 336) 16, 36-38.
126. William E. Kovacic, Transatlantic Turbulence: The Boeing-McDonnell Douglas Merger and International Competition Policy, 68 ANTITRUST L.J. 805, 838-839 (2001) (discussing commitments).
127. E.g., Summary of Commission Decision of 13 May 2009, Case COMP/C-3/37.990-Intel, 2009 O.J. (C 227) 13, 17; Commission Decision of 24 May 2004, Case COMP/C-3/37.792-Microsoft, 2007 O.J. (L 32) 23, 27-28.
128. Stephen Castle, Microsoft Gets Record Fine and a Rebuke from Europe, N.Y. TIMES, Feb. 28, 2008, at C3.
129. Editorial, Europe v. U.S. Business, WALL ST. J., Jan. 17, 2008, at A16.
130. See, e.g., Commission Decision of 22 Feb. 2006, Case COMP/B-2/38.381-De Beers, available at http://ec.europa.eu/competition/antitrust/cases/dec_docs/38381/38381_1065_1.pdf (requiring De Beers to stop buying rough diamonds from a Russian company Alrosa as a commitment in an Article 102 dominance case); Case COMP/M.5984, Intel/McAfee, EUR-Lex 32011M5984 (Jan. 26, 2011) (requiring Intel to unbundle software and security solutions worldwide as a condition for a merger); Case COMP/M.5421, Panasonic/Sanyo, EUR-Lex 32009M5421 (Sept. 29, 2009) (imposing an obligation to divest one of the parties' factories in Japan as a condition for a merger).
131. See, e.g., Foreign Trade Antitrust Improvements Act of 1982 (FTAIA), 15 U.S.C. § 6a (2006); United States v. Aluminum Co. of Am., 148 F.2d 416, 444 (2d Cir. 1945); Case T-102/96, Gencor Ltd v. Comm'n, 1999 E.C.R. II-759, paras. 73, 92, 96.
132. Eleanor M. Fox, National Law, Global Markets, and Hartford: Eyes Wide Shut, 68 ANTITRUST L.J. 73, 79-86 (2000) (describing cases of extraterritorial assertions of antitrust jurisdiction of both the EU and the United States).
133. Damien Geradin et al., Extraterritoriality, Comity, and Cooperation in EU Competition Law, in COOPERATION, COMITY, AND COMPETITION POLICY 21, 24-29 (Andrew T. Guzman ed., 2011) (describing bases of extraterritorial prescriptive and enforcement jurisdiction under EU antitrust law).
134. See Council Regulation (EC) 139/2004, On the Control of Concentrations Between Undertakings (the EC Merger Regulation), art. 8, 2004 O.J. (L 24) 1.
135. Kovacic, supra note 85, at 851.
136. Editorial, supra note 86.
137. Majoras, supra note 78, at 14.
138. Mark F. Kightlinger, Twilight of the Idols? EU Internet Privacy and the Post Enlightenment Paradigm, 14 COLUM. J. EUR. L. 1, 2-3 (2007).
139. See id. at 21, 34. "[T]he right to privacy...is recognized both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of [European] Community Law." Id. at 34 (second alteration in original) (quoting Council Directive 95/46, On the Protection of Individuals with Regard to the Processing of Personal Data, 1995 O.J. (L 281) 31, para. 10 [hereinafter EU Data Protection Directive]).
140. See EU Data Protection Directive, supra note 94, arts. 3, 28.
141. See, e.g., Privacy Act of 1974, 5 U.S.C. § 552a(4) (2006) (defining "records" protected by the Act as limited to certain categories, and limiting the application of the Act to government agencies).
142. Gregory Shaffer, Globalization and Social Protection: The Impact of EU and International Rules in the Ratcheting Up of U.S. Privacy Standards, 25 YALE J. INT'L L. 1, 23-28 (2000) (describing privacy protection in the United States, including state privacy acts).
143. The protection of individual privacy was further weakened in the United States in the wake of September 11 when privacy interests gave way to concerns of public safety.
144. Kelly Fiveash, Euro Commissioner Tells Facebook It Has Nowhere to Hide, REGISTER (June 21, 2011, 13:03 GMT), http://www.theregister.co.uk/2011/06/21/viviane_reding_interview/ (interviewing Viviane Reding, EU Commissioner for Justice, Fundamental Rights and Citizenship, on the EU-U.S. difference in approach to privacy protection).
145. Bach & Newman, supra note 46, at 833.
146. However, recent developments suggest that the U.S. government is moving towards a more aggressive stand in its enforcement of privacy rights.
147. Press Release, Fed. Trade Comm'n, FTC Gives Final Approval to Settlement with Google over Buzz Rollout (Oct. 24, 2011), available at http://www.ftc.gov/opa/2011/10/buzz.shtm.
148. Bach & Newman, supra note 46, at 833.
149. See id. at 833-34.
150. WHITE HOUSE, CONSUMER DATA PRIVACY IN A NETWORKED WORLD: A FRAMEWORK FOR PROTECTING PRIVACY AND PROMOTING INNOVATION IN THE GLOBAL DIGITAL ECONOMY 1-26 (2012), available at http://www.whitehouse.gov/sites/default/files/privacy-final.pdf.
151. The Internet: Vive La Liberté!, ECONOMIST, Nov. 25, 2000, at 75.
152. See, e.g., Shaffer, supra note 96, at 43 (discussing the aftermath of American Airlines being sued in Sweden after transferring data from Sweden to a U.S. electronic reservation system without prior customer consent).
153. Cecilia Kang, Promise by Google Ends FTC's Privacy-Breach Probe, WASH. POST, Oct. 28, 2010, at A15 (discussing the FTC's decision to close its investigation against Google's Street View service, in sharp contrast to European regulators).
154. See EU Data Protection Directive, supra note 94, arts. 25; see also Shaffer, supra note 96, at 21-23 (discussing in more detail these same Directive provisions, and analyzing whether the United States, as a third-party country, would assure an adequate level of protection).
155. Shaffer, supra note 96, at 75; cf. id. at 17-20.
156. Kevin J. O'Brien, Europe Plans to Tighten Web Privacy and Apply It to U.S. Companies, N.Y. TIMES, Nov. 10, 2011, at B4.
157. Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data (General Data Protection Regulation), COM (2012) 11 final (Jan. 25, 2012) [hereinafter General Data Protection Regulation].
158. Id. art. 17.
159. Press Release, European Comm'n, Commission Proposes a Comprehensive Reform of Data Protection Rules to Increase Users' Control of Their Data and to Cut Costs for Businesses (Jan. 25, 2012), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/46.
160. Jeffrey Rosen, The Right to Be Forgotten, 64 STAN. L. REV. ONLINE 88, 88 (2012).
161. See Issuance of Safe Harbor Principles and Transmission to European Commission, 65 Fed. Reg. 45,666 (July 24, 2000). While signing on to the Safe Harbor Principles is voluntary, the signatories are bound by them. Failure to adhere to their commitments subjects the signatories to FTC enforcement actions under § 5 of the Federal Trade Commission Act against unfair or deceptive acts or practices.
162. U.S. TRADE REPRESENTATIVE, 2010 NATIONAL TRADE ESTIMATE REPORT ON FOREIGN TRADE BARRIERS: EUROPEAN UNION 143, 166 (2010).
163. Bach & Newman, supra note 46, at 833-834.
164. David Bach & Abraham L. Newman, Local Power, Global Reach: The Domestic Institutional Roots of Internet Governance, ST. ANTONY'S INT'L REV., May 2007, at 23, 29.
165. Bach & Newman, supra note 46, at 834.
166. Council Decision 2007/551/CFSP/JHA of 23 July 2007, on the Signing of an Agreement Between the European Union and the United States of America on the Processing and Transfer of Passenger Name Record (PNR) Data by Air Carriers to the United States Department of Homeland Security (DHS), 2007 O.J. (L 204) 16.
167. Legal Confusion on Internet Privacy: The Clash of Data Civilizations, ECONOMIST, June 19, 2010, at 63.
168. Bach & Newman, supra note 112, at 29.
169. Dorothee Heisenberg, NEGOTIATING PRIVACY: THE EUROPEAN UNION, THE UNITED STATES, AND PERSONAL DATA PROTECTION 119 (2005) ("Indeed, there is a hint that it has already become cheaper for US multinational companies to treat all data (including US data) with the same strict privacy standard as the data of the Europeans.").
170. See Singel, supra note 69.
171. See Mitchener, supra note 3.
172. See, e.g., Legal Confusion on Internet Privacy, supra note 114 (discussing changes the EU demanded in Google Buzz, the firm's social network service).
173. Kevin J. O'Brien, Anger in Europe over Google and Privacy, N.Y. TIMES, May 17, 2010, at B5 (discussing personal information Google collected through Street View, and Google's response); Scheer, supra note 3 (discussing GM, DuPont, and Procter & Gamble's practice of applying EU-like standards to its employee data worldwide).
174. Mark Berniker, EU: Microsoft Agrees to NET Passport Changes, DATAMATION (Jan. 30, 2003), http://www.datamation.com/entdev/article.php/1576901/EU-Microsoft-Agrees-to-NET-Passport-Changes.htm (discussing Microsoft's agreement with EU authorities to implement a data protection plan regarding one of its products).
175. See Mitchener, supra note 3 (citing Microsoft's Director of Corporate Privacy, who confirmed that Microsoft applies one company-wide privacy standard, and that is the EU standard).
176. REACH, supra note 10.
177. Melody M. Bomgardner, Facts & Figures of the Chemical Industry, CHEMICAL & ENGINEERING NEWS, July 4, 2011, at 33-67 (describing European chemical shipments of $428.5 billion and European chemical imports worth $98.6 billion for 2010).
178. See REACH, supra note 10, art. 5.
179. Joanne Scott, From Brussels with Love: The Transatlantic Travels of European Law and the Chemistry of Regulatory Attraction, 57 AM. J. COMP. L. 897, 898-899 (2009) (explaining the individual responsibility required for the industry actors to provide data in order to participate in the market).
180. Doaa Abdel Motaal, Reaching REACH: The Challenge for Chemicals Entering International Trade, 12 J. INT'L ECON. L. 643, 645 (2009).
181. Scott, supra note 122.
182. See Commission White Paper: Strategy for a Future Chemicals Policy, at 7-8, 28, COM (2001) 88 final (Feb. 27, 2001) (referring to the "burden of the past"-i.e., the past effects of the 30,000 chemicals already on the market in the EU-as a motivation for regulating existing chemicals).
183. Id. at 6.
184. See TFEU art. 191(2); cf. Case C-180/96, United Kingdom v. Comm'n, 1998 E.C.R. I-2269, para. 99 ("Where there is uncertainty as to the existence or extent of risks to human health, the institutions may take protective measures without having to wait until the reality and seriousness of those risks become fully apparent.").
185. 15 U.S.C. §§ 2601-2692 (2006).
186. See Motaal, supra note 123, at 647.
187. The EPA needs to provide "substantial evidence" that the chemical presents "unreasonable risk" to health or the environment, in addition to justifying the regulatory intervention under a cost-benefit analysis. This high standard of proof has led, for instance, to the EPA's failure to regulate asbestos. See Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1207 (5th Cir. 1991); see also Scott, supra note 122, at 903-04 (describing the burden of persuasion the EPA must meet regarding health and safety before it can regulate or restrict chemicals).
188. Wirth, supra note 36, at 102.
189. Mark Schapiro, New Power for 'Old Europe,' NATION, Dec. 27, 2004, at 11, 12.
190. Scott, supra note 122, at 902 (noting the size of the U.S. chemicals industry).
191. Lawrence A. Kogan, EXPORTING PRECAUTION: HOW EUROPE'S RISK-FREE REGULATORY AGENDA THREATENS AMERICAN FREE ENTERPRISE 40-43 (2005), available at http://www.wlf.org/upload/110405MONOKogan.pdf.
192. Anne Pouillot et al., REACH: Impact on the US Cosmetics Industry?, 8 J. COSMETIC DERMATOLOGY 3, 5-6 (2009).
193. Wirth, supra note 36, at 102-103.
194. Scott, supra note 122, at 908-920 (describing how REACH's effect on U.S. businesses has prompted state-level harmonization attempts).
195. VOGEL, supra note 59, at 204.
196. Id. at 169.
197. Id. at 217.
198. Scott, supra note 122, at 939-940.
199. Henrik Selin & Stacy D. VanDeveer, Raising Global Standards: Hazardous Substances and E-Waste Management in the European Union, ENVIRONMENT, Dec. 2006, at 7, 14.
200. This is consistent with VOGEL, supra note 18, at 5-8.
201. Kerstin Heitmann & Antonia Reihlen, TECHNO-ECONOMIC SUPPORT ON REACH: CASE STUDY ON "ANNOUNCEMENT EFFECT" IN THE MARKET RELATED TO THE CANDIDATE LIST OF SUBSTANCES SUBJECT TO AUTHORISATION 5, 9 (2007), available at http://ec.europa.eu/environment/chemicals/reach/background/docs/report_announcement_effect.pdf.
202. Michael Kirschner, Why Electronics Companies Need to Worry About REACH, EE TIMES (Sept. 18, 2007, 2:40 PM), http://www.eetimes.com/electronics-news/4181306/Why-electronics-companies-need-to-worry-about-REACH (discussing the implications of REACH in the entire supply network).
203. REACH-type regulations have been adopted in countries such as Canada, Australia, China, South Korea, Japan, and Russia. See VOGEL, supra note 59, at 170.
204. Yoshiko Naiki, Assessing Policy Reach: Japan's Chemical Policy Reform in Response to the EU's REACH Regulation, 22 J. ENVTL. L. 171, 178 (2010).
205. Scott, supra note 122, at 920-928.
206. Id. at 914-20 (discussing regulatory reforms in Maine and Massachusetts and in Congress).
207. Id.
208. Id. at 910-14 (quoting CAL. HEALTH & SAFETY CODE § 25252(b)(2) (West Supp. 2012)).
209. See Directive 2002/95/EC, supra note 9, art. 1 (laying out the EU policy on the restriction of the use of certain hazardous substances in electrical and electronic equipment); see also Directive 2002/96/EC, of the European Parliament and of the Council of 27 January 2003 on Waste Electric and Electronic Equipment (WEEE), 2003 O.J. (L 37) 24.
210. See Directive 2002/95/EC, supra note 9.
211. Press Release, European Comm'n, Environment: Fewer Risks from Hazardous Substances in Electrical and Electronic Equipment (July 20, 2011), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/912&format=HTML&aged=0&language=EN&guiLanguage=en.
212. Legislation on Electrical and Electronic Equipment Enters New Phase, ENV'T FOR EUROPEANS, Mar. 2011, at 10, available at http://ec.europa.eu/environment/news/efe/pdf/efe42/ENEFE42-110328.pdf.
213. Selin & VanDeveer, supra note 138, at 14 (reaching the same conclusion).
214. See Press Release, supra note 148 (referring to the RoHS Directive having led to "important changes in product design in the European Union and worldwide"); see also Otto Pohl, European Environmental Rules Propel Change in U.S., N.Y. TIMES, July 6, 2004, at F4 (discussing the global nature of the electronics business and noting that "a multinational that redesigns its product to eliminate a substance banned in the E.U. often finds it cheaper to sell that product worldwide").
215. About the RoHS Directive, FUJITSU, http://www.fujitsu.com/emea/services/components/thermal-printers/rohs.html (last visited Nov. 6, 2012) (stating Fujitsu's compliance with RoHS).
216. Oracle Global Position on Restriction of Hazardous Substances (RoHS), ORACLE (Oct. 2012), http://www.oracle.com/us/products/applications/green/rohs-position-185078.pdf (stating Oracle's global compliance with RoHS).
217. Selin & VanDeveer, supra note 138, at 14-15.
218. See CAL. PUB. RES. CODE §§ 42460-42486 (West 2007 & Supp. 2012). The EU's RoHS Directive is referenced in § 42465.2(b).
219. See id. §§ 42463, 42465.2(b); CAL. HEALTH & SAFETY CODE § 25214.10(b) (West 2006).
220. Scott, supra note 122, at 942.
221. See Directive 2008/101/EC, of the European Parliament and of the Council of 19 November 2008 Amending Directive 2003/87/EC So as to Include Aviation Activities in the Scheme for Greenhouse Gas Emission Allowance Trading Within the Community, 2009 O.J. (L 8) 3 [hereinafter Directive 2008/101/EC].
222. Nancy N. Young, Vice President of Envtl. Affairs, Air Transp. Ass'n of Am., Inc., Statement Before the Subcommittee on Aviation of the House Transportation and Infrastructure Committee: The European Union's Emissions Trading Scheme: A Violation of International Law 4 (July 27, 2011), available at http://republicans.transportation.house.gov/Media/file/TestimonyAviation/2011-07-27-Young.pdf.
223. Id. at 4-5.
224. Id.
225. See Case C-366/10, Air Transp. Ass'n of Am. v. Sec'y of State for Energy & Climate Change, EUR-Lex 62010CJ0366 (Dec. 21, 2011).
226. See ATA Challenges Application of the EU ETS to U.S. Airlines, AIRLINES FOR AM., http://www.airlines.org/Pages/ATA-challenges-the-application-of-the-EU-ETS-to-U.S.-Airlines.aspx (last visited Nov. 6, 2012). According to the plaintiffs, the ETS Directive violates a number of international agreements, including the Convention on International Civil Aviation (Chicago Convention), the Kyoto Protocol to the United Nations Framework Convention on Climate Change, and the Air Transport Agreement between the United States and the EU and its member states (Open Skies Agreement).
227. Press Release No. 139/11, Court of Justice of the European Union, The Directive Including Aviation Activities in the EU's Emissions Trading Scheme is Valid 2 (Dec. 21, 2011), available at http://curia.europa.eu/jcms/upload/docs/application/pdf/2011-12/cp110139en.pdf (discussing Case C-366/10, Air Transp. Ass'n of Am.).
228. See Case C-366/10, Air Transp. Ass'n of Am., paras. 122-127.
229. See Directive 2008/101/EC, supra note 154, para. 17.
230. Joanne Scott & Lavanya Rajamani, EU Climate Change Unilateralism, 23 EUR. J. INT'L L. 469, 482-483 (2012) (discussing the equivalency concept in more detail).
231. Scott & Rajamani, supra note 162, at 475.
232. Saqib Rahim, U.S.-E.U. Showdown over Airline Emissions Begins Today, N.Y. TIMES (July 5, 2011), http://www.nytimes.com/cwire/2011/07/05/05climatewire-us-eu-showdown-over-airlineemissions-begins-88684.html.
233. See Statement of Policy: Foods Derived from New Plant Varieties, 57 Fed. Reg. 22,984, 22,988, 22,991 (May 29, 1992).
234. Regulation (EC) No. 1829/2003 of the European Parliament and of the Council of 22 September 2003 on Genetically Modified Food and Feed, 2003 O.J. (L 268) 1, 2.
235. Joanne Scott, European Regulation of GMOs and the WTO, 9 COLUM. J. EUR. L. 213, 219-224 (2003).
236. Regulation (EC) No. 1830/2003 of the European Parliament and of the Council of 22 September 2003 Concerning the Traceability and Labelling of Genetically Modified Organisms, 2003 O.J. (L 268) 24, 26-27.
237. Aseem Prakash & Kelly L. Kollman, Biopolitics in the EU and the U.S.: A Race to the Bottom or Convergence to the Top?, 47 INT'L STUD. Q. 617, 629-34 (2003) (discussing how U.S. and EU regulatory approaches may be converging as state-level legislative activity and court challenges against GMOs grow).
238. Id. at 627.
239. Id.
240. EUROPEAN COMM'N, EUROBAROMETER 55.2: EUROPEANS, SCIENCE, AND TECHNOLOGY 40 (2001), available at http://ec.europa.eu/research/press/2001/pr0612en-report.pdf (presenting data on Europeans' perceptions of GMOs specifically, with 71% of respondents agreeing with the statement, "I do not want this type of food").
241. EUROPEAN COMM'N, SPECIAL EUROBAROMETER 238: RISK ISSUES 53 (2006), available at http://ec.europa.eu/public_opinion/archives/ebs/ebs_238_en.pdf (presenting data on Europeans' perception of various food-related risks, with 62% concerned about GMOs).
242. Prakash & Kollman, supra note 169, at 627 (citing an Environics poll, which reported that while 78% of Americans support agriculture biotechnology, the comparable figure in Germany was 54%, 52% in France, 36% in Britain, and 29% in Spain).
243. Abraham L. Newman, PROTECTORS OF PRIVACY: REGULATING PERSONAL DATA IN THE GLOBAL ECONOMY 147 (2008).
244. In which Newman argues that regulatory capacity is the key variable explaining global regulatory outcomes. He argues that the EU initially had fragmented institutional capacity with respect to food safety, explaining its limited ability to export its preferences globally. However, he reasons that the establishment of the European Food Safety Agency "could substantially strengthen the European position." Id.
245. U.S. DEP'T OF AGRIC., AGRICULTURAL STATISTICS 2010, at XV-3 tbl.15-3 (2010).
246. However, trade diversion may entail the producers being able to sell their crop at a lower price in alternative export markets.
247. See Prakash & Kollman, supra note 169, at 632; see also VOGEL, supra note 59, at 89 (noting that "[a]s of 2002, seventeen countries had adopted mandatory GM food labeling requirements").
248. Charles E. Hanrahan, CONG. RESEARCH SERV., RS21556, AGRICULTURAL BIOTECHNOLOGY: THE U.S.-EU DISPUTE 5 (2010).
249. see also Case C-442/09, Bablok v. Freistaat Bayern, EUR-Lex 62009CJ0442, at 8 (Sept. 6, 2011) (confirming that honey containing traces of GMOs due to accidental contamination from GMO test fields that were 500 meters away nonetheless is considered food produced from a GMO under European food law).
250. HANRAHAN, supra note 178.
251. Young, supra note 44, at 467-68.
252. Id. at 469; see also VOGEL, supra note 59, at 86 (noting that over 95% of the GMO corn production in the United States today concentrates on the varieties approved in the EU, notwithstanding a greater number of GMO varieties approved in the United States, and similarly, that almost all GMO soybean production in the United States employs the single variety approved by the EU).
253. For instance, firms like Unilever and Nestle have pledged not to use GMOs in any of their products, irrespective of the end market. Gerber and Heinz similarly exclude GMOs from all of their baby food, including baby food sold on the U.S. market. See VOGEL, supra note 59, at 86.
254. Mitchener, supra note 3.
255. See id.; see also Wirth, supra note 36, at 104 (referring to the "virtual collapse of the market for U.S. exports of corn" following the EU's labeling requirements, and noting that U.S. rice and wheat farmers have steered away from GMO varieties for the same reason). Similarly, multinational restaurant retailers operating in the EU, including McDonalds, have requested their contract farmers to produce only non-GMO crops to mitigate consumer backlash in the EU. See Prakash & Kollman, supra note 169, at 632.
256. Panel Report, European Communities-Measures Affecting the Approval and Marketing of Biotech Products, paras. 8.1-.33, WT/DS291/R, WT/DS292/R, WT/DS293/R (Sept. 29, 2006).
257. See HANRAHAN, supra note 178, at 6; see also Minutes of Meeting, WT/DSB/M/311, at 6-7 (Mar. 15, 2012) (discussing the continuing concerns of the United States regarding the EU's backlog of approvals of biotech product applications).
258. European Communities-Measures Affecting the Approval and Marketing of Biotech Products: Current Status, WORLD TRADE ORG., http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds291_e.htm (last updated Feb. 24, 2010) (discussing the United States' request to "retaliate" against the EU for failing to comply with the judgment).
259. Ian Manners, Normative Power Europe: A Contradiction in Terms?, 40 J. COMMON MARKET STUD. 235, 235 (2002) (arguing that the EU is a "normative power" in world politics).
260. These concepts are further elaborated below. See also infra notes 188, 190-93, 196-200 and accompanying text.
261. Jed Rubenfeld, Commentary, Unilateralism and Constitutionalism, 79 N.Y.U. L. REV. 1971, 1975-1976, 2005-2006 (2004).
262. Anu Bradford & Eric A. Posner, Universal Exceptionalism in International Law, 52 HARV. INT'L L.J. 1, 53 (2011) (arguing that most major international powers are exceptionalist in that they "seek to embody their values and interests in international law").
263. Jan Zielonka, EUROPE AS EMPIRE: THE NATURE OF THE ENLARGED EUROPEAN UNION 9-22 (2006).
264. Jan Zielonka, Europe as a Global Actor: Empire by Example?, 84 INT'L AFF. 471, 471, 475 n.17 (2008) [hereinafter Zielonka, Empire by Example].
265. see also KOGAN, supra note 132, at 98 (arguing that Europe's goal is to establish the precautionary principle not only as a regional standard but also "as an absolute global legal standard").
266. See Laïdi, supra note 56, at 9-10; see also Zielonka, Empire by Example, supra note 190, at 476 (discussing how negotiations with candidate countries are highly asymmetrical and the countries are presented with two options: adopting the entire body of EU laws and regulations as a condition for membership, or not joining the club).
267. See, e.g., Editorial, supra note 3 (referring to the EU as "try[ing] to force the rest of the world...to play by its cumbersome rules" as well as "impos[ing] its regulatory vision on other jurisdictions by setting the toughest standards"); see also Editorial, supra note 86 (discussing EU antitrust enforcement and calling for "Washington to wake up to Europe's regulatory imperialism").
268. Lawrence A. Kogan, Exporting Europe's Protectionism, NAT'L INT., Fall 2004, at 91, 99.
269. The quoted passage relates to Kogan's discussion of the EU's GMO ban and the impact of that ban on developing countries in particular. See also Peter F. Drucker, Trading Places, NAT'L INT., Spring 2005, at 101 (arguing that one of the purposes of economic blocs-like the EU-is to export their regulations for protectionist purposes).
270. According to polls, 70% of Europeans want Europe to assume this role.
271. Benita Ferrero-Waldner, European Comm'r for External Relations & European Neighbourhood Pol'y, Speech at George Bush Presidential Library Foundation and Texas A&M University EU Center of Excellence: The European Union: A Global Power? (Sept. 25, 2006), available at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/06/530&format=PDF&aged=1&language=EN&guiLanguage=en.
272. EUROPEAN COMM'N, TAKING EUROPE TO THE WORLD 59 (2004) (emphasizing as a significant achievement Europe's new and growing world influence).
273. Alasdair R. Young & John Peterson, The EU and the New Trade Politics, in THE EUROPEAN UNION AND THE NEW TRADE POLITICS 1, 2 (John Peterson & Alasdair R. Young eds., 2007) ("[B]ecause its economy is important to other actors, the EU seeks to wield influence by making access to its large and valuable market conditional on domestic policy changes elsewhere....").
274. Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: A Single Market for Citizens, at 7, COM (2007) 60 final (Feb. 21, 2007).
275. Reducing Emissions from the Aviation Sector, EUR. COMM'N, http://ec.europa.eu/clima/policies/transport/aviation/index_en.htm (last updated Nov. 13, 2012) (noting that the EU Emissions Trading System is "a step towards global action to mitigate the climate impacts of aviation").
276. See TFEU art. 3(5) ("In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter."); see also Ian Manners, The Normative Ethics of the European Union, 84 INT'L AFF. 45, 46 (2008) (arguing that the EU is indeed a normative power because it "promotes a series of normative principles that are generally acknowledged...to be universally applicable").
277. Jose Manuel Barroso, Europe's Rising Global Role, PROJECT SYNDICATE (Dec. 18, 2009), http://www.project-syndicate.org/commentary/europe-s-rising-global-role ("[I]t is often said that the EU's comparative advantage lies in its normative power or the power of its values. I think this is right. In the post-crisis world, when people are looking for new ways to ensure their well-being, peace, prosperity, the European experience has a great deal to offer the world.").
278. Joseph Stiglitz, The EU's Global Role, GUARDIAN (Mar. 29, 2007, 11:00 AM), http://www.guardian.co.uk/commentisfree/2007/mar/29/theeusglobalmission ("Europe...must become one of the central pillars of [the] world by projecting what has come to be called 'soft power'-the power and influence of ideas and example. Indeed, Europe's success is due in part to its promotion of a set of values that, while quintessentially European, are at the same time global.").
279. Press Release, European Comm'n, The Copenhagen Climate Change Negotiations: EU Position and State of Play 1 (Nov. 9, 2009), available at http://europa.eu/rapid/press-release_MEMO-09-493_en.htm?locale=en.
280. See id.
281. See Clean-Air Turbulence, ECONOMIST, July 9-15, 2011, at 16; Editorial, supra note 3.
282. Meunier & Nicolaïdis, supra note 49, at 921-922.
283. Pascal Lemy, EU Trade Comm'r, Speech Before the Conference on "Collective Preferences and Global Governance: What Future for the Multilateral Trading System": The Emergence of Collective Preferences in International Trade: Implications for Regulating Globalisation (Sept. 15, 2004), available at http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/04/400&format=HTML&aged=0&language=EN&guiLanguage=en).
284. Jürgen Habermas, Why Europe Needs a Constitution, in THE SHAPE OF THE NEW EUROPE 25 (Ralf Rogowski & Charles Turner eds., 2006) (arguing that social regulation is part of the European tradition). This is often referred to as an "embedded liberalism" compromise.
285. John Gerard Ruggie, International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order, 36 INT'L ORG. 379, 392-399 (1982).
286. Laïdi, supra note 56, at 4.
287. Zielonka, Empire by Example, supra note 190, at 475.
288. Mark Leonard, WHY EUROPE WILL RUN THE 21ST CENTURY (2005).
289. Manners, supra note 187, at 235-258.
290. Karen E. Smith, Still 'Civilian Power EU?' 13-14 (European Foreign Policy Unit, Working Paper No. 2005/1, 2005) (discussing whether EU projections of soft power constitute global "good international citizenship").
291. Kalypso Nicolaïdis & Robert Howse, 'This is my EUtopia...': Narrative as Power, 40 J. COMMON MARKET STUD. 767, 789 (2002).
292. Thomas Diez, Europe's Others and the Return of Geopolitics, 17 CAMBRIDGE REV. INT'L AFF. 319, 325, 330-335 (2004) (arguing that European integration-and norm exportation-is an essential part of the process of constructing a new European identity in opposition both to foreign nations like the United States and its own past).
293. See Laïdi supra note 56, at 5 ("For Europe knows that it is only by norms and not by force that it can make its voice heard.").
294. KOGAN, supra note 132, at 3-4, 101-02.
295. Václav Klaus, RENAISSANCE: THE REBIRTH OF LIBERTY IN THE HEART OF EUROPE 16 (1997).
296. See Communication from the Commission to the European Parliament, the Council and the European Economic and Social Committee: A Strategic Vision for European Standards: Moving Forward to Enhance and Accelerate the Sustainable Growth of the European Economy by 2020, at 2-3, COM (2011) 311 final (June 1, 2011) ("It is especially vital that in areas where Europe is the driving innovation force in developing new types of tradable goods, services and technologies...that the creation of the European standard be carried out rapidly with the aim of asserting it as an international standard. This would maximise first mover advantage and increase the competitiveness of European industry.").
297. Emma Tucker, Plastic Toy Quandary that EU Cannot Duck, FIN. TIMES, Dec. 9, 1998, at 3 (discussing the Commission's attempt to reconcile its two central functions-demands for consumer protection and competitiveness of European industry).
298. See, e.g., Rahim, supra note 164 (quoting the Commission's spokesman, Isaac Valero-Ladron, defending the EU's inclusion of foreign airlines in the EU's ETS scheme: "We can't impose a burden only to European airlines and not include others....It would be distortion of competition.").
299. Selin & VanDeever, supra note 138, at 10-11 (discussing this phenomenon inside the EU in connection with environmental regulation).
300. NEWMAN, supra note 174, at 11.
301. Elizabeth R. Desombre, DOMESTIC SOURCES OF INTERNATIONAL ENVIRONMENTAL POLICY 39-47 (2000) (discussing how in the context of environmental regulation in the United States, aligned interests of industry and environmental interest groups were responsible for internationalization of various regulations).
302. See Regulation (EC) 1221/2009 of the European Parliament and of the Council of 25 November 2009 on the Voluntary Participation by Organisations in a Community Eco-Management and Audit Scheme (EMAS), art. 1, 2009 O.J. (L 342) 1.
303. Walter Mattli & Ngaire Woods, In Whose Benefit? Explaining Regulatory Change in Global Politics, in THE POLITICS OF GLOBAL REGULATION 1, 35 (Walter Mattli & Ngaire Woods eds., 2009).
304. See Mattli & Woods, supra note 214.
305. See VOGEL, supra note 18, at 67.
306. See, e.g., Shaffer, supra note 96, at 10-13 (discussing the link between the EU Data Protection Directive and EU trade liberalization).
307. See VOGEL, supra note 59, at 237.
308. Sieglinde Gstöhl, Political Dimensions of an Externalization of the EU's Internal Market 4-5 (Dep't of EU Int'l Relations & Diplomacy Studies, EU Diplomacy Papers No. 3/2007, 2007), available at http://aei.pitt.edu/9593/1/EDP_3-2007_Gst%C3%B6hl.pdf.
309. TFEU arts. 23-25.
310. id.
311. See id. art. 3(3) (discussing the objectives of the EU: "The Union shall establish an internal market."); see also Single European Act, supra note 52 (delegating substantial powers to the Commission to ensure its ability to complete the single market).
312. Budget: Investing in our Future, EUR. COMM'N, http://europa.eu/pol/financ/index_en.htm (last updated May 16, 2012); Myths and Facts: EU Budget Myths, EUR. COMM'N, http://ec.europa.eu/budget/explained/myths/myths_en.cfm#1of15 (last updated Apr. 18, 2012). This can be contrasted to the U.S. federal government spending, which regularly exceeds 20% of the GDP. See OFFICE OF MGMT. & BUDGET, FISCAL YEAR 2013 HISTORICAL TABLES: BUDGET OF THE U.S. GOVERNMENT 9 (2010).
313. Majone, supra note 50, at 85, 98.
314. Tim Büthe & Walter Mattli, International Standards and Standard-Setting Bodies, in THE OXFORD HANDBOOK OF BUSINESS AND GOVERNMENT 440, 448-463 (David Coen et al. eds., 2010).
315. The EU has no direct role in, for instance, the International Organization for Standardization (ISO), but European firms have been more successful than U.S. firms in influencing ISO standards due to better institutional complementarities between standardization systems at the national level in the EU and at the international level.
316. Tim Büthe & Walter Mattli, THE NEW GLOBAL RULERS: THE PRIVATIZATION OF REGULATION IN THE WORLD ECONOMY 162 (2011) [hereinafter BÜTHE & MATTLI, THE NEW GLOBAL RULERS].
317. For example, Microsoft established the Windows operating system as a global de facto standard. Another example is the Blu-ray optical disc format developed by a consortia consisting of Sony, Philips, and Panasonic. The Blu-ray format overtook the HD-DVD format and became a global standard after a number of market participants-including computer manufacturers, retailers, and movie studios- switched to the Blu-ray standard.
318. Büthe & Mattli, THE NEW GLOBAL RULERS, supra note 225, at 27-28.
319. Communication from the Commission to the Council and the European Parliament: Wider Europe-Neighbourhood: A New Framework for Relations with Our Eastern and Southern Neighbours, at 5, COM (2003) 104 final (Mar. 11, 2003)
320. The incentive for reform created by the prospect of membership [is] strong-enlargement has unarguably been the Union's most successful foreign policy instrument.
321. On theories that highlight the central role of experimentalism, benchmarking, and legislative borrowing in shaping the global regulatory environment.
322. Charles F. Sabel & Jonathan Zeitlin, Learning from Difference: The New Architecture of Experimentalist Governance in the EU, 14 EUR. L.J. 271 (2008).
323. For an example of how adoption of a high regulation in the EU can help build political pressure for regulatory reform in the United States
324. Katerina Linos, Diffusion Through Democracy, 55 AM. J. POL. SCI. 678, 685-686 (2011)
325. Discussing how a key argument for the passage of maternity leave in the United States was that Europe and Japan already offered this benefit.
326. Literature and commentary on the failure of these negotiations are legion.
327. Damian Carrington et al., Global Deal on Climate Change in 2010 'All But Impossible,' GUARDIAN (Jan. 31, 2012), http://www.guardian.co.uk/environment/2010/feb/01/climate-change-deal-impossible-2010
328. Megan Dee, Tackling the EU's Emerging Irrelevance in the Doha Round, IDEAS ON EUR. (Apr. 12, 2012), http://ecfr.ideasoneurope.eu/2012/04/12/tackling-the-eus-emerging-irrelevance-in-the-doharound/.
329. Macey, supra note 29, at 1367-69.
330. Anu Bradford, International Antitrust Negotiations and the False Hope of the WTO, 48 HARV. INT'L L.J. 383, 413-422 (2007).
331. Christopher J. Carr & Harry N. Scheiber, Dealing With a Resource Crisis: Regulatory Regimes for Managing the World's Marine Fisheries, 21 STAN. ENVTL. L.J. 45, 53, 62, 76-79 (2002).
332. Vogel & Kagan, supra note 15, at 23.
333. A Large Black Cloud: Rapid Growth Is Exacting a Heavy Environmental Price, ECONOMIST, Mar. 15, 2008, at 13, 17.
334. Bradford, supra note 231, at 408.
335. The EU is not the lone aggressive regulator of cartels. The United States takes an equally tough stand vis-à-vis collusive practices of firms, more than the EU does. Indeed, the United States has more invasive investigatory tools and remedies at its disposal than the EU does, due to more extensive discovery rules in the United States and U.S. authorities' ability to pursue criminal penalties. Third countries' agencies can often free ride on U.S. and EU authorities' investigations. Yet both agencies can see their laws' deterrent effect diluted if cartels can freely operate in third markets.
336. F. Hoffmann-La Roche Ltd. v. Empagran S. A., 542 U.S. 155, 169 (2004).
337. Vogel & Kagan, supra note 15, at 13.
338. However, these standards are not more likely to spread unless the main economic activity is taking place on export markets.
339. Macey, supra note 29, at 1369.
340. The European Commission has stated that "[t]he EU aims at global standard setting by promoting the adoption overseas of standards and regulatory approaches based on, or compatible with, international and European practices." Gstöhl, supra note 219, at 19 (emphasis and internal quotation marks omitted) (quoting Commission Staff Working Paper: Implementing Policy for External Trade in the Fields of Standards and Conformity Assessment: A Tool Box of Instruments, at 8, SEC (2001) 1570 final (Sept. 28, 2001)); see Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: A Single Market for Citizens, COM (2007) 60 final (Feb. 21, 2007).
341. Sabrina Safrin, The Un-Exceptionalism of U.S. Exceptionalism, 41 VAND. J. TRANSNAT'L L. 1307, 1324-1327 (2008).
342. In a similar vein, Wirth argues that de facto convergence of regulations and business practices increases the likelihood of regulatory consensus and thus paves the way for international harmonization. Wirth, supra note 36, at 106; see also Bradford, supra note 231, at 439 (arguing that increased convergence may pave the way for an international antitrust agreement, but also noting the declining net benefits of such an agreement after de facto harmonization has taken place).
343. Dominic Wilson & Roopa Purushothaman, Dreaming with BRICs: The Path to 2050 (Goldman Sachs, Global Econ., Paper No. 99, 2003), available at http://www.goldmansachs.com/ourthinking/brics/brics-reports-pdfs/brics-dream.pdf (predicting rapid growth in emerging economies in the coming decades).
344. For example, Chinese officials rejected Coca-Cola's attempted acquisition of Huiyuan Juice Group for $2.4 billion.
345. Xinzhu Zhang & Vanessa Yanhua Zhang, Chinese Merger Control: Patterns and Implications, 6 J. COMPETITION L. & ECON. 477, 480-481 (2009).
346. Vogel & Kagan, supra note 15, at 9.
347. Id. at 6.
348. Of course, it is plausible that some corporations benefit from their adherence to strict EU standards. Compliance with EU rules may be a way to signal high product quality or commitment to high standards of consumer protection.
349. H.R. COMM. ON GOVERNMENT REFORM, MINORITY STAFF SPECIAL INVESTIGATIONS DIV., A SPECIAL INTEREST CASE STUDY: THE CHEMICAL INDUSTRY, THE BUSH ADMINISTRATION, AND EUROPEAN EFFORTS TO REGULATE CHEMICALS (2004), available at http://oversight-archive.waxman.house.gov/documents/20040817125807-75305.pdf.
350. Matt Murray et al., Oceans Apart: As Honeywell Deal Goes Awry for GE, Fallout May Be Global, WALL ST. J., June 15, 2001, at A1 (discussing how the result of the GE/Honeywell agreement might chill merger activity among other US multinationals interested in expanding globally).
351. See the E.C.J. case discussed by Murray et al., supra note 248
352. Joshua Chaffin & Andrew Parker, Blow to US Airlines in the Emissions Fight, FT.COM (Oct. 6, 2011, 1:21 PM), http://www.ft.com/cms/s/0/36556726-f005-11e0-bc9d-00144feab49a.html#axzz2BZQvmThR.
353. The articlementions that twenty-one countries have opposed the inclusion of non-EU airlines into the EU's ETS scheme, how there have been several threats of retaliation, and how China has threatened to cancel a contract for ten planes made by European manufacturer Airbus. India has similarly threatened with retaliation.
354. For instance, the Bush Administration preempted California's regulations on GHG emissions. See 42 U.S.C. § 7543(a) (2006). The EPA also denied California's first application for a preemption waiver.
355. Stephen L. Johnson, Adm'r, EPA, to Arnold Schwarzenegger, Governor of Cal. (Dec. 19, 2007), available at http://ag.ca.gov/cms_attachments/press/pdfs/n1514_epa-letter.pdf.
356. Young, supra note 44, at 458-59.
357. Daniel Michaels, Chinese Envoy Urges Airlines to Shun Buying Airbus Planes, WALL ST. J. EUR., Mar. 12, 2012, at 21. However, the EU insists it will not back down.
358. Joshua Chaffin, EU Defies Carbon Trade War Threats, FT.COM (Mar. 20, 2012, 8:00 PM), http://www.ft.com/intl/cms/s/0/10aebc46-72b6-11e1-ae73-00144feab49a.html#axzz263rsQIP5
359. Brian Coleman, U.S. May Retaliate if EU Rejects Boeing Merger, WALL ST. J., July 18, 1997, at A2 (reporting that President Clinton threatened the EU with unilateral trade sanctions or a WTO challenge if the EU were to block the deal).
360. Majoras, supra note 78, at 14.
361. At times, the United States may therefore concede and adopt the EU standard, in particular if it faces domestic demand to do so following any lobbying activity by its own export-oriented companies that are already subject to EU rules and that therefore seek to level the playing field domestically.
362. Drezner, supra note 23, at 845.
363. id.
364. Majoras, supra note 78.
365. Macey, supra note 29, at 1359; Majoras, supra note 78, at 15 (after criticizing the GE/Honeywell decision, proposing to pursue greater international cooperation to avoid inconsistent decisions in the future); see also Rahim, supra note 164 (discussing how the Air Transport Association of America (ATA) is urging global climate action in the wake of the EU's decision to include foreign airlines into its ETS). The ATA endorses a nonbinding international emissions agreement within the UN's International Civil Aviation Organization.
366. Helen V. Milner, RESISTING PROTECTIONISM: GLOBAL INDUSTRIES AND THE POLITICS OF INTERNATIONAL TRADE (1988) (discussing the divergent interests of exporting and nonexporting firms).
367. For California, REACH can be described as having been "both a catalyst and a resource for regulatory reform." Scott, supra note 122, at 898; see also Pohl, supra note 150 (arriving at the same conclusion).
368. See Young, supra note 44, at 474. For instance, while the EU rules on GMO-derived food have not led to a regulatory change in the United States, the dispute surrounding the issue has heightened domestic debates on potential downsides of biotechnology. Civic interest groups have seized on the issue and used it to promote regulatory change domestically. Similarly, some American consumers are content that web operators cannot place cookies-software files that track consumers' Internet searches to gather marketing information-on personal computers. See Pohl, supra note 150; Scott, supra note 122, at 920-28 (discussing how U.S.-based NGOs, including the Environmental Defense Fund, have used REACH to advocate for domestic reform); Editorial, supra note 3.
369. This is particularly valuable if a chemical company can show that it produces a safer alternative compared to its competitor's "substance of very high concern," as this would lead to automatic denial of the competitor's substance. See Scott, supra note 122, at 930.
370. See Commission Decision of 24 May 2004, Case COMP/C-3/37.792-Microsoft, 2007 O.J. (L 32) 23. The case was initiated by a U.S.-based corporation, Novell, and later joined by Sun Microsystems, another U.S.-based corporation. Commission Decision of 24 March 2004, Case COMP/C-3/37.792-Microsoft, paras. 3-4, C (2004) 900 final (Apr. 21, 2004).
371. Steve Lohr, Antitrust Cry from Microsoft, N.Y. TIMES, Mar. 31, 2011, at B1
372. Brad Smith, Adding Our Voice to Concerns About Search in Europe, MICROSOFT ON THE ISSUES (Mar. 30, 2011, 9:00 PM), http://blogs.technet.com/b/microsoft_on_the_issues/archive/2011/03/30/adding-our-voice-toconcerns-about-search-in-europe.aspx.
373. General Agreement on Tariffs and Trade art. XX, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT].
374. Id.
375. See Appellate Body Report, European Communities-Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998) (adopted Feb. 13, 1998) [hereinafter Appellate Body Report]; Panel Report, supra note 185, at 1070-72.
376. Appellate Body Report, supra note 268, at 28.
377. id. at 20-23.
378. Id. at 7.
379. See Press Release, Office of the U.S. Trade Representative, U.S. Files WTO Case Challenging EU Restrictions on U.S. Poultry Exports (Jan. 2009), available at http://www.ustr.gov/about-us/pressoffice/press-releases/2009/january/us-files-wto-case-challenging-eu-restrictions-us-p.
380. John H. Jackson et al., LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS 367 (5th ed. 2008).
381. Id.
382. Renée Johnson & Charles E. Hanrahan, CONG. RESEARCH SERV., R40449, THE U.S.- EU BEEF HORMONE DISPUTE (2010).
383. The EU has further continued to gather scientific evidence to justify its import ban and challenge U.S. retaliation. After another round of WTO litigation and a mixed and inconclusive Appellate Body ruling, both the EU's import ban and the United States' retaliation remain in force. See Press Release, Office of the U.S. Trade Representative, WTO's Appellate Body Vindicates Continued U.S. Imposition of Sanctions After the EU Claimed Compliance in the EU- Hormones Dispute (Oct. 16, 2008), available at http://www.ustr.gov/archive/assets/Document_Library/Press_Releases/2008/October/asset_upload_file626_15173.pdf.
384. See Appellate Body Report, European Communities-Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R (Jan. 16, 1998) (adopted Feb. 13, 1998) [hereinafter Appellate Body Report]; Panel Report, supra note 185, at 1070-72.
385. Appellate Body Report, supra note 268, at 28.
386. See id. at 20-23.
387. Id. at 7.
388. See Press Release, Office of the U.S. Trade Representative, U.S. Files WTO Case Challenging EU Restrictions on U.S. Poultry Exports (Jan. 2009), available at http://www.ustr.gov/about-us/pressoffice/press-releases/2009/january/us-files-wto-case-challenging-eu-restrictions-us-p.
389. John H. Jackson et al., LEGAL PROBLEMS OF INTERNATIONAL ECONOMIC RELATIONS 367 (5th ed. 2008).
390. Id.
391. Renée Johnson & Charles E. Hanrahan, CONG. RESEARCH SERV., R40449, THE U.S.- EU BEEF HORMONE DISPUTE (2010).
392. The EU has further continued to gather scientific evidence to justify its import ban and challenge U.S. retaliation. After another round of WTO litigation and a mixed and inconclusive Appellate Body ruling, both the EU's import ban and the United States' retaliation remain in force. See Press Release, Office of the U.S. Trade Representative, WTO's Appellate Body Vindicates Continued U.S. Imposition of Sanctions After the EU Claimed Compliance in the EU- Hormones Dispute (Oct. 16, 2008), available at http://www.ustr.gov/archive/assets/Document_Library/Press_Releases/2008/October/asset_upload_file626_15173.pdf.
393. Carr & Scheiber, supra note 232, at 76-79.
394. Kate O'Neill, The Changing Nature of Global Hazardous Waste Management: From Brown to Green?, in DYNAMICS OF REGULATORY CHANGE, supra note 15, at 156, 156-158.
395. However, the EU's denial of market access may still affect the global market price as the total demand is curtailed and the fish is sold in an alternative market, possibly at a lower price.
396. Council Directive 2000/53/EC on End-of Life Vehicles, 2000 O.J. (L 53) 1.
397. Schapiro, supra note 131, at 14.
398. O'Neill, supra note 282, at 156-58.
399. Zielonka, Empire by Example, supra note 190, at 478.
400. The WTO recognizes very limited rights for any country to limit imports based on human rights violations in the exporting country. See GATT, supra note 266, art. XX(a), (e) (listing violation of "public morals" or the use of "the products of prison labour" as grounds for derogating from free trade). In contrast, protection of health and environment are explicitly listed as grounds for departing from WTO obligations. The EU has, however, included human rights provisions in its bilateral trade agreements and regularly conditions any country's Generalized System of Preferences (GSP) status on the country's agreement to ratify international conventions on human rights and subscribe to labor standards endorsed by the EU.
401. Emilie M. Hafner-Burton, Trading Human Rights: How Preferential Trade Agreements Influence Government Repression, 59 INT'L ORG. 593 (2005)
402. Analyzing the relationship between human rights standards in preferred trade agreements and member states' human rights records.
403. Bach & Newman, supra note 112, at 33-36 (describing the gambling legalization experience at the state level in the United States).
404. Stephen Castle, Europeans Introduce Corporate Tax Plan, N.Y. TIMES, Mar. 17, 2011, at B5.
405. EU Corporate Tax Plan Deals Blow to Irish, EURACTIV.COM (Mar. 16, 2011), http://www.euractiv.com/euro-finance/eu-corporate-tax-plan-deals-blow-irish-news-503158 (discussing the "Common Consolidated Corporate Tax Base" that was recently put forth by the Commission).
406. Tax Wars: New Versus Old Europe, ECONOMIST, July 24, 2004, at 61.
407. Tax Wars, supra note 289 ("As they fight to keep corporate-tax rates low, the central Europeans can count on strong support from Britain....").
408. VOGEL, supra note 59, at 103, 119-120.
409. The relatively less stringent EU standard is explained by the EU's prioritization of fuel efficiency over pollution control in its regulation of automobiles. This has led to a greater use of diesel engines within the EU, which, while improving fuel efficiency, produces more pollutants.
410. Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204, 116 Stat. 745 (codified at 15 U.S.C. §§ 7201-7266 (2006)). However, while Sarbanes-Oxley is considered to be the highest standard, the United States' regulatory leverage over the EU was somewhat diluted by the EU's objection to subjecting its firms' auditing to the oversight by the Public Company Accounting Oversight Board created by Sarbanes-Oxley. After negotiations, the United States conceded that EU regulators could retain authority over auditing questions. The United States also agreed that the EU can use international-as opposed to U.S.-accounting standards in the United States.
411. NEWMAN, supra note 174, at 146.
412. Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, 124 Stat. 1376
413. Codified as amended in scattered sections of 12, 15, 22, and 26 U.S.C.). Given the current state of flux of European financial regulation, it is not clear how the United States and the EU will compare in terms of the relative stringency of their banking and other financial regulations.
414. Bob Sherwood, Long Arm of the US Regulator, FT.COM (Mar. 9, 2005, 6:37 PM), http://www.ft.com/intl/cms/s/1/be157b6a-90c6-11d9-9980-0000e2511c8.html#axzz2CJweoF8T.
415. John C. Coffee Jr., Racing Towards the Top?: The Impact of Cross-Listings and Stock Market Competition on International Corporate Governance, 102 COLUM. L. REV. 1757 (2002)
416. Discussing the impact of stock exchange "cross-listing" on global regulatory competition in the securities arena). A related question is whether the availability of securities class actions in the United States deters foreign companies from listing on a U.S. exchange. See COMM. ON CAPITAL MKTS. REGULATION, INTERIM REPORT 11 (2006) ("Foreign companies commonly cite the U.S. class action enforcement system as the most important reason why they do not want to list in the U.S. market.").
417. Joshua Chaffin et al., Business Lashes Out at Trading Tax Plans, FIN. TIMES (London), Sept. 29, 2011, at 1.
418. The tax would apply as long as "one party to the transaction were established in a Member State of the EU and that a financial institution established in the territory of the Member State concerned was party to the transaction."
419. Press Release, European Comm'n, Common Rules for a Financial Transaction Tax-Frequently Asked Questions (Sept. 28, 2011), available at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/11/640.
420. See European Comm'n, supra note 295. The financial transaction tax is an example where the other conditions for the Brussels Effect are also missing: the EU currently lacks the regulatory competence (or capacity) to impose this tax; the required regulatory propensity is also missing, as the U.K. opposes the proposal. There are also alternative markets for trading activity, reducing the EU's leverage. Finally, the tax is also divisible in the sense that all jurisdictions do not have to apply the same tax, but instead retain their autonomy to regulate trade in their jurisdictions.
421. Case C-34/10, Brüstle v. Greenpeace eV., EUR-Lex 62010CJ0034 (Oct. 18, 2011).
422. Scientists Fear Stem Cell Ruling Deals Blow to EU Research, EURACTIV.COM (Oct. 19, 2011), http://www.euractiv.com/health/scientists-fear-stem-cell-ruling-deals-blow-eu-research-news-508404.
423. See supra Part I.E.
424. Emil Protalinski, Windows 7 to Be Shipped in Europe Without Internet Explorer, ARSTECHNICA (June 11, 2009, 2:57 PM), http://arstechnica.com/microsoft/news/2009/06/windows-7-tobe-shipped-in-europe-sans-internet-explorer.ars.
425. KPMG INT'L, THE TRANSFORMATION OF THE AUTOMOTIVE INDUSTRY: THE ENVIRONMENTAL REGULATION EFFECT 16 (2010), available at http://www.kpmg.de/docs/transformation-automotive-industry.pdf (discussing technology-implementation strategies used by auto companies in complying with divergent national regulations).
426. The Third Industrial Revolution, ECONOMIST, Apr. 21, 2012, at 15.
427. Kogan, supra note 193, at 94
428. Leo Cendrowicz, Is Europe Finally Ready for Genetically Modified Foods?, TIME (Mar. 9, 2010), http://www.time.com/time/business/article/0,8599,1970471,00.html (discussing the costs to Europe of continued rejection of GMO-derived food products).
429. See Cendrowicz, supra note 303 (noting that the Brussels Effect is expected to be less likely when the EU is a net exporter of certain products). These companies take little comfort that the playing field in their home market is level.
430. Eva R. Sunesen et al., COPENHAGEN ECON., IMPACTS OF EU OUTWARD FDI 6 (2010) ("Over the last couple of decades, EU firms have increased their investments outside EU borders. Outward FDI has increased by a factor of five during the last fifteen years....").
431. Sébastien Miroudot et al., Trade in Intermediate Goods and Services 17 (OECD Trade Policy Working Paper No. 93, 2009).
432. Laïdi, supra note 56, at 19.
433. Meunier & Nicolaïdis, supra note 49, at 908-09.
434. id. at 909
435. Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427, 459-460 (1988).
436. We would also need to understand whether the possible costs of excessively strict global regulations outweigh the costs of having divergent, even if individually more optimally tailored, national regulations.
437. Similarly, the EU's unilateralism can be thought to fill the void where collective action problems prevent countries from reaching efficient outcomes through treaties. Yet the failure to cooperate multilaterally may also be a sign that international agreement would not be welfare-enhancing, raising questions about the desirability of the EU providing a global regime alone.
438. Robert O. Keohane et al., Democracy-Enhancing Multilateralism, 63 INT'L ORG. 1 (2009) (discussing how multilateral institutions can enhance domestic constitutional democracy).
439. Gelb, supra note 35.
440. Zielonka, Empire by Example, supra note 190, at 482.
441. Hugh Richardson, Head of the Delegation of the European Comm'n to Japan, Speech at Waseda University: Smartening the EU's Soft Power (May 16, 2008) (transcript on file with author).
442. LEONARD, supra note 203 (arguing in this spirit).