International Economic Law
New Approaches and Issues
- 2023
- Book
- Editors
- Mariela de Amstalden
- Niall Moran
- Henok Asmelash
- Book Series
- European Yearbook of International Economic Law
- Publisher
- Springer Nature Switzerland
About this book
This volume considers novel emerging issues in international economic law, as well as new methodological approaches to more familiar topics. It brings together a diverse range of contributors from five continents, who share invaluable perspectives on a wide range of issues in international economic governance.
In doing so, this volume delves deeply into some of the most challenging emerging areas in international economic law, approaching them from an interdisciplinary perspective that brings together legal, economic, and political analysis. Intended for academics and practitioners at all stages of their careers, many of the areas considered in this volume are either entirely new or are being revisited after periods of dormancy. It is our hope that these contributions will yield fresh insights into these new and “classic” areas of IEL.
We consider diversity and inclusivity foundational values in IEL. The wealth of ideas showcased in this volume present us with an opportunity to appreciate different facets of originality and rigour in legal academic writing, further highlighting the range of methodological and stylistic preferences of emerging legal scholars in IEL. In June 2022, forty emerging international economic law scholars were selected to present their papers at PEPA/SIEL, where they received feedback from senior members of the SIEL community and beyond. The discussions were lively, stimulating and enriching, leading the editors of this volume to propose putting a selection of the papers into a published book.
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Table of Contents
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Frontmatter
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New Approaches to International Economic Law
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Frontmatter
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The Depoliticization of Investment Disputes: How Deep Does the “Rabbit Hole” Go?
Gautam Mohanty, Alexandros BakosThe chapter delves into the foundational narrative of depoliticization in international investment law and arbitration, tracing its evolution from diplomatic protection to the ISDS mechanism. It argues that while procedural depoliticization has been achieved to a significant extent, substantive depoliticization remains incomplete and perhaps even undesirable. The text explores the complexities of investment disputes, highlighting the political nature of many claims and the challenges arbitral tribunals face in adjudicating them. It proposes a model to understand depoliticization in different realms and argues for the importance of procedural fairness in ensuring a just and predictable outcome. The chapter concludes by emphasizing the need to approach depoliticization with a nuanced understanding, recognizing the limitations and benefits of both procedural and substantive depoliticization in the ISDS mechanism.AI Generated
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AbstractDespite the original aim of investor-state dispute settlement (ISDS) to establish a neutral and non-political forum for resolving disputes, recent scholarly debates demonstrate an increasing level of politicisation. However, as this article demonstrates, complete depoliticisation was never either the intention of ISDS or a realistic possibility—at least substantially. Investment protection standards, for example, serve as safeguards against political risk. In this context, the article demonstrates that it is the adherence to procedural international rule of law elements that can actually counter the growing politicisation and maintain ISDS’s neutrality. The first section explores the desirability of depoliticisation in ISDS, distinguishing between procedural and substantive aspects. The second section delves into the parameters of procedural depoliticisation, highlighting the tools employed and identifying instances of its strongest implementation. The paper concludes by explaining the impracticality and undesirability of achieving complete substantive depoliticisation. -
The OECD Good Regulatory Practices Toolbox and Brazil’s Reform Through Transnational Lenses
Magali Favaretto Prieto FernandesThe chapter delves into Brazil’s regulatory reforms since 2015, focusing on the adoption of the OECD’s Good Regulatory Practices (GRP) toolbox. It examines the role of the OECD as a critical node in transnational regulatory governance and the challenges faced by Brazil in implementing these practices. The author unpacks the GRP toolbox, questioning its coherence and completeness, and explores how these concepts have been transmitted and adopted in Brazil. The chapter is structured into three sections: the first examines the OECD’s role and the construction of GRP, the second focuses on Brazil’s engagement with these practices, and the third concludes by highlighting the influence of the OECD on Brazil’s regulatory reforms. The analysis is enriched by case studies and a detailed examination of the mechanisms used by the OECD to promote its norms, such as peer reviews and the use of indicators. The chapter argues that while Brazil has made significant strides in regulatory reform, there are still challenges to overcome, particularly in changing the regulatory culture and embedding these practices into the rulemaking process.AI Generated
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AbstractBrazil has embraced institutional and legal reforms towards “good regulatory practices” (GRP) built on the OECD’s “better regulation” agenda. New laws and decrees made Regulatory Impact Assessment (RIA) mandatory in all public administration’s rulemaking, as well as stock reviews and “ex-post” evaluations. Following such steps, a regulatory oversight body is under scrutiny by policymakers. This paper assesses national regulatory reforms through international and transnational lenses. It primarily argues that nation-states make policy immersed in a dense web of networks, highlighting that it is not possible to understand domestic legal changes without assessing transnational legal processes. It further argues the importance of the OECD as a purveyor of ideas and a critical node in transnational regulatory governance. First, it unpacks the concept of GRP codified into the OECD recommendations and its construction through data collection, checklists, and toolkits, challenging its coherence and functions as a golden standard policy for “better regulation.” Secondly, it unveils how these techniques are disseminated worldwide through mechanisms of soft governance, such as peer review, persuasion, surveillance, comparison, and ranking. Then, it turns to the case of Brazil, assessing how these tools and technical knowledge have been transmitted to this specific institutional context. The case of Brazil sheds light on the effectiveness of policy and legal transfers through transnational processes involving peer pressure, social learning, the role of indicators, and cultural change. -
The Role of Multilateral Institutions in the Perpetuation of Climate Breakdown and Vulnerability
Sean MaddenThe chapter delves into the paradoxical role of multilateral institutions (MLI) in exacerbating climate breakdown and vulnerability, despite their mandates for poverty reduction and sustainable development. It traces the origins of these institutions back to colonial-era international law, which legitimized resource extraction and exploitation. The chapter argues that Structural Adjustment Programs (SAP), implemented by institutions like the World Bank and IMF, encourage environmentally damaging activities and industrial production, leading to increased inequality and climate vulnerability. Using the case of Madagascar, it illustrates how SAPs have facilitated extractive industries that degrade the environment and impoverish local communities. The chapter concludes by questioning the effectiveness and ethics of these institutions' policies in addressing climate change and poverty.AI Generated
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AbstractWithin the stated purview of the United Nations (UN), International Monetary Fund (IMF), World Bank (WB), and related Multilateral Institutions (MLI) is the facilitation of sustainable development and economic growth, purportedly leading to reductions in global poverty and inequalities. These goals permeate supranational institutions of global governance; their centrality emphasised through agreements such as the Sustainable Development Goals (SDG) and propagated through instruments including Structural Adjustment Programmes (SAP).This chapter argues, however, that these goals are inherently contradictory, bordering on nonsensical, and that the effect of IMF and WB policy towards the Third World is, contrary to stated aims, the perpetuation of vulnerability for some of the world’s most impoverished people, and the exacerbation of anthropogenic climate breakdown.Third World Debt is inexorably entwined with the colonial encounter, and subsequent centuries of extraction and exploitation legitimised through globalisation. When the IMF and WB mandate SAP in exchange for loans proffered in order to service this debt, Third World states embark upon extensive trade liberalisation, and the privatisation of natural resources and land. The subsequent extractive activity of Transnational Corporations (TNC) and foreign states serves to propagate the cycle of exploitation and environmental depredation, whilst enabling wealthier states to both materially gain from the activity, and offset their Nationally Determined Contributions (NDCs) under the Paris Agreement (PA). This activity is not only sanctioned, but encouraged through a neoliberal policy platform that prioritises economic growth and Western conceptions of development and sustainability above all else.Consequently, Third World peoples, rather than experiencing alleviation from the cycle of debt locked in since the colonial encounter, are rendered further impoverished, bereft, and dependent, severely impeding their ability to mitigate or adapt to the effects of climate breakdown. -
A TWAIL Approach to Reforming the International Investment Regime
Olufunmilola OlabodeThe chapter critically examines the International Investment Regime (IIR) from the perspective of the Third World Approaches to International Law (TWAIL), revealing its neoliberal agenda and disregard for developing countries' environmental, sustainable development, and regulatory needs. It argues that the current IIR is biased against developing countries and proposes reforms to address these inequities. The chapter discusses recent efforts by developing countries to reform the IIR at national, bilateral, and regional levels, highlighting innovative approaches such as the MERCOSUR Protocol on Investment Cooperation and Facilitation and the African Continental Free Trade Area (AfCFTA). It concludes that a harmonized effort at the regional and continental levels is essential for a balanced and effective reform of the IIR.AI Generated
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AbstractIn recent times, foreign investors have challenged a broad range of government measures that impact negatively on their investments through the Investor-State Dispute Settlement (ISDS) mechanism. Certain controversial investor-state disputes have led to allegations that the International Investment Regime (IIR) is another model of a modern-day manifestation of imperialism. These manifestations can be seen, for instance, in the regime’s sole focus on investor protection, its lack of responsiveness to the impact of investor activity on the local communities and the environment of the developing host states, and the categorization of some public policies as treaty violations.The last couple of years have witnessed a global debate on the need to address the imbalance embedded in the IIR. New international investment treaties and policies are currently being introduced and implemented globally. How then do developing countries wish to address this bias in IIR? The important questions to ask are, what type of foreign investment protection rules would best suit the interests of developing countries? Most importantly, in what ways can developing countries avoid the consequences of the earlier signed treaties? What is the most effective way to approach the reform? These questions are of great importance because presently, the world is witnessing a power-bases shift in the investment regime, the developing states are becoming capital-exporting states, and unlike during the twentieth century, they are now able to influence the development of a balanced IIR.This paper employs the Third World Approaches to International Law (TWAIL) as a tool in analysing the IIR and its impact on the developmental needs of third world countries. The main contention in the paper is that the Bilateral Investment Treaties (BITs) and the ISDS system were originally designed to favour foreign investors who are mostly from developed countries thereby creating a bias against developing countries in the IIR.Therefore, it is suggested that, rather than using a piecemeal approach, the key to ensuring consistency and addressing the deficiencies in the IIR is through more harmonised efforts by policy makers at the regional and continental levels to actualise developing countries’ desire for a balanced investment regime. The MERCOSUR State Parties’ Protocol on Investment Cooperation and Facilitation and The African Union’s African Continental Free Trade Area (AfCFTA) provide the right opportunity for developing countries to address the bias in the IIR and they also serve as good templates for other developing countries to adopt at the regional or continental levels.
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Technology and Innovation in International Economic Law
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Frontmatter
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3D Printing, Valuation, and Service Inputs: Looking to the Future Rather Than the Past to Design Rules of Origin for Advanced Manufactured Products
Diana Elizabeth WadeThis chapter delves into the complexities of integrating service inputs, particularly 3D file designs, into the rules of origin (RoO) for advanced manufactured products. It begins by examining the historical context of international trade and manufacturing, highlighting the rise of 3D printing and its potential to disrupt traditional manufacturing processes. The chapter then explores the legal framework governing RoO, focusing on preferential RoO and the challenges they pose in the digital trade era. It discusses the ad valorem criterion for determining origin and the need to adapt this criterion to accommodate digital inputs. The author also proposes innovative methods for valuing digital inputs, drawing from intellectual property valuation techniques. Additionally, the chapter addresses the technical and legal implications of including service inputs in RoO, and the potential impact on international trade and manufacturing. It concludes by suggesting a balanced approach to designing RoO for advanced manufactured goods that promotes innovation, development, and technological advancement.AI Generated
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AbstractThe use of digital technology in manufacturing has resulted in services becoming key inputs in global value chains (GVCs). Increasingly complex GVCs, however, complicate determining a good’s origin through the rules of origin provisions in trade agreements. Once we consider a service, like the digital files used in 3D printing, as a crucial input of a tangible product, should the origin of that service play a role in determining the origin of the 3D printed good? If the 3D file is the input with the highest economic value, and economic value is a basis for origin determination, then the origin of the printed good may be determined by the origin of the 3D file design service.This chapter examines how the origin of a service could be factored into the ad valorem approach for determining the origin of 3D printed good. If, as some scholars suggest, the greatest value of a 3D printed good lies in the design of the 3D file, then we must take two steps before incorporating the value of the file into the ad valorem analysis: (1) assign a quantifiable value to the file, and (2) identify the origin of that file. While the trade law literature has not explored in depth the value of a digital input, the valuation of intellectual property rights provides some starting points for understanding how to place a value on the 3D file. Yet, 3D files are not considered by all industry participants to be an asset that must be exclusive to one owner, and this could impact a 3D file’s value. Firms could also take advantage of references to “substantive business operations” in GATS and national or regional legislation to strategically locate the origin of the file in a particular country and thus benefit under a preferential trade agreement when trading the printed good. Finally, as determining the origin of digital transmissions is a complex process, designing and linking rules of origin for digital services to rules of origin for goods adds to the complications already inherent in determining the origin of goods produced through GVCs. -
Challenges and Possibilities for Classifying Digital Cultural Products in the WTO: A Case Study of Video Games
Siqi ZhaoThe chapter delves into the intricate challenges of classifying digital cultural products, such as video games, under WTO law. It discusses the relevance of this classification for trade negotiations and the application of WTO rules. The author explores two main challenges: the ‘good or service’ dichotomy and the outdated service classification system. Using a case study of video games, the chapter suggests that the current classification system is inadequate and proposes the adoption of a ‘cluster approach’ to advance negotiations. The chapter also highlights the need for a more detailed and updated classification system to address the evolving nature of digital cultural products.AI Generated
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AbstractDigital cultural industries are economically and culturally significant. The treatment of digital cultural products under WTO law is a highly complex issue. This article explores the challenges and possibilities of classifying digital cultural products under WTO law, focusing on video games as a case study. This article conducts an in-depth legal analysis of three types of digital video games and the related classification issues that arise under WTO law. Specific difficulties and possibilities for classifying different types of digital video games are unveiled, reflecting the challenges and potential solutions. This chapter concludes with normative suggestions for advancing the WTO negotiations regarding the classification issue of digital cultural products. -
E-commerce Provisions in Regional Trade Agreements and What They Mean for African MSMEs
Martin Luther MunuThe chapter examines the e-commerce chapters of four significant RTAs—USMCA, CPTPP, RCEP, and TCA—to identify key provisions and their spillover effects on African MSMEs. It discusses the regulatory approaches of the US, China, and the EU, highlighting how these agreements influence WTO e-commerce negotiations and the AfCFTA. The text also explores the potential benefits and challenges these RTAs present for African MSMEs, including opportunities for increased trade and investment, as well as the risks of trade diversion and policy space constraints. The analysis is particularly notable for its focus on sustainable development and the need for capacity building to bridge the digital divide for African MSMEs.AI Generated
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AbstractThe e-commerce negotiations at the World Trade Organization (WTO) are taking place at a time when other members have entered into Regional Trade Agreements (RTAs) with e-commerce chapters. By 19 July 2022, 193 RTAs covering e-commerce had been notified to the WTO. The most relevant RTAs with e-commerce chapters include the United-States-Mexico-Canada Agreement (USMCA), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership Agreement (CPTPP), the Regional Comprehensive Economic Partnership (RCEP), and the European Union (EU)-United Kingdom (UK) Trade and Cooperation Agreement (TCA). This chapter identifies the main e-commerce-related provisions in the USMCA, EU-UK TCA, CPTPP, and RCEP, and discusses the spillover effects on African Micro, Small and Medium-sized Enterprises (MSMEs), particularly in Kenya, Rwanda, and Uganda. The chapter structures the analysis around the indirect implication of these rules on six parameters including facilitating imports and exports; addressing tariffs as a form of government revenue, attracting investment; preserving policy space for digital industrialization; providing for development assistance; and providing for different rights and obligations according to development levels. The RTAs are likely to play a significant role in setting standards for e-commerce rules both at the WTO and the AfCFTA level. The chapter concludes that if the RTAs shape e-commerce rules in their current form, it is likely to offer more opportunities for bigger players in the digital economy, especially from the US and China to continue with their dominance of global e-commerce. Moreover, MSMEs from African countries would struggle in building their competitiveness to take advantage of the opportunities brought by e-commerce.
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Public Policy and International Economic Law
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Frontmatter
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Pursuing Geo-political Interests Through Investment Policies: Undesirable and (Un)feasible
Najibullah ZamaniThe chapter begins by contextualizing the shift towards economic liberalism post-Cold War and the establishment of a rules-based international economic order. It then delves into the concept of geo-economics, defined as the use of economic instruments to achieve geopolitical ends. The author discusses how states increasingly employ trade and investment policies for geopolitical gains, citing examples such as China's enforcement of the one-China principle and the U.S.'s trade wars. The chapter also explores the legal implications of geo-economics, focusing on the public morals, public order, and security exceptions under the GATS. It concludes by arguing that while geo-economics may be an effective alternative to military conflict, it poses significant challenges to the liberal international economic order.AI Generated
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AbstractThe post-Cold War era saw the foundations being laid for a new global order in which the realms of politics and security on the one hand and the economic domain on the other, were relatively well-defined and distinct from one another. Security issues no longer dictated international relations and trade and investment decisions were mainly taken on the basis of economic considerations. However, recent developments suggest a significant shift with the emergence of geo-economics. In the contemporary environment, states increasingly pursue geopolitical and security interests through trade and investment policies, thereby diverging from traditional reliance on political and military policies. Consequently, geopolitical power is increasingly derived from and dependent on economic power.While employing trade and investment policies to address geopolitical and security matters presents an appealing and potentially effective alternative to direct military confrontation, this approach simultaneously poses challenges and partially undermines the established liberal international economic order and its associated institutions and norms developed in the post-Cold War era. Moreover, despite the significant influence of geopolitical and strategic motives in state decisions to enter into preferential trade agreements, international economic law offers limited leeway for states to employ trade and investment mechanisms in pursuit of geopolitical and security objectives once such agreements have been concluded. -
The Anti-coercion Instrument: Is the EU Renouncing Its ‘Multilateralist’ DNA?
Cornelia FurculitaThe EU's proposed Anti-Coercion Instrument (ACI) aims to counter economic coercion from third countries, but its legality under WTO rules is uncertain. The chapter explores the ACI's conformity with WTO substantive and procedural rules, including the applicability of Article 23 of the DSU. It also discusses potential justifications for WTO violations and the broader implications of the ACI on the EU's multilateralist stance. The analysis reveals that while the ACI may not directly breach WTO rules, its implementation could lead to unilateral actions that undermine multilateral trade principles.AI Generated
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AbstractIn the context of increased geopolitical tensions and the so-called ‘weaponization’ of international trade, the EU Commission tabled a proposal for an Anti-Coercion Instrument (ACI) to tackle instances of alleged economic coercion. Considering the tensions that it might come into with multilateral trade rules, this chapter analyses whether the ACI, as proposed by the Commission, is consistent with WTO procedural and substantive norms and whether it could be indeed justified under general customary international law on countermeasures. As the ACI would have consequences beyond legal ones, it will look into its potential broader implications of the instrument for the multilateral trading system and EU’s self-declared multilateralist ‘DNA’. -
The Principle of Autonomy of EU Law in the Context of Investor-State Dispute Settlement: A Public Policy Norm?
Trajan ShipleyThe chapter delves into the intricate relationship between EU law and international arbitration, focusing on the principle of autonomy of EU law in the context of investor-state dispute settlement (ISDS). It examines the CJEU's case law, which has consistently asserted the autonomy of EU law in the face of international dispute resolution mechanisms, and the divergent approaches taken by arbitral tribunals. The text explores the potential of considering the principle of autonomy as a norm of public policy, which could provide a framework for addressing the compatibility of EU and international investment law. Additionally, it discusses the sui generis nature of EU law and the challenges posed by the intra-EU objection in ISDS proceedings. The chapter offers a nuanced analysis of the structural and existential views of autonomy, highlighting the need for a pluralistic approach to understanding this complex principle. By providing a detailed examination of relevant case law and theoretical perspectives, the text aims to contribute to the ongoing debate on the autonomy of EU law and its implications for international dispute settlement.AI Generated
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AbstractThe principle of autonomy of EU law sits at the core of the current clash between EU law and ISDS. Considering the widespread rejection by investment arbitration tribunals of the Court of Justice’s Achmea case law, this chapter examines the nature, scope and content of the principle of autonomy of EU law in the context of ISDS. It considers relevant case law of both the Court of Justice and arbitral tribunals together with literature on the nature of the EU legal order from an international law perspective and on the principle of autonomy. It also examines the possibility to claim the autonomy of EU law as a norm of public policy and the relevance of pursuing such an approach. -
MFN Dilemma in India’s DTAAs Post Concentrix Ruling: A Ticking Time Bomb
Saurabh Sharma, Mukesh RawatThe chapter delves into the intricate issues surrounding the MFN clause in India’s DTAAs, particularly post the Concentrix ruling. It examines the genesis and purpose of the MFN clause, its application in tax treaties, and the legal interpretations that have arisen from the ruling. The author critically analyzes the High Court’s reasoning and the potential consequences of the ruling on tax policies and treaty shopping. The text also explores the role of the VCLT in interpreting tax treaties and highlights the need for clearer drafting and policy reforms to address the identified issues. The chapter concludes by emphasizing the importance of revisiting and renegotiating MFN clauses to prevent future legal disputes and ensure fair taxation practices.AI Generated
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AbstractTreaty interpretation has always been an arduous task for courts and scholars alike. The subject becomes even more confounding and contentious in the wake of the imprecise drafting of the terms within certain treaties. In one such instance, India was on the receiving end when the Most-Favour-Nation (MFN) clause in the Convention between the Republic of India and the Kingdom of Netherlands (Member States) for the avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital (Dutch-India DTAA or subject DTAA) was at the core of the adjudication in a Writ Petition namely the Concentrix ruling before Delhi High Court.Concentrix’s ruling had sent a strong shockwave in the corridors of power when the High Court summarily rejected India’s Income Tax Department submission regarding the interpretation of the MFN clause of Dutch-India DTAA and ruled in favour of the taxpayer. The deconstruction of the condition, as provided for in the MFN clause, regarding the membership of a third state in the Organization of Economic Cooperation and Development either at the time of claiming the MFN benefit by the petitioner or at the time of treaty negotiation was the apple of discord. Many scholars have criticized the Concentrix ruling as the Delhi High Court, on the one hand, buttresses the principle of Common Interpretation for decrypting the given issue and, on the other, relies on the unilateral declaration made by the Directorate-General for Tax Affairs, International Tax Affairs (Netherlands Tax Department). The ruling also falls short of adherence to the principles entrenched within the Vienna Convention on the Law of Treaties (VCLT), 1969.The ruling has challenged the normative underpinnings of the MFN clause under the Dutch-India DTAA, which has the potential to open the floodgates to litigation against the Department and an impending threat of erosion of India’s tax base due to treaty shopping. It may have spillover effects on many developing countries following source-based tax principles and would warrant a reassessment of their DTAAs with developed nations. The present paper will reflect upon these issues by critically analyzing the Concentrix Ruling, rationalizing its legal consequences, and addressing the concerns it gives rise to by suggesting ways to narrow these legal gaps. It concludes by acknowledging the growing jurisprudence in this domain.
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Trade Regulation
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Frontmatter
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Energy Transit Under GATT Article V and Energy Transit Dispute Resolution at the WTO
Michail SkouzesThe chapter examines how GATT Article V ensures the freedom of transit for energy resources and evaluates the WTO's dispute settlement system for energy transit disputes. It delves into the interpretation of Article V in the context of energy goods and infrastructure, addressing issues such as ownership status and third-party access to fixed infrastructure like pipelines and power grids. The chapter also assesses the WTO's suitability as a forum for adjudicating energy transit disputes, comparing it to other treaties like the Energy Charter Treaty. It highlights the WTO's potential to liberalize energy trade and promote energy security, making it a must-read for specialists in international trade and energy law.AI Generated
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AbstractThis chapter analyses Article V of the General Agreement on Tariffs and Trade (GATT) and its application to transit of energy related goods via fixed infrastructure with certain capacity, such as pipelines and power grids. Modern economy requires the passing of goods through the territory of more than two countries in order to reach their destination. This also applies to goods in the energy sector, since oil and natural gas producing countries are not their majority consumers. There is a nexus of pipelines, both on land and below the sea, that transport oil and natural gas through vast distances of land crossing several countries to connect producing and consuming countries. Transfer via pipelines is not the only mode of transportation in the energy sector. Sea carriage via specially designed ships, such as oil tankers or LNG carriers, is another common way of transporting energy commodities. Electric power can be internationally transported through power grids connecting neighboring countries. In an era, in which energy plays a strategic role, the transportation of energy related goods is essential to the welfare of countries. In the absence of a multilateral International Treaty regulating international trade in the energy sector, bilateral treaties proliferate in this sector. It is evident that the creators of the GATT did not intend to regulate energy matters. However, as will be discussed in this article, the World Trade Organization (WTO), with its Dispute Settlement System, can be a forum suitable to adjudicate disputes in the energy sector, concerning e.g. the transportation of natural gas, oil and electric power. Article V of the GATT ensures freedom of transit, with some limitations, from the territory of each contracting party for goods, vessels and other means of transportation. Should this Article be applied to the energy sector and it being interpreted so as to also provide for capacity establishment rights, it has the potential to liberalize the energy market for WTO Members and reshape the world economy. -
EU Imported Biodiversity Loss: The Gaps and Overlaps Between Trade Impact and Provisions on Biodiversity in EU Free Trade Agreements
Justine MullerThe chapter delves into the intricate relationship between EU Free Trade Agreements (FTAs) and biodiversity loss, focusing on the direct and indirect impacts of trade. It examines the inclusion of biodiversity-related provisions in FTAs and assesses their effectiveness in mitigating negative effects. The text highlights key examples such as the trade in endangered species, transportation impacts, and indirect biodiversity loss from commodities like bananas and hake. It also explores the main goals of biodiversity-related clauses in FTAs and identifies significant gaps and overlaps between these provisions and the actual impacts of trade. The analysis concludes that while FTAs acknowledge international environmental commitments, they often fall short in addressing trade-specific biodiversity issues, suggesting a need for more tailored and targeted provisions.AI Generated
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AbstractTrade and biodiversity are connected in many ways. One of them is the negative impact of trade itself on biodiversity. This chapter focuses particularly on whether the integration of environmental provisions, including some relevant to biodiversity, in EU Free Trade Agreements could mitigate this negative impact of trade on nature. To do so, the chapter aims to expose the gaps and overlaps between the impact of trade on biodiversity and the core biodiversity-related provisions of EU trade agreements’ Trade and Sustainable Development chapters. Firstly, by considering the negative impacts that trade may have on biodiversity, directly or through embedded biodiversity loss, and that trade agreements may enhance. The chapter thus brings a rationale behind the inclusion of biodiversity-related provisions in EU trade agreements to the fore. Secondly, the chapter presents the main goals of the relevant environmental clause in EU trade agreements and what kind of protection they can provide for biodiversity. Based on these two elements, the chapter identifies, in a third and final section, the gaps and overlaps between these negative impacts of, or enhanced by, EU trade agreements on biodiversity and the main goals of environmental provisions. -
Multilateral and Bilateral Trade Agreements at the Service of ‘Common Interest’
Inebu Agbo-EjehThe chapter 'Multilateral and Bilateral Trade Agreements at the Service of ‘Common Interest’' delves into the intricate dynamics of international trade agreements, particularly focusing on how they serve the collective interests of both developed and developing countries. It begins by defining the elusive term 'common interest' and its various interpretations, drawing on the insights of scholars like Bruno Simma and Peter-Tobias Stoll. The chapter then examines the role of the World Trade Organization (WTO) in promoting trade liberalization and cooperation, highlighting the tension between reciprocity and the pursuit of broader common interests. Special and differential treatment (SDT) is a key focus, with the author arguing that it represents a form of common interest, albeit one that needs strengthening to effectively benefit developing countries. The chapter also provides practical illustrations from agreements like the Economic Community of West African States (ECOWAS) Trade Liberalisation Scheme and the Africa Growth and Opportunity Act (AGOA) to demonstrate the application of these principles. Throughout, the text emphasizes the need for a more equitable global trading system that genuinely addresses the development needs of less developed countries. By exploring the complexities and potential of trade agreements to serve common interests, this chapter offers valuable insights for policymakers, economists, and international relations specialists.AI Generated
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AbstractCommon interest or community interest is a term that is frequently used in contemporary international law. Undoubtedly, there is a shift from the traditional international law concept of co-existence to cooperation. Due to a shared interest in other areas of inter-state relations and concerns, like eradication of poverty, and development, common interest has become a central focus. As a result, the international trading regime, which was integrated into the World Trade Organization, has gone beyond reciprocity to addressing issues of development in less developed countries. It is believed that common interest is addressed by two principles in the World Trade Organization—reciprocity and special and differential treatment. Common interest is also addressed in bilateral agreements, for example, the Economic Partnership Agreement between the EU and countries in Africa. It is maintained that reciprocity correlates with a common interest in the context of ensuring mutual benefits to all WTO Members and at the same time assisting less developed countries that are also members of the WTO. This work underscores the importance of special and differential treatment, notwithstanding its controversial origin and hortatory provisions.
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- Title
- International Economic Law
- Editors
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Mariela de Amstalden
Niall Moran
Henok Asmelash
- Copyright Year
- 2023
- Publisher
- Springer Nature Switzerland
- Electronic ISBN
- 978-3-031-41996-6
- Print ISBN
- 978-3-031-41995-9
- DOI
- https://doi.org/10.1007/978-3-031-41996-6
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