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Volume 7 of the EYIEL focusses on critical perspectives of international economic law. Recent protests against free trade agreements such as the Transatlantic Trade and Investment Partnership (TTIP) remind us that international economic law has always been a politically and legally contested field. This volume collects critical contributions on trade, investment, financial and other subfields of international economic law from scholars who have shaped this debate for many years. The critical contributions to this volume are challenged and sometimes rejected by commentators who have been invited to be “critical with the critics”. The result is a unique collection of critical essays accompanied by alternative and competing views on some of the most fundamental topics of international economic law.

In its section on regional developments, EYIEL 7 addresses recent megaregional and plurilateral trade and investment agreements and negotiations. Short insights on various aspects of the Transpacific Partnership (TPP) and its sister TTIP are complemented with comments on other developments, including the African Tripartite FTA und the negotiations on a plurilateral Trade in Services Agreement (TiSA). Further sections address recent WTO and investment case law as well as recent developments concerning the IMF, UNCTAD and the WCO. The volume closes with reviews of recent books in international economic law.

Inhaltsverzeichnis

Frontmatter

Topics: Critical Perspectives on International Economic Law

Frontmatter

Critical Theory and Practice in International Economic Law and the New Global Governance

This paper discusses the relationship between academic research and engagement with policy and political practices, seen through the author’s recollections of his personal experiences extending over half a century working in the field of international economic law. While stressing the importance of an interaction of theory and practice, it also emphasises the need to maintain academic independence and a research perspective, based on reflexive methodology (situating the various actors and their positions in the field) and immanent critique (close analysis of the self-understandings of practitioners in a field and detailed examination of their practices, contrasting the two). It traces the changing character of the relationship between research and political practice, and the increased need for engagement especially by critical scholars of international economic law with critical political practice. This need stems from the characteristics of global governance in the current era, dominated by corporatist public-private structures controlled by small elites, and confronting complex problems that place an increased importance on specialist expertise. This is often depoliticised as technocratic, creating a wide gap between such expert knowledge and the rhetoric of political debate.

Sol Picciotto

Global Constitutionalism and International Economic Law: The Case of International Investment Law

Are there discernable the outlines of an emergent global economic constitutional order? If the current global scene is understood as hybrid and plural, there will be no single, unitary global economic constitution in place at the present moment. There only will be partial manifestations—observable, regime-specific instances—of what might become part of such a global order. Regime specific instances can be found, for instance, in the domain of international investment law. Though there is variation among the web of 2800 bilateral investment treaties, there are sufficient commonalities that will be familiar to constitutional lawyers. It also is apparent that the body of jurisprudence produced by investment tribunals resembles, in some important ways, the output of high court decision making under national constitutional law. The paper begins by outlining two principal modes of understanding global constitutional developments, identifies some familiar constitutional tropes found in investment law, and closes with a discussion, by way of illustration, of an investor’s claim, unresolved on the merits, that resembles an early nineteenth century US constitutional dispute concerning the sanctity of contracts.

David Schneiderman

From Fragmentation to Constitutionalisation of International Economic Law? Comments on Schneiderman’s ‘Constitutionalism’

This short comment on the preceding article by Prof. Schneiderman calls for the clarification of legal methodologies in research on international economic law (IEL) and on the ‘constitutionalisation’ of multilevel governance of international public goods (PGs). While European lawyers and courts throughout Europe accept the ‘constitutionalisation’ of European economic law and human rights law (HRL) as legal facts and normative challenges, legal discourse about ‘constitutionalisation’ of UN and WTO law and governance remains contested and often confusing due to inadequate clarification of legal terminologies, research methods and diverse conceptions of international law and multilevel governance of PGs.

Ernst-Ulrich Petersmann

Trade in Agricultural Products: Should Developing Countries Give Up on the WTO Promise for a Fair and Market-Oriented Agricultural Trading System? A Historical and Theoretical Analysis

Although the World Trade Organization (WTO) can rightly claim credit for establishing the first ever truly multilateral framework of rules for trade in agricultural products in the form of the Agreement on Agriculture (AoA), the AoA itself recognizes that it is only the first step in a long process aimed at establishing a “fair and market-oriented agricultural trading system.” The Doha negotiations have been increasingly looking irrelevant to agriculture until the 10th Ministerial Conference in Nairobi in December 2015, which adopted several decisions pertaining particularly to agriculture. Despite this recent development, and considering the manifest divergence of positions among the membership on the future of the Doha negotiations, it is clear that the present AoA, as modified by these latest Ministerial Decisions, is likely to remain the only framework governing agricultural trade for the indefinite future. Developing countries in general, and the poorest amongst them in particular, will be the primary losers of such an outcome. Reflecting on the history of agricultural trade regulation over the last two centuries, this article aims to demonstrate that the treatment of agriculture as an exception to the general rules of international trade has a long pedigree, both in economic theory and regulatory practice, often used by powerful states against the less fortunate. If multilateral negotiations fail to deliver on agriculture, developing countries cannot look to bilateral and regional agreements for solution. The article concludes that developing countries cannot afford to give up on multilateralism, for only a multi-sectoral and multilateral forum such as the WTO allows all countries, whether they are for or against agricultural liberalisation, to make progress in this area through issue linkages and cross-sectoral trade-offs.

Melaku Geboye Desta

Agricultural Trade: How Bad Is the WTO for Development?

On the face of it, many developing countries, even least developed ones, seem to be doing just fine in terms of agricultural production and trade expansion. This paper cannot answer the question whether the present multilateral rules framework strengthens or imperils resource-poor countries and farmers. Instead, it describes a ‘reform programme’ which is far from being completed, and it shows where the ‘development promises’ of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO) remain unfulfilled. Based on the experiences with the Uruguay Round, it argues that even the completion of the Doha Development Round is likely to fail to address some specific concerns of net food-importing developing countries (NFIDC) and resource-poor farmers. A number of additional specific commitments by developed and emerging economies are required to fulfil the promise “to establish a fair and market-oriented agricultural trading system”.

Christian Häberli

From GATS to TiSA: Pushing the Trade in Services Regime Beyond the Limits

Trade in services agreements are creatures of neoliberalism. As normative and disciplinary instruments, they have evolved over time, reaching progressively deeper into the regulatory domain of nation states and imposing fetters on the autonomy and authority of governments to determine the best way to regulate services in the national interest. With the paralysis in the World Trade Organization (WTO), new generation free trade and investment agreements offered a way to redesign the General Agreement on Trade in Services (GATS), align it to new technologies and corporate imperatives, and further circumscribe governments’ regulatory options. Ever-more aggressive ambitions, now being pursued through a plurilateral Trade in Services Agreement (TiSA) with a view to exporting it back into the WTO, have exacerbated the long-standing tensions that beset the GATS. As these agreements continue to push the boundaries, their attempts to lock governments into a more extreme version of the troubled neoliberal paradigm will heighten the problems of legitimacy confronting the agreements themselves and the WTO.

Jane Kelsey

Trade in Services and Regulatory Flexibility: 20 Years of GATS, 20 Years of Critique

The General Agreement on Trade in Services (GATS) was a key achievement of the multilateral trade negotiations during the Uruguay Round. Twenty years later, the service sector is probably the most dynamic economic sector. The expansion of global value chains and of the on-demand economy will only increase the importance of services. However, the relevance of the GATS for the global economy has suffered from the deficiencies of the GATS legal framework. The purpose of the present article is not to defend the GATS. The GATS is an artefact of the 90s that struggles to remain a living instrument amidst the most severe existential crisis that has ever hit the multilateral trading system. Rather, this contribution aims at offering an account of the GATS birth defects, critically review its inability to take stock of the progress made the last 15 years of multilateral trade negotiations, discuss its development-related potential and assess its future prospects amidst regional service-related initiatives that threaten its existence, including the Transatlantic Trade and Investment Partnership (TTIP) and the Trade in Services Agreement (TiSA). A key conclusion of this paper is that a ‘GATS 2.0’ is warranted and should be focused on guaranteeing non-discrimination and ensuring good governance.

Panagiotis Delimatsis

The Current System of Trade and Intellectual Property Rights

One of the key arguments of the proponents of the Agreement on Trade-related Aspects of Intellectual Property Rights adopted as a component of the World Trade Organization was that the grant of intellectual property rights would boost innovation globally. The world map of R&D, however, does not show a general improvement of R&D capabilities in developing countries in the last 20 years. While the pharmaceutical industry was an active promoter of that Agreement, the innovation in this sector has declined. The proliferation of pharmaceutical patents reflects strategies aiming at blocking generic competition rather than a genuine increase in innovation. Alternative models to generate new drugs, especially those needed to address diseases prevalent in developing countries, are needed.

Carlos M. Correa

The Current System of Intellectual Property Rights Aims to Promote Trade and Not Innovation

This paper challenges three widely spread misunderstandings about the international protection of intellectual property: the TRIPS Agreement should not be blamed for failing to promote invention in developing countries because that was not its aim—its aim was (and still is) to promote free trade of goods and services bearing or displaying intellectual property. In this regard, the TRIPS Agreement has actually been very successful. Besides, the patent system should not be blamed for its alleged inadequacy in fostering innovation. There is no data that show the patent system works in one direction or the other. The patent system is a proprietary tool, a free market mechanism, and its purpose is to reduce costs as regards the transactions involving inventions, as compared to the significant transaction costs stemming from trade secrets and the enormous transaction costs arising from government patronage. Therefore, it is imprudent to suggest that the patent system should be abolished in the pharmaceutical field and replaced by open innovation and prizes. These mechanisms are already available, and inventors should be left free to select those that best serve their interests.

Nuno Pires de Carvalho

International Investment Law as Development Law: The Obsolescence of a Fraudulent System

Fraudulent is a strong term to describe a system of investment protection that has come about over the course of the last three decades. But, when development is made the focus of the system and it is not delivered by it, the use of the strong term is justified. The investment treaties were signed upon the promise that development will result. That has not been the case. Instead, through interpretation, arbitrators have brought about a system of absolute investment protection far more extensive than that contemplated by the parties to the treaties and far removed from the original goal of economic development. The article analyses the process through which this has been brought about.

Muthucumaraswamy Sornarajah

Be Careful with What You Wish: Saving Developing Countries from Development and the Risk of Overlooking the Importance of a Multilateral Rule-Based System on Investment in the Twenty-First Century

This essay aims to stress the key role of international investment law for development in times of globalisation. It does not argue that the current international investment regime is good as it is, nor that it does not require adjustments. Instead, it is argued here that regardless of how power shaped international investment law during the nineteenth and twentieth centuries, currently investment paradigms are radically shifting and development is starting to happen. For the first time in history foreign direct investment (FDI) is in fact enabling developing countries to become major exporters of goods and services of increasing value added. An economic multipolar world is emerging and not only inward but also outward FDI from developing countries have a lot to do in this process. Just when developing countries are finally learning to insert themselves into a globalised economy, and just when they are learning how to use international rule-making to promote that process, many sectors in developed countries—not used to any external regime limiting their historical discretion in national decision-making—are harshly reacting against the very law they contributed to create. Within this radically new context, to argue that a system of global governance is just a manifestation of imperialism entails the risk of saving developing countries from development.

Roberto Echandi

Investor-State Dispute Settlement: Conflict, Convergence, and Future Directions

This article reflects upon the criticisms directed towards investor-state arbitration over the last decade. It considers the controversies, the responses and the current debates surrounding investor-state arbitration. In particular, it reviews the discourse on the right to regulate and the arguments that investment disputes can impact on matters of public interest and have the potential to encroach into host state regulatory space. It also considers concerns expressed at the structural, institutional, and procedural frameworks for investor-state arbitration. In examining both the procedural and substantive responses to such criticisms, the argument is put forward that, increasingly, there is an acknowledgement of the problematic nature of the ‘older-style’ bilateral investment treaties, that attempts are being made to address this through new emphases in treaty-drafting, and that a more nuanced approach to investment disputes may be emerging. Concerns remain, however, that even despite these developments, public welfare regulation continues to be at risk from investor challenges and that a lack of appreciation of non-investment issues persists in arbitral decision-making. For this reason, the article ultimately adopts an ambivalent view of the future impact of the changes currently occurring within the field.

Kate Miles

In Defense of International Investment Law

The present article responds to the critical perspective Kate Miles offers on international investment law in her article “Investor-State Dispute Settlement: Conflict, Convergence, and Future Directions”, published in this Yearbook. While sharing several concerns Miles identifies, and supporting present reform efforts to make the system more transparent, increase possibilities of involvement for third parties, and ensure policy space, this article presents a generally positive perspective on the foundations of international investment law. It argues that the present system has to be seen as a mechanism to subject international investment relations to the international rule of law, with investor-state arbitration providing a form of access to justice to foreign investors in cases where domestic courts are not sufficiently well-placed to effectively control government action and enforce investment treaty obligations. The system, in other words, vindicates fundamental values of a just world order under law. Furthermore, the article argues that Miles paints a misleading picture of the power arbitrators exercise in the interpretation and application of investment treaties. Rather than developing the system to the detriment of public interests, arbitrators are subject to numerous mechanisms of state control; moreover, they regularly apply interpretative techniques that are respectful of public interests. Finally, the article discusses the cases Kate Miles presents as pathologies of the system and argues that they are not encroachments on governments’ policy space, but involve legitimate disputes that are appropriate for resolution in an international forum.

Stephan W. Schill

Shifting Sands: Interrogating the Problematic Relationship Between International Public Finance and International Financial Regulation

International public finance and international financial institutions have regained prominence in wake of the global financial crisis. The conscription of international public finance to crisis resolution and management in recurrent sovereign debt crises has highlighted the centrality of international public finance and its institutions to global economic regulation. In particular, the financial crisis has underscored the fundamental role of international public finance in managing the negative externalities caused by failures of international economic law and governance.This paper interrogates the problematic relationship between international public finance and international economic law, in particular their shared responsibility for the distribution of international economic resources. It investigates the role played by international financial aid in mitigating the distributive dislocations resulting from international law’s allocation of the risks and benefits of a globalized economy and examines how utilisation of aid finance in this manner has influenced the regulatory trajectories of international economic law.Drawing on the example of sovereign debt relief and international financial regulation, this paper argues that the deployment of development finance as responses to the regulatory crises of the global financial system have had adverse effects on regulatory change, especially on efforts to reorient international financial law towards a more progressive social and economic agenda. It demonstrates how current practices of financial aid not only fail to address the systemic failings of the international financial system, they serve to sustain, if not entrench, existing asymmetries in international economic law, thereby exacerbating its negative distributive outcomes.

Celine Tan

Problematic Relationships: Why International Economic Law Is Sometimes More Complicated Than It Appears

The international financial crisis of 2008 has gained a lot of attention from scholars from different disciplines. For many participants in the debate, the crisis was nothing else than an expression of a lack of effective international financial market regulations. Thus, to have better and “more” regulation on financial market instruments was seen as the key to preventing future crises. However, taking stock after about 7 years since the breakdown of Lehman Brothers makes clear that, first, finding adequate regulatory instruments for financial markets is certainly not as easy as it has often been suggested, and second, that there is a severe danger of overregulation with negative economic consequences. Celine Tan is not much interested in the intensive debate on possibilities, limitations and concepts on international financial market regulation. Instead, she simply asserts that there is a lack of “effective and equitable mechanisms for the regulation of international financial markets”. This assertion is supplemented by a description of public institutions such as the International Monetary Fund (IMF) providing financial resources to States that suffer from financial crises. Based on these two observations, it is clear for the author that “international public finance has been progressively conscripted to manage and mitigate the negative externalities caused by both market and regulatory failures”.

Christian Tietje

Regulating Multinational Enterprises

Multinational Enterprises (MNEs) were, until relatively recently, deemed to be outside the purview of International Economic Law (IEL). More recently this has changed. MNEs are visible and much of the contemporary agenda of IEL concerns the facilitation of their operations, specifically, through the increasing integration of trade and investment issues in new generation Preferential Trade and Investment Agreements (PTIAs). These developments have created growing worries over the loss of sovereignty by States and have prompted the rise of a critical alternative position that seeks to rebalance IEL towards a re-assertion of State regulatory power and of values other than the purely economic values. Here Non-Governmental Organisations (NGOs), or Civil Society Groups (CSGs), play a significant role seeking to curb what they perceive as unaccountable excesses of corporate power supported by the retreat of the State from regulatory control. This trend does not obviate the need to address issues of distributive justice, social solidarity and sustainable development that challenge any purely facilitative calculation about corporate freedoms. It requires action to rebalance both domestic and international rules concerning the operations of MNEs and to reign in corporate excesses. The problem is how to do this if the State remains wedded to the core idea of market liberalisation and corporate freedom. This paper will seek to unravel this conundrum in the context of the development of PTIAs and their impact on MNE regulation.

Peter Muchlinski

Horizontal Effect of Human Rights in the Era of Transnational Constellations: On the Accountability of Private Actors for Human Rights Violations

This article discusses the horizontal effect of human rights and proposes a new and unconventional approach to the accountability of private actors for human rights violations. It argues that current theoretical and doctrinal approaches are not able to provide adequately for the protection of human rights, as these approaches are underpinned by state-centric perspectives of law and classical theoretical concepts of human rights. The article aims to highlight the gap in accountability that exists within international and national law as well as the weaknesses of the existing theoretical and doctrinal approaches. It proposes a new concept for the horizontal effect of fundamental human rights borrowing elements from systems-theory, especially from the work of Gunther Teubner. Finally, this article demonstrates the practicability of this concept.

Ibrahim Kanalan

Human Rights and International Economic Law

Ostensibly, international human rights law and international economic law (incorporating international trade law and international investment law) seek to achieve similar outcomes, namely the protection of certain rights so as to promote human flourishing. However, compatibility between international economic law and human rights law cannot be presumed. While restrictions on, for example, protectionism can undoubtedly have positive human rights effects, there are significant areas of divergence. For example, international trade law is widely acknowledged as being biased against poorer countries, and swift trade liberalisation may in fact undermine a State’s ability to implement its obligations regarding economic social and cultural rights. Direct conflicts between the regimes may arise with regard to the implementation of the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). A number of arbitrations under bilateral investment treaties have posed possible threats to a State’s capacity to fulfil human rights. Finally, a chilling impact on human rights implementation may arise from the loss of policy space which flows from international economic law. Ultimately, international economic law focuses on the rights of a privileged few, namely foreign traders and investors, which may lead to the inevitable prioritisation of their rights when they clash with or otherwise detract from the human rights of others. Such a prioritisation is unfortunate if it adds to the capacity for powerful entities to override the interests of the powerless and marginalised.

Sarah Joseph

International Economic Law and Human Rights: Friends, Enemies or Frenemies?

A state’s economic policies, including the protection of intellectual property and foreign investments, and trade liberalisation, can have an impact on the enjoyment of human rights. Some of these policies may also be encouraged by international treaties. But it does not follow that any given economic policy is required by those treaties. Determining whether this is the case requires a close analysis of the treaties at issue. In fact, most treaties typically contain exceptions clauses that permit states to comply with both their economic and their human rights obligations. In sum, while Sarah Joseph is right that, in principle, international economic law could hinder the enjoyment of human rights, it is more difficult to identify cases in which this is mandated. But even if this were the case, the logical solution is not to add human rights obligations to international economic agreements. It would be sufficient to ensure that those agreements contain exceptions that can permit—without mandating—states to comply with, and further, their existing human rights obligations.Sarah Joseph’s article addresses an important question: what is the relationship between international economic law—concerning, principally, trade, intellectual property and investment—and obligations to respect, protect and fulfil human rights. While broadly agreeing with her conclusions, this comment highlights some aspects of this question that merit more detailed consideration.

Lorand Bartels

Regional Developments: Focus on Megaregionals and Plurilaterals

Frontmatter

The United States’ Path to Concluding the Trans-Pacific Partnership: Will TPA + TAA = TPP?

The political economy of international trade decision-making within the United States is ever-changing and complex. The recent debates over the merits of the Trans-Pacific Partnership (TPP,) and the associated efforts of the Obama Administration to obtain Trade Promotion Authority (TPA), highlight these complexities. This short article is an attempt to clarify the political economy dynamics in the United States with respect to the TPP. It first explains what Trade Promotion Authority (TPA) is and why President Obama needed to have TPA as a precursor to concluding the TPP negotiations. Second, it discusses some of the internal political dynamics impacting support for, or opposition to, the TPP, as well as the Administration’s previous failures to obtain TPA for the TPP negotiations. Third, the piece addresses Trade Adjustment Assistance (TAA) and its interplay with TPA. The article concludes with an assessment of the ramifications for the TPP of the House and Senate having passed both the TPA and TAA bills.

Meredith Kolsky Lewis

TPP, Regulatory Coherence and China’s Free Trade Strategy from A to Z

This article starts with an overview of the negotiation on regulatory coherence in the Trans-Pacific Partnership (TPP), and then discusses its potential implications for China. The article argues that, the biggest challenge to China is not the trade diversion caused by the market access commitments in the TPP, but the regulatory coherence issues. The article then discusses the various initiatives China has taken at the domestic, bilateral, regional and global levels in response to the TPP negotiation, and concludes with a critical assessment of the pros and cons of each initiative.

Henry Gao

The Flow-On Effect: How the TPP Will Re-Shape Trade Relations in East Asia

Much ink has already been spilt on the Trans-Pacific Partnership (TPP), including some quality legal and geo-political analysis and high level economic enquiry but also far too many premature predictions of textual language or economic impact. This brief article does not attempt to predict or analyse the legal text, which at the time of writing had not been finalised, but rather highlights four potential flow-on effects a finalised and in-force TPP will have on trade relations in East Asia: (1) China’s response; (2) the impact on the ongoing negotiations of the Association of Southeast Asian Nations (ASEAN) aimed at deeper regional integration; (3) unilateral trade liberalization and good governance initiatives by aspiring entrants to the TPP; and (4) Taiwan’s status as an economic entity and participation in regional trade agreements. To this author, the flow-on effects will have a considerable impact on and go some way in re-shaping trade relations between and among East Asian nation states.

Bryan Mercurio

Investment Protection in TTIP: Three Feasible Proposals

Investor-state dispute settlement (ISDS) through international arbitration has become a major stumbling block in negotiations of the Transatlantic Trade and Investment Partnership (TTIP).Despite a number of efforts to fix shortcomings of the existing system especially by the European Commission, many stakeholders still are unconvinced that these incremental adaptations are sufficient to safeguard policy space in Europe. Right or wrong, there is little political appetite to include similar provisions into TTIP. At the time of writing, Washington also showed little appetite for a transatlantic or even multilateral investment court.In order to avoid losing support for the agreement as a whole, the parties now need to think about alternatives. This brief article proposes three solutions, which could be politically acceptable while at the same time offering meaningful investment protections. Our proposals are intended as a concise but constructive input to the increasingly divisive political debates, which are detracting attention from the broader economic and geopolitical benefits of a transatlantic trade agreement.

Jan Kleinheisterkamp, Lauge N. Skovgaard Poulsen

Six Degrees of Integration: How Closely Will the TTIP Integrate the Transatlantic Market?

There are real differences in the varying conceptions of free trade. The TTIP brings these differences to the fore and makes addressing them unavoidable. The TTIP could push the boundaries of economic integration in a number ways, most prominently by trying to ‘smooth out’ regulatory differences between the United States and the European Union, and in the process moving us towards a single market. There are various ways this can be done—mutual recognition and harmonization are two of the main ones—but all involve reducing the variances between the regulation of different national markets. International economic governance involves a careful balancing of economic efficiency and national autonomy, and which conception of free trade to use has a real impact. If the proper balance is not achieved, groups from a wide range of political ideologies could be upset. The challenge for TTIP negotiators is to find that right balance.

Simon Lester

TTIP and Swiss Democracy

Free Trade Agreements (FTAs) are increasingly concerned with regulatory convergence, rather than with trade liberalization through elimination of tariffs. This appears to result more often in so-called dynamic trade agreements, which still evolve after adoption. Further economic integration in democracies, however, depends on the support of the constituency. This chapter takes a closer look at the democratic legitimation of global economic integration in a case study on Switzerland. It states that the current principles and institutions of democracy in Switzerland are unlikely to fully accommodate the new regulatory challenges of dynamic FTAs.

Charlotte Sieber-Gasser

Locating African Countries within Mega-Regionals

Mega-Regional trade negotiations, specifically the Transatlantic Trade and Investment Partnership (TTIP) and the Trans-Pacific Partnership (TPP), have the potential to transform global trade relations, if successfully concluded. They would forge new market access conditions and trading rules amongst the major developed economies in sub-Saharan African space, our core focus. This would redound in the World Trade Organization, to shape global trade rules for the future. If they fail then the decline of western, especially U.S. but also EU, trade leadership will be hastened, benefiting China in particular but also, over time, the BRICs economies. That would give smaller developing countries greater leverage in pursuing their trade relations but with relatively uncertain consequences in a new, multipolar trading system. In this light, our interest is in how African countries are responding to the Mega-Regionals. Are they consciously forming strategic responses in anticipation of potentially being shut out of potential new trade and investment circuits? If so, what is the nature and direction of those responses? If not, why not? And what may the consequences for their trade relations be?

Azwimpheleli Langalanga, Peter Draper

The Tripartite Free Trade Area: A Step Closer to the African Economic Community?

On the 10th of June 2015 the heads of state of three Regional Economic Communities in Africa, the Common Market for Eastern and Southern Africa (COMESA), the East African Community (EAC) and the Southern African Development Community (SADC), signed a declaration launching the biggest Free Trade Area (FTA) in Africa as well as opening a Tripartite FTA Agreement (The Agreement) for signature. The Tripartite FTA has the potential to open up a market comprising more than half the population of Africa with a Gross Domestic Product (GDP) of USD 1.3 Trillion as at 2014 which was roughly 58 % of Africa’s GDP.Regional integration has largely been embraced in Africa as a means to realise economic development and sustainable growth. The formalisation by the Member States of the EAC, COMESA and SADC of the Agreement is therefore highly laudable. However, though the Tripartite FTA presents an opportunity to set in motion the establishment of a Continental FTA and the eventual establishment of an African Economic Community, the reality is that there are considerable challenges that need to be overcome before the Tripartite FTA can be actualised.

Vincent Angwenyi

Developing and Least-Developed Countries and Mega-Regional Trade and Investment Agreements

Regional trade agreements (RTAs) have become a very prominent feature of the multilateral trading system. These arrangements have operated as legally permitted exceptions to the General Agreement on Tariffs and Trade (GATT) since it was established in 1947. The GATT rules, which have been subsumed under the WTO rules, recognise that tariffs and other barriers to trade can be reduced on a preferential basis by countries under regional arrangements. This is based on the cardinal principle of Article XXIV of GATT, which permits a departure from the Most Favoured Nations (MFN) obligation of non-discrimination within free trade areas, customs unions or interim arrangements that lead to the formation of free trade areas or customs unions. Mega-Regional trade and investment agreements merit attention because of their sheer size and their potential implication for trade and investments. These agreements are broad economic agreements among groups of countries that together have economic weight in negotiations and also at the world stage.

Emmanuel Opoku Awuku

The Trade in Services Agreement (TiSA): Assessing the State of Play and Potential Pitfalls

This article aims to provide an overview of the state of play regarding the Trade in Services Agreement (TiSA). It pinpoints some of the potentially novel aspects and limitations of the agreement and addresses some of the more problematic legal questions that surround its negotiation, particularly the issue of its potential multilateralisation and incorporation within the WTO framework. Section 2 provides a brief description of the history and rationale behind the negotiation of the TiSA. Sections 3 and 4 describe the current GATS framework in relation to liberalization commitments and non-discriminatory regulatory principles, and the extent to which TiSA can go beyond this. Section 5 examines the compatibility of the TiSA with WTO law by focusing on the issue of whether the TiSA can comply with conditions set out under Article V GATS for the establishment of a preferential trade agreements (PTAs) covering services. Finally, Sect. 6 addressees the manner and the conditions under which the TiSA may be multilateralised in the future.

Billy A. Melo Araujo

International Economic Institutions

Frontmatter

Overview of WTO Jurisprudence in 2014

This article presents an overview of the reports (judgments) of panels and the Appellate Body of the World Trade Organization (WTO) circulated in 2014. For each report, we present the key findings on the most salient issues as well as, where appropriate, observations on the systemic significance on a given finding. 2014 was a very busy year for the WTO dispute settlement system. 11 panel reports were circulated, and except for one of these 11 disputes, all of them were appealed to the Appellate Body. The Appellate Body issued five reports in 2014, four of which related to a panel report issued in 2014. One appeal related to a panel report was issued the previous year, in 2013, namely, the EU – Seals dispute. The disputes covered a broad range of issues, including anti-dumping and countervailing duties; import restrictions; sanitary and phytosanitary measures; publication requirements; and import restrictions on agricultural products.

Jan Bohanes, Alejandro Sánchez, Alexandra Telychko

Recent Developments in International Investment Law

International investment law remains a fast evolving and vibrant field of law with ongoing and recently-concluded investment treaty negotiations continually altering the status quo. It is a system at a crossroads of reform, generally focused on safeguarding the right of the host state to regulate and on improving the investor-state dispute settlement (ISDS) mechanism. But reform may also come into play in more far-reaching ways and significant changes are likely to see the day in the near future. One such change concerns the institutional architecture of the resolution of investment disputes, with the possible establishment of a permanent investment court and/or the introduction of an appellate mechanism. Another one relates to the new potential for multilateralism in international investment relations, with UNCITRAL’s Convention on Transparency in Treaty-based Investor-State Arbitration (hereinafter UNCITRAL Transparency Convention) constituting a step in this direction. At the same time, international investment law is a body of jurisprudence. Investor-state tribunals have continued to interpret international investment agreements (IIAs) and grant compensations to aggrieved investors, exercising their authoritative power on how international investment commitments undertaken by contracting parties are to be understood.

Catharine Titi

Recent Developments in IMF Policies and Activities

During the last 70 years, the Fund has changed its tasks and activities although there were but a few explicit modifications of its Articles of Agreement and the issue of a fair re-allocation of voting rights remained unsolved till now. Thus, the purpose of this overview focusing upon recent developments is to take a closer look at main International Monetary Fund (IMF) fields of activities like surveillance under Art. IV and various forms of financial as well as of technical assistance. Moreover, the role of the Fund as an organization taking actively part in development assistance is dealt with, as well as its relationship with the other ‘Bretton Woods’ institution, the World Bank, and the World Trade Organization (WTO), since there are many interlinked topics needing intensive cooperation between Fund and the respective partner organization. Finally, the Fund has been engaged in strategies and operations how to cope with the deterioration of the financial situation of some Euro zone member States. And of course, there shall be new challenges ahead for the Fund, so a major reform of its legal framework may soon be needed.

Ludwig Gramlich

The Road Towards Reform of the International Investment Agreement Regime: A Perspective from UNCTAD

A shared view is emerging on the need for reform of the International Investment Agreement (IIA) regime to ensure that it is in line with today’s sustainable development imperative and that it works for all stakeholders. Over the past years, UNCTAD’s Work Programme on IIAs devoted an extensive part of its activities to finding solutions to the challenges the IIA regime is currently facing. The article outlines the reform issues discussed at two recent intergovernmental and multi-stakeholder meetings organized by UNCTAD, the World Investment Forum’s IIA Conference in 2014 and the UNCTAD Expert Meeting on the Transformation of the IIA Regime in 2015. It describes recent trends in the IIA regime with a special focus on investment policy developments related to the reform of the IIA regime. These developments are exemplified by new model agreements, treaty terminations, the up-scaling of treaty making through Mega-Regionals and the conclusion of “new generation” investment treaties. All of this indicates that governments have entered into a new phase of investment policymaking. Against this background, the article presents UNCTAD’s action menu for reforming the international investment regime as put forward in the World Investment Report 2015. The action menu identifies policy challenges, analyses policy options for key areas of IIA reform and offers guidelines and suggestions for action at different levels of policymaking.

Elisabeth Tuerk, Diana Rosert

Recent Developments in the World Customs Organization

This paper investigates recent dynamic developments of the World Customs Organization (WCO) an intergovernmental Organization of 180 contracting parties that rules international customs matters and the co-operation of states in this field of work. During the last 5 years (2011–2015) developments in different legal fields and memberships of legal instruments have resulted in new trends. The major areas of work are explained and recent developments are highlighted. The WCO as a hub for scientific customs research is presented and new developments with new instruments are introduced.

Carsten Weerth

Book Reviews

Frontmatter

Valentina Vadi, Bruno de Witte (Eds.), Culture and International Economic Law

Routledge, 2015, ISBN 9780415723268

The book collects the transcripts of the talks delivered at an academic conference on the topic of the volume at Maastricht University in June 2013. It comprises an introduction by the editors and a total of 13 specialised articles which are distributed into four parts. Each of them assesses the interplay between culture and economic interests under the lens of a different branch of international law. Part 1 deals with general international law (especially human rights law), part 2 with international economic law, part 3 with international intellectual property law and part 4 with European law.

Walther Michl

Thomas Cottier, Rosa M. Lastra, Christian Tietje, Lucía Satragno (Eds.), The Rule of Law in Monetary Affairs: World Trade Forum

Cambridge University Press, 2014, ISBN 9781107063631

The global financial crisis as well as the following Eurocrisis were surely a failure of economics. But they were and are also a failure of law: Neither the national nor the European or international legal framework were able to prevent the almost-meltdown of the worldwide financial system or the economic collapse of Greece. The question how to remove these legal deficiencies in order to ensure financial stability for the future has since then become one of the major topics in the public debate. The book “The Rule of Law in Monetary Affairs” edited by Thomas Cottier, Rosa M. Lastra, Christian Tietje and (as associate editor) Lucía Satragno wants to find an answer to this question. Together with 22 other renowned (and mainly European) contributors the editors seek to explore and identify the underlying principles and norms that might contribute to a better (respectively safer) international financial system. The book thereby not only makes clear why it is so difficult to find a functioning framework when it comes to international monetary affairs, but also offers convincing solutions how to overcome these difficulties.

Alexander Thiele

Karl Sauvant and Federico Ortino, Improving the International Investment Law and Policy Regime: Options for the Future

Helsinki: Ministry for Foreign Affairs of Finland, 2013; ISBN 978-952-281-217-9

The e-book published in 2013 by Karl Sauvant (Columbia University) and Federico Ortino (King’s College London) is an important addition to the literature on international investment law. In a nutshell, this book’s contribution is to outline the key features of the international investment regime, identify drivers of change, discuss critical issues, and describe some proposals for reform of the regime. The present review will focus on the suggestions put forward by Sauvant and Ortino and the challenges facing their design and implementation.

Julien Chaisse

Diane Desierto, Public Policy in International Economic Law: The ICESCR in Trade, Finance, and Investment

Oxford University Press, 2015, ISBN 9780198716938

Diane Desierto’s book adds to the raging debate on how public policy objectives can and should be incorporated into international economic law (IEL); she focuses on the areas of international trade, finance, and investment. She deems the economic, social, and cultural (ESC) rights enshrined in the International Covenant on Economic, Social, and Cultural Rights, 1966 (ICESCR) such as the rights to self-determination, work, social security, health, education, and to participate in cultural life important international values that should be weaved into the current IEL regime through deliberate, consistent, and systematic means. Of particular concern to her is inherent global inequality, which can be exacerbated when ICESCR rights are disregarded due to the unequal balance of power in the economic relations between developing and developed countries. Desierto’s contribution to the current scholarship in this field is a well-researched and balanced monograph that explores ways in which State Parties to the ICESCR (State Parties) and the IEL architecture can operationalise and meaningfully interpret international ESC rights obligations when they cross paths.

Kholofelo Kugler

Juliane Ahner, Investor-Staat-Schiedsverfahren Nach Europäischem Unionsrecht: Zulässigkeit und Ausgestaltung in Investitionsabkommen der Europäischen Union

Mohr Siebeck, 2015, ISBN 9783161537271

After receiving a competence for foreign investments with the Treaty of Lisbon in 2009, the EU unsurprisingly started to negotiate its own bilateral investment treaties (BITs), including typical investor-state dispute settlement (ISDS) mechanisms, in recent years. In this context, especially the EU-Singapore FTA, CETA and TTIP the can be named; all of them basically being trade agreements, but containing distinct investment chapters at the same time. Lately the EU’s BIT-negotiations are accompanied by extensive and fierce debates both in public and in academia, not only regarding the legitimacy of ISDS, but also concerning procedural, institutional and even constitutional questions.

Till Patrik Holterhus

Aikaterini Titi, The Right to Regulate in International Investment Law

Studies in International Investment Law Series, Nomos/Hart Publishing, 2014, ISBN 9783848710621

States conclude investment treaties to promote and protect foreign investment by accepting international obligations that restrict their rights or powers that they have under international law as well as respective domestic law. But have they not gone too far? If existing investment treaties lay down excessive restrictions on the host State’s right to regulate or the ‘right to pursue specific public policy goals’, how to rectify the situation? These questions attract an increasing number of academics, practicing lawyers, governments, international organizations and, last but not least, civil society, as testified by the rich bibliography of the book. Titi tries to answer them in her doctoral thesis submitted to the University of Siegen through an analysis of investment treaties, relevant rules of general international law and investment arbitral jurisprudence.

Shotaro Hamamoto
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