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This volume scrutinises the main challenges faced by States in their current international economic relations from an interdisciplinary perspective. It combines legal research with political and economic analysis and favours dialogue among scientific disciplines. Readers are offered a series of in-depth studies on a rich variety of topics: how to reconcile States’ interest to benefit from economic liberalization with their need to pursue social goals (such as the protection of human rights or of the environment); recent developments under WTO law and regional integration processes; international cooperation in the energy sector; national regulatory developments in the banking sector, sovereign wealth funds and investor-State arbitration.

Inhaltsverzeichnis

Frontmatter

International Economic Law and Other Concerns

Frontmatter

The First Twenty Cases Under GATT Article XX: Tuna or Shrimp Dear?

When the general exceptions to the GATT have been invoked before the Appellate Body, they have only been deemed a legitimate defence in two cases since the inception of the WTO and its Dispute Settlement Body in 1995. This article analyses why so many defences taken under the general exceptions to the GATT have failed and whether this low success rate is indicative of a priority being given to market access over public policy objectives at the WTO. In August 2014, the Appellate Body issued its twentieth report in a case appealed under the general exceptions. These first twenty reports are analysed to see which stage of the two-tier test measures have failed and why they have failed.To better understand Article XX’s context, this article first examines its historical evolution and recent interpretations of its two-tier test. It then turns to application of the two-tier test and why measures have failed the necessity test or failed to comply with Article XX’s chapeau (the two elements of Article XX’s two-tier test).Finally, in light of Article XX’s case law and how the two-tier test has been interpreted, it considers whether the Appellate Body is striking the right balance between Members’ substantive rights and Members’ rights to pursue public policy objectives under the general exceptions.

Niall Moran

Remarks on the Practice of Regional Development Banks’ (RDBs) Accountability Mechanisms and the Safeguard of Human Rights

Based on the experience of the World Bank’s Inspection Panel, Regional Development Banks (RDBs) have established accountability mechanisms with the aim to control the compliance of their lending activities with their own operational policies and procedures. Notwithstanding different models created, weaknesses and critical issues, RDBs mechanisms are contributing to the promotion and protection of human rights at the universal level, holding RDBs accountable for violations of international human rights law. Since they allow individuals to present claims related to rights and interests affected by an act or omission of the organization, RDBs accountability mechanisms are innovative instruments in the law of international organizations aimed at consolidating objectives related to sustainable development, promotion of fundamental rights and freedoms, protection of cultural heritage and rights of indigenous people, safeguard of environment and biodiversity.

Domenico Pauciulo

A Waiver for Europe? CETA’s Trade in Services, and Investment Protection Provisions and Their Legal-Political Implications on Regulatory Competence

The Comprehensive Economic and Trade Agreement (CETA) is a bilateral agreement between Canada and the EU that aims at providing a broad set of incentives in order to promote trade and business, and bears important legal and political consequences for trade and foreign investment policies of the parties. This paper aims at exploring CETA’s trade in services and investment provisions on fair and equitable treatment and indirect expropriation. In the section on cross border services, the paper discusses the scheduling modality and the adjustments introduced, with a view to the parties’ regulatory competencies. In the section on investment provisions, it delves further into whether or not it bears the potential to live up to parties’ promises of further clarity, coherence, addressing public expectations relating to unhindered sovereign regulatory authority.

Amalie Giødesen Thystrup, Güneş Ünüvar

The Human Right to Health: Reflecting on the Implications of IPRs as Endorsed by the Trans-Pacific Partnership Agreement

With the aim of technology innovation, transfer and capacity building, the World Trade Organisation established a new regime for harmonizing the laws related to intellectual property which included certain flexibilities in the nature of compulsory licensing and parallel imports. At the same time a progressive concept of development which includes a mandate for Member countries to adopt a “right to health” within the economic, social and cultural rights framework emerged. The Agreement on Trade Related Aspects of Intellectual Property Rights required Member States to include relevant amendments to the existing laws within its policy space to ensure adherence to the minimum agreed criteria of intellectual property protection. The Trans-Pacific Partnership (TPP) agreement seems to be shifting this regime towards extreme privatization of R&D and stronger protection of intellectual property rights. The author analyses the implications of the TPP while focusing on chapters pertaining to intellectual property and reflects on the right to health as a human right in such context. It is argued that stringent intellectual property protection in the TPP will disadvantage trade, economic development and patient welfare objectives. The TPP should be revised to include suggestive changes for consensus building and dispute resolution that can aid in developing modern international economic law and practice.

Sunita Tripathy

International Trade Law

Frontmatter

Can (and) Should the WTO Tame Private Standards? Antitrust Mechanism as an Alternative Roadmap: Lessons from the WTO Telecommunications Reference Paper

The question of private standards within the WTO has gradually developed from a mere theoretical and academic discussion to a full blown policy and legal debate. This debate however is still far away from reaching consensus. First of all, it is still unclear whether the issue of private standards should be discussed within the WTO framework. Second there are still plenty of confusion on the manner of approaching the discussions and regulating the trade externalities of private standards and the future shape of any WTO discipline in this regard, if any. The objective of this contribution is to develop an alternative roadmap towards private standards within the WTO framework. In doing so it examines the role that market power plays in private standard-setting and the possibility of adopting comparable competition law governance mechanisms incorporated within the WTO, such as the WTO Telecommunications Reference Paper.

Tilahun E. Kassahun

The Twenty-First Century Regionalism: Brazil and Mercosur in the New International Scenario

The present paper intends to investigate the main characteristics of regionalism in the twenty-first century as well as the role played by Brazil and Mercosur in this new global scenario. This discussion is analysed through the perspective of the third wave of regionalism. Therefore, this article is divided into three main sections. Firstly, the theory of the regionalism waves will be explained. Secondly, the process of regional integration in Latin America will be analysed. At last, the insertion of Brazil and Mercosur in the context of the new regionalism will be investigated. This discussion is very important for developing countries, since it is directly linked to the prospects and challenges of their integration into the global economy. In conclusion, it can be asserted that the deep economic transformations observed in recent years have caused the breakdown of the stability of various economic blocs, including Mercosur. The search for new models of integration may solve common problems between neighbouring countries that often go beyond the merely economic domains. Hence, regional development depends not only on economic integration, but it is also often associated with physical integration and infrastructure improvement.

Belisa Esteca Eleoterio, Alebe Linhares Mesquita

Regionalization Within the SPS Agreement: Recent Developments

The SPS Agreement includes a significant provision according to which SPS measures are to be adapted to regional conditions (art 6). However, its implementation faces several problems, especially concerning complex and slow administrative procedures and the obtaining of recognition of international organizations’ standards. This Chapter will examine the process of adoption by the SPS Committee of the “2008 Guidelines to Further the Practical Implementation of Article 6 of the Agreement on the Application of Sanitary and Phytosanitary Measures” and will then focus on the interpretation of art 6 in the very recent WTO case law, so as to assess to what extent it gives more guidance. Finally, given the relevance of Free Trade Agreements, it will be appropriate to analyse SPS-plus measures in those agreements, especially the EU context as it includes regionalization’s provisions going far beyond art 6.

Anna G. Micara

The Mutually Agreed Solution Between Indonesia and the United States in US – Clove Cigarettes: A Case of Efficient Breach (or Power Politics)?

The Mutually Agreed Solution (MAS) to the US – Clove Cigarettes case between the United States and Indonesia evokes the idea of the WTO dispute settlement system allowing for efficient breach. Through the MAS, the case was declared settled based on mutual commitments of the two parties, while the original violation by the US remains in place. The paper first discusses whether MAS are a means through which WTO law allows such flexibility, concluding that such a view is tenable despite valid objections. Then, it inquires whether the MAS found between Indonesia and the US can be considered an efficient breach. In this context, the paper analyses the mutual commitments of the US and Indonesia with specific attention to the potential role of power in the settlement. The paper argues that from a legal perspective the MAS between Indonesia and the US cannot be considered a case of efficient breach, although politically the situation established through the MAS resembles a situation of efficient breach. The paper finds that power imbalances played a role in the settlement and suggests that the case study of this specific MAS highlights systemic risks in the current handling of WTO dispute settlement through MAS.

Johannes Norpoth

Energy Issues in International Trade and Investment Law

Frontmatter

Energy Regulation in International Trade: Legal Challenges in EU–Russia Energy Relations from an Investment Protection Perspective

The EU–Russia energy partnership is a highly strategic relationship that has profound implications for the international arena as far as energy security and stability are concerned. The Ukraine crisis and subsequent sanctions brought this realization to the fore, with the future of this partnership hanging in the balance. Bilateral relations have come under increasing pressure in recent years, following a series of trade disputes and supply disruptions, bringing Russia’s reliability as a trade partner into question. Tensions have been further exacerbated by Russia’s withdrawal from the ECT which has effectively rendered energy cooperation based on political dialogues and commitments that lack legally binding norms. With the unlikelihood of a revised Partnership and Cooperation Agreement following the EU’s suspension of all talks in response to Russia’s annexation of Crimea, the basis of legal ties between these two powers has been brought into question. However, with Europe heavily dependent on Russian energy resources, the EU has a vested interest in keeping Russia firmly entrenched in the global trading system. This Chapter will assess the role of international law in EU–Russia relations; in particular, whether the ECT and WTO provide an appropriate legal framework in the context of energy trade from an investment protection perspective.

Natasha A. Georgiou

Renewable Energy and WTO Subsidy Rules: The Feed-In Tariff Scheme of Switzerland

In recent years, States around the world have been starting to facilitate the production of renewable electricity by providing subsidies to producers in order to address climate change. As a consequence, policy makers have been developing various forms of instruments to support renewable electricity production. Amongst them, a popular tool is the feed-in tariff (FIT), which is currently used by around 73 countries.Switzerland is one of the 73 countries, which has been using a FIT-scheme as an instrument to support the production of renewable electricity since 2009. According to art 7a.1 of the Swiss Energy Act network operators are obliged to take all electricity from producers of renewable electricity and to compensate them with a fixed tariff. With the new energy strategy 2050 the State support of renewable energy has become even more important. Interestingly, renewable energy composes already a majority of the total electricity production in Switzerland, namely from hydropower.This research aims to contribute to the current discussion of the compatibility of FIT-schemes with WTO subsidy rules. By analysing Switzerland’s FIT-program, the research question is asked whether the current WTO subsidy regime allows Switzerland enough policy space to pursue its objective to raise its production of green electricity by using a FIT-program.

Jean-François Mayoraz

The Nexus Between the WTO and the ECT in Global Energy Governance

This article discusses the nexus between the ECT and the WTO in global energy governance. The two treaty-based regimes each cover an area of the global energy governance patchwork. Moreover, they are connected in substance. While the former is concerned with providing a framework for the regulation of trade in virtually all goods and services, the latter offers a specialized regime for energy trade and investment regulation. Apart from discussing the origins of the ECT and its relationship to the WTO, the article examines where the treaties overlap and where they are at tension with each other. It does so in view of the changes that have taken place over the past two decades of their existence.

Anna Marhold

“Ain’t No Sunshine”: Photovoltaic Energy Policy in Europe at the Crossroads Between EU Law and Energy Charter Treaty Obligations

After the EU-driven liberalisation of the electricity market in Europe, EU Member States put in place a variety of measures to develop photovoltaic (PV) energy sources. These policies, however, soon proved to be unsustainably expensive, particularly in a moment in which the condition of EU Member States’ public finances is generally problematic. In order to fulfil the tight EU fiscal requirements, many EU Member States withdrew or substantially curtailed support for renewable energies. In response to these policy changes, a group of solar power investors initiated several arbitral proceedings against Spain, Italy, and Czech Republic under the Energy Charter Treaty (ECT). This wave of claims has once again brought to the fore the vexed question of compatibility between ECT and EU obligations in intra-EU cases. Given the variety of possible interpretative approaches and the lack of binding precedent doctrine in international investment arbitration, this paper maintains that solving this conflict through hermeneutic means is not entirely satisfactory. Therefore, it suggests a two-step strategy to accommodate it and neutralise its detrimental effects.

Francesco Montanaro

Investment and Finance

Frontmatter

The Final Volcker Rule and Its Impact Across the Atlantic: The Shaping of Extraterritoriality in a World of Dynamic Structural Banking Reforms

The Volcker Rule could potentially apply to the global structure of a foreign bank with US branches or any business of foreign banks with US counterparties. Concerns of an adverse extraterritorial impact—while mitigated in the implementing regulations—still matter. This Chapter, in considering the different approaches adopted by the United States and the European Union toward extraterritoriality, emphasizes the fact that, even when there is no global standard, mutual recognition based on equivalence would be a slow, complex process toward harmonization, but it might work. The purpose of this Chapter is to explore the prospects of harmonization and the development of global standards via extraterritoriality in banking structural measures, providing a view on the role national regulations as potential source of international financial law.

Elisabetta Cervone

More Than a Friend? The European Commission’s Amicus Curiae Participation in Investor-State Arbitration

The European Commission sought participation as amicus curiae in a number of recent Investor-State arbitrations. The European Commission’s amicus participation differs substantially from the participation of the traditional amici curiae in investment arbitration, in particular due to the European Union’s direct interest in the result of the proceedings. This Chapter examines the differences between amicus curiae participation and intervention through an analysis of the European Commission’s amicus participation in four investment arbitrations: Eureko v. Slovakia, EURAM v. Slovakia, Electrabel v. Hungary, AES v. Hungary, and Micula v. Romania. The author of this Chapter argues that the European Commission’s amicus curiae participation closely resembles another form of third party participation, namely intervention, and may mark a development in third party participation in international investment arbitration.

Olga Gerlich

Sovereign Wealth Funds as Socially Responsible Investors

Sovereign Wealth Funds (SWFs) are public investment vehicles, owned and managed directly or indirectly by governments and set up to achieve a variety of macroeconomic purposes. As institutional investors, SWFs have the fiduciary duty to act in the best long-term interest of their beneficiaries. In this context, socially responsible investment may enable a SWF to increase its financial profitability. However, the fiduciary duties of SWFs towards their beneficiaries go beyond the economic maximization of returns on their investments. In the aftermath of the financial crisis, SWFs have established themselves as important financial markets participants. This paper will, first, address the existing international regulatory frameworks that govern the responsibility and accountability of SWFs, and, second, discuss ways to improve those frameworks in order to enable SWFs to become sustainable investors. The focus of the paper is on evaluating the leverage of SWFs in the global economy, as well as their potential to promote corporate social responsibility and, therefore, to lead the financial sector towards greater sustainability.

Xenia Karametaxas
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