bluuebunny/crossref_metadata_2025 huggingface dataset:
EU Competence in Foreign Direct Investment: Will the EU Court of Justice End the Controversy?
Authors: Leys David
Published: March 2022

Since the enactment of the provisions on foreign direct investment in the Treaty of Lisbon, a controversy has arisen on the competence of the EU and the Member States in this field. Recently, the presence of certain investment provisions in the concluded EU-Singapore Free Trade Agreement (EUSFTA) has made the controversy more practical. In an effort to clarify the issue of competence, the European Commission decided to request an Opinion from the EU Court of Justice. The EU Court of Justice will most probably end the controversy and have the last word on the question.
The Day the Music Died: The Curious Case of Peru-Agricultural Products
Authors: Raina Akhil
Published: March 2022

In a time when WTO-naysayers are predicting its obsolescence, the organization’s long-term survival largely depends on robust interpretation developed by its judiciary – particularly the Appellate Body (“AB”). It is now well recognized that conduct of sovereign states in good faith is essential for the proper functioning of any international legal order. WTO law is no different. Hence, it imperative for the AB to ensure that “good faith” is not merely a phrase in treaty text. The AB ruling in the recent case regarding Peru’s Price Range System (PRS) is significant in this regard. This paper seeks to discuss the implications that the case may have for the WTO’s future in terms of the so-called “extensive yet fragile” authority of its AB.
Brexit Without WTO-Problems: For the UK? The EU? Global Business?
Authors: Häberli Christian
Published: March 2022

Among the responses to the Brexit Referendum result on 23 June 2016 one issue was noticeably absent: the implications from a WTO perspective. Leaders have tried to reassure the world that the UK would be at least as good a WTO Member as during its 43 years under the EU umbrella. Some have argued that, the UK could simply take back its place which it had partly relinquished upon its accession to the EU in 1973. Instead, a UK divorce from the EU will inevitably require a re-balancing of the rights and obligations under the traffic rules of the WTO. Taking the examples of country-specific agricultural import quotas and of farm subsidy limits, it shows that farmers and businesses will find different market access rights after Brexit. Even a remote possibility of impairments will lead other club members to safeguard their own rights when signposts are shifted. The key question then is in the procedure for handling claims of reduced access opportunities: does the consensus principle imply that anybody can block any change in that balance?
Israeli Purchase Tax on Commercially Imported Cars: An Illegal Barrier to International Trade or a Legitimate Domestic Policy Instrument?
Authors: Munin Nellie
Published: March 2022

This article suggests that Israeli purchase tax – a major component of commercially imported cars’ taxation – involves elements that may be considered incompatible with Israel’s commitments in international trade agreements, including its association agreement with the EU, and thus its current formula and the policy underlying it should be reconsidered, despite its considerable contribution to state revenue.
The Political Arithmetic of Borders: Towards an Enlightened Form of Criticism
Authors: Cantens Thomas
Published: March 2022

This paper addresses the use of data and numbers in border management and proposes a criticism of the criticism against what is commonly named the datafication of borders. The paper aims to show that the so-called datafication applied to commodities crossing borders is not a new process, as a science of merchants accompanied the raise of foreign trade in the seventeenth century. The current phenomenon is a mathematization of borders, producing a particular topology of borders and using ways of computing data and numbers that are politically driven. The paper then describes some calculation principles proper to this new form of border governance and draws the consequences in terms of policy dialogue regarding the nature and management of borders.
The Shake-Up of the EU Institutions Dumping Calculation Methodology and the Compatibility of a Market-Oriented Concept of Normal Value with WTO Law
Authors: Sneij Florentine , Akritidis Vassilis
Published: March 2022

This article discusses the concept of ‘dumping’ and whether a market-oriented concept of normal value definition is compatible with World Trade Organization (WTO) law. While this question on compatibility remained unanswered until now, it is expected that the newly adopted European Union (EU or Union) dumping calculation methodology, as introduced by Regulation (EU) 2017/2321, will accelerate discussions on this topic. The view presented here is that the answer to the question on WTO compatibility is not clear-cut. What’s certain, however, is that there is a rising concern among WTO Members with unfair market-distorted and protectionist practices. A categorical approach on the question on compatibility, excluding any possibility for WTO Members to take into account market-distorted practices in anti-dumping investigations, does, therefore, not seem recommendable.
Implementing ISO 37001 to Manage Your Bribery Risks
Authors: Gehring Holger , Méan Jean-Pierre
Published: March 2022

This article explains the risks and consequences for a company and its staff in the context of anti-bribery laws violations. It discusses how to mitigate such risks and shows that implementing ISO 37001, an international standard of an anti-bribery management system, offers a way forward on national and international level. Because of the global consensus and reach of ISO standards, ISO 37001 seems to be the only antibribery management system to be accepted and understood globally by public authorities, enforcement agencies and business partners. Certification by an accredited certification body offers in addition an independent qualified assurance.
Customs Law Violations and Penalties in Europe/Where Do We Stand After fifty Years of Customs Union?
Authors: Anaboli Panayota
Published: March 2022

On the occasion of the 50th anniversary of the Customs Union, the paradox of the EU customs sanctioning system in a fully harmonized field such as EU customs law, generates questions about its impact to the efficient management of the Customs Union including the impact on to the EU duty recovery system, its impact on the Single Market and its economic operators as well as on the fundamental rights of the EU citizens.

This requires an update of the question of customs penalties, briefly referring to previous attempts of harmonization, taking into account recent developments in the institutional and legislative context. The main features of the EU proposal on the approximation of customs penalties and the harmonization of customs infringements within a common EU framework as well as the reaction of the European Parliament and Council and relevant legislation emerging from other policies are presented in this article.
Customs Infringements and Sanctions in Polish Regulations
Authors: Czyzowicz Wieslaw
Published: March 2022

This article is devoted to legal sanctions for customs infringements in the Polish legislation. The author formulates the definitions of customs offences and misdemeanours, presents the basic typology of customs infringements and discusses the sanctions for infringements depending on their type. The special attention is dedicated to the analysis of sanctions contained in the Polish Penal and Fiscal Code and in the Penal Code. The article describes also the recent changes and tendencies in Polish customs law sanctions.
Anti-Dumping in Europe: What About Us(ers)?
Authors: Juramy Hélène
Published: March 2022

As Anti-Dumping law in the European Union turned fifty years old, it got a rejuvenating cure: the European Union published in December 2017 and June 2018 two regulations providing a stronger policy tool to protect European producers and workers. This article focuses on users, including both intermediate industries and consumers. First, it recalls the European approach of considering users in trade defence policy, as a moderate user of trade defence tools. Second, it reviews the three ways in which the European Union takes into account users’ interests, and the impact of the June 2018 modernization. Notably, this article looks at the new flexibility of the ‘lesser duty rule’ and at the two new ‘Union interest tests’. It also gives practical insights for users. Third, the article raises some open questions. As the lesser duty rule and the Union interest test evolve, this article argues that users’ interests remain an important feature in Europe’s anti-dumping law.
Interpreting WTO Rules in Times of Contestation (Part 2): A Proposed Interpretation of Article XXI(b)iiiii of the GATT 1994 in the Light of the Vienna Convention of the Law of the Treaties
Authors: Duque Gustavo Adolfo Guarin
Published: March 2022

This document is a research paper written under the legal framework of the WTO. It focuses on the issue of the justiciability and interpretation of the security exception provided in the Article XXI(b) of the GATT 1994. It contains two sections. The first section deals with the issue of Jurisdiction of the Settlement Mechanism of the WTO, whether a WTO panel is entitled to solve a controversy regarding Article XXI(b) of the GATT 1994. The second section engages in a debate over the interpretation of the security exception, literal (b) subsections ii-iii, applying as a necessary corollary of interpretation the Vienna Convention on the Law of the Treaties.
Convergence on the Calculation Methodology for Drafting Rules of Origin in FTAs Using the Ad Valorem Criterion
Authors: Inama Stefano , Crivelli Pramila
Published: March 2022

Drafting product specific rules of origin is the daily nightmare of trade negotiators engaged in Free Trade Agreements (FTAs) negotiations. There are no multilateral disciplines, little research has been carried out to concretely suggest best practices and the private sector is unable to provide valuable inputs due to the complexity of rules of origin (RoO) and their calculations. The use of the ad valorem percentage criterion in drafting RoO is often perceived as a shortcut to RoO complexities. In reality the apparent straightforward nature of the percentage criterion is hiding a number of complexities and drafting options. This first part of this article addresses such technicalities and provides recommendations about the calculation methodology of the ad valorem percentage criterion on the basis of comparative analyses and trends in major FTAs.
The Legal Challenges and Legal Safeguards for the Belt and Road Initiative
Authors: Li Liao
Published: March 2022

The Silk Road Economic Belt and the twenty-first century Maritime Silk Road, better known as the Belt and Road Initiative (BRI), is a development strategy proposed by China’s President Xi Jinping in 2013 that focuses on connectivity and cooperation between Eurasian countries. The reasons for initiating the Belt and Road include the trends of antiglobalization and global economic decline, the rise of China as a global economic power, and the rise of China as a global investor. In particular, the BRI can provide international public goods. The process of building the Belt and Road will face legal challenges, sovereignty and territorial integrity/maritime disputes, international trade and investment risks, the Sino-European market’s economic status, and overlapping and conflicting bilateral and multilateral treaties. The BRI needs a dispute settlement mechanism to solve the disputes among the Belt and Road countries. Facing legal challenges, we need to insist on the rule-based spirit and basic principles of international law; provide bilateral, multilateral, and treaty safeguard systems; support legal communication and cooperation; and strengthen the BRI’s legal capability.
The Present and the Future of the Indian BIT Programme: Throw the Bathwater, but Keep the Baby
Authors: Ranjan Prabhash
Published: March 2022

After White Industries and the numerous claims like Vodafone, Cairn Energy, Nokia, Nissan, etc, India has started reviewing its bilateral investment treaties (BITs). It has formulated a Model BIT in 2016 and has unilaterally terminated numerous BITs with countries. This Article analyses whether a review of existing BITs by India was the correct decision. Further, it examines the implications of termination of BITs and whether the Model BIT addresses India’s critiques of BITs. The BITs signed in the 1990s have been criticized to be based on the laissez faire liberalism model, and fail to balance the investor’s right with the state’s right to act in public interest. However, the Model BIT does not seem to resolve and clear the vagueness of the key BIT provisions. None of the disputes against India show a genuine and direct conflict between investment protection and the host State’s right to regulate and act in public interest. All these cases could have been avoided if the Indian State was more circumspect either in adopting its regulations or in conduct of its business. The Article concludes by stating that India will have to consider all of these factors while developing its new BIT practice.
The Origin of Goods in International Trade, an Often Misunderstood Concept Which Is However an Important Trade Issue
Authors: Wegnez Attaché Marc
Published: March 2022

The article reviews what is the definition of the ‘origin of goods’ under EU law, which includes both non-preferential and preferential origin. Rules on the ‘origin of goods’ were made to implement trade measures, in particular when goods were manufactured with components from several countries – not to protect consumers. The article then distinguishes the ‘origin of goods’ from other related notions that are often confused with the ‘origin of goods’, namely provenance, protected designation of origin (PDO), protected geographical indication (PGI), non-agricultural geographical indication, and commercial origin. The author explains that unlike the ‘origin of goods’, most of these notions are defined in relation to consumer protection.
Mutual Recognition as a Method to Deal with Regulatory Divergence: What Is Its Reach in EU FTAs?
Authors: Romanchyshyna Iulianna
Published: March 2022

Mutual recognition may seem to be an attractive option to tackle regulatory divergences across jurisdictions, as, in comparison to harmonization, it allows the parties to preserve their domestic regulations. However, in reality, it might be difficult to achieve and is a subject to certain conditions and limitations. This article investigates the notion of mutual recognition and outlines its limits in the EU free trade agenda aiming to answer the question in which form mutual recognition may be applied within the framework of an FTA.

mutual recognition, EU FTAs, regulatory divergence, cassis de Dijon, conformity assessment.
Customs Valuation: A Bosnian and Herzegovinian Perspective
Authors: Alagic Ognjen
Published: March 2022

When is litigation successful? Using the example of trade defence measures, this article addresses the effect of and compliance with judgments of the Court of Justice of the European Union. Its premise is that if a favourable judgment does not result in an improvement of the legal or economic position of the applicant, there is no incentive to litigate. This reduces accountability for EU institutions, turning the effect of and compliance with judgments into a fundamental question of judicial protection. With that in mind, this article sets out the differences in the effect of annulments and invalidations. It then turns to how this effect translates into compliance obligations, and how the EU institutions have complied with judgments in trade defence cases.

Court of Justice of the European Union, litigation, effect of judgments, annulment, invalidation, implementation, measures taken to comply, Article 266 TFEU, trade defence, anti-dumping, anti-subsidy
Borders and Protectionism: US Trade Policy and Its Impact on law, Economy and International Trade
Authors: Armella Sara , Conti Maurizio
Published: March 2022

Between 2008 and 2018 the major world economies have significantly increased protectionist measures and the most significant impulse is due to the new policy of the USA. We are witnessing a formal and substantial override of WTO rules and, more generally, the perception is conveyed that the WTO rules do not bind the United States and that there is a recovery of sovereignty on these issues. From the economic point of view, the article focus on the short-run effects of the tariffs: spikes in consumer as well as producer prices and higher profit margins for domestic producers. The washing machine industry provides a flavour of the costs that consumers have to pay in order to finance a new job in the protected industry. Economists compute a cost on US consumers of about USD 1.5 billion, i.e. about USD 820000 per additional job.

Protectionism, GATT, WTO, Sovereignty, Tariffs, Trade war, National security, exemptions, Disengagement, US consumers, Washing machine industry
The Preferential and Non-preferential Certification of Origin in Colombia: Trends on the Origin Verification Process
Authors: Mariño Juan David Barbosa , López Vergara Juan David
Published: March 2022

This article presents the institutional framework of preferential and non-preferential certificate of origin in Colombia. Special emphasis is made in the process of verification, the sanctioning regime and the common errors that Companies incur, also describing some current trends of the Authority to disregard the Proof of Origin.

Preferential Origin, Suspension of Preferential Tariff Treatment, Verification, Free Trade Agreement, Sanctions and Penalties, Authorized Exporter, Transshipment, Non-preferential origin, Proof of Origin.
Eradicating Forced Labour in Global Supply Chains
Authors: C. Hok Donald , M. Natta Pierfilippo , Acuff Olivia , Zaharatos George
Published: March 2022

Whilst globalization has taken command of supply chains worldwide, and human rights practices are being respected with stricter conviction, the burden to eradicate forced Labour and modern slavery from global supply chains has shifted from governments to corporations. In this article Klynveld Peat Marwick Goerdeler (KPMG) offers a global perspective on how the US government has ramped up efforts in eliminating forced Labour linked to the importation of goods into the US. The article addresses both policy and legislative authorities as well as case studies linked to company initiatives. A further observance addressing leading practices is offered in order to provide a more human rights compliant policy for corporations.

Forced Labour, Human Rights, Customs, Imports, Uyghur, Xinjang, Convict Labour, Consumptive Demand, Section 1307, USTR.
The US-China Trade War and the Economic Ripple on South Africa
Authors: C. Ngwakwe Collins , P. Sebola Mokoko
Published: March 2022

This article examines the economic ripple of United States-China trade war on South Africa. Data were analysed using the paired t-test statistics for means. Results indicate that the United States suffered a significant increase in trade deficit during the first year of the US-China trade war in 2018 compared to the pre-trade war period in 2017. South Africa witnessed a significant increase in the balance of trade deficit in 2018 during the first year of the trade war. In addition, the South African currency has suffered increased volatility during this period of US-China trade war. In conclusion, the paper highlights that based on past US trade war history, the United States may suffer more losses if the current trade war continues. The paper recommends inter alia, the urgent need for the United States and China to resolve the trade impasse, and the need for South Africa to diversity its exports in order to penetrate new markets.
US-China Policy on Global Trade: A Survey of Selected Literature
Authors: Sousa Maria José , Sousa Miguel , Costa Renato Lopes da , Rodrigues Carolina
Published: March 2022

This study presents an analysis of research about US-China Policy on global trade, between 2015 and 2019. The research methodology was supported by a bibliometric analysis using Web of Science(WOS) and Scopus, broadening the understanding about the subject and understanding that there is a certain orientation of these studies for Policy. This article presents a demonstration of how research in US-China Policy on Global Trade has been treated by researchers in a global perspective. The research questions that guide this research were: RQ1: What were the main keywords present in studies of US-China Policy on Global Trade?; RQ2: Which sectors were studied on US-China Policy on Global Trade studies?; and RQ3: Which technologies were studied on US-China Policy on Global Trade studies? The main findings of this research are the trends identified on the studies analysed, namely, the most cited keyword that emerged from the literature review.
The Free Trade Agreement Between the European Union and Vietnam
Authors: Fruscione Alessandro
Published: March 2022

The European Union and Vietnam have signed a far-reaching Free Trade Agreement, which came into force on 1 August 2020 and represents a turning point in the trade relations that the Union has with third countries.

In addition to providing for a substantial reduction in duties, partly with immediate effect and partly over the next few years, the agreement affects non-tariff barriers, substantially simplifying the documentation needed for customs operations (in particular in Vietnam) and the certifications required for certain types of products (for example, for pharmaceuticals).

The Agreement also limits the adoption of anti-dumping and countervailing duties, specifying that trade remedies should be enforced in full compliance with the relevant requirements of the World Trade Organization and should be based on a fair and transparent system.

The products originating from the two contracting parties will benefit from the duty exemptions and reductions upon production of a proof of preferential origin, represented, up to a value of 6,000 euros, by the exporter’s invoice declaration and, above this amount, by an exporter registered on the REX (Registered EXporter) system.

The protection of intellectual property, ‘Made in’ and geographical indications is ensured, with specific provisions aimed at preventing fraud.

Along with the Free Trade Agreement, the Union and Vietnam have also signed an Investment Protection Agreement, whose main point is the provision for the creation of an independent and qualified court to settle disputes between investing companies and the state.

Agreements, Vietnam, Preferential, REX, protection, investments, ASEAN, Exports, Made in, ICS
Don’t Wake up the (EU) Bear! The Scope of the EU Blocking Regulation 2271/96 in Light of the Recent Preliminary Ruling Reference in Bank Melli V. Telekom Deutschland Case, C-124/20
Authors: Rovetta Davide , Smiatacz Agnieszka , Pandey Giani
Published: March 2022

The present article describes the main features of the EU Blocking Regulation aimed at obstructing the application in the EU of US secondary economic sanctions. The recent preliminary ruling request by a German Court on such Regulation in the Bank Melli v. Telekom Deutschland case could open the door for the Court of Justice of the European Union granting a strong and unconditional enforcement of such EU Regulation against US secondary sanctions. If this were to happen, the compliance policy of companies present in the European Union will be dramatically impacted. Although the case is yet to be decided, most likely in the first half of 2021, the present article addresses main points concerning the relevant aspects for the application and interpretation of the EU Blocking Regulation.

Blocking Regulation, Cuba, Economic sanctions, Embargo, EU, European Court of Justice, Iran, OFAC, Preliminary reference, Primary Sanctions, Secondary sanctions
Anti-Forced Labour Update: Stronger Legislation with an Absence of Guidance
Authors: M. Natta Pierfilippo
Published: March 2022

Addressing forced labour concerns in 2021 – upcoming legislation and lack of concrete guidance leaves importers concerned when developing mitigation strategies. The last six months have harvested major developments in the area, this brief update highlights how targeted the developments have become and how companies may best prepare for the upcoming anti-forced labour legislation (This is one of a series of articles addressing force labour law. See Olivia Acuff, Donald C. Hok, Pierfilippo M. Natta & George Zaharatos, Eradicating Forced Labour in Global Supply Chains, 15(8) Global Trade & Cust. J. 388–400 (2020)).
The AfCFTA’s Success Depends on Effective Dispute Settlement Mechanisms for the Private Sector
Authors: Kugler Kholofelo
Published: March 2022

The state-to-state nature of the dispute settlement mechanism (DSM) of the Agreement Establishing the African Continental Free Trade Area (AfCFTA) could serve as a barrier to ensuring dispute resolution under this regional trade agreement. African countries’ low participation in trade dispute resolution at the World Trade Organization (WTO) and within their own regional economic communities (RECs) indicates that these countries either do not have the capacity to resolve trade issues through contentious litigation or those types of dispute settlement mechanisms are not suited to their needs. However, it is important that the AfCFTA ecosystem provides effective and efficient dispute settlement options for the commercial operators that will seek to take advantage of the benefits of the trade agreement. The AfCFTA non-tariff barrier (NTB) Online Monitoring Mechanism is a welcomed addition to the options available to the private sector. However, AfCFTA State Parties must resolve the complaints lodged on that platform swiftly and adequately. In the absence of continental or regional dispute resolution options, it is foreseen that domestic courts will play a large role in adjudicating AfCFTA-related disputes. Therefore, the options that State Parties could avail to private parties include establishing or capacitating commercial courts and arbitration centres to effectively adjudicate AfCFTA-related disputes.

Africa, AfCFTA, dispute settlement, DSU, state-to-state, private sector, direct access, domestic courts, arbitration
Implementation of the WCO Time Release Study to Mitigate Non-tariff Barriers in AfCFTA: Lessons to Be Learned by Africa
Authors: Omi Kenji , Da Silva Oluimo
Published: March 2022

The African Continental Free Trade Area (AfCFTA) entered into force on 1 January 2021. Its ‘trade in goods’ pillar focuses on a reduction ofnon-tariff barriers (NTBs) in addition to tariff reduction.

The World Customs Organization (WCO) Time Release Study (TRS) is particularly relevant in addressing NTBs. The TRS is a WCO tool designed to measure the time spent for release and/or clearance of goods at borders. It has been created to help administrations identify bottlenecks in the trade flow process and to facilitate trade while ensuring compliance and revenue collection at borders.

The aim of this article is to share the importance and benefits of applying the WCO TRS methodology to identify and address NTBs that are hampering international trade. Implementation of the TRS will support AfCFTA countries in alleviating NTBs.

In this document the authors provide an overview of the current situation relating to the TRS based on WCO survey results, together with anecdotal national and regional examples within Africa and externally. The article then shows lessons that could be learned by African countries, particularly in the context of the AfCFTA.

TRS, non-tariff, Africa, barriers, AfCFTA, lesson and regional
Current Payments and Capital Movements in the EU-Mediterranean Association Agreements
Authors: Fares Samer
Published: March 2022

The objective of this paper is to elaborate current and capital provisions in the European Union Association Agreements with the Mediterranean countries and their compatibility with the EC Treaty and the international multilateral agreements. These provisions can be classified into two categories. The first has fully liberalised current payments and demanded the progressive liberalisation of capital movement. The second has liberalised capital movements and demanded the progressive liberalisation of current payments. Accordingly, the outcome of this classification is that the Association Agreements, firstly, could not promote the liberalisation of current payments and capital movements in the Mediterranean countries. Secondly, they lag behind the virtual free movement of capital and payments among the parties. Finally, they could not recognise the relationship between current/capital transactions and the IMF, GATS and GATT.
Of Motorcycle Trailers and Personal Watercrafts: the Battle over Keck
Authors: Prete Luca
Published: March 2022

This article analyses the recent Community case law in the field of free movement of goods, arguing that Keck &subsequent jurisprudence, in spite of being good law, do not provide sufficient clarity with regard to the conditions under which national regulations should be considered unlawful obstacles to intra–community trade. The article endeavours to suggest some possible developments which would allow a greater transparency & coherency in this crucial area of Community law.
Free Movement and Procedural Requirements: Proportionality Reconsidered
Authors: Prechal Sacha
Published: March 2022

In the area of free movement, the ECJ has formulated, as a part of the proportionality test, a number of guarantees as to administrative and judicial procedures. The present article argues that proportionality is no good rationale anymore for these guarantees, as better foundations may serve the general principle of effective judicial protection and good administration. This is nowadays not only a more fitting solution, but it also contributes to more coherence in European administrative law.
The Conundrum of the Market Abuse Directive Preventative Measures for EU Financial Services’ Integration: In Search of Equilibrium between Market Integrity Enhancement and Undue Regulatory E
Authors: Staikouras Panagiotis
Published: March 2022

The Directive 2003/6/EC on market abuse not only introduced a common EU legal framework for the prohibition of insider dealing and market manipulation, but it also adopted a wide net of ‘preventative’ or ‘transparency’ measures affecting a broad circle of market participants – including issuers, corporate executives and related persons, analysts, market operators and investment intermediaries – with the purpose of enhancing market efficiency and, by extension, operating as exante protection against market abuse. Providing a critical overview of the new transparency requirements, the present analysis detects potential regulatory or supervisory lacunae and inconsistencies and makes proposals towards improvement. The paper intends to advance the fine-tuning and streamlining of the EU market abuse regime with the objective of avoiding legal uncertainties or excessivenesses, fostering regulatory convergence and promoting efficient and consistent enforcement on a Community-wide basis.
Some Reflections on Customs Classification and the Harmonized System as Tools for Interpreting the Schedules of Commitments under GATT Article II
Authors: Rovetta Davide
Published: March 2022

The paper is concerned with customs classification matters and analyzes the difficult relationship between the Harmonized System Convention and the GATT, mostly Article II, for the purpose of interpreting the WTO Schedules of commitments for trade in goods under the Vienna Convention as well as the reasons for the migration of purely customs classification disputes from the World Customs Organization (WCO) to the WTO. The result of such analysis is that there is a binary relationship between the HS and the GATT. On the one hand, the GATT is concerned with customs classifi cation issues as ‘measures’ challenged in WTO Dispute Settlement and, on the other hand, the HS is the ‘context’ for interpreting the Schedules of commitments under Article II GATT. The final outcome is a complicated and obscure way of interpreting the tariff commitments for trade in goods that needs further clarifi cations by Panels and the Appellate Body.
The Relevance of WTO Dispute Settlement Decisions in the US Legal Order
Authors: Gattinara Giacomo
Published: March 2022

This article addresses the issue of the relevance of World Trade Organization (WTO) adopted reports in the US legal order with specific attention paid to the role of the judiciary. Far from being limited to the issue of direct effect, the analysis here is an attempt to look at how the US judiciary takes into account these adopted reports, also considering other softer effects, such as their persuasive authority and interpretative significance, which are thoroughly examined in light of the Charming Betsy doctrine. The conclusion is that in US judicial venues, WTO adopted reports are not totally neglected and that, if due account is taken of the case law of North American Free Trade Agreement (NAFTA) Chapter 19 binational panels, they are granted an ever more solid indirect effect. This judicial trend is analysed also in light of the somehow similar evolution that took place in the recent case law of the European Community Courts.
Biomedicine and EU Law: Unlikely Encounters?
Authors: Hennette-Vauchez Stéphanie
Published: March 2022

This paper looks at European Union (EU) biomedical law and seeks to understand how the regulation of biomedicine ever reached the EU’s agenda. The odds were low, for not only does the EU not have any straightforward competence in the field, it is also one of extreme axiological sensitivity that in all likelihood could have favoured the containment of the issues within national borders. To be sure, internal market legislation is not alien to non-market values; conversely, biomedical issues themselves are undergoing radical evolutions as body parts tend to increasingly circulate in what now appears to be ‘tissue economies’. Although these factors alone do not suffice to explain the existence and development of an important body of biomedical law at the EU level, the paper’s claim is that ‘ethics’ has proven to be an instrumental device for bridging biomedical law and EU law. It then analyses the several manners in which ‘ethics’ has played a crucial part in EU biomedical law and pushes the reflection to suggesting that the regulation of biomedicine actually constitutes a polity-affirming process for the EU.
Implementing International Trade Agreements in Federal Systems: A Look at the Canada-EU CETAs Intellectual Property Issues
Authors: De Beer Jeremy
Published: March 2022

This article examines the negotiations towards a Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union (EU) as an example of some challenges and solutions for implementing international trade agreements in multilevel federal systems. It briefly describes Canadian constitutional law governing the domestic implementation of international treaties and then canvasses three specific examples of current challenges related to the regulation of intellectual property. While the constitutional validity of federal regulations addressing pharmaceutical data protection, digital rights management (DRM), and geographic indications is far from guaranteed, legislators and courts have used several legal means to support implementation of Canada's international obligations in these fields.
Transparency Norms, the World Trade System and Free Trade Agreements: The Case of CETA
Authors: Biukovic Ljiljana
Published: March 2022

Canada and the European Union (EU) are negotiating an ambitious Comprehensive Economic and Trade Agreement (CETA). While the content of the agreement has not yet been officially disclosed by its negotiators, the general public and the business community are already concerned about the scope and effect of CETA on the two economies and their societies. This article deals with CETA's transparency provisions. It claims that, whereas CETA has not yet utilized external transparency to ensure support for the negotiations, it does have the potential for greater regulatory transparency in technical barriers to trade (TBT)- and sanitary and phytosanitary (SPS)-related matters than that found not only in the existing World Trade Organization (WTO) agreements but also in free trade agreements (FTAs) the two parties previously negotiated with third countries.
EU Citizenship and EU Fundamental Rights: Taking EU Citizenship Rights Seriously?
Authors: van den Brink M.J.
Published: March 2022

European citizenship offers great potential for the protection of fundamental rights. Due to the relation between EU citizenship and EU fundamental rights, the Court's seeming willingness in Ruiz Zambrano to protect the substance of EU citizenship rights could potentially have an immense impact on the EU fundamental rights architecture. However, considering the Dereçi case, it is questionable if the Court takes EU citizenship rights seriously. Instead of contributing to the safeguarding of fundamental rights, the Dereçi approach will have worrisome effects for the protection of fundamental rights in the EU.

This article examines the relation between EU citizenship and EU fundamental rights and argues that if the Court is truly willing to protect the substance of EU citizenship rights, it has to overturn its decision in Dereçi and to include fundamental rights in the doctrine established by Ruiz Zambrano. After it has been outlined why such an approach would, in contrast to the Court's argument in Dereçi, be completely in line with Ruiz Zambrano, the potential effects of such an approach will be presented.
Energy Community As a Promoter of the European Unions Energy Acquis to Its Neighbourhood
Authors: Petrov Roman
Published: March 2022

The Treaty of Lisbon paved the way for legal formalization of the new European Union policies and significantly enhanced the external dimension of the EU Internal Market. The newly emerged EU energy policy is a good example of it. External objectives of the EU energy policy are being fulfilled through the Energy Community which embraces not only the EU Member States and candidate countries but also the third countries without any prospect of membership in the EU. The Energy Community is designed as a perfect example of the 'integration without membership' model which gives a stake in the EU Internal Market for third countries and promotes the EU's sectoral acquis beyond the EU borders. The article focuses on challenges of the process of Europeanization on the EU's eastern neighbouring countries through the application of the EU 'energy acquis'.
Independent Supervisory Authorities: A Fragile Concept
Authors: Ottow Annetje
Published: March 2022

This article highlights the development of the legal (de jure) independence requirements of national and European supervisory authorities in European law. The European legislator recently strengthened the legal and political independence of national supervisors in the telecommunications and energy sectors. Moreover, European supervisors in the telecommunications, energy and financial sectors have been created. The national supervisors are represented in these new European bodies through their participation in the European supervisors' regulatory boards. The independence principle is one of the legal safeguards to prevent independence problems at the national level being transferred to the European level or vice versa, and has been laid down as a cornerstone of the regulations establishing the new European supervisors. These developments illustrate that the independence of supervisors has gained importance in European law. However, the specification of the independence principle has taken place in an ad hoc and piecemeal way and the different European provisions leave room for controversies. Therefore, it is too early to argue that the principle of the independence of European and national supervisors has acquired the status of a general principle of European law. Instead this article provides some suggestions as to how the European independence requirements could be interpreted in the light of recent case law of the European Court of Justice reconciling a sufficient degree of independence on the one hand with the need for adequate provisions for transparency and political and legal accountability on the other hand.
Enhanced Cooperation under Scrutiny: Revisiting the Law and Practice of Multi-Speed Integration in Light of the First Involvement of the EU Judiciary
Authors: Fabbrini Federico
Published: March 2022

The enhanced cooperation procedure has recently acquired a new popularity with EU policy-makers. Yet, the use of enhanced cooperation has also come under scrutiny, with the ECJ being asked to rule for the first time on the matter in the legal challenges brought by Spain and Italy against the decision of the Council to authorize enhanced cooperation for the creation of a unitary patent protection regime. This article examines the Treaty rules on enhanced cooperation and seeks to provide a coherent reconstruction of the function of this procedure in the constitutional system of the EU. As the article argues, an historical and systematic interpretation of positive law suggests that enhanced cooperation is finalized toward multi-speed integration in the EU. As a result, Member States are allowed to resort to this instrument only when they disagree whether to act jointly at the EU level but not when they disagree how to do so. In light of this framework, the article critically examines Spain & Italy v. Council of the EU, dealing with the legality of enhanced cooperation in the creation of a unitary patent and concludes, contrary to the opinion of the AG and the judgment of the ECJ, that Spain and Italy were legally right in challenging the Council decision: despite their unreasonable position from a policy-making perspective, the Council had misused its powers in authorizing an enhanced cooperation in the case.
The Bitter End of Sovereign Debt Restructurings: The Abaclat v. Argentina Arbitration and the Eurozone Crisis
Authors: Bianco Giuseppe
Published: March 2022

Among the measures adopted to tackle the financial crisis in Europe, part of the sovereign debt of the Greek government was restructured in early 2012.The current Greek predicament bears a significant resemblance with Argentina's situation after the 2001 economic crisis. Its sovereign debt restructuring has been challenged before an investment arbitral tribunal by a group of Italian bondholders, who have thus far succeeded at the jurisdictional phase.

The Abaclat and others v. Argentina case is the first International Centre for Settlement of Investment Disputes (ICSID) arbitration which deals with a sovereign debt workout. Albeit the award on the merits is still pending, the importance of the dispute cannot be overestimated. It signals a new forum bondholders could use, when they do not participate in an exchange, to still seek to obtain their interest and capital from the debtor State.

This article aims at assessing the possibility of analogous developments for Greece, and potentially other Eurozone countries which might need to restructure their debt in the near future. To do so, it compares the historical unravelling of the crises in Argentina and in the Eurozone. It then offers a careful analysis of the recent arbitral decision in the Abaclat case. Finally, it evaluates the potential risks for the Eurozone and reviews several options for action at the European level.
Chronicle of a Death Foretold? The Cultural Exception for Audio-Visual Services in EU Trade Negotiations
Authors: Natens Bregt
Published: March 2022

In 2013, the European Union (EU) initiated negotiations for regional trade agreements (RTAs) with the United States (US) and Japan, key trading partners and two of the largest economies in the world. Both countries have strong offensive interests in audio-visual services, a sector that is a sensitive defensive interest to the EU. In this article, it is argued that, besides the likelihood of it being unacceptable to the US and Japan, the 'cultural exception' for audio-visual services as applied in EU trade policy is ill-fitting for its purposes. First, it is too narrow at a cross-sectoral level and, second, it is too wide at the sectoral level. Therefore, it is claimed that the EU should reassess its negotiation strategy vis-à-vis audio-visual services. For inspiration in doing so, this article analyses four cases in which the US and Japan have negotiated bilaterally on audio-visual services with counterparties with defensive interests somewhat similar to the EU's, i.e., Canada, Korea, Switzerland, and India. It concludes that whilst the Canadian approach, i.e., exclusion, is unlikely to be acceptable to the EU's negotiating partners, the Korean, Swiss and, to a lesser extent Indian, approaches provide ample guidance for the EU to rethink its negotiation strategy for audio-visual services.
Clarifying the Divide between Delegated and Implementing Acts?
Authors: Chamon Merijn
Published: March 2022

On 18 of March 2014, the Court of Justice delivered its judgment in the European Chemicals Agency (ECHA) fees case,1 the first case dealing with the problematic distinction, in practice, between delegated acts under Article 290 Treaty on the Functioning of the European Union (TFEU) and implementing acts under Article 291 TFEU. The significance of this case should be searched for in the fundamental changes brought to the hierarchy of norms and the EU's revamped arsenal of acts after the Lisbon Treaty. These changes will first be recalled before presenting the case itself.
On Similarities and Differences of the European Union and Eurasian Economic Union Legal Orders: Is There the Eurasian Economic Union Acquis?
Authors: Petrov Roman , Kalinichenko Paul
Published: March 2022

This contribution is devoted to the study of legal order of the Eurasian Economic Union (EAEU). It is done through the analysis of similarities and differences of the EAEU legal order with those of the European Union (EU). It is argued that the notion ‘EU acquis’ has been extended beyond the EU and has been exported to legal orders of other international organizations. It poses the question whether the notion ‘acquis’ can have the same meaning within the legal order of the EAEU. On the one hand, some institutional similarities between the EAEU and the EU as well as the dynamic nature of the EAEU legal order give us a ground to apply the notion ‘acquis’ with regard to the EAEU in order to describe the political and legal heritage of the integration projects within the post- Soviet area. On the other hand, considerable differences between the EU and the EAEU legal systems (different degrees of supranationality, weak role of the Court of the Eurasian Economic Union, and strictly normative understanding of the definition of the ‘Union Law’ in the EAEU Treaty) bring into question the relevance of the notion of the ‘EAEU acquis’. Analysis of the notion ‘EAEU acquis’ encourages a discussion about the necessity to revisit its narrow scope towards inclusion of fundamental concepts of common values, founding principles like rule of law and non-discrimination and direct effect.