bluuebunny/crossref_metadata_2025 huggingface dataset:
The ‘Flexibility’ Standard in the African Union and Its Ramification for the Implementation of the African Continental Free Trade Area (AfCFTA) Agreement
Authors: Abe Oyeniyi , D. Taye Sewagegnehu
Published: March 2022

African Union’s (AU’s) integration history indicates that the continental body is plagued by flexibility hindering its goal of continental unity. This article investigates the utility of ‘flexibility’ standard in the adoption, ratification, and the implementation of AU treaties. Through an empirical analysis of the seventy treaties currently in force at the AU, thirty-four treaties have been able to secure the minimum level of ratification. Results show that a treaty that lacks the required number of signatories and ratifications creates a big challenge for the continental body. On the other hand, treaty ratification is not a guarantee for successful implementation. Historically, differing views on AU’s role, goals and effect on regional stability has forced a gravitational pull on the essence of the body. Yet, AU continues to facilitate regional free trade agreements and customs union. One of these is the recent African Continental Free Trade Area (AfCFTA) Agreement. This article argues that achieving flexibility under AfCFTA is illusionary, hence AU should strive towards attaining a clear roadmap for flexibility milieu in the implementation of AfCFTA. We argue that, for AfCFTA to be effective, all AU Member States must ratify the agreement, thereby ensuring the harmonization of regional trade agreements, and elimination of tariff and non-tariff barriers. The article concludes that the AU must utilize the principle of variable geometry to have a differentiated level and speed of integration, still achieving the same objective of a unified continent towards maximum intra-trade realization.

flexibility, African Union, AfCFTA, variable geometry, regional integration, trade barriers, and trade liberalization
Right Choice of DPU in Incoterms 2020
Authors: Kim Sang Man
Published: March 2022

The International Chamber of Commerce (ICC), in 1936, first published Incoterms to establish commonly accepted definitions and rules concerning the delivery of goods between the seller and the buyer. ICC has periodically revised Incoterms to reflect changes in commercial practice. On 10 September 2019, ICC published Incoterms 2020, the eighth revision, which entered into force on 1 January 2020. In Incoterms 2020, DAT (Delivered at Terminal) was deleted, and DPU (Delivered at Place Unloaded) was newly introduced instead. DPU means that the seller delivers the goods to the buyer when the goods, once unloaded from the arriving menas of transport, are placed at the disposal of the buyer at the named place of destination (or at the agreed point within that place, if any such point is agreed). DPU is similiar to DAP (Delivered at Place) rather than to DAT. The only difference between DPU and DAP is that which party shall be responsible for unloading the goods from the arriving means of transport at the destination. Since it is DPU that was newly introduced in Incoterms 2020, we need to understand how to properly use DPU in international trade.

commercial practice, Delivered at Place Unloaded (DPU), delivery, delivery terms, Incoterms, Incoterms 2010, Incoterms 2020, international commercial terms, international trade, trade terms
Investment Court System Under EU Trade and Investment Agreements: Addressing Criticisms of ISDS and Creating New Challenges
Authors: Kim Jin Woo , Winnington-Ingram Lucy M.
Published: March 2022

The Investment Court System (‘ICS’) included in the European Union (‘EU’)’s recent investment and trade agreements provides for the creation of a permanent first instance tribunal (‘First Instance Tribunal’) and an appellate tribunal (‘Appeal Tribunal’) drawn from a pre-selected roster of tribunal members. The ICS imposes mandatory transparency of proceedings, as well as a strict code of conduct applicable to all tribunal members. The ICS is expected to address several long-standing criticisms levied against investor-State dispute settlement (‘ISDS’). At the same time, the ICS raises new challenges that must be resolved for its effective operation. These must be addressed first and foremost by the EU and those pioneering trading partners who have so far committed to the ICS; only once resolved will the ICS gain traction with ISDS stakeholders.

EU Investment Court System, CETA, EU–Singapore Investment Protection Agreement, EU–Vietnam Investment Protection Agreement, EU–Mexico Global Agreement, enforcement of ICS awards, ICSID Convention, New York Convention, ISDS
Software and Customs Valuation
Authors: Schippers Martijn L.
Published: March 2022

In this digitalized world, an increasing number of products do not function to the best of their ability if there is no (control) software installed on these products. Although it is commonly accepted that import duties are levied from goods, that is tangible property, there is still some debate about if and to what extent the value of software should be included in the customs value of imported goods. This debate has been revived in the EU after the Court’s decision in the BMW Bayerische Motorenwerke AG v. Hauptzollamt München-case. In this contribution the author analysis to what extent the value of software should be part of the customs value of imported goods.

Customs valuation, software, European Court of Justice, BEPS, DST
Animal Welfare in Trade Policy After the Covid-19 Pandemic: Another Set of learnings
Authors: Ghislain Stephanie
Published: March 2022

In the midst of the Covid-19 pandemic, the EU has published a new trade strategy. Unfortunately, the text does not address the impact of trade on the root causes of pandemics. Considering such a question would have revealed another important omission in the EU trade strategy: the text does not address the interlinkages between trade and animal welfare. This Opinion considers how the EU should address animal welfare in trade policy in order to contribute to promote sustainable and resilient economies.

Animal Welfare, EU Trade Policy, Conditional Liberalization, process and production methods, sustainability, Covid-19
Strengthening the Enforcement of Customs Debt within the Institution of Customs Debt Security in the EU
Authors: Gwardzińska Ewa , Gwardzińska Żaneta
Published: March 2022

This article examines the institution of customs debt security under the EU Customs Code and the closely related institution of customs debt, without which the former would not exist. The literature review carried out for this article has revealed a serious knowledge gap in this area. Based on the EU Customs Code. Three types of customs securities are presented, provided for in the EU Customs Code: mandatory (obligatory); non-mandatory (optional); not required (exemption), and applied forms of customs securities. The analysis is complemented by a discussion of the debtor’s responsibility for the debt arising by operation of law, focusing on the joint and several liability of customs debtors, which is predominant in economic turnover and constitutes a security mechanism for customs debt coverage. This mechanism on the one hand protects the EU budget and on the other hand, it guards the principle of fair competition on the EU market.

customs debt, customs debt security, customs guarantor, legal principles, administrative sanction, debtor’s liability, compulsory guarantee, optional guarantee
Patents vs. Trade? The Issue of Patent Rights Exhaustion
Authors: González Perini Federico
Published: March 2022

The issue of exhaustion shows how patents and free trade can become in contradiction. While patents provide incentives for innovation, they stifle competition. Competition, in turn, improves affordability, but may stifle innovation. In the case of exhaustion, competition between official and parallel products may lower prices and increase users’ access but, at the same time, could deter firms from targeting innovation.

The WTO Agreements are the most comprehensive attempt to deal with both intellectual property rights’ protection and free trade. However, the issue of exhaustion was left unsettled. Currently, Members have plenty of flexibility, but some common disciplines might become necessary in the long run, and will have to be agreed upon.

Present flexibility leaves room for different possible approaches to exhaustion, with respect to both territorial scope and substantial disciplines. While the mere lawfulness of the first sale and the right holders’ intervention fail to provide the most appropriate solution in some special cases, the approach to exhaustion based on the right holders’ reward may deliver more accurate and balanced solutions.
Mandatory and Discretionary Legislation in WTO Law: A Distinction Worth Preserving?
Authors: Davies Arwel
Published: March 2022

The broad issue considered here is when national laws can be regarded as being in conformity with the WTO Agreements. More specifically, the focus is on the distinction between mandatory and discretionary legislation in WTO law. When the application of a national law in individual cases depends upon the exercise of executive discretion, this law may be capable of application in a manner either consistent or inconsistent with WTO obligations. The question here is whether the law itself can be challenged as incompatible, or whether only specific instances of incompatible applications can be challenged. The mandatory / discretionary distinction is a creation of judicial policy, and its application is an indicator of the role of Panels and the Appellate Body in furthering the objectives of the WTO Agreements. This is an interesting time to review the case law since there are developments which indicate to the present author a less tolerant approach towards discretionary legislation than has historically been the case.
The Regulation of Consumer Credit Information Systems: Is the EU Missing a Chance?
Authors: Ferretti Federico
Published: March 2022

This article examines the legal framework of consumer credit information systems in the EU in view of a single retail credit market. It puts forward the proposition that positive law is inadequate to strike a balance between legitimate concerns over consumers’ civil liberties, institutional guarantees, and the needs of the credit industry. It suggests that the EU should enact industryspecific legislation, and the new consumer credit directive should represent the appropriate forum for its regulation. So far, however, the proposed directive maintains the status quo and is far from satisfactory, leading to the conclusion that the EU is missing a chance to re-think a regulatory model to support a healthy single consumer credit market in which consumers receive adequate protection.
The Oracle/PeopleSoft Case: Unilateral Effects, Simulation Models and Econometrics in Contemporary Merger Control
Authors: Christiansen Arndt , Budzinski Oliver
Published: March 2022

An increasingly important part of contemporary merger control both in the US and the EU is unilateral effects analysis, particularly with regard to oligopolistic mergers. In practice, this requires econometric analyses of past market data and, above all, the construction of simulation models in order to quantify the price effects in each specific case. The review of the merger between the software firms Oracle and PeopleSoft in 2003/04 has been the most important instance of parallel application of these sophisticated economic tools by the EU and US authorities so far. This makes an in-depth study of the case going from the controversial issue of market definition to the specificities of the competitive assessment worthwhile. Therefore, we highlight certain similarities as well as (minor) differences between the EU and US proceedings. Interestingly, despite serious initial concerns the transaction was not blocked nor even required to be modified in the two jurisdictions. We derive a number of interesting insights and, in particular, point out problems and lessons associated with the use of sophisticated economic tools in contemporary merger control. In addition to case-specific factors, the major insights encompass the continued relevance of market definition, the need to accompany predictive economic evidence with compatible reasoning and the benefits of including the economics of dynamic and evolutionary competition.
A Legal Review of RTA Tariff Negotiations
Authors: Bum Kim Jong
Published: March 2022

Despite the proliferation of regional trade agreements between nations today,academics & policy makers alike have yet to fully understand what aims trading nations have when they pursue free trade agreements. This paper provides an explanation that an RTA is a contract through which RTA partners agree to a reciprocal exchange of preferential market access. Trading nations pursue RTAs to avoid exclusionary effects on non–members by securing reciprocal market access with RTA partners. The reciprocal nature of RTA tariff negotiations contrasts with the multilateral tariff elimination agreement under the GATT, where the notion of reciprocity is ambiguous. The mercantilist nature of RTA negotiations & the resulting RTAs reduce the chance of a successful multilateral tariff reduction round under the WTO as the exclusionary effects of existing RTAs provide further incentives for non–parties to form new RTAs.
Some Reflections on Resale Price Maintenance
Authors: Lugard Paul
Published: March 2022

The proper treatment of resale price maintenance under Article 81 continues to give rise to heated debates. This contribution discusses whether it is correct to continue to treat this type of business conduct as a hardcore restraint under Article 81. It does so in light of the experience gained under Regulation 2790/1999 and national competition law, as well as the judgment of the US Supreme Court in Leegin of 28 June 2007 and the draft regulation and guidelines on vertical restraints published in July 2009.
The Proposed Australia-China FTA: Protectionism over Complementarity?
Authors: Islam M. Rafiqul , Islam Md. Rizwanul
Published: March 2022

This article deals with the proposed high-profile Australia-China Free Trade Agreement (FTA). It recognizes their economic complementarities for an FTA. However, their negotiations reveal many competing interests, militating against an FTA. If political enthusiasm succeeds in concluding this FTA, it is likely to fall short of delivering the projected economic benefits. This FTA will possibly be an inward looking discriminatory trading arrangement with exclusive preference to each other in selective sectors and protection against non-members, inconsistent with Article XXIV of the General Agreement on Tariffs and Trade (GATT). Such protectionist obsessions have become an obstructive alternative to multilateral nondiscriminatory trade rendering it more onerous and less viable. Concluding such an FTA, at a time when World Trade Organization (WTO) Panels and Appellate Body (AB) are increasingly dealing with FTA disputes, may result in a legal challenge. The booming Australian and Chinese export sectors need open global markets to maximize their full trade potentials, which can be achieved through the completion of the Doha Round.
Assessing Competition in International Economic Law: A Comparison of Market Definition and Comparability
Authors: Diebold Nicolas F.
Published: March 2022

The extent to which market participants are in a competitive relationship constitutes a key element both in competition law and in international economic law. Competition law practice has developed refined economic instruments designed to define relevant markets on the basis of demand substitutability, supply substitutability and potential and future competition. In contrast, many fields of international economic law, such as trade and investment protection, fail to assess actual market situations. This article identifies conceptual differences and similarities between the legal instruments of the two fields of law in order to analyse whether competition law theories of defining relevant markets could also be applied in international economic law.
MFN in the CARIFORUM-EC Economic Partnership Agreement: Policy Blunder or Legal Inconsistency?
Authors: Chase Claude S.K.
Published: March 2022

The Carribbean Forum-European Communities (CARIFORUM-EC) Economic Partnership Agreement (EPA) represents a new era of development cooperation and trade relations between the European Union (EU) on the one hand, and a subgrouping of the African, Caribbean, and Pacific (ACP) group of countries on the other hand. The inclusion of Most Favoured Nation (MFN) clauses in the EPA, which require CARIFORUM countries to extend to the EU any more favourable treatment granted to third parties in future Free Trade Agreements (FTAs) has generated some controversy. This note critically examines the arguments that have been levelled against the inclusion of these clauses from legal and policy perspectives. Notwithstanding the often nebulous distinction between law and policy, it will be argued here that questions of policy and issues of law must be bifurcated in order to meaningfully assess the value of MFN clauses in the EPA. A paradigm for assessing such clauses in other so-called North-South FTAs is also suggested.
The Legal Standing of Private Parties in the Area of State Aids After the Appeal in Commission v. Kronoply/Kronotex
Authors: Poli Sara
Published: March 2022

The Kronoply appeal offers the ECJ an opportunity to revisit the conditions applicable to challenge decisions not to raise objections in the context of the state aids monitoring procedure. These conditions were defined in the Cook and Matra judgments but were not applied consistently in the subsequent case law. After the mentioned appeal, the conditions for private parties, wishing to challenge a decision not raise objection, are the following: they need to prove to be 'parties concerned' by the contested decision. This notion is interpreted broadly. Moreover, they should claim that their procedural rights were breached. However, there is no need for these applicants to prove to be 'directly and individually' concerned by the decision, within the meaning of the Plaumann/Cofaz case law, and they can use any argument to prove that the Commission wrongly assessed the draft aid measure. This implies that the Kronoply appeal eases the position of private applicants. Two possible consequences of the judgment are the increase of the litigation against decisions not to raise objections and the reduction of the Commission's considerable discretion in the area of state aid.
The Appellate Body Report in US  Tuna II and Its Impact on Eco-Labelling and Standardization
Authors: Partiti Enrico
Published: March 2022

The Appellate Body of the World Trade Organization (WTO) released to the public its final Report on the dispute United States - Measures Concerning the Importation, Marketing and Sale of Tuna Products (hereinafter 'US - Tuna II') on 16 May 2012.The dispute was object of a growing interest because of its impact on the debate between trade and environment. Specifically, the case addressed substantial issues of scope for the application of the Agreement on Technical Barriers to Trade (hereinafter 'TBT Agreement'), like the proper legal characterization of state measures and the application of the Agreement to non product-related process and production methods (hereinafter 'npr-PPMs'). Furthermore, the ruling clarified other crucial provisions such as the requirements 'international standardizing organizations' have to comply with. This contribution will review the Appellate Body's findings that are the most relevant for the practice of environmental labelling and sustainability standardization, and it will assess the implications for WTO Member States' regulatory autonomy and the possibility of employing market-based instruments of regulation.
The Scope of the New Exclusive Competence of the European Union with Regard to Foreign Direct Investment
Authors: Puig Ramón Vidal
Published: March 2022

Article 207 TFEU confers upon the European Union exclusive competence with regard to 'foreign direct investment'. This article argues that this competence may be broad enough to cover most, if not all, the matters usually addressed in a Bilateral Investment Treaty. It covers both the initial 'admission' of investments and 'post-admission' matters, such as 'national treatment', 'most-favoured nation treatment' or 'equal and fair treatment'. Member States retain the right to expropriate the assets of foreign investors, but the Union may subject its exercise to certain conditions. Article 207 TFEU does not cover 'portfolio investments', but the Union may have implied exclusive competence by virtue of the common rules on capital movements (Articles 63-66 TFEU). Competence in the 'field of transport' remains, in principle, 'shared'. Member States may maintain the restrictions 'grandfathered' by Article 64(1) TFEU. It is arguable, but more doubtful, that Article 65(1)TFEU also provides an exception.
The Scope of the Common Commercial Policy after Lisbon: The Daiichi Sankyo and Conditional Access Services Grand Chamber Judgments
Authors: Ankersmit Laurens
Published: March 2022

This case note discusses two important recent judgments rendered by the ECJ on the scope of the Common Commercial Policy. In Daiichi Sankyo (Case C-414/11), the Court overturned its previous case law on TRIPs in light of the entry into force of the Lisbon Treaty. In Conditional Access Services (Case C-137/12, Commission v. Council) the Court annulled the decision to sign the European Convention on the legal protection of services based on, or consisting of, conditional access because of an incorrect legal basis. Both judgments reflect, once again, a broad interpretation on the scope of the Common Commercial Policy which has implications for the respective competences of the EU and the Member States. The Daiichi Sankyo v. DEMO judgment also has consequences for the effects of TRIPs within the legal orders of the EU and the Member States.
One for All and All for One? The Collective Enforcement of EU Law
Authors: Dawson Mark , Muir Elise
Published: March 2022

The failure of individual and institutional remedies to ensure the effective enforcement of European Union (EU) law has increasingly focused attention on collective routes to ensuring adherance to EU policies and rights. How comprehensive, however, should collective remedies under EU law be? This introductory article - as well as the other articles of this volume - explores the feasibility of a horizontal approach to the collective enforcement of EU law. While the hope for such an approach has been bolstered by the engagement of the EU institutions, the Commission's most recent 2013 Recommendation fails to significantly advance the development of collective remedies at EU level. The article will conclude by exploring some further, non-legislative, alternatives to furthering the collective enforcement of EU law.
Case C-209/13 UK v. Council: Enhanced Cooperation and the FTT
Authors: Randall Michael
Published: March 2022

This comment outlines the facts concerning the United Kingdom's decision to challenge the Council decision to authorize the use of Enhanced Cooperation (a Treaty based mechanism which allows adoption of Proposals among a collective of Member States in the absence of unanimity) in establishing a Financial Transaction Tax among eleven Member States. It places the challenge in context, summarizing the legislative and political difficulties that the original Commission Financial Transaction Tax Proposal has faced. Subsequently it assesses the arguments that the UK made in its challenge to the Court of Justice of the European Union before examining how the court elected to address these issues. Accordingly the comment indicates the potential impact of the decision which raises long term questions about the viability of the Enhanced Cooperation process in the treaties for introducing economic policies.
The Privilege against Self-Incrimination in EU Competition Law: A Deafening Silence?
Authors: Veenbrink Marc
Published: March 2022

This article examines the scope of the privilege against self-incrimination, a criminal law principle, in the administrative law enforcement of EU competition law by the Commission. In the literature, claims are made that the scope of this privilege in EU competition law proceedings is substantially different from the scope in criminal law proceedings, and, in particular, from its counterpart in the case law of the European Court of Human Rights (ECtHR). This article will argue that the differences are not as substantial as may appear at first sight.
Filling a Buzzword with Life: The Implementation of the Solidarity Clause in Article 222 TFEU
Authors: Hilpold Peter
Published: March 2022

The principle of solidarity has informed the whole European integration process but with the Treaty of Lisbon, this concept has become centre-stage. A number of provisions within the European Union (EU) treaties refer directly or indirectly to this concept. It has, however, also to be remarked that in the past solidarity has often meant different things to different people and the financial crisis which was accompanied by loud cries for and against solidarity has again given proof to this fact. In Article 222 TFEU (Treaty on the Functioning of the European Union) a broad provision on solidarity is to be found: ‘The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made-disaster.’ Although not addressing solidarity in an all-encompassing way it refers to important fields of solidarity action. By the Decision of 24 June 2014 the main aspects of this Solidarity Clause were implemented. Although the Union has chosen a prudent approach it will be shown that this approach was the most appropriate one to make solidarity manageable. Within the present attempts to keep the Economic and Monetary Union (EMU) on track, important insights can be obtained from this discussion.
The Right of Free Movement within Caricom: A Step towards Caribbean Citizenship? Lessons from the European Union
Authors: O’Brien Derek
Published: March 2022

Freedom of movement has generally been regarded as one of the defining characteristics of a common market, of which the European Union is probably the best known example; expanding from a right of free movement for workers into a right of European ‘citizenship’. By contrast, the Caribbean Community and Common Market (CARICOM) originally made no provision for freedom of movement for its nationals and has only latterly introduced a limited right to free movement. It would be wrong, however, to infer that the right of free movement within CARICOM will evolve into a right of Caribbean ‘citizenship’ for two interconnected reasons. The first derives from the absence of any desire on the part of the Heads of Government of CARICOM to use freedom of movement as a stepping-stone towards a political union. The second is linked to the institutional and legal infrastructure underpinning CARICOM, which makes it difficult for a right of Caribbean citizenship to evolve without the support of the Heads of Government.
Innovation and EU Competition Law: In Need of a Narrative for Where the Money Is Put
Authors: Rusu Catalin Stefan , Mooij Benjamin
Published: March 2022

The concept of innovation features prominently in today’s policy agendas. The Europe 2020 strategy and the respective ‘flagship initiatives’ validate this statement. Yet, a coherent correlation between innovation and the EU’s competition policy seems to be still in need of clarification. By gauging various proxies, this contribution observes that the competition – innovation nexus, although well attended, may very well be ill-defined. By taking a closer look at the technology transfer regime and the abuse of dominance doctrine in EU competition law, we attempt to investigate if and how innovation features as an objective in the application of competition law. An explicit role for innovation appears to be limited to instances where competition law may contribute to optimal appropriation. Explicit references to ‘environmental’ determinants of innovation could not be found, yet discussing these could enhance the coherency in conceptualizing the innovation – competition nexus, and at the end of the day, in the EU’s discourse relating to the importance of innovation in the years to come. The narrative described in this contribution may facilitate the orientation of EU competition law to innovation, as the broader policy agendas seem to require.
Ubiquitous Uncertainty: The Overlap between Trade in Services and Foreign Investment in the GATS and EU RTAs
Authors: Descheemaeker Sidonie
Published: March 2022

At both the multilateral and bilateral level, the existence of conceptual and regulatory overlaps between trade in services and investment is evident. The extent of these (evolving) overlaps is, however, rarely clear-cut. By examining the services and investment provisions in the General Agreement on Trade in Services (GATS) and several European Union (EU) regional trade agreements (RTAs), this article sheds light on the entanglement of these two domains of international economic law. At the multilateral level, the relationship between investment and services supplied under the GATS seems relatively settled: assuming that investment is ‘foreign’ and ‘for the purpose of supplying a service’, services supplied through GATS Mode 3 entirely fall under the notion of investment, while services supplied through GATS Mode 4 partially do so. At the bilateral level, however, EU RTAs have irrevocably abandoned the classical GATS approach: GATS Modes 1 and 2 are merged into one mode of cross-border supply of services and the definitions of ‘commercial presence’ and ‘temporary presence’ are broadened to non-services sectors. Despite these commonalities, the regulation of services supplied through ‘commercial presence’ in EU RTAs remains unsettled. How should the technical issue of regulatory gaps and overlaps between trade in services and investment created by international trade agreements, bringing along legal uncertainty, inconsistency and unpredictability be dealt with?
The End of the Line? C & J Clark International Ltd and the Nakajima Exception
Authors: Winnard Scott
Published: March 2022

In C & J Clark International Ltd the Court of Justice of the European Union once again engaged with the issue of whether WTO law has direct effect within the EU legal order. Superficially, the Court reiterated the long-recognized Nakajima exception – that an intention to implement a WTO obligation is a valid exception to the general rule that WTO law has no direct effect within the EU legal order. However, this case note argues that, in fact, the Clark judgment hardens the stance taken earlier in Rusal Armenal and practically abolishes the Nakajima exception. It makes this argument by first establishing the factual and legal details of Clark and positioning that judgment within the existing Nakajima chronology. It then assesses the pragmatic and systemic implications of the Clark judgment.
The IMF and Its Shifting Mandate Towards Capital Movements and Capital Controls: A Legal Perspective
Authors: Martin Antoine
Published: March 2022

The International Monetary Fund (IMF) in 2012 cautiously accepted that certain forms of capital controls might be ‘useful’ for ensuring financial stability and thus a legitimate tool to prevent or forestall crisis. Most commentary on the IMF’s new ‘Institutional View’ has focused on the extent to which the IMF shifted position on capital controls but left unaddressed the more systemic issue involving the IMF’s authority in overseeing, regulating and controlling capital movements. The IMF, however, is not specifically tasked with monitoring, regulating or interfering in capital movements. Despite the legal vacuum, the Fund has managed to slowly but steadily seize authority over capital movements in what can only be regarded as an expansion in mandate. While academic commentary on the IMF’s role over capital movements is plentiful, legal literature on the Fund’s competence on these matters and the expansion in mandate is surprisingly scarce. This article adds a legal element to the literature by assessing to what extent the Fund’s unilateral and autonomous decision to expand its scope of operations is compatible with its constitutive instrument – the Articles of Agreement – and whether the Fund’s actions are in line with international legal doctrine applicable to international organizations. The article concludes that while the current activities of the Fund go beyond its original operational framework, its decision to expand authority and scope of action is in line with the legal theory on the evolution of an international organization’s mandate and necessary in order to fulfil its role in the international financial system.
Preferential Trade Agreements and the World Trade Organization: Developments to the Dispute Settlement Understanding
Authors: Hyams Adam
Published: March 2022

On 21 March 2016, at the 9th Annual Update on World Trade Organization (WTO) Dispute Settlement, former Chairman of the Special Session of the Dispute Settlement Body (DSB), Ambassador Ronald Saborío Soto, spoke on the Dispute Settlement Understanding (DSU) negotiations in light of recent dispute settlement experience. He expressed that changes to the DSU ought to promote the future efficiency and effectiveness of the WTO as a dispute settlement system. The proliferation of Preferential Trade Agreements (PTAs) has been a recurrent curiosity for the WTO, with provisions often competing and overlapping. Earlier work studying these interactions emphasizes uncertainty in the application of non-WTO law, including PTAs, to WTO disputes and highlights the WTO’s implicit claim to supremacy. The purpose of this article is to critically analyse the state-of-play of negotiations on improvements and clarifications of the DSU in addressing PTAs. It examines whether current DSU proposals meet the DSB’s intended objectives and suggests solutions where problematic uncertainties remain. The article concludes that PTAs have not been sufficiently regarded by negotiators and that more express measures are required in the DSU to clarify such uncertainties and harmonize with PTAs in order to preserve the WTO’s future legitimacy.
Is Health Really the First Thing in Life?
Authors: Artetxe Simon López
Published: March 2022

The CJEU’s Deutsche Parkinson ruling has set yet another milestone in the series of cases where the Dutch business group DocMorris has challenged German regulations in the healthcare sector. By judging a system establishing fixed prices for prescription-only drugs unlawful under European Union law, the Court not only reaffirmed its firm stance as the ultimate guardian of the free movement of goods, but also consolidated a demanding standard of proof for a measure to be justified under the Article 36 exception for the protection of health and life of humans. If the judgment relied on coherent case law with regard to the doctrine of certain selling arrangements and the public interest exceptions, the question looms – at what price?
Do Administrative Law Principles Apply to European Standardization: Agencification or Privatization?
Authors: Gnes Matteo
Published: March 2022

What is the nature of European Standardization Organizations (ESOs) and of harmonized European standards? Are ESOs public or private bodies? Are harmonized standards established by such organizations an entrustment of public powers?

Standards are the prescriptions of the best way of doing things, are typically set by private parties and remain of strictly voluntary application. Also European harmonized standards, although recognized by EU legislation, seem to have a private nature, as they are non-binding and emanate from the ESOs, which are private bodies. However, such standards are a necessary implementation measure which is strictly governed by the essential requirements defined by a directive, and are initiated, managed and monitored by the Commission. Moreover, subject to prior publication of their reference in theOfficial Journal, they have certain legal effects, such as giving rise to the presumption of conformity with the essential requirements established by the directive.

As a consequence of the ‘public’ nature of harmonized European standardization deriving from the peculiar relationship between the ESOs and the Commission, and from the legal status and effects of harmonized standards, such standardization activities ought to follow certain procedures and to respect certain principles of administrative activity.
Standards, Barriers to Trade and EU Internal Market Rules: Need for a Renewed Approach?
Authors: Hettne Jörgen
Published: March 2022

In light of the speedy technological development in society, technical standards are becoming increasingly important. In the early days, the specific tasks delegated to standardization bodies under the New Approach did not attract much political interest. Today, however, politicians and different stakeholders realize that the tasks delegated to the standardization industry are highly important for voters and consumers. This article shows how the Court of Justice of the European Union has tried to balance the efficiency in the standard-making process with constitutional requirements under EU law. It is submitted that a far-reaching politicization of the standard- making process is not desirable. It is important to preserve the voluntary and market-driven nature of standards. Therefore, the real challenge consists in finding a Renewed Approach which is flexible enough to be possible to apply in different areas depending on the political and societal interests at stake.
European Harmonized Standards as Part of EU Law: The Implications of the James Elliott Case for Copyright Protection and, Possibly, for EU Competition Law
Authors: Lundqvist Björn
Published: March 2022

According to several Member States Copyright regimes, laws and regulations should be publicly accessible, free of charge, as only free access complies with basic standards of democracy, rule of law and transparency. Indeed, legal text is generally exempted from Copyright protection. However, what should we do with privately created rules, i.e. technical standards incorporated in laws by reference? Are technical standards incorporated by reference ‘law’, and exempted from Copyright protection, or something else? On the contrary, if such technical standards are not ‘law’, but the result of private intellectual creativity, access may restricted. Generally, Standard-Setting Organizations have been charging for access to technical standards claiming copyright protection. However, from the recent James Elliott case, we now know that EU harmonized standards, i.e. technical standards referred to in certain EU directives, forms part of EU law and may be interpreted by the European Court of Justice. So, no copyright? European harmonized standards are freely available for copying, uploading and downloading? Well, it depends. Indeed, the James Elliot case raises interesting questions of both constitutional and commercial character in reference to the status of technical standards incorporated by reference in law, of which some are discussed in this article.
Towards a Court Mandated Harmonization of National Tax Rules Case 552/15, Commission v. Ireland
Authors: Schlüter Yannis
Published: March 2022

The CJEU’s judgment in Commission v. Ireland is not just another case concerning a national system of vehicle registration taxes. It is true that the object of the dispute was Ireland’s system of vehicle registration taxes and the way it was applied to vehicles leased in another Member State. The Court confirmed its earlier case law and considered the Irish system contrary to EU law because of a lack of proportionality. The court however went further, and expressly stated how the tax system should have been designed to be proportionate. This approach touches upon the exclusive competence of EU Member States in the designing of their national tax systems. Indeed, it raises the question whether the Court is simply protecting free movement rights or whether it is in fact harmonizing national tax systems through the application of its proportionality test.
The Principle of Effectiveness in the Interpretation of the Protocol of Accession of China to the World Trade Organization: Market Economy Considerations in Anti-Dumping Investigations
Authors: Soprano Roberto
Published: March 2022

China’s requests for consultations with the European Union and the United States formally initiated WTO disputes regarding certain provisions of the European Union and United States Anti-Dumping laws pertaining to the determination of normal value for ‘non-market economy’ countries. By filing such requests, China officially requested theWTODispute Settlement Body to clarify one of the most controversial and difficult to interpret ‘pieces of WTO law’. This article addresses the interpretation of section 15 of China’s Protocol of Accession in light of the principle of effectiveness to offer a different perspective on the ongoing dispute. It analyses whether the expiration of paragraph (a)(ii) will automatically prohibit Member States from deviating from standard rules to calculate normal value after 11 December 2016. It focuses particularly on section 15(d) and the criteria to be used to assess if China is (or is not) a market economy
WTO Panel, Australia: CertainMeasures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging,WT/DS435/R, WT/DS441/R, WT/DS4
Authors: Gögh Tibor
Published: March 2022

This case review concerns the long-awaited WTO Panel report in the Australia – Certain Measures Concerning Trademarks, Geographical Indications and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging dispute, circulated to Members on 28 June 2018. In the first part, it examines the factual background of the case detailing Australia’s reasons for pursuing a legitimate public health objective in the form of tobacco plain packaging legislation as well as a brief summary of the other disputes arising from this measure. The second part discusses whether the measure adopted by Australia is a technical regulation that is ‘more traderestrictive than necessary to fulfil a legitimate objective taking account of the risks non-fulfilment would create’ pursuant to Article 2.2 of the Technical Barriers to Trade (TBT) Agreement. Lastly, it details the way in which the Panel applied its findings relating to Article 2.2 of the TBT Agreement to Article 20 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement, pursuant to which ‘the use of a trademark during the course of trade shall not be unjustifiably encumbered by special requirements’.
Promoting Green Energy Through EU Preferential Trade Agreements: Potential and Limitations
Authors: Espa Ilaria , Marín Durán Gracia
Published: March 2022

This article aims at assessing the potential and limitations of preferential trade agreements (PTAs) in safeguarding countries’ efforts to promote renewable energy (RE). In particular, it explores whether and to what extent PTAs recently concluded by the European Union (EU) have addressed the main shortcomings found under the World Trade Organization (WTO) law. Namely, the fact that WTO rules are currently too stringent on the use of RE subsidies while too lenient on the use of trade remedy measures against RE technologies. It argues that EU PTAs could and should have gone further with regards to both subsidy and trade remedy disciplines that enable RE promotion, substantively as well procedurally, while still remaining WTO-compatible. The article further finds that much of the potential of EU PTAs has remained untapped due to inconsistency in policy practice, which reflects the lack of a coherent, ambitious and forward-looking negotiating strategy on the part of the EU. The article concludes by identifying which approach to RE promotion in PTAs is preferable and should be consistently pursued by the EU in future negotiations.

Climate change mitigation, renewable energy promotion, WTO law, green policy space, preferential trade agreements, EU
Unpacking the Concept of ‘Energy Security’: Lessons from Recent WTO Case Law
Authors: Marhold Anna-Alexandra
Published: March 2022

‘Energy security’ is a crucial concept in international relations, as well as in international (economic) law. Although no international legal definition of this multi-layered notion exists, and the concept has been recognized as ‘vague’ in international relations literature, it remains a term that is used time and again by states when referring to measures taken in connection with safeguarding their national energy supply. This contribution identifies the various dimensions of the concept of energy security, after which it studies its role in international (economic) law and zooms in on the World Trade Organization (WTO). It critically assesses how the panel and Appellate Body (AB) have dealt with WTO Members’ arguments connected to energy security in two recent WTO disputes, India – Solar Cells and EU – Energy Package. The article demonstrates that while energy security concerns may be a valid basis for defending a Member’s measure, they will not hold if that measure is applied in a discriminatory manner. This may be problematic, as energy security concerns are frequently geo-political in nature and may be inherently discriminatory. The contribution also explains why ‘long-term energy security’ defenses are more likely to meet the threshold of the Article XIV(a) General Agreement on Trade in Services (GATS) public policy exception, rather than the ‘products in local short supply’ exception of Article XX(j) GATT.

Energy Security, ECT, IEA, OPEC, PTAs, WTO, dispute settlement, public policy exception, local short supply
‘Weed-ing’ Out Disproportionate Regulation: The Free Movement of CBD in the European Union Following the Kanavape Judgment
Authors: Nae Bogdan-Florin
Published: March 2022

As cannabidiol’s (CBD) popularity has been increasing, multiple questions to as to its legal regime, including under European Union (EU) law, have been raised. In its preliminary ruling in the Kanavape case, the European Court of Justice, for the first time, clarifies that CBD falls under the free movement of goods provisions in primary EU law (Articles 34 and 36 Treaty on the Functioning of the European Union (TFEU)). This case note critically addresses the Court’s reasonsing, while putting the case in its broader legal and policy context.

Article 34 TFEU, Article 36 TFEU, cannabidiol (CBD), narcotic drugs, negative integration, UN drug conventions, Vienna Convention on the Law of Treaties
Les Demandes Reconventionnelles dans la Jurisprudence Arbitrale Récente Relative aux Investissements
Authors: Hamida Walid Ben
Published: March 2022

ABSTRACT: In traditional investment arbitration based in State contracts, the State may present its counterclaims against the investor. Nevertheless, in unilateral claims, based in investment treaties or national investment laws, the faculty to introduce counterclaims against the private investor party remains controversial. In the present article, the author comments some recent decisions on this new and original problem.
Obligation de Modérer le Dommage et Arbitrage du Point de Vue du Droit Français
Authors: Larroumet Christian
Published: March 2022

RESUME: Le droit interne français n'admet pas à la charge du créancier de dommages-intérêts l'obligation de modérer le dommage (mitigation of damages). Lorsque le droit applicable au fond est, en arbitrage international, le droit français, la question se pose de savoir si cette prohibition du droit français relève ou non de l'ordre public international alors qu'il, est généralement considéré que l'obligation de modérer est une règle de droit transnational communément admise. De même, la question se pose aussi dans l'arbitrage interne soumis au droit français de savoir si l'arbitre peut admettre l'obligation de modérer.