bluuebunny/crossref_metadata_2025 huggingface dataset:
Customs Agency Enforcement of IPRs in an FTZ
Authors: Sun Yiwu
Published: March 2022

The recent global proliferation of free trade zones (FTZs) has increased the difficulty of protecting intellectual property rights (IPR), as criminals take advantage of these zones' relaxed oversight and reduced customs controls by manufacturing and shipping illegal goods within and outside of these zones. IPR enforcement in FTZs remains a contentious issue internationally. Some international harmonization of national rules has occurred under the auspices of the World Customs Organization (WCO) and the World Trade Organization (WTO). Yet, as shown by the US and to a lesser extent China, national law has increasingly tightened around IPR enforcement in FTZs. National enforcement of trade-related IPR rules in FTZs will serve the Shanghai Pilot Free Trade Zone well. Chinese Customs regulations fail to provide adequate remedies for dealing with IPR infringing goods in this FTZ, especially remedies covering in-transit goods and Original Equipment Manufacturer (OEM) goods.
Canadas Sanctions Regime Regarding Iran: How Much has Changed in a Post-Joint Comprehensive Plan of Action Regulated Market?
Authors: Sosnow Clifford R.
Published: March 2022

The negotiation of the Joint Comprehensive Plan of Action (‘JCPOA’) further to the United Nations Security Council (‘UNSC’) Resolution of 20 July 20151 (‘July 2015 UNSC resolution endorsing the JCPOA’) portends, on full implementation, several significant changes affecting commercial and financial transactions in and with Iran.2 However, for anyone in Canada and Canadians abroad, the question is whether the JCPOA will result in a repositioning of Canadian sanctions compliance regarding Iran to respond to this evolving Iran sanctions regime. This article will explain that although there will be changes to Canada’s sanctions regime for Iran, most of the current sanctions regime will remain in place now and that for most business in Canada the status quo will prevail for the foreseeable future. This article discusses why. But before doing so, it is important to note that Canadian regulators can seek and in fact have sought criminal sanctions including incarceration for violations of Canada’s sanctions laws on Iran.
Litigating Intellectual Property Issues in Investor-State Dispute Settlement: A Jurisdictional Conflict
Authors: Upreti Pratyush Nath
Published: March 2022

This article attempts to show a jurisdictional conflict, while litigating intellectual property in investor-state dispute settlement (ISDS). At the global level, the World Trade Organization (WTO) dispute settlement body has jurisdiction to deal with any matters related to intellectual property. On the contrary, ISDS exclusively settles a dispute arising from an investment. The recent International Investment Agreements reveals that ‘intellectual property’ is part of the definition of investment, giving way for an investor to challenge intellectual property issues in ISDS. This departure of forum shifting from WTO Dispute Settlement Understanding to ISDS can be seen through the lenses of res judicata and doctrine of estoppel. However, the impact of such jurisdictional conflicts awaits future claimants.
EU Economic Sanctions Law Against Russia After the Rosneft Judgment by the Grand Chamber of the Court of Justice of the European Union: Get Me a Lawyer!
Authors: Beretta Laura Carola
Published: March 2022

Selected features of the recent ‘Rosneft’ judgment by the Court of Justice of the European Union deal with the EU law of embargoes and economic sanctions. It has altered the judicial review mechanism in such matters because it allows foreign companies to seek ‘preventative’ preliminary rulings before the Court of Justice to challenge national implementing measures of EU embargoes even before the measures are operative. This adds to the already existing EU judicial review mechanism. At the same time, the decision in ‘Rosneft’ is also interesting because it elaborates on the EU law aspects of criminal sanctions applied by EU Member States for breaches of embargoes as well as on how to interpret certain technical concepts of the EU Russia embargo.
Towards a Sustainable World Trade Law? The Commercial Policy of the European Union After Opinion 2/15 CJEU
Authors: Gruni Giovanni
Published: March 2022

Opinion 2/15 provides an undisputable exclusive competence to the EU for the inclusion of labour and environmental standards in EU Free Trade Agreements (FTAs). However, most of the possible policies to include sustainable development in world trade law would affect trade clauses of FTAs and World Trade Organization law for which the exclusive competence of the EU was not in doubt (e.g. free movement of goods and services, intellectual property). Accordingly, a holistic approach of the EU considering sustainability issues when negotiating any aspects of international trade treaties is required if sustainable development is to play a role in the future of world trade law. The article highlights potential consequences of Opinion 2/15 for the trade policy of the European Union in three areas: sustainable development clauses, trade negotiations and the participation of the EU in the WTO.
The CAP Under Attack? Last Developments In Trade Defence Cases Targeting European Food Products
Authors: Coppo Gabriele
Published: March 2022

The recent (2003-2013) reforms of the CAP – while bringing it more in line with the applicable WTO legislation – have proved to be insufficient to shield the EU food industry from third countries’ trade defence actions. In particular, two recent investigations carried out by Australia and the United States represent dangerous precedents in the European perspective, since they have targeted for the first time domestic support programs that the European Commission considers to be fully WTO compatible, and that are widely used throughout the Union. The article analyses some of the key features of these investigations and takes note of the elements which are likely to play an important role in future possible actions targeting EU food products.
The Court of Justice of the European Unions Judgment on Mutagenesis and International Trade: A Case of GMO, Mutagenesis and International Trade: A Case of GMO, Mutagenesis and International Trad
Authors: Dolle Tobias , Carreño Ignacio
Published: March 2022

The Court of Justice of the European Union (CJEU) was requested by the French Conseil d’État to determine, in essence, whether organisms obtained by mutagenesis (i.e. gene editing) are genetically modified organisms (GMOs) and whether they are subject to the obligations laid down by Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC. Contrary to the Advocate-General’s opinion of 18 January 2018, the Court of Justice ruled, on 25 July 2018, in case C-528/16 that Directive 2001/18/EC also applies to organisms obtained by mutagenesis techniques that have emerged since its adoption. The article analyses the grounds and implications of the CJEU’s decision.

 

Unlike transgenesis, mutagenesis is a set of techniques, which make it possible to alter the genome of a living species without the insertion of foreign DNA. Indeed, it is virtually impossible to detect whether the DNA of a plant or animal has been edited or not, because the changes involved are indistinguishable from naturally occurring mutations. Mutagenesis techniques have made it possible to develop, inter alia, seed varieties that are resistant to selective herbicides.

In response to the CJEU’s judgment, the US Secretary of Agriculture issued a statement criticizing the ruling. The statement reads, in part, that ‘[g]overnment policies should encourage scientific innovation without creating unnecessary barriers or unjustifiably stigmatizing new technologies. Unfortunately, this [...] ruling is a setback in this regard in that it narrowly considers newer genome editing methods to be within the scope of the European Union’s regressive and outdated regulations governing genetically modified organisms’.

The article also analyses the possible international trade implications of this decision and of its effects, in light of the applicable WTO law and of the relevant case law, such as the EU – Biotech Products dispute by Argentina, Canada and the US, where the WTO had ultimately condemned a de facto moratorium on the approval of GM products in the EU and in its Member States.
Legal and Economic Aspects of Chinese Belt & Road Initiative Investments into Europe via the Netherlands
Authors: Kasteleijn M. Bart
Published: March 2022

The year 2018 was the fifth year anniversary for the ‘Belt & Road Initiative’ since its announcement by PRC President Xi Jinping in 2013. This project has shown huge achievements in building an investment cooperation bridge between China and Europe. This article attempts to analyse the combined legal and economic aspects of the related investments into Europe and in particular through the Netherlands. In order to do so, the first section will briefly provide an introduction to the parameters of the ‘Belt & Road Initiative’ accomplishments. The second section highlights the economic data to show the trade and investment flow between the PRC and the EU. The third section lists the main compliance rules for entering into the European single market and the Netherlands. The fourth section will offer predictions for the near future followed by conclusions.
Challenges Facing Developing Countries in the International Trading System
Authors: Seshadri V.S.
Published: March 2022

This article analyses various dimensions of the uncertainty plaguing the multilateral trading system and examines its implications for developing countries. It details how countries are compelled to enter into free trade agreements on account of competitive liberalization and the growing propensity to explore new issues through sectoral plurilaterals. In addition, global factors such as the ‘America First’ approach and the rise of China provide the context to analyse India’s role in the international trading system. Specifically, the Article explores India's experience with the Doha Round, regional trade agreements (RTAs) and plurilaterals. It concludes that a patchwork of RTAs worldwide and an array of plurilaterals on an a la carte basis make a very complicated, divided and perhaps an unfair trading regime.
Mistakes in Certificates of Origin. Relationship with the General Principles of Law, the Legal Type and the Subjective Aspects of Customs Infractions
Authors: Figueredo Flavia
Published: March 2022

Mistakes in general, and specifically in relation to Certificates of Origin, are to be assessed not only with relation to the customs declaration as a whole (jointly with the documents attached to it), but also to the general principles of law (in particular those of material truth, legality, reasonability and good faith) and to the subjective aspects of the customs infractions. Our purpose here is to introduce for analysis all of these combined aspects which are ultimately related to human activities, and to the intervention of the public administration as a participant in international trade law in its control function.

Mistakes in Certificates of Origin, Fraud. MERCOSUR Agreement on Origin, Trade Facilitation Agreement, General Principles of Law, Punitive Law, Material Truth, Legality, Reasonability, Good Faith, Customs Infractions
What Are the Gender Impacts of the WTO on Local Communities?: South Korea’s Import Restriction on Sea-Squirts from Nuclear Affected Areas in Japan
Authors: Sharma Rajesh , Ichii Reina
Published: March 2022

In 2011, an earthquake triggered a tsunami off the northeastern coast of Japan, damaging the Fukushima Dai-ichi Nuclear Power Plant, which released nuclear material into the Pacific ocean. Soon afterwards, South Korea raised concerns about food safety and imposed a ban on imports of Japanese seafood from the Tohoku region of Honshu. The study reported in this article examined the impact of the South Korean government’s import bans of Japanese seafood on women in that economic sector. The focus of the study was a recent WTO decision to uphold the ban, in spite of the fact that Japan is able to prove the seafood meets safe, approved levels of radiation. The research focussed on the effect of the ban and its continuation on the women involved in the sea-squirts industry in Miyagi prefecture of Tohoku. The article concludes that it is time for the WTO to consider the impact of their decisions on women and take women’s issues into account during their decision making.

Women in trade, WTO, food safety, importance of women in trade, Japan, South Korea, Fukushima, seafood
Legal Problems with Data Localization Requirements: The Case of the Russian Federation
Authors: Raina Akhil , Hernández Simón
Published: March 2022

In times of turbulence for international trade, some issues stand out as ‘cutting-edge’. Trade in data, and data-related services are a part of those ‘frontier’ conversations. To this end, a peculiar kind of measure has emerged since 2013: data-localization requirements (DLRs) mandate that only domestic service suppliers can process data of the citizens of a particular country. Several prominent players in the trading landscape, including the United States and China, have imposed such measures. Similar legislation has been enacted by the Russian Federation (RF), which is analysed herein. Before assessing measures imposed by the RF, the authors set out the landscape of the General Agreement on Trade in Services (GATS), particularly the obligations relating to Market Access under Article XVI. Drawing heavily on WTO jurisprudence, the authors demonstrate that the RF measures in question fall within the scope of the GATS and violate the RF’s obligations under Article XVI; and further, that such violation cannot be justified under ArticlesXIV or XIVbis. To this end, the authors contribute to the existing literature on a subject which is becoming exponentially significant as time moves on.

World Trade Organization; General Agreement on Trade in Services; Market Access; Cross-border Supply; National Treatment; General and Security Exceptions; Personal Data, Processing of Personal Data, Data Localization Requirements; and Russian Federation
Note to the Court of Justice Judgment in Case C-775/19, 5th Avenue Products Trading: The Condition of the Sale and the Transaction Value Under EU Customs Valuation Law
Authors: Beretta Laura Carola , Villante Vincenzo , Bellante Piero , Bonafini Barbara , Rovetta Davide
Published: March 2022

The judgment of the Court of Justice of the European Union in Case C-775/19, 5th Avenue Products Trading, has defined the meaning of the ‘condition of sale’ requirements for customs valuation purposes in the European Union. This in particular concerning transaction which are linked to an underlying distribution agreement. However, such judgment is probably even more important from a systemic point of view in that it adds issues not specified in the legislation to the elements to be added to the value declared in the invoice to reach the transaction value.

customs value, customs valuation, condition of sale, transaction value
Mandatory Method-of-Production Labelling for Animal Products in the EU: A Case Study
Authors: Ghislain Stephanie
Published: March 2022

As a result of the proliferation of industrial farm animal production on the one hand, and the growing global crises such as climate change or antimicrobial resistance on the other, food product sustainability has become an increasingly important item of interest on a long list of pressing concerns over planetary health. However, consumers may find it hard to act on these concerns in the absence of information on the methods of production on animal products. In the EU, the absence of a method of production labelling scheme is even more problematic for consumer information given the increase in animal-based products imports and the likelihood that methods used to produce those goods did not comply with EU rules.

Depending on the choices made by consumers, a mandatory label of production method on the farming of animals used for food could eventually steer producers towards favouring methods of production that are in line with achieving the United Nations’ Sustainable Development Goals. Furthermore, such a label would contribute to level the playing field on the EU market by imposing the same transparency rules to all sellers, including importers.

Imposing a mandatory method of production labelling scheme raises the question of compatibility with World Trade Organization (WTO) rules. This article tests a hypothetical method of production label against the WTO’s Agreement on Technical Barriers to Trade, and concludes such a label could be found in compliance with the TBT Agreement.

Labelling, process and production methods, consumer information, sustainability, Animal Welfare, food products
Special Economic Zones and Free Trade Enclaves: A Troubled Existence After India: Export Related Measures (Panel) Ruling?
Authors: Nedumpara James J. , Gupta Manya
Published: March 2022

Special Economic Zones (SEZs) and Free Trade Zones (FTZs) are special trade or manufacturing enclaves within the territory of a State governed by a different set of laws and regulations than the rest of its territory. They form an essential part of the economic development, trade, and investment policy of several developed countries as well as emerging economies. In 2018, the United States challenged, among other measures, certain incentives which India had provided to SEZs, Export Oriented Units, Biotechnology and Electronics and Hardware Parks (EOU/EHTP/BTP) under India’s Foreign Trade Policy. These incentives were challenged as prohibited export subsidies under the Agreement on Subsidies and Countervailing Measures (SCM Agreement). While the Panel found against India, some of the issues adjudicated in the Panel report have implications for SEZs, FTZs and other similar entities located in such special enclaves. This article seeks to examine some of the key implications of this dispute on the functioning of deemed foreign trade zones within the territorial bounds of a WTO member. Of particular focus is, how WTO Members can implement the SEZs or other Trade Zones without inviting adverse outcomes. In addition, the article examines the contentious issue of the operation of the phase-out period for export subsidies under Article 27.2 of the SCM Agreement, which is of particular importance to a number of developing countries.

Special Economic Zones, WTO, SCM Agreement, United States, India, fiscal incentives, revenue foregone, Footnote 1, Article 27, Annex VII, developing countries, cross-border zones
UK: New Borders; New Approach
Authors: Aldous Sam , Beament Laura , Hall David
Published: March 2022

Until ten years ago, the UK’s approach to bribery and corruption, including at its borders, was fragmented, limited in scope and unsuccessful in tackling bribery across borders. This article focuses on the changes which the Bribery Act 2010 has brought about over the last decade which has elevated the UK’s anti-bribery regime to one which is highly regarded. One might expect the natural consequence of the Bribery Act’s international reach to be a dramatic increase in the number of prosecutions (particularly in relation to bribing public officials) – however that has not proved to be the case. This article shows that the Bribery Act has instead brought about a fundamental change of approach by lawmakers and businesses alike – which is not evident from the raw statistics. The Bribery Act’s power lies in the combination of its international reach and the obligations it places on commercial organizations to prevent bribery which have caused UK corporates (including those incorporated elsewhere but who carry on a business, or part of a business, in the UK) to significantly tighten their anti-bribery internal policies and procedures. The shift in focus from the individual to the corporate has also been reflected in the approach of UK law enforcement through their use of Deferred Prosecution Agreements which has resulted in corporate offenders being punished with unprecedented fines. The paper ends by asking whether Brexit and the re-establishment of a large number of hard borders with EU countries will lead to an increase in the number of prosecutions for bribing customs officials after all.

Bribery Act 2010, bribery and corruption, corporate offence, commercial organization, failure to prevent, extra-territorial reach, strict liability, Deferred Prosecution Agreement
Facilitating African Countries’ Participation in the Global Trading System
Authors: Kugler Kholofelo
Published: March 2022

Africa’s relatively low economic power has meant that it has had low participation in rule-and-decision making at the most important global economic governance fora, except the World Trade Organization (WTO). The consensus nature of most WTO decisions has encouraged African countries to participate actively in that organisation and seek to influence its rules and practice in areas of strategic African political, economic, and social interest. With the support of key technical partners like the Advisory Centre on WTO Law, African Members of the WTO have been able to leave their mark on WTO negotiations, as well as participate in dispute settlement proceedings as main parties and, mainly, third parties. The Advisory Centre on WTO Law (ACWL) has also been actively involved in building the capacity of Africans in WTO law through its flagship Secondment Programme for Trade Lawyers and its sponsorship and support of the John H. Jackson Moot Court Competition.

Africa, World Trade Organization, Advisory Centre on WTO Law, capacity building, negotiations, TRIPS and Access to Medicines, DSU Review, dispute settlement, ACWL Secondment Programme for Trade Lawyers, John H. Jackson Moot Competition
Interview with Mr Jorge Oliveira, Honourable Customs Broker in Angola
Authors: Rijo Jose
Published: March 2022

Angola, customs, trade, enforcement
Reverse Discrimination in Purely Internal Situations: An Incongruity in a Citizens’ Europe
Authors: Tryfonidou Alina
Published: March 2022

Reverse discrimination suffered by Member State nationals in purely internal situations has traditionally been considered by the Court of Justice to be a permissible difference in treatment that falls outside the scope of EC law. The principal aim of this article is to argue that, in the light of the introduction of the status of Union citizenship and, in particular, the interpretation afforded by the ECJ to some of the citizenship provisions, the Court should reconsider its stance on the issue of reverse discrimination. It will be explained that the Court has already made some tentative steps towards this direction: in line with the overall developments in the EC since 1993, the Court in recent years, in some of its case-law, has extended the scope of application of the free movement Treaty Articles to situations which presented a very tenuous link with those provisions, preventing, in this way, the emergence of reverse discrimination. It will be concluded that, although the Court’s underlying objective in those cases has been correct, the approach it has followed in attaining that objective has, nevertheless, been the wrong one. Reverse discrimination is, indeed, an incongruity in a Citizens’ Europe, yet, the scope of the fundamental freedoms provisions can never be extended in such a way as to encompass this difference in treatment since it does not impede the achievement of their sole aim (the establishment of a single market). Therefore, some other way should be employed for bringing reverse discrimination within the scope of EC law and, where appropriate, for ruling that it amounts to a prohibited difference in treatment. Reverse discrimination will be re-proposed as an unjustified violation of the general principle of equality, the latter being one of the core principles that must be respected in a Citizens’ Europe.
Proportionality in Decentralized Action;the Dutch Court Experience in Free Movement of Services and Freedom of Establishment Cases
Authors: van Harten Herman
Published: March 2022

National courts are of vital importance for the effectiveness of European law. In general, they are supposed to handle the bulk of the cases in which European law comes forward, a logical result following the development of the (direct) effects of European law in the national legal order.

Several authors in the European law doctrine observed a notable variety of review intensity by the Court of Justice of the European Communities (hereafter: the Court) on the proportionality principle in handling free movement cases. Sometimes the Court employs an intense test; other times the approach of the Court is remarkably restrained. Also, in cases that concern a similar field of the law, this variety may be observed. The general line of the Court is considerably clear, but the review intensity also tends towards being a sort of ‘black box’.

This constitutes a problem for the effectiveness of European free movement law at a decentralized level, at national courts. Research into the Dutch court experience demonstrates that it seems as if it is not completely clear how national courts should apply the proportionality principle à l’européen.

This contribution concentrates on the application of the proportionality principle by Dutch courts when handling free movement of services and freedom of establishment cases. A few general lines will be identifi ed on the basis of this case–law and some suggestions for the Court on the basis of the decentralized application will be put forward.
Methods of Application of the Proportionality Principle in Environmental Law
Authors: Schueler Ben
Published: March 2022

A court can rule on the proportionality of an administrative decision without infringing on the decision–making primacy of the administrative authorities. It can go quite far in doing so, as long as it uses the proper method. Characteristic for this method is not so much that it uses the proportionality principle as a rule under which the facts are subsumed, but as a framework for a discussion that is held between parties during the proceedings, under the direction of the court. If the court finds that the administrative body has not demonstrated a sufficient basis for its choices, it need not confine itself to an annulment on formal grounds. It can take its examination further and give parties the opportunity to consider alternative decisions. This method enables the court to come to a substantive and final judgment.
How Well Does the European Legal Test for Predation Go with an Economic Approach to Article 102 TFEU?
Authors: Gormsen Liza Lovdahl
Published: March 2022

This article questions how well the legal test for predatory pricing, part of which relies on the subjective intent of dominant undertakings, goes with the Commission’s devotion to an economic approach in enforcing Article 102 Treaty on the Functioning of the European Union (TFEU). To answer that question, this article examines the rationale behind the legal test of predation and considers the presumptions laid down in AKZO. The focus will, in particular, be on the presumption of abuse where a dominant undertaking price is above average variable cost (AVC) but below average total cost (ATC) and where there is evidence of a plan to eliminate a competitor. It also considers whether the Commission uses intent as evidence in other areas than predation when enforcing Article 102 TFEU. A part of the legal test for predation is recoupment, so this article includes a discussion of the presumption of likely recoupment.
Institutions for Regulatory Cooperation in New Generation Economic and Trade Agreements
Authors: Steger Debra P.
Published: March 2022

There is not one perfect model for institutional regulatory cooperation, nor is there a single model for eliminating technical barriers to trade (TBT) or discriminatory sanitary and phytosanitary (SPS) measures in a preferential trade agreement (PTA). However, recent experience with PTAs has shown that it is possible to progress beyond entirely separate regulation in specific sectors by each party with bilateral government committees that only meet once a year to joint committees that meet on a regular basis and engage in joint harmonization, rule-making, mutual recognition, and problem-solving.

In a 'new generation' PTA (either free trade agreement (FTA) or customs union) in which economic integration is an agreed upon policy objective, joint institutions will be necessary to effectively implement harmonization of standards and development of joint standards codes as well as mutual recognition of technical regulations, standards, and occupational qualifications.
The Future of Environmental Labelling: US  Tuna II and the Scope of the TBT
Authors: Ankersmit Laurens , Lawrence Jessica C.
Published: March 2022

The Panel Report in the World Trade Organization (WTO) dispute United States - Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna Products (hereinafter 'US - Tuna II') was released on 15 September 2011. This case, which concerned the US's 'dolphin-safe' tuna labelling programme, was important to WTO watchers for several reasons. In particular, it addressed several issues of first impression regarding the scope of the Agreement on Technical Barriers to Trade (TBT) (hereinafter 'TBT Agreement') and contributed another piece to the ongoing puzzle of how to balance international trade obligations with domestic regulatory space in the WTO. The authors contend that the Panel Report supports the idea that labelling is a 'safe' option for creating regulatory policies that may comply with WTO standards, but the fact that the measure was ultimately defeated means that policymakers will have to think carefully about how to design their labelling schemes in order to avoid incompatibility with their international trade obligations.
EU Member State Enforcement of Mixed Agreements and Access to Justice: Rethinking Direct Effect
Authors: Gáspár-Szilágyi Szilárd
Published: March 2022

Article 344 TFEU forbids Member States to pursue any other means of dispute settlement, when issues regarding the application and interpretation of the Treaties are concerned. The Court of Justice extended this principle to include disputes arising under international agreements, where the subject matter falls under European Union (EU) competence. At the same time, the number of international agreements to which direct effect is not granted is slowly rising. Consequently, the question arises whether Member States still have proper access to justice under these international regimes vis-à-vis other Member States or the EU, given that: first, they cannot pursue litigation under the agreements' dispute resolution system if the foreign body risks interpreting the agreement, which also forms part of EU law; second, they cannot rely on these agreements before the Court. This article argues that a rethinking of the direct effect doctrine of international agreements is necessary. Member States should not be equated with individuals, when invoking international agreements before the Court to challenge the validity of EU acts.
De facto Discrimination Under GATS National Treatment: Has the Genie of Trade Liberalization Been Let Out of the Bottle?
Authors: Muller Gilles
Published: March 2022

The purpose of the General Agreement on Trade in Services (GATS) national treatment rule is to prevent discrimination between domestic and like foreign services and service suppliers. It covers both overt (de jure) and origin-neutral (de facto) discrimination. While the identification of de jure discrimination is relatively easy, the exact meaning of de facto discrimination remains unclear. Taken literally, origin-neutral measures that favour domestic services and service suppliers over their foreign counterparts include a wide range of domestic regulations. A broad interpretation extends the scope of national treatment and could significantly infringe upon the regulatory autonomy of Members of the World Trade Organization in ways that were unanticipated by GATS negotiators – raising the question of whether the genie of trade liberalization has been let out of the bottle? Most commentators believe that this is the case, and have proposed mechanisms to safeguard discriminatory measures with legitimate regulatory purposes. In Argentina – Financial Services, the Appellate Body rejected these mechanisms, leaving the question of the broad interpretation of the national treatment open. Against this background, this article argues that de facto discrimination should be interpreted narrowly, and the question of the legitimacy of the regulatory purpose should only be analysed under Article XIV (General Exceptions).
Regulation of Digital Trade in US Free Trade Agreements: From Trade Regulation to Digital Regulation
Authors: Gao Henry
Published: March 2022

This article reviews the evolution of rules on digital trade in US Free Trade Agreements (US FTAs), and argues that the US approach has shifted from treating it largely as a traditional trade issue to recognizing its unique digital nature and tailoring the rules accordingly, as it has done in the Trans-Pacific Partnership (TPP) Agreement. The article begins with a review of the efforts to regulate e-commerce in the WTO, as well as the achievements of the pre-TPP US FTAs so far, followed by a critical appraisal of the strengths and weaknesses of the e-commerce chapter in the TPP. It is hoped that, by reviewing the evolution of the regulation of e-commerce from theWTOto the TPP, we can learn some lessons on how the rules are being shaped, as well as how they might evolve in the future.
MERCOSUR Citizenship: Failed Transition from Economic to Political Integration?
Authors: Arlettaz Fernando
Published: March 2022

The concept of MERCOSUR citizenship, based on the freedom of movement and the equality of civil and social rights, intended a transition from a strictly economic regional integration to a political one. However, the weaknesses of the regional process (such as the slowness of the internalization of regional regulations, the heterogeneities in that internalization and the concurrence of other regional processes) hamper the consolidation of a regional regime of citizenship, leading to inequalities incompatible with the very concept of citizenship.

MERCOSUR, citizenship, economic integration, political integration, freedom of movement, equality, UNASUR
Convenção de Haia sobre Escolha de Foro e o Brasil: Necessidade de Sua Adoção
Authors: de Araujo Nadia
Published: March 2022

ABSTRACT: This article analyses the convention recently con­cluded by the Hague Conference on Private International Law, which in 2005 approved the Convention on Choice of Court Agre­ement, applicable to international contracts. This Convention aims to promote a return of the parties in international trade to the judiciary to settle their litigation, when it establishes the same conditions of security to the choice of court agreement that already exists to arbitral agreements. Due to the New York Convention about International Arbitration, recently adopted by Brazil , there is great juridical security to the enforcement of international arbitral awards not only here but in the majority of the countries, turning itself into a truly global convention. However, the situation is rather different to contracts with choi­ce of court agreement, since there was not, before the Hague Convention of 2005, a global document that would guarantee the application of the choice of court agreement. This article analyses the work done by the Hague Conference on Private International Law, as well as the role of Brazil in the organization since its return in 2001. In sequence, it is held an analysis of the Convention, underlining its main points, making a comparison to the Brazilian legislation, focusing on its adoption.
El Soborno y el Arbitraje Internacional
Authors: Cossio Esteban Ramón Ymaz
Published: March 2022

ABSTRACT: Wittily and thoroughly, this article analyzes the sensitive topic mentioned in its title. Within the framework of international corruption - and the struggle against it -, it describes how international arbitration is used abusively as a means to implement corrupt practices and avoid control. It examines various arbitration cases that had to deal with this topic, and focuses on the small number of awards effectively enforced and the different reasons for that: The severability of arbitration clauses, the evidence relating to corruption, the choice of the applicable law, the rule of confidentiality, among other issues.
Miami Arbitration Reports: Comments on the Development of U.S. Arbitration Law
Authors: Santos Mauricio Gomm Ferreira dos , Santos Mauricio Gomm Ferreira dos
Published: March 2022

ABSTRACT: The rapid development of the law affecting international arbitration and its implications for practitioners, scholars, and students of the law requires constant attention. These case summaries chronicle cases in the United States that can impact international arbitrations and merit attention internationally. In addition, these case summaries open the door for greater discussion regarding law in both the United States and Brazil, providing an opportunity to learn and connect in a rapidly globalizing world. We invite your comments and look forward to connecting with you.
Prerrogativas da Administração Pública no Processo Arbitral: um Imperativo?
Authors: Costa Sérgio de Freitas , de Almeida Lise
Published: March 2022

ABSTRACT: Arbitrations in which State and State entities are parties bring about a myriad of considerations. The enactment of laws containing specific authorization for public entities to enter into arbitration agreements has somewhat reduced that debate in Brazil. But new questions arise, such as whether the arbitration to which a State is a party should be different from an arbitration in which all parties are private entities. It is known that when the State is a party in a judicial court dispute, there are special rules that benefit the State, aiming at the reestablishment of a procedural equilibrium with the privat e party. This article discusses whether there should be differences between the arbitral proceedings in which the State is a party and those involving only private parties, and whether such differences may represent a condition necessary for the State to embrace arbitration.
A Intervenção de Terceiros no Procedimento Arbitral no Direito Português
Authors: Gradi Silva e Marco , Costa Paula
Published: March 2022

ABSTRACT: The Authors deal with the problem of third parties intervention in arbitration proce­edings in their legislation (portuguese and italian), which differ in the fact that the first does not explicitly consider such an institution, while the second, following a doctrinal debate, has a special discipline since 2006 with the introduction of art. 816 quinquies CPC. In their essays, a special at­tention is given to the admissibility conditions of third parties intervention, especially when they are unrelated to the arbitration agreement, and to the problem of their participation in the constitution of arbitral tribunal.
Arbitration as a Method of Settling Disputes Arising under Sovereign Bonds
Authors: Simões Joanna
Published: March 2022

ABSTRACT: In December 2001 Argentina defaulted by publicly announcing the deferral of over US$100 billion of external bond debt owed to both non-Argentine and Argentine creditors. In September 2006, a group of 195,000 Italian creditors that rejected Argentina's exchange offer submitted a request for ICSID arbitration relying not in the bond contract, but in a Bilateral Investment Treaty ("BIT") between Argentina and Italy. More than ever before, in this moment of anxiety of a Greek sovereign default, the outcome of this decision can drastically change the dynamics of sovereign debt restructurings and of the investment arbitration regime. Thus, in light of these recent facts, this article shall assess whether ICSID tribunals should have jurisdiction to settle disputes arising under sovereign bonds by making a dual examination of the term "investment" in the ICSID Convention. And more importantly, notwithstanding the positive jurisdiction and admissibility decision rendered by the ICSID Tribunal in the present case, it is analysed whether tribunals should be competent to settle disputes related to a financial crisis.
A Bridge too Far
Authors: Pereyó José
Published: March 2022

ABSTRACT: Recent case law from arbitration laden jurisdictions has reignited the discussion of an arbitrator's ex officio application of the law when the parties have chosen the law applicable to the merits of the dispute, but have not invoked certain legal arguments during the arbitral proceedings. Specifically, this survey analyzes the issue of an arbitrator's ex officio application of the law from the perspective of the maxim iura novit curia and foreign mandatory rules in order to ascertain whether the recourse to these two tenets by way of analogy are appropriate in the context of international commercial arbitration.
A Ética dos Árbitros
Authors: Grebler Eduardo
Published: March 2022

ABSTRACT: This article is about the need of precise and objective rules on the conduct of ethics applicable to arbitrators, describing the importance of the determination of such conduct and the lack thereof in Brazil, bringing the provisions of the Brazilian Arbitration Law, Brazilian and foreign arbitral and professional institution rules, and the standard set forth in international arbitration on this matter.
Certezas e dúvidas sobre o novo direito arbitral argentino
Authors: Fernández Arroyo Diego P. , Vetulli Ezequiel H.
Published: March 2022

RESUMO: Depois de tantos debates e de tentativas frustradas, afortunadamente a Argentina adotou uma nova regulamentação de arbitragem, materializada no novo Código Civil e Comercial da Nação. O presente trabalho descreve e analisa os aspectos mais significativos deste novo regramento jurídico. Se por um lado esta nova regulamentação pode ser considerada em sintonia com as tendências mais aceitas globalmente, algumas das modificações incorporadas – como mínimo – apresentam certo potencial gerador de inconvenientes que poderão afetar substancialmente a utilização da arbitragem como método de resolução de conflitos em nosso país. Ou seja, se bem é possível reconhecer os avanços de alguns dos seus aspectos, é igualmente inevitável ressalvar a preocupação suscitada pelo tratamento dado a certas questões. Com relação a estas, o presente artigo oferece algumas pautas que deverão ser levadas em conta a fim de se minimizar os efeitos negativos da nova regulamentação.

ABSTRACT: After so many debates and so many frustrated attempts, Argentina has fortunately adopted a new arbitration act, materialized in its new Civil and Commercial Nation Code. The present study describes and analysis the most significant aspects of this new legal regulation. If, in one hand, this new regulation may be considered in line with the most recent global movements, other of its amendments present the risk of some inconveniences that may affect the use of arbitration as an ADR method in our country. Thus, if it is possible to recognize the evolution of some of its aspects, it is impossible not to worry with the treatment given to certain questions. Towards these last ones, the present study addresses some directions to minimize the negative effects of the new rules.
The détachement of international arbitration: reflections on the existence of an arbitral order détaché
Authors: Moreira Raquel Macedo
Published: March 2022

ABSTRACT: This article analyses the current accepted legal theories of international arbitration, specifically as to the obstacles and contradictions that may emerge from them. At the same time, the article proposes a new legal theory denominated détachement of international arbitration, which is built upon an ensemble of ideas contained in Emmanuel Gaillard’s book Aspects philosophiques du droit de l’arbitrage international, as well as Jan Paulsson’s work The Idea of Arbitration. The final goal is to define the position of international arbitration in the global legal system and its consequences to the practical field.
Arbitramento, arbitragem e dispute boards: o papel do terceiro na determinação do preço em opção de venda de ações
Authors: Marino Francisco Paulo de Crescenzo
Published: March 2022

In a recent decision, the Superior Court of Justice qualified as an arbitration agreement a provision determining that a third party should evaluate, in a “final” and “definitive” fashion, the price to be paid in exchange for shares which were the object of a put option agreement. The decision is a starting point to discuss the role of third parties in the determination of the content of an agreement, as well as to question the limits of the arbitration agreement itself. This article also deals with the distinction between arbitration and “arbitramento” (the determination of the content of an agreement by a third party), key concepts in the critical appraisal of the decision.
Mitos, crenças e a mudança de paradigma da arbitragem com a administração pública
Authors: Sombra Thiago Luís
Published: March 2022

One year after the reform of Arbitration’s Law came into force, the moment requires an overcoming of the narrow focus about the unavailability of the public interest in order to let another issues flourish. Considering the enhancing of regulation over important sectors of economy to which arbitration has been linked as an ADR tool (ports, energy, PPPs, public procurement), the next step involves the harmonization of legal regimes aiming to endeavor arbitrations with public administration. This article analyzes the overcoming of the first obstacles’ phase and beliefs raised against the arbitration with public administration. In the first part some questions are addressed and few myths are pointed out. Next, the article presents some tools employed to overcome dogmatic premises. Further, it concludes with factual and practical aspects of arbitrations governed by the reform of Arbitration’s Law.