bluuebunny/crossref_metadata_2025 huggingface dataset:
Circumvention of Anti-Dumping Measures: Law and Practice of South Africa
Authors: Jacobsz Thinus
Published: March 2022

As a member of the World Trade Organization (WTO), South Africa has honoured its international trade obligations through the enactment of domestic legislation which govern the requirements and procedures for the setting or changing of anti-dumping duties. In line with other WTO members introducing measures to curtail the circumvention of dumping activities by other WTO -members, South Africa adopted anti-circumvention measures in 1994. A guide introduced amongst others measures to counter those events where an exporter would absorb an anti-dumping duty; or if a related party supply the goods in the same or some other country; or where goods are exported as parts or components to be assembled in the South African Customs Union. Some of these anti-circumvention measures have on occasion been relied on and applied by the International Trade Administration Commission (ITAC) in South Africa as discussed hereunder.
Replacing the Non-Market Economy Methodology: Is the European Unions Alternative Approach Justified Under the World Trade Organization Anti-Dumping Agreement?
Authors: Zhou Weihuan , Noël Stéphanie
Published: March 2022

The European Commission has announced that it would issue a proposal to amend the European Union (EU) anti-dumping regulation to tackle the forthcoming expiry of the provision in China’s Protocol of Accession to the World Trade Organization (WTO) which allows WTO Members to derogate from the WTO rules on dumping determinations against imports from China. The proposal will include the removal of the ‘non-market economies’ (NME) list, which justifies the use of the ‘analogue country’ methodology, and the adoption of a new, country-neutral methodology to ‘capture distortions linked to State intervention’. This article analyses the consistency of this alternative approach to NME conditions with the WTO anti-dumping rules. It argues that the EU’s approach may amount to a continuous treatment of China as a NME for anti-dumping purposes. Such an approach, however, finds no legal basis under the WTO Antidumping Agreement which does not concern any government intervention per se but concerns a proper comparison between export price and normal value. Moreover, should normal value be constructed, the investigating authority shall take into account costs actually incurred by exporters. It follows that an investigating authority cannot use the WTO anti-dumping rules to sanction all forms of State intervention that results in lower export prices.
The US Prohibition on Imports Made with Forced Labour: The New Law Is a Force to Be Reckoned With
Authors: Bell Sandra L.
Published: March 2022

Since 1930, 19 U.S.C. 1307 prohibited importation of goods made wholly or partly by convict forced, or indentured labour under penal sanctions, and US Customs and Border Protection (CBP) was charged with enforcing this law. Up until February 2016, when the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) was enacted, there was a major limitation on CBP’s enforcement due section 1307’s exception of goods not produced in the US sufficiently to meet US consumptive demand. TFTEA eliminated the ‘consumptive demand exception’. This article explores the history of section 1307 and examines the impact on 1307 practice after TFTEA.
The Shochu Conundrum: Economics and the General Agreement on Tariffs and Trade Article III
Authors: Davis Alex
Published: March 2022

This article will discuss the National Treatment obligation contained in Article III of the General Agreement on Tariffs and Trade (GATT) 1994 as applied in precedential tax discrimination cases. Case law has not taken a firm stance on the economic versus legal interpretation of the likeness/ directly competitive or substitutable criterion or the principle of ‘so as to afford protection’ captured in Article III.2. After examining the case law on discriminatory taxation, I conclude that the National Treatment obligation in trade agreements is imperfect. Nonetheless, National Treatment is a critical component of these agreements, and the international trade order would collapse under the weight of protectionism were it not imposed. In order to ensure the efficacy of National Treatment, the determination of likeness/directly competitive or substitutable and protective application must consider market forces in addition to legal precedent. Economic indicators including elasticity of substitution and cross-price elasticity of the products in question are suitable measures of substitutability and are therefore the most accurate method of quantifying Article III violations.
Should the WTO Allow China to Impose Export Duties Designed to Combat Climate Change?
Authors: Jiang Fengan
Published: March 2022

On 8 November 2016, a World Trade Organization (WTO) panel was established to examine the third in a series of cases regarding China’s export duties, which China asserted were intended to promote sustainable development. The outcomes of the two previous cases, however, China – Raw Materials and China – Rare Earths, prohibit China from using export duties, even for the purpose of protecting the environment. This article seeks to answer the question of whether the WTO should rule in favour of China’s export duties by drawing attention to an issue unaddressed in the two previous cases, namely the potential of China’s export duties to curb carbon leakage.
A Commentary on the Article on Expedited Shipments in the WTO Trade Facilitation Agreement
Authors: Wu Hao
Published: March 2022

The Article on Expedited Shipments in the WTO Trade Facilitation Agreement (TFA) will have a significant impact on the express shipping industry. This article provides a commentary on the Article through an analysis of various questions that will arise from its implementation. The commentary aims to assist the stakeholders in preparing for implementation of this article.
The Obstacles to Concluding the EU-Canada Comprehensive Economic and Trade Agreement and Lessons for the Future
Authors: White Eric
Published: March 2022

This article examines three issues arising out of the EU-Canada Comprehensive Economic and Trade Agreement and puts forward suggestions as to how they may be avoided in future EU agreements. The three issues are the participation of EU Member States as parties to such agreements (‘mixity’), the goal of regulatory convergence and the provision of an investor-state dispute resolution mechanism.

The article argues that in future EU Member States should not be included as parties to trade agreements and that issues which the EU Member States do not want to allow the Union to include in such an agreement be placed in a separate mixed agreement.

On regulatory convergence, it is suggested that such a goal can only realistically be pursued in multilateral agreements and that including such provisions in bilateral agreements is unrealistic and leads to unnecessary complication and opposition.

Finally, the article argues that the whole issue of private enforcement of trade agreements needs to be re-thought and that the provision of favourable treatment to foreign investors only is legally problematic.
Challenging the Validity of EU Customs Measures Before the Court of Justice of the EU: Please Use the Back Door
Authors: Muñiz Pablo
Published: March 2022

The Treaty on the Functioning of the European Union introduced a new admissibility test to determine when economic operators are able to challenge the validity of EU acts of general application, such as EU customs-related measures, ‘directly’ before the Court of Justice of the EU (‘action for annulment’). Prior to the introduction of this new test, the position in practice was that economic operators had to challenge EU measures of general application ‘indirectly’. An ‘indirect challenge’ was made by bringing an appeal against national measures applying the EU act, before the court of an EU Member State, which could then refer a question on the validity of the underlying EU measure to the Court of Justice of the EU (‘request for a preliminary ruling’). This article examines the case law of the Court of Justice of the EU concerning the application of the new admissibility test to EU customs-related measures between 2011 and the first half of 2017. The author takes the view that the new test has unfortunately been interpreted in an overly restrictive manner, thus continuing to deny economic operators direct access to the Court of Justice in customs-related cases. The author also examines how economic operators will need to proceed in order to challenge the validity of EU customs measures.
Mode 5 Services and Some Implications for Rules of Origin
Authors: Dinh Khuong-Duy
Published: March 2022

The concept of ‘mode 5’ services was coined to describe those services embedded in and traded as part of goods and reveals the need to rethink about some aspects of international trade law, including rules of origin. The article starts with an introduction into ‘mode 5’ services, followed by an analysis on how this concept may render current rules of origin deceptive, especially by raising the issue of defining the origin of service components in manufactured goods. It ends with a discussion of the necessity to devise more precise rules of origin on one hand, and the risk of making them become more stringent on the other hand.
Origin Marking in the European Union: Mandatory or Voluntary?
Authors: Fochesato Enea
Published: March 2022

This article analyses the idiosyncrasies of the EU origin marking regime for non-food products and the latest attempt to reform it. In doing so, it begins with an overview of the international trade rules overseeing the entire matter, as well as some insights about origin marking schemes in other countries, with particular regard to the United States. The author then points out that, aside from certain exceptions, there is no single harmonized legal provision regarding origin marking on non-food products imported into or produced within EU borders, with the consequence that EU manufacturers and importers may decide whether to mark their products with origin information or not. In this latter case, the product label must not contain false or deceptive origin references. The author concludes analysing the latest reform attempt carried out by the EU Commission in 2013 which is still deadlocked within the EU Council.
The European Unions Trade Retaliation  Rebalancing the United States Steel and Aluminium Measures
Authors: Czyczerski Bartek
Published: March 2022

The European Union’s does not often make use of its re-balancing powers under the WTO Agreements. Regulation (EU) 654/2014, better known as the ‘Enforcement Regulation’, builds on the possibilities for retaliation contained in the WTO Agreement on Safeguards, and is, generally, seen as an exceptional instrument. In fact, re-balancing measures are a most rare occurrence. This note will address the Enforcement Regulation’s origin, its limitation, and its application to the 2018 US steel and aluminium measures. In particular, this note seeks to shed some light on the Union’s internal workings when designing re-balancing measures, and will, therefore, also have regard to the Union’s Comitology procedure.
Revolutionizing Global Supply Chains One Block at a Time: Growing International Trade with Blockchain: Are International Rules Up to the Task?
Authors: Upperton Tess , Epps Tracey , Carey Blake
Published: March 2022

There is growing interest in blockchain’s potential to transform the logistics of international trade through its application to supply chains to increase efficiencies and minimize vulnerabilities. Yet for blockchain to truly transport supply chains on a global scale, laws and regulations that facilitate and support its implementation are required. This article explores potential regulatory barriers to the development of blockchain technology in supply chains and asks whether there is a role for international trade rules to address these barriers.
Holes in the Silk: Investor Protection under Chinas Belt and Road Initiative
Authors: Mercurio Bryan , Sejko Dini
Published: March 2022

Aiming to improve connectivity by building ‘roads’ that will channel economic development and achieve certain geopolitical and strategic objectives, the Belt and Road Initiative (BRI) is a critical element in China’s more comprehensive strategic play for a new and enhanced role in global economic governance. While often hyped by some as a modern form of the Marshall Plan, the BRI has been built on a weak foundation which threatens the economic and geopolitical objectives of the Initiative. This article focuses on the security of the Chinese international investment regime for private and state-owned investors confronting political and legal risks in BRI projects in various countries. Perhaps the greatest legal risk to Chinese investors is that China’s network of international investment treaties is insufficient to deal with the risks that Chinese investors face. After reviewing specific provisions and jurisprudence stemming from China’s treaties, the article provides possible mitigation strategies and solutions which China and investors can use to mitigate such risks
From the Locker Room: Some Observations on Training Programmes in International Trade
Authors: Ram Jayant Raghu
Published: March 2022

Training programmes form an important means of capacity building for developing countries. While there are several training programmes being run across the world, both by international organizations as well as by countries themselves, there is limited scholarship and publicly available information on the inner workings of training programmes, their effectiveness, challenges faced by the stakeholders, and other related issues. This Note is a modest attempt to bridge this gap. The notes forming the basis of this Note are derived from my experiences gained from organizing, participating and facilitating such training programmes, while working in the research and policy sector. Some of the discussions in this Note also concern the practical aspects of training programmes. Towards the end of the Note, I offer some constructive suggestions towards enhancing the effectiveness of training programmes.

capacity building, developing countries, training programmes, technical assistance, resources persons, international trade, ACWL, WTO, ITEC
The Solace of the Residuary Category: The Need to Change an Age-Old Classification Regime in India
Authors: Srivastava Garima , Indrajit Siddhant
Published: March 2022

In a dynamic technological environment where the world has become a global market, India follows the age-old classification regime for the purposes of imports and exports. The issue came to light with a recent trade notice issued by the Directorate General of Foreign Trade raising concerns over the recurring classification of goods in the residuary entry, ‘others’. Against this backdrop, it is timely to explore the reasons cited by importers for resorting to the residuary category, and the arising negative repercussions. This requires consideration of the scheme of classification under the Customs Tariff Act, 1975, the principles enumerated in international texts on classification, and the object of the scheme of classification. We also provide suggestions and strategies for importers as well as the Government to tackle the menace of misclassification under the residuary entry.

Technological advancement, Harmonized System of Classification, HS Codes, eight-digit classification, residuary entry, Trade Notice, misclassification, India, Directorate General of Foreign Trade, import restrictions
DSU Article 25 Appeal Arbitration: A Viable Interim Alternative to the WTO Appellate Body?
Authors: Li Xiaoling
Published: March 2022

Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) Article 25 appeal arbitration scheme was first proposed by legal practitioners in 2017 to provide an alternative avenue of appeal in case the Appellate Body is non-operational. This scheme was subsequently accepted by the EU with some modifications. On 27 March 2020, sixteen Members agreed on the Multi-party Interim Appeal Arbitration Agreement Pursuant to Article 25 of the DSU (the MPIA), which has been notified to the WTO with five more participating Members in April 2020. The majority of Members have not yet decided. This begs the question of whether DSU Article 25 appeal arbitration will be a viable interim alternative to the Appellate Body. This article expounds on various potential models of Article 25 appeal arbitration, including the MPIA, from three parameters (legitimacy, compatibility and temporality), and concludes that constrained by DSU Article 25 and the whole WTO dispute settlement framework, the viability of DSU Article 25 appeal arbitration is rather dubious. The Appellate Body-model (and the MPIA) seems more viable than other models, but it is not without potential problems. To avoid the risk of long-term application of appeal arbitration and the fragmentation of WTO jurisprudence, Members should continue to prioritize negotiations to restore the Appellate Body.

appeal arbitration, the Appellate Body, arbitrator selection process, reappointment, independence of adjudicators, member control, precedent, conflicts of interest, MPIA, WTO
India’s Response to Increases in Imports from Countries Subject to Preferential Tariffs Under FTAs: Bilateral Safeguard Investigations?
Authors: Gupta Dhruv , Mansatta Bhargav
Published: March 2022

India has entered into several Free Trade Agreements (FTAs) that provide for the possibility of imposition of bilateral safeguard measures when increase in imports causes injury to the domestic industry in India. The bilateral safeguard measure can be in the form of temporary suspension of further reduction or withdrawal of tariff preferences; some also contain provisions relating to preliminary safeguard duty, transition period, duration of safeguard measure, liberalization of safeguard duty, among others. Provisional bilateral safeguard measures were imposed in case of Refined Palm Oil from Malaysia and in case of Phthalic Anhydride & Polybutadiene Rubber from Korea. Bilateral safeguard measures are an effective tool in protecting the domestic industry from a sudden increase in imports, and also help in reversing trade deficits.

Free Trade Agreements, India, Bilateral Safeguards, ASEAN, Korea, Malaysia, trade deficit, imports, customs duty, Rules, investigation
What Is Economic Globalization Without Trans-boundary Migration?
Authors: Herbert Eti Best , Olalere Fasilat Abimbola
Published: March 2022

The world is often regarded as a global village or borderless globe where various countries freely interconnect and interrelate towards achieving a global goal. Globalization has occasioned international cooperation amongst States through the formation of several treaties and international organizations with economic objectives. This article evaluates the law and attitude of States and International organizations towards economically motivated trans-boundary migration. Particular reference is made to World Trade Organization(WTO), European Union(EU), African Union (AU), Economic Community of West African States (ECOWAS) and North American Free Trade Association(NAFTA). Findings reveal that the legal and institutional frameworks in support of trans-boundary economic migration are very weak, thereby allowing States’ interest to prevail over the globalization objectives. State practices are geared towards placement of several obstacles, such as imposing criminal sanctions, which limits trans-boundary economic migration. This prejudice is more obvious when the trade in service is a South-North movement of labour. These challenges have led to the irresistible conclusion that economic globalization is but a political fiction yet to take root in reality. It is further contended that, the puzzle of economic globalization cannot be completely fixed, except States fully embrace, accepte and liberalize the missing piece of trans-boundary migration.

Globalization, Trans-boundary migration, Economic migration, South-North movement, Trade liberalization.
Trading Through a Pandemic: The Singaporean Experience
Authors: Gao Henry , G Chainani Dhiraj , Siu Farn Chew
Published: March 2022

Being a small country with one of the highest trade-to-GDP ratios in the world, Singapore faced seemingly insurmountable challenges at the onset of the Coronavirus disease 2019 (COVID-19) pandemic. As countries around the world scrambled to fight the pandemic, they imposed restrictions on exports and imports, suspended international transportation of both goods and people, and invoked emergency power and exceptions to justify their actions. All these presented unprecedented challenges to Singapore, a country which relies on international trade not only for its prosperity but also for survival.

This article discusses how Singapore tries to meet these challenges through various initiatives to diversify its sources of supply, ensure trade of essential goods, and minimize the interruptions to business travel. The Singapore experience provides an invaluable case study on how trade agreements can be used not just to regulate trade, but also to facilitate trade, a lesson that will be useful for all countries as the world embark on the road to recovery.

export restrictions, essential goods, general exception, stockpiling, movement of people, COVID-19, pandemic, GATT, GATS, WTO
WTO Appellate Body Without Legitimacy?: The Criticism of the Dispute Settlement System and the Response of the WTO Member States
Authors: Altemöller Frank
Published: March 2022

Is there any practical value to international agreements without enforcement instruments? And can the multilateral rules of the world trade system hold the trust of the Member States, so that they continue to adhere to the mutual benefits and obligations under WTO law – even if the WTO dispute settlement system is totally or even partially incapacitated?

One of the key achievements of the Uruguay Round was that the Member States provided the world trade system with a dispute settlement system. However, this is increasingly being challenged: last December, the USA continued to withhold its consent for the required replacement of vacant positions, thus rendering the WTO Appellate Body indefinitely unable to carry out its function. The report by the US Trade Representative seeks to justify this with a central statement claiming that the Appellate Body lacks legitimacy.

This article discusses the different viewpoints on the future shape of WTO dispute settlement. The author argues that the causes of the ‘blockade’ in WTO dispute settlement are not, as some parties maintain, deficiencies in the dispute settlement system and its practice. Rather, the ‘blockade’ should be viewed as the result of causes outside of the dispute settlement process itself. In a radically changed political and trade environment, an increasingly important view is becoming established, according to which the current world trade system, with its multilateral liberalization concept, is less and less able to satisfy significant economic interests of important Member States. Consequently, the WTO is receiving ever diminishing support – but is there any sign that changing the multilateral framework will allow it to adapt to the changing conditions?

World Trade System, Multilateralism, Appellate Body, Dispute Settlement, US Trade Representative, Blockade, Dispute Settlement Body, Rules and Procedures Governing the Settlement of Disputes, China, Emerging Countries, Belt and Road Initiative, Biden-Presidency, WTO Security Exceptions,
Compliance Pitfalls in Communications with the Russian Customs: Overview of Anti-corruption Regulations and Enforcement Trends
Authors: Alekseyev Maxim , Ostroukhov Boris , Dorozhkin Vladislav
Published: March 2022

Interactions with Russian customs authorities may be associated with corruption-related risks that need to be observed and managed from the outset should a company consider engaging in the import operations through the Russian border. This article focuses on reviewing the Russian legal framework, statistics and the enforcement practice concerning the most widespread corruption offenses related to the interactions with the customs officials, as well as the recent developments in anti-corruption customs legislation. It covers the legal foundation of the anti-corruption regime in Russia and analyses its basic institutions for the best understanding of the applicable legal mechanisms. The article also contains recommendations for international companies, regardless of their legal presence in Russia, how to manage their relations with Russian partners and local subsidiaries to minimize the risks of unnecessary attention from the Russian customs authorities, as well as Russian and foreign enforcement authorities specializing on the corruption-related matters. These recommendations include, among others, the adoption and control of compliance policies by nonlocal supervisors and maintaining relations with the Russian customs authorities by joining the Charter of the Bona Fide Participants of the Foreign Trade.

Offense, Prosecution, Compliance, Corruption, Anti-Corruption, Bribery, Officials, Prohibition, Review of Legislation, Customs, Criminal Liability, Administrative Liability, Federal Customs Service of the Russian Federation, Russia
Ascertaining the Burden of Proof in the Prosecution of Smuggling of Goods in Nigeria from Comparative Perspective
Authors: Olorunfemi John Funsho , Ndubuisi Anya Sylvester , Omale Godwin Musa
Published: March 2022

The prosecution of smuggling of goods is bedeviled with procedural difficulties to prove the guilt of the accused beyond reasonable doubt and so, does not follow the usual procedures of criminal justice. This article focuses on determining whether the reversal of the burden of proof, which is common to most customs laws, offends the general notion of presumption of innocence of the accused. The paper adopts a comparative analysis of relevant statutes and case law. It finds that statutes which impose the burden of proof on the accused in certain circumstances are valid but misapplied by the courts in Nigeria. Given the peculiar nature of smuggling, it is not difficult to appreciate the rationale for placing the burden on the accused to prove certain facts especially those within his peculiar knowledge. This will however not justify the misapplication of such provisions that reverse the burden of proof as was the case in Board of Customs and Excise v Ibrahim Barau. The paper recommends a judicial rethink that will ensure the proper application of section 190 of the Nigerian CEMA whenever the opportunity presents itself.

Prosecution, Smuggling of Goods, Strict Liability Offences, Mental Fault, Intermediate Offences, Absolute Prohibition, Presumption of Innocence, Reversed Burden of Proof, Customs and Excise Laws, Nigeria
The New Technology Transfer Block Exemption under EC Competition Law
Authors: Ritter Cyril
Published: March 2022

This article looks at the recently published new EC block exemption regulation for ‘technology transfer’ agreements (a term that covers many, though not all, intellectual property licensing agreements) and the accompanying Guidelines. The purpose of this paper is to (a) discuss the importance of IP licensing in the broader economic context (what degree of market power should be conferred on licensors?); (b) set out the general scheme of the new system introduced by the technology transfer block exemption; (c) examine specific types of restraints; and (d) identify the key changes introduced by the new technology transfer block exemption, compared to the old one.
Freedom of Speech and Assembly Versus Trade and Transit Rights: Roadblocks to EU and MERCOSUR Integration
Authors: Graf Bernd Ulrich
Published: March 2022

Freedom to assemble is an important right in democratic societies. As with many other freedoms, it must be balanced against other rights, including the free movement of goods and services, and public order interests. The Court of Justice of the European Communities and a MERCOSUR Ad Hoc Arbitral Tribunal have both considered the conflict between the freedom of assembly and the principles of free movement of goods and services in the context of “roadblock disputes”. This article compares the decisions of both bodies and proposes a framework that courts or arbitral tribunals may wish to consider when treating future “roadblock disputes” affecting trade of goods and/or services under regional integration schemes.
Taming the Dragon: China’s Experience in the WTO Dispute Settlement System
Authors: Gao Henry
Published: March 2022

To many observers, a major challenge raised by China’s accession to the WTO is whether the WTO dispute settlement system could cope with China, one of the major traders in the world with an economy that is halfway between a planned economy and a market economy. In this article, the author tries to answer this question by reviewing China’s experience in the WTO dispute settlement system. Historically, the senior leadership in China attached disproportionate importance to the WTO dispute settlement system and preferred to avoid using the system. Thus, in the first four cases in which China was sued or threatened to be sued in the WTO, China tried to keep a low profile and settled the cases with the complainants. As more and more cases are being brought against China, however, the effectiveness of the WTO dispute settlement system as a trade policy tool in dealing with China has gradually faded away. This is illustrated by China’s reactions to the cases brought against it over the past two years, where China has taken a more and more legalistic approach. While China, just as any other WTO Member, has every right to use the WTO dispute settlement system, an over-aggressive strategy against China runs the risk of dragging everyone into trade wars, which is not conducive to the solution of trade disputes.
Abuse of Market Dominance in Korea: Some Reflections on the KFTC’s Microsoft Decision
Authors: Jung Youngjin
Published: March 2022

Korea’s monopolization law and practice has not developed in clinical isolation of those of other major jurisdictions, especially the US and EU. Its incessant development has displayed a strong tendency toward harmonization in tying and bundling practice with the US and EU practice. The apparent disparity of the ultimate outcomes in different jurisdictions belies the fact that they share a strikingly similar jurisprudence. The KFTC’s Microsoft decision was a point of departure for this assessment. Soft harmonization of global competition laws as was seen in the KFTC’s decision in the Microsoft case may serve as an alternative to pursuing legislative and official harmonization of the antitrust laws.
The Legal and Political Framework of Euroization
Authors: Wessely Andreas
Published: March 2022

As currency crises revealed the limitations of pegging a country’s currency to another country’s currency through currency boards, the focus of the monetary community turned to dollarization and euroization. De jure dollarization/euroization is the unilateral adoption of the dollar/euro as sole legal tender in lieu of the prior domestic currency through a formal political decision, thereby irreversibly giving up the chance to influence money supply and exchange rates through national monetary and political authorities. After showing the origins of unilateral euroization, I will list the costs and benefits of currency replacement and identify which countries could most probably benefit from euroization. In the second part, I will explain why European Union (EU) institutions – in contrast to US policy makers with respect to dollarization – oppose the unilateral adoption of the euro. Then, I will describe the official route for euroization envisaged by the EU and finally focus the discussion on whether EU institutions can legally prevent unilateral euroization under European or international law and whether the involved states have any other rights or obligations under customary international law. Furthermore, I will show the implications of the current financial crisis for future trends of euroization.
Accessing the Original Jurisdiction of the Caribbean Court of Justice
Authors: O’Brien Derek
Published: March 2022

CARICOM, which is one of the oldest regional integration organizations in the developing world, has recently been transformed by the decision of its Member States to move to the next level of integration by establishing a CARICOM Single Market and Economy (CSME) under the Revised Treaty of Chaguaramas (RTC) and by investing the Caribbean Court of Justice (CCJ) with a compulsory and exclusive jurisdiction to interpret the RTC. The Preamble of the RTC affirms that the CCJ is essential for the successful operation of the CSME, but much will depend on how the CCJ approaches the exercise of its original jurisdiction. With the delivery of the CCJ’s first two judgements in the exercise of its original jurisdiction, it has been possible to gain a valuable insight into the judges’ approach towards the interpretation of the RTC and to the right of individuals and businesses to hold Member States accountable for their failure to comply with the requirements of the RTC by bringing proceedings directly before the CCJ.
The ‘Binary’ Nature of the Economics of State Aid
Authors: Eleonora Rusu Ioana
Published: March 2022

This article reviews the application of the balancing test to determine the compatibility of state aid with the internal market. On the basis of the decisional practice of the Commission so far, this article puts forth two propositions. First, the balancing test does not attempt to reduce the impact of state aid to a single measure of its net effect. Second, the balancing test can better be described as a series of questions, which on the positive side the answers must be yes and on the negative side the answers must be no. This is a ‘binary’ method of assessing the compatibility of state aid.
Of Empty Glasses and Double Burdens: Approaches to Regulating the Services Market à propos the Implementation of the Services Directive
Authors: Klamert Marcus
Published: March 2022

The Services Directive had to be implemented into national laws by the end of 2009. This paper will start by briefly addressing some salient issues concerning this obligation and compare a selection of Member States on how they have coped with them. The Services Directive moreover gives occasion for discussing the instruments the Community legislator has at its disposal to regulate the provision of services in the European Union. We will distinguish home state rule in the form of the country of origin principle from host state rule in the shape of the general prohibition of restrictions. The dogmatic difference between these regulatory models provided in the Commission’s proposal and in final version of the Services Directive respectively will be examined. We will furthermore distinguish harmonization from mutual recognition and discuss both in light of the legality of the Services Directive. This paper concludes by submitting the key features each regulatory model should be associated with in order to foster conceptual and terminological clarity in this important area. However, it is also shown that the boundaries between the instruments examined are rather blurred.
Taking the Temperature: EU Competition Law and Health Care
Authors: van de Gronden Johan W.
Published: March 2022

While the health-care sector grows in significance due to social and technical developments, the European Union (EU) competition rules are likely to be more frequently applied to health care both as a result of the broad interpretation of the concept of undertaking and because, following the modernization of competition policy in 2003, the competition rules are also applied at the Member State level. This article charts how the case law is not always clear on the reconciliation of health-care objectives and competition rules. Hence, it pleads for soft law guidance in this area.
Comparative Analysis of Technical Assistance Obligations under WTO and FTAs: The Missing Perspective of the Regionalism-Multilateralism Debate
Authors: Hamanaka Shintaro
Published: March 2022

What kind of technical assistance (TA) and capacity-building benefits do developing countries enjoy if they sign a free trade agreement (FTA) with developed countries? This is the most frequently asked question on FTA policymaking raised by developing country officials at various occasions discussing trade policies .While we tend to normatively insist that an FTA should lead to a win-win situation for all contracting parties and that developed members should provide TA to developing partners so that the latter can maximize the benefits and minimize the costs of an FTA, empirical assessments of TA mechanisms under FTAs have not been conducted thoroughly. By conducting a detailed textual analysis of World Trade Organization (WTO) agreements and various FTAs, this article identifies how much more TA can be enjoyed by developing members if they sign FTAs, especially those with developed countries.
The Making of Europes International Investment Policy: Uncertain First Steps
Authors: Calamita N. Jansen
Published: March 2022

The Treaty of Lisbon's grant of exclusive competence to the European Union for foreign direct investment (FDI) matters signals the beginning of a profound shift in the global landscape of FDI regulation as the international investment policies of twenty-seven states begin to be consolidated and harmonized at a regional level. The Union's first steps in developing its international investment policy, however, have been uncertain. The process thus far has lacked transparency and has been marked by significant disagreement in approach and substance among the European institutions. Among the EU's decision-making bodies there is disagreement over fundamental issues such as whether to develop a model investment treaty text and how to strike a balance between the protection of investors and the preservation of host state regulatory discretion. This article evaluates the key issues facing the European Union and places them within their international context.
Levelling the (Football) Field: Should Individuals Play by Free Movement Rules?
Authors: Nogarede Justin
Published: March 2022

This case note considers joined cases C-403/08 and C-429/08 (FAPL v. Pub Landlords), in which the CJEU (Grand Chamber) dealt with the exclusive licensing system of the Football Association Premier League for the broadcasting of football matches. The exclusive licensing arrangements were found to infringe EU law on two counts. First, they restrict the freedom to provide services ex Article 56 TFEU, which cannot be justified by either the protection of copyright or the promotion of live attendance at football matches. Second, the licensing scheme infringes Article 101 TFEU as it amounts to absolute territorial protection for the individual broadcasters in their respective national markets.
Stakeholder Participation in European Standardization: A Mapping and an Assessment of Three Categories of Regulation
Authors: Kallestrup Morten
Published: March 2022

The continuum of Internal Market regulation comprises various kinds of regulatory measures, including legislation, harmonized and non-harmonized standards, and private ‘self-regulation’ of different origins. Public, as well as private actors, participate in the continuous development of European regulation. The different actors’ competences and roles vary during the processes, but it is evident that both public and private actors obtain a vital position in the collective production of European regulation. This article contributes with a mapping and categorization of the applied regulatory ‘means and measures’ related to Internal Market regulation and an assessment of stakeholder participation in three categories. Firstly, this article provides an outline of contemporary EU regulatory policies applied in the Internal Market regulation, and discusses the concepts of regulatory governance and regulation. Secondly, the different variants of regulation are allocated within three main categories: (1) public legislation; (2) co-regulation, and; (3) private selfregulation. Case examples of the different categories of regulation are explicated to illustrate the variances among the three types and of the ex-ante participatory processes. Finally, the article provides an assessment of stakeholder participation vis-à-vis the three categories of regulation.
The Unhappy Marriage of Customs and Anti-Dumping Legislation: Tensions Relating to Product Description and Origin
Authors: Brolin Matilda J. , Willems Arnoud
Published: March 2022

In most countries, the rules concerning anti-dumping and customs reside in different laws. However, since the enforcement of anti-dumping measures is the responsibility of customs authorities, there is necessarily interaction between both areas of law. It is important to get this interaction right. For instance, changes in customs legislation could (inadvertently) increase the number of products covered by anti-dumping measures, arguably violating the rules of the World Trade Organization (WTO). This article examines two key points of tension between customs and anti-dumping laws, which have previously not been given much attention, taking the European Union (EU) as an example. First, the article sets out the problem of two competing interests concerning product description: that of a description that is accurate for purposes of coverage under an anti-dumping regulation, on the one hand, and that of a description that is efficient for purposes of ensuring simple and automatic duty collection by the customs authorities, on the other. It then explains the EU’s practical solution to this problem (TARIC codes), but advises caution regarding that practice. Second, it sets out how the EU uses rules of origin to impose anti-dumping duties on products that otherwise might not be covered, and cautions against that practice as well. Finally, the article discusses how to avoid breaching WTO law and how to ensure certainty and transparency for companies.
In Defence of the WTO: Why Do We Need a Multilateral Trading System?
Authors: Zhou Weihuan
Published: March 2022

For more than seven decades, the multilateral trading system has played an essential role in promoting international cooperation on trade policymaking and dispute resolution. As theWTOis being pushed toward the verge of irrelevance, it falls upon us, who believe in the utility of the WTO and multilateralism in general, to defend its legitimacy and significance. Taking theoretical and doctrinal approaches as well as case studies, this article expounds on the fundamental function of the system as being to discipline the use of protectionist policy instruments for trade or non-trade objectives and draws on the significance of the Theory of Distortions and Welfare in providing powerful economic guidance for how the system may operate to achieve a proper balance between the regulation of protectionist instruments and the preservation of policy space. Furthermore, this article shows how the WTO’s dispute settlement mechanism, particularly the Appellate Body, has served the underlying function of the system by contributing to disincentivizing governments from responding to protectionist demands of special interest groups but leaving sufficient latitude of discretion for governments to accommodate nontrade interests. This article cautions that if theWTOdoes collapse and potential adverse economic and political ramifications materialize, then the political need for international trade cooperation and rulesbased dispute resolution will quickly return. By then, the best way to address that need in pursuit of long-term peace and prosperity would be to rebuild a multilateral trading system.

WTO, Trade War, Protectionism, Multilateral trading system, Non-trade values, Dispute Settlement, Appellate Body, Economic efficiency.
Corporate Social Responsibility and Economic Globalization: Mainstreaming Sustainable Development Goals into the AfCFTA Discourse
Authors: Amodu Nojeem
Published: March 2022

There is a widely held belief that a borderless global economy brings numerous advantages including economic growth, development and welfare maximization. Globalization equally drives (and is driven by the activities of) large corporations involved in cross border operations. While corporate social responsibility (CSR) is a tool with which integrated developed economies ensure corporate behaviours remain within public interest confines, the regional integration agenda in Africa appears focused on liberalization of trade and investment at all costs. This article examines CSR in regional integration discourse, especially within the European Union, extracting important lessons for the African Continental Free Trade Area (AfCFTA). It unifies the ultimate agenda of both CSR and African regionalism in achieving sustainable development. Advising against misconstruing CSR as an unnecessary trade barrier, the article demonstrates why and how CSR values can be mainstreamed into AfCFTA discourse towards ensuring inclusive growth in Africa and improving the global competitiveness of domestic businesses.

AfCFTA, Africa, CSR, Corporate Responsibility, Regional Integration, Sustainable Development Goals, Trade Liberalization.
A Arbitragem como Modo de Inserção de Normas da Lex Mercatoria na Ordem Estatal
Authors: Strenger Irineu
Published: March 2022

However, the term most frequently used in a generic sense, whether to promote the concept or to criticize it, is lex mercatoria. At the risk of adding to the confusion, and with little hope of being able to impose definitive meanings for each expression, we shall simply give the meaning attributed to each of those expressions as used hereafter. Indeed, the terminological debate is only important in so far as it facilitates discussion, on a substantive level, of the way in which the various concepts fit together.

To denote rules other than those of a given jurisdiction, we shall use the generic expression lex mercatoria. The expression appears essentially in academic writing, and it covers not only transnational rules (which can only be described negatively as all rules which do not originate exclusively from a particular national legal system), but also international trade usages (meaning the practices usually followed in a particular trade).

In general, we prefer the term "transnational rules" to "a-national rules" because such rules derive from the convergence of the main legal systems from which they are drawn. It is therefore counterintuitive to suggest that they have no link with national legal orders. Transnational rules in turn embrace two separate concepts: first, rules which are common to several legal systems, determined on the basis of the tronc commun method; and second, general principles of international trade law.

Unitermos: arbitragem, lex mercatoria, comércio internacional.