bluuebunny/crossref_metadata_2025 huggingface dataset:
The WTO Appellate Body: Are There Any Viable Solutions?
Authors: Ansong Alex
Published: March 2022

The World Trade Organization (WTO) dispute settlement system, often described as the jewel in the crown of the WTO is fast skidding off the path of success due to the US vetoing of appointment of judges to the Appellate Body – the second tier appellate review organ. With the seven-member body now depleted to three, the dispute settlement system and possibly the entire WTO legal system is teetering on the precipice of a constitutional crisis. This has been made even more serious as two of the remaining three members of the Appellate Body – Thomas R. Graham and Ujal Singh Bhatia will complete their second unrenewable terms on 10 December 2019. This article considers viable options for appointing judges to the Appellate Body outside the very stringent rules on consensus established in Article 2:4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Settlement Understanding or DSU). It also explores a possible proactive use by the Ministerial Conference and the General Council, of the power to adopt authoritative interpretations under Article IX:2 of the WTO Agreement to help break the current impasse in the appointment of judges to the Appellate Body.
OBOR an Internationalized Initiative for Integrated Development
Authors: Uprety Kishor
Published: March 2022

The OBOR idea, since its conception, has prompted intense discussions amid diverging views amongst scholars, practitioners, and policy makers. Various sets of arguments, revolving around OBOR’s sociopolitical, economic, geostrategic, legal, and institutional aspects, have questioned whether the initiative’s implementation can really cater to the common needs of the world community, or whether it is rather aimed at essentially benefiting one country’s interests and fulfilling its hidden agenda. Arguments from all sides have their own merit, but also their own level of inherent bias, influenced by ideological, political, and economic schooling which blurs the debate and complicates the understanding of the idea. This article, with a primary focus on legal and institutional aspects, will navigate a maze of discussions of the multivariate and multifaceted challenges OBOR faces and attempt to ratiocinate the following: that as a concept, OBOR cannot be ignored, undermined or sidelined anymore; that as a development tool, it is here to stay; and that as an approach, it will make its mark in the world arena.
Accountability in Antidumping: The Silent Death of Lisbon
Authors: Moroni Alessandra , Willems Arnoud , Jinaru Anamaria
Published: March 2022

With the Lisbon Treaty, the European Commission (Commission) gained a prominent role in antidumping, being empowered to adopt antidumping measures with little interference by the European Parliament and the Council of the European Union. This raises questions on rulemaking accountability and efficacy when sensitive issues are at stake. The controversy underlying antidumping rulemaking is emphasized by the recent surge in antidumping litigation before the courts of the European Union. Through an analysis of the historical evolution of comitology in antidumping, this article identifies the weaknesses of the current mechanisms for securing scrutiny over the Commission’s action in this field. It then considers reform options to address and remedy these weaknesses, including strengthening the legislature’s right of scrutiny, granting observer status to parliamentary representatives and shifting from implementing to delegated acts.
Contemporary Challenges for China and Ukraine and Perspectives for Overcoming these Challenges
Authors: Reznik Nadiya P. , Danko Yuriy I.
Published: March 2022

Cooperation between China and Ukraine can be beneficial for both countries. China, for example, has the experience and knowledge on how to quickly develop a country’s economy. The recent lessons learned from China’s rapid economic development could help Ukraine further its own economic goals. Ukraine, in contrast, can offer China a growing market for its international investments. But implementation of an idea always has obstacles. This article explores these challenges and posits that both China and Ukraine can be successful through cooperation in the economic sphere.
Multilateralism and E-commerce: Assessing Indias Position
Authors: Jha Parthsarathi , Notani Sanjay , Sathianathan Ambarish
Published: March 2022

With the digital revolution gaining momentum in the last decade, electronic commerce or e-commerce has emerged as a key platform for marketing, distribution and sale of goods and services. This article attempts to map the discussions surrounding e-commerce at the World Trade Organization (WTO) and outlines the issues which are the key concerns for India. India’s response to negotiations on e-commerce at the WTO has been somewhat reserved. Various Indian policies indicate a preference to cultivate a favourable ecosystem for domestic firms. The Draft E-commerce Policy emphasizes India’s domestic aspirations so as to enable the domestic stakeholders to fully benefit from the opportunities that would arise from progressive digitalization of the domestic digital economy. The article assesses the merits of India’s position on the contentious issues of e-commerce, namely customs duties on electronic transmission, differential treatment of foreign and domestic firms and restrictions on cross-border flow of data (including data localization requirements). It concludes that while some of the concerns raised by India are justified, India would benefit from devising a coherent and long-term strategy on e-commerce.
Standard of Review in Investment Arbitrations and Indias Approach Towards Addressing the Legitimacy Crisis
Authors: Khatana Ranjeev , Sisodia Rohini Singh
Published: March 2022

Investment Tribunals sitting in review of a State’s public policy decisions often do not give much deference to the State’s rationale. However, it would only be reasonable for a State to expect that its legitimate authority to determine policy decisions taken in the best interest of the people are given weight by the tribunal. Identifying and applying an appropriate standard of review thus becomes exceedingly important to address this dichotomy. With this premise, this article will examine the standard of review adopted by investment tribunals while reviewing states’ policy decisions and how investment tribunals failure to exercise self-restraint has given rise to a ‘legitimacy crisis’ for the entire investment law regime. Further, the article will go on to discuss how India has taken the first affirmative step towards establishing a coherent and uniform standard of review in its revised Model BIT of 2015.
An EU-US Trade Agreement on Industrial Goods: A Preliminary Evaluation From an EU Perspective
Authors: Micallef Jan A.
Published: March 2022

In the midst of various trade tensions the EU and the US have plotted a way forward for their trade relations. Amongst a number of commitments they have taken, they are seeking to negotiate a trade agreement on industrial goods. This article aims to provide a preliminary evaluation, mainly from an EU perspective, of what such an agreement may entail, both from a negotiations perspective, as well as from the perspective of what the final agreement might look like. In this regard the article first analyses the various elements that need to be negotiated upon, mainly following the structure of the EU mandate EU mandate. It subsequently evaluates that even though the challenges are manifold, the agreement will bring benefits of both a trade and economic nature, as well as of a political nature. In this context it concludes that the efforts to achieve this agreement should be given the fullest support.
Jurisprudence of Civil Appeals Courts in the Matter of Rules of Origin (2013–2019)
Authors: Mariotta Martín , de Armas Fabrizzio , Méndez Camilo
Published: March 2022

This article approaches the study of the Jurisprudence of Civil Appeals Courts in the matter of rules of origin in Uruguay, during the period from 2013 to 2019. It analyses the territorial admissibility factors of Judgments pronounced in first instance and how Civil Appeals Courts have resolved by confirming or reversing the appealed rulings.

Customs Law, Customs offences procedures, Difference offence, Rules of origin, Appeals courts, Appeal
The Loneliest Rule: A Practical Examination of GIR 4, the Harmonized System’s Least Frequently Applied Interpretive Rule
Authors: Smiszek Michael R.
Published: March 2022

The General Interpretive Rules (GIRs) are the legal backbone of the Harmonized System. In the intervening years since the Harmonized System was first unveiled in 1983, a substantial and ever-growing body of articles, commentaries, administrative binding rulings, and, most important, judicial opinions has been published about the scope and application of the GIRs – and yet a conspicuous gap exists in the literature with regard to one particular rule: GIR 4. This article attempts to fill that gap by exploring the intent, circumstances, barriers, and practices that govern the legal application of this rarely used rule. Constrained by the scarcity of insightful authoritative guidance on GIR 4, this article necessarily is premised upon a plain-meaning construction of the rule and to a significant extent on inference drawn from the author’s practical experience with the Harmonized System.
How to Take Advantage of Trade Facilitation in Vietnam: A Case Study of Vietnam’s Logistics Firms
Authors: Thu Hien Phan Thi
Published: March 2022

Inspired by the theme of the World Customs Organization and its conclusion that ‘Trade facilitation initiatives and intergovernmental schemes of customs community have been providing logistics enterprises with many opportunities to join effectively and profitably in the integrated supply chains all over the world’, this analysis focuses on Vietnam Customs creation of Authorized Economic Operator (AEO) status. It aims to enhance global trade security and foster business competitiveness, promoting greater success in international trade and business. However, Vietnam’s logistics companies cannot readily benefit from the AEO program because they cannot meet the AEO criteria of high exports and imports volume (for Vietnamese traders) as well as a huge number of customs declarations (for Vietnamese customs brokers). Obviously, no Vietnamese logistics company has been granted AEO status since the beginning of AEO program. Shining a light on this, we can explore the reality of why Vietnamese logistics companies really have not benefitted from the current AEO program.
Why Has GATS Failed to Deliver Substantial Trade in Medical Services?
Authors: Kerr William A. , Viju-Miljusevic Crina
Published: March 2022

Medical and health care services represent large proportions of Gross National Product (GDP) in most countries yet remain protected and, hence, little traded. This suggests that large gains from trade are likely to exist from opening medical and health care services to international competition. The pent up demand for cross border services is underlined by the growth in medical tourism – a very inefficient method of organizing international trade – and the rapid expansion of international transfers of medical data, analysis and professional skills as electronic communications technology and co-requisite programing advance. The General Agreement on Trade in Services (GATS) has had little success in garnering commitments in these areas of services. The article examines the GATS to determine the reasons for its lack of success. The GATS suffers from institutional rigidities and difficulties in identifying opportunities for reciprocity. These constraints combined with the typically strong protectionist lobbying has meant opportunities for gains from trade remain largely unexploited.

GATS, health care services, medical tourism, modes, protectionism, reciprocity, remote delivery, trade, vested interests, WTO
Enforcement of EU TDI Measures: Addressing the Challenges of the 21st Century
Authors: Beck Jochen , Ruessmann Laurent
Published: March 2022

The EU’s trade defence instruments (TDI) enforcement tools are around twenty-five years old and circumvention activities have expanded considerably beyond what the existing rules initially sought to address. This article examines the main enforcement challenges and suggests legislative changes to improve the efficiency and effectiveness of the EU TDI enforcement tools.

subsidies, anti-subsidy, countervail, dumping, anti-dumping, circumvention, enforcement, trade, trade defence, absorption, transhipment, channelling, simple assembly, non-cooperation
The China–US Trade Dispute: Economic Implications for the ECOWAS Region
Authors: Olayiwola Wumi Kolawole , N’Zué Felix Fofana
Published: March 2022

The Economic Community of West African States (ECOWAS) region, which is highly dependent on bilateral trade with the United States and China, will be affected by the trade dispute between the two countries. We analysed the implications of the trade dispute on ECOWAS bilateral trade with the two countries with an emphasis on trade in agricultural raw materials, mineral products, and consumer goods. Using historical data of fifteen ECOWAS countries, the study employed Instrumental Variables, Poisson Pseudo Maximum Likelihood (PPML), pooled Ordinary Least Square (OLS) and Least Square Dummy Variable (LSDV). Techniques to show that trade dispute could lead to a fall in exports of agricultural raw materials and mineral products to the United States, but an increase in exports to China. In the case of exports of consumer goods, the trade dispute could lead to a reduction in the ECOWAS’ exports to both the United States and China. The region’s economic diplomacy should promote the interests of its Member States while responding to the needs of the two countries.
Overcoming the Challenges in Documentary Procedures and Transparency in the Implementation of Effective Rules of Origin for the African Continental Free Trade Area
Authors: Foxcroft Michael John
Published: March 2022

The United Nations Conference on Trade and Development (‘UNCTAD’) recently published a report on Economic Development in Africa. The purpose of this article is to consider the part of the report titled ‘Made in Africa: Rules of Origin for Enhanced intra-African Trade’, one of the main findings and make policy recommendations thereof. Preferential rules of origin are applied to goods by members of a contractual or autonomous trade regime in order to determine whether or not they qualify for preferential treatment and therefore beyond the scope of application of the general MFN principle. The ultimate test of effectiveness of rules of origin, therefore, depends on the so-called preference margin. The preference margin is the difference between the applicable most favoured nation tariff and the preferential tariff and the costs of compliance with the rules of origin that apply in terms of the specific free trade or preferential trade agreement area. However, Africa faces unique challenges in this regard. These are geographical, political and technological in nature. This article aims to contribute to the discussion of how, through creative and innovative use of rules of origin, Africa may begin to overcome these challenges to the implementation of the African Continental Free Trade Area (AfCFTA).

Rules of Origin, AfCFTA, Africa, Development, Regional Value Chains
Column: Customs and Trade in Italy and Europe: A Last-minute EU-UK Agreement
Authors: Fruscione Alessandro
Published: March 2022

The European Union and the United Kingdom have reached a last-minute broad agreement on their future relations. In the field of trade and customs operations, rules have been defined to facilitate trade in goods, with the provision of total exemption from import duties for goods originating in one of the two Parties on the basis of rules which, for their characteristics, appear to favour products entirely manufactured in the territory of the Union or of the United Kingdom, albeit with some tolerances.

Both for the purposes of proving the requirement of preferential origin and in carrying out customs operations, the Agreement follows a very clear line, simplifying obligations for the economic operators, with the aim of keeping the volume of commercial traffic unchanged, as developed over forty-seven years of union under the European flag.

Agreement, United Kingdom, Preferential, REX, Protection, Exports, Origin, Duties, Authorized Economic Operator
Classification of Goods: What are the Hurdles and Pitfalls in the Use of Automation or IT Support?
Authors: Lux Michael , Matt Christopher
Published: March 2022

The classification of goods in the customs tariff is a classic topic in customs training and practice. Software service providers offer IT support for tariff classification or even automated classification. This topic is also finding increasing attention in the literature. The aim of this article is to point out potential benefits but also the pitfalls of such support or automation (or even the use of robotics for customs declarations), pitfalls which are largely omitted in the advertising for such products. (You can find them by researching in the internet the terms ‘automated tariff classification’, and ‘product classification’). Where in this article examples of tariff codes going beyond the Harmonised System are used, they refer to the 2021 version of the Combined Nomenclature (CN) of the European Union.

tariff classification, Harmonised System, Combined Nomenclature, TARIC, general interpretive rules (GRI), product classification tools, automated tariff classification, robotics for customs declarations, tariff master data, classification by artificial intelligence
Customs Fostering Sustainability: Leading by Example in the International Arena
Authors: Nguyen Hong , Ferraro Valentina
Published: March 2022

The Coronavirus disease 2019 (COVID-19) pandemic is setting the context for using the recovery opportunity to achieve Sustainable Development Goals (SDGs) that are also longer-term resilience goals.

The sense of urgency in clarifying Customs’ role in the UN sustainability agenda becomes clear in a scenario marked by global interconnections and unpredictable patterns of risk transmission, where any regulatory inefficiency is placed under the spotlight, and trust in governments’ effectiveness in tackling pressing global challenges is declining. In this context, raising awareness of Customs’ role is proposed as a key step towards mainstreaming sustainability for Customs.

The variety of the supporting World Customs Organization (WCO) tools in the recent WCO publication ‘Customs fostering Sustainability for People, Prosperity and the Planet – Looking back on the WCO theme for 2020’ highlights the key drivers of Customs’ contribution to sustainability in those areas.

In balancing a cooperative and coercive approach, trade facilitation and enforcement, Customs has a key role not only in ensuring the efficiency and security of supply chains, enhancing revenue mobilization and economic growth, but also in environmental protection and the safety of society.

Customs coordinated border management is central to an integrated, regulatory response to the dilemmas involving collective action which are inherent to sustainability interventions.

Sustainable Development Goals (SDGs), resilience, Customs, cooperation, trade facilitation, enforcement and protection of society, revenue collection, coordinated border management
Funding a Global Public Good
Authors: Genee Otto
Published: March 2022

The ACWL was established to enhance the credibility and acceptability of the rules-based multilateral trading system embodied in the WTO. Having affordable access to the services of the ACWL ensures that developing and least-developed countries can effectively participate in and take full advantage of their WTO Membership. The ACWL has become a global public good that serves the interests of all WTO Members. As the ACWL has outgrown its original financial plan, there is an urgent need to put its financing on a secure basis. All WTO developed country Members should recognize the important role of the ACWL and help in the burden sharing of financing it.

ACWL, global public good, rules-based multilateral trading system, developing countries, burden sharing, financing
Developing WTO Members as Users and Targets of Anti-dumping Policy
Authors: Bohanes Jan
Published: March 2022

For most of the General Agreement on Tariffs and Trade (GATT) 1947 era, the use of anti-dumping duties was typically limited to a small circle of developed countries. However, starting with the final years of the GATT 1947 era and especially in the WTO era, there has been a considerable expansion in the use of anti-dumping measures in general, and especially by developing countries. Today, developing countries represent the majority of both users and targets of anti-dumping measures. Like developed country users, developing countries have imposed many measures against exporters from other developing countries. The article discusses these trends and the underlying detailed statistics. The article concludes that anti-dumping policy is an integral part of the modern international trade policy landscape, and that the significant and increasing involvement of developing countries both as users and targets gives rise to an increased need for technical capacity on their part.

Trade remedies, anti-dumping, safeguards, countervailing duties, developing countries, Advisory Centre on WTO Law (ACWL), users, targets
The Story Behind the ACWL
Authors: Orozco Claudia
Published: March 2022

The Advisory Centre on WTO Law (ACWL) is an innovative model designed to ensure access to justice for sovereign states in WTO Law while providing capacity-building. This article details the origins of the project, the characteristics of the facility and the efforts made which culminated in a personal idea being brought to fruition in the signing of the Agreement Establishing the ACWL at the third WTO Ministerial Conference in 1999. The article describes the uniqueness of the ACWL, envisioned to enable government officials to plead their WTO cases. The article explains how the essential goal of the ACWL, is capacity-building in WTO dispute settlement in order to respond in a comprehensive manner to the needs of developing and least developed countries.

access to justice in international law; ACWL, capacity-building, WTO dispute settlement
The Overlap between GATT and GATS: A Methodological Mate
Authors: Vranes Erich
Published: March 2022

This article examines an issue of systemic and economic importance in World Trade Organization (WTO) law, namely, the fact that the General Agreement on Tariffs and Trade (GATT) and General Agreement on Trade in Services (GATS) agreements overlap to some extent, possibly giving rise to unexpected obligations and even conflicts of norms. The purpose of the article is twofold: it first analyzes the – very few – positions that have so far been taken on this issue, arguing that they have tended to deal with singular aspects of a problem that actually has a considerable number of facets. It then explains these different layers of the problem and sets out a more comprehensive doctrinal approach to these issues.
Judicial Accountability and New Governance
Authors: De Visser Maartje
Published: March 2022

To many legal analysts, accountability presupposes at least a minimum level of judicial oversight. This article addresses the appropriateness of this belief in the context of new governance. Taking the networked system for the enforcement of European competition and electronic communications law as a case study, it is shown that this mode of governance is at present characterized by a judicial accountability deficit as regards soft law instruments. Thereafter, this article directs a critical inquiry into the desirability and feasibility of introducing judicial oversight, including a cost-benefit analysis to determine the economic prospects of such a development. The analysis reveals that ensuring judicial oversight seems beset with legal difficulties and generates considerable economic cost. Finally, this article examines the possibility of relying on participation of affected interests to achieve the ends pursued by judicial review. Although it cannot be said that participation and judicial review are perfect substitutes or that the former is without problems of its own, in the new governance setting discussed here, participation has good prospects of realizing the more desirable, because efficient, outcome.
A Product Class Approach to Realigning the International Debate Over Intellectual Property Right Exhaustion
Authors: Fuller John Cornell
Published: March 2022

This article examines the ideological entrenchment over the question on the exhaustion of intellectual property rights and suggests that an approach to exhaustion that segments the debate by product classes can align the identified competing interests, break the current deadlock, and address the growing pressure from information-intensive products.
Chinas FTAs and GATS: The Consistency and the Achievements
Authors: Tao Siyu
Published: March 2022

This article discusses China's FTAs in the light of the GATS rules, focusing on the consistency of China's FTAs in relation to its GATS requirements. The consistency test uses the requirements under Article V of the GATS as the benchmark and bases for the comparison of China's commitment to the GATS and FTAs emphasis on the column 'Limitations on Market Access'. Although China's FTAs are generally consistent with the GATS, some ambiguities caused by randomly listed sectors/subsectors and word formulation are found in China's FTA schedules. Moreover, this article also explores the achievement of China's FTAs, such as the investment regulations and dispute settlement mechanism.
The EU-Turkey Association and Other EU Parallel Legal Orders in the European Legal Space
Authors: Ott Andrea
Published: March 2022

This contribution will be devoted to the parallel legal orders which are established in the EU legal space. These legal orders align third countries through international agreements with the EU legal order. The Turkish association is one of them but also the European Economic Area (EEA), the Swiss bilaterals on persons, the Energy Community Treaty, the European Common Aviation Area Agreement and the Ukrainian Association can be counted as being among these special agreements. These agreements are not only characterized with the special aim of approximation to parts of the EU acquis but are also equipped with directly effective norms and homogeneity clauses. These homogeneity clauses are intended by the contracting parties to enable an identical interpretation of these international agreements norms with EU treaty norms. Relevant rulings on EU law will be also taken into account in the interpretation of identically or similarly phrased provisions. By comparing the different homogeneity clauses found in these agreements and putting them into the context of the relevant case law, it shall be concluded whether the judges follow the aims of these provisions.
Repairing the Defects of Article 2.1 of the WTO Technical Barriers to Trade Agreement: An Amendment Proposal
Authors: Valinaki Fay
Published: March 2022

After years of dormancy, Article 2.1 of the Technical Barriers to Trade Agreement (TBT Agreement) finally came into the picture with the trilogy cases and EC – Seals. The interpretations of the panels and the Appellate Body (AB) have however raised more questions than they have answered with the most confusing elements being the cumulative application of the TBT Agreement and the General Agreement on Tariffs and Trade 1994 (GATT), the definition of technical regulations, the inclusion of the core-principles of Most-Favoured-Nation (MFN) and national treatment in both Agreements, the ‘legitimate regulatory distinction’ that has been read into Article 2.1 and the role of Article 2.2 TBT Agreement. This analysis will demonstrate that Article 2.1 has been reduced to redundancy as it is interpreted in the exact same manner as Articles I:1 and III:4 GATT when taken together with Article XX GATT. It will be argued that the additional value of the TBT Agreement lies, inter alia, in Article 2.2 and its ‘least-trade-restrictiveness’ obligation, which should be given a more prominent role. This study will also propose amendments to Article 2.1 in order for it to represent the aim of the TBT Agreement to combat ‘unnecessary’ obstacles to international trade. The proposed amendments to the provision include the ‘tying’ of Articles 2.1 and 2.2, the change of sequence in the analysis of Articles 2.1 and 2.2 and the inclusion of a separate justifications clause under Article 2.1.
The Feed-in Tariffs Entanglement: A Comparative Study of the Analytical Approaches Followed by the EU and WTO Judiciary Bodies regarding Renewable Energy Subsidies
Authors: Carmona Fátima Ramírez
Published: March 2022

The aim of this article is to carry out a comparative study exploring the legal approaches of the World Trade Organization (WTO) and EU’s judiciary bodies in assessing the compatibility of the protection of the environment through Feed-in Tariff schemes with the WTO and EU’s subsidy and state aid rules. The benchmark to carry out the legal comparison between both legal systems will be the first ruling concerning renewable energy and dealt by the Appellate Body in the Canada-Renewable Energy case. The comparison between both legal systems has showed the initial intention of the WTO and EU’s judiciary bodies to avoid finding the Feed-in Tariff programme incompatible with the WTO and EU’s subsidy and state aid rules. However, in the latter system, the new policy followed by the Commission may hamper these efforts in its desire to avoid any distortion of competition in the market.
The European Unions Proposed Investment Court System: Addressing Criticisms of Investor-State Arbitration While Raising New Challenges
Authors: Baetens Freya
Published: March 2022

Many would agree that reforms to the existing investor-State arbitration system are necessary, but opinions diverge on precisely what these should be. The European Commission’s proposal is to include an Investment Court System (ICS) in the investment chapters of the European Union (EU) Free Trade Agreements. This article scrutinizes, first, difficulties in setting up an ICS: the International Centre for the Settlement of Investment Disputes (ICSID) Convention’s applicability, the rules regarding conflicts of interest, ethics and ancillary professional affiliations of adjudicators, and requirements in terms of nationality, expertise and diversity of the bench. Secondly, problems are examined which may emerge in running an ICS: ensuring transparency, allowing for third party participation, and avoiding major increases in length and costs of the proceedings. Thirdly, issues concerning the review and enforcement of ICS decisions are analysed. Although the Commission has made a meritorious attempt at countering the main criticisms of investor-State arbitration, several new challenges have emerged which need to be addressed in order for an ICS to be fit for purpose. Although the incorporation of investment rules into the World Trade Organization (WTO) would seem unlikely to become politically feasible in the foreseeable future, multiple bilateral ICS mechanisms could serve as stepping stones towards a multilateral adjudicatory system for international investment disputes.
A Neverending Story: The Free Movement of Turkish Workers Within the European Union
Authors: Pirim Ceren Zeynep
Published: March 2022

The relations between Turkey and the European Union (EU) rest on an association regime in force for more than fifty years, as established by the Ankara Association Agreement. With the Athens Agreement signed with Greece, the Ankara Agreement constitutes one of the two association agreements that the EU has concluded with third countries providing the free movement of workers between the contracting parties under an ambitious framework. However, notwithstanding the explicit affirmations in existing legal texts, the arrangements put in place by the association law have not been realized and the external policies towards Turkish nationals have been tightened up. Indeed, there is a considerable gap, not only between the starting point of the contracting parties and their current state of affairs concerning the conception of social integration, but also between the wording of the provisions adopted and their practice. The present contribution strives to discuss the influence of political and economic momentum in the formation of this gap and especially on the European Court of Justice’s ways of approaching the association regime concerning the freemovement of Turkish workers within the European Commission (EC), as established by the Association Agreement, the Additional Protocol and the decisions of the Association Council.
Antitrust and Democracy: How Markets Protect Democracy, Democracy Protects Markets, and Illiberal Politics Threatens to Hijack Both
Authors: Fox Eleanor M.
Published: March 2022

This article explains the strong connection between markets and democracy through the window of antitrust law. It elaborates on the links by highlighting moments and examples of symbiosis in the United States, in the European Union, and in transitional and developing countries.Observing the rising tide of illiberal government action that threatens the core of democracy, the article argues for a heightened awareness of the importance of markets and the economic law (antitrust) that protects them and the people from misuses of power.
An Assessment of the Judgment of the Federal Constitutional Court of Germany On the Public Sector Asset Purchase Programme of the European Central Bank
Authors: Nicolaides Phedon
Published: March 2022

The Federal Constitutional Court (FCC) of Germany has invented a new and impossible test of proportionality to declare as ultra vires the judgment of the Court of Justice of the European Union in Weiss. Instead of understanding proportionality as the least interventionist means of achieving a certain policy objective, it defines it as the balancing between conflicting policy objectives which in this case are monetary and economic policy. This is not the concept used by the Court of Justice. This definition of proportionality is intended as a substitute for the principle of conferral and whether the European Central Bank (ECB) encroached on economic policy. However, if monetary policy is to be effective, it must impact economic policy. Had the ECB attempted to balance monetary and economic policy effects, it would have infringed Article 127(1) TFEU that requires that the support of economic policy by the ECB is without prejudice to price stability which is the objective of monetary policy. The Federal Constitutional Court did not appreciate the significance of the fact that the ECB buys public bonds from private investors and that the interjection of private investors deprives Member States from the ability to sell unlimited amounts of bonds at prices that would enable them to run indefinite budget deficits.

Monetary policy, economic policy, proportionality, ECB, public sector asset purchase programme
Towards Increasing Unity and Continuing Executive Predominance Within the E(M)U Post-COVID?
Authors: Fromage Diane
Published: March 2022

The eurocrisis led to significant reforms being conducted in the field of the European Union’s (EU’s) Economic and Monetary Union (EMU). In this framework, Member States executives, and Heads of States and Governments meeting in the European Council especially, played a key role, although the European Central Bank was long the ‘only game in town’. As a result of this and other evolutions witnessed over the past decade, the gap between euro area and EU28(7) appeared to be ever-widening when the COVID-19 pandemic broke out. This article analyses the institutional balance among E(M)U institutions in the immediate response to the pandemic, how this compares to the management of the eurocrisis, and how it may be expected to play out in the implementation of the measures adopted. It finds that, this time around, a wide range of EU institutions and bodies, and the Member States, mobilized swiftly and that Member States executives played a key role again. It also shows that significant trends in favour of greater unity within the E(M)U exist.

Economic and Monetary Union, European Banking Union, Executive predominance, Eurogroup, European Council, Euro Summit, Euro area, COVID crisis, eurocrisis
Caso Jirau: Decisões na Inglaterra e no Brasil Ressaltam Métodos e Reações Distintas na Determinação da Lei Aplicável à Convenção de Arbitragem
Authors: Peretti Luiz Alberto Salton
Published: March 2022

ABSTRACT: In 2012, Brazilian and English courts examined the validity of an arbitration agreement executed in Brazil. The decisions rendered demonstrate different approaches as to the law that governs the arbitration agreement. In Brazil, this law was associated with the law governing the main contract, which was Brazilian law. In England, the decisions were based on the doctrine of the separability of the arbitration agreement differentiating it from the underlying contract and determined that the law most closely connected to the arbitration agreement was that of the arbitration seat, which was English law. Injunctions were sought in both jurisdictions in view of the lawsuits filed before the Brazilian and English courts. While Brazilian courts ordered the discontinuation of the arbitration in London, English courts enjoined the parties to abstain from pursuing court litigation in Brazil, reminding the difficulties that such orders create to the conduct of international arbitration, both from the standpoint of the arbitrators' prerrogatives and as regards to international law.
Ensaio sobre a Sentença Arbitral Parcial
Authors: Carmona Carlos Alberto
Published: March 2022

ABSTRACT: The Code of Civil Procedure has recently been amended to include the provision - though not in a particularly clear manner - for partial awards. The change in due process, which has always been a guide to arbitral procedure, affords jurists a unique opportunity to study this new amendment, in the light of Arbitration Law, and also with support of foreign doctrine, to take advantage of these new provisions and draw new interpretations of the laws that regulate arbitration in our country. This article - a rehearsal - attempts to explore Arbi­tration Law, arguing that subsequent to the amendment of the Code of Civil Procedure, the legal text supports a new reading, allowing us to make partial arbitral awards.
Arbitration in the Light of the Opening of Brazilian Reinsurance Market
Authors: Santos Mauricio Gomm Ferreira dos
Published: March 2022

ABSTRACT: The development of the international insurance industry along with the growth of the Brazilian insurance market forced the modernization of the insurance legal regime in Brazil with the Law 126 of january 15, 2007. The possibility of using arbitration as a mechanism for resolving disputes under reinsurance agreements reveals that the new Act offers an important tool for the efficiency of the system, and intends to place the country in equal footing with other jurisdictions in the effort to encourage and promote its reinsurance market. However, the use of arbitration, according with the Act, shall conform to specific legislation, which may lead to some initial speculation as to the extent and scope of the parties freedom of contract. This article aims at providing a preliminary discussion of the use of arbitration under the new reinsurance legal regime in the country.
LArbitrato Istituzionale  Il Modello della Camera Arbitrale di Milano
Authors: Sali Rinaldo
Published: March 2022

RESUMO: O artigo descreve os mecanismos do regulamento de arbitragem de uma instituição arbitral internacional como a Câmara de Arbitragem de Milão. Um bom regulamento de arbitragem não deve ter a pretensão de disciplinar cada pequeno detalhe do procedimento arbitral, mas sim valorizar as garantias fundamentais de uma arbitragem administrada, quais sejam: garantia de independência e imparcialidade dos árbitros e da própria instituição; garantia de liberdade processual (liberdade dos árbitros para decidirem quais instrumentos processuais são mais adequados para cada caso); garantia de tempos curtos; garantia de custos previsíveis e razoáveis. O Regulamento da Câmara de Arbitragem de Milão prevê, ainda, um código deontológico que o árbitro deve respeitar enquanto atuar junto à instituição arbitral.
A Convenção de Nova Iorque de 10 de Junho de 1958: Alguns Pontos Polêmicos
Authors: Marinho Nunes Thiago
Published: March 2022

ABSTRACT: This paper aims at analyzing the New York Convention of June 10, 1958 on the Recognition and Enforcement of Foreign Arbitral Awards with an overview on its effects in Brazilian law, mostly regarding the supremacy of the New York Convention vis-à-vis the Brazilian legislation and its effects regarding the fundamentals principles of international arbitration.
La Contribución del Árbitro a la Autorregulación y Unificación del Derecho de los Contratos del Comercio Internacional
Authors: De Jesús O. Alfrédo
Published: March 2022

ABSTRACT: The globalization of the economy has encouraged the emergence of a transnational law of international commercial contracts. This transnational law, mainly a product of self-regulation by international businessmen, moves towards its unity and universality. In this paper we describe the legal theories on which relies the contribution of international commercial arbitrators in the phenomenon of self-regulation and unification of this emerging transnational contract law.
La Reforma Parcial de la Ley Española del Arbitraje
Authors: Fröhlingsdorf Josef
Published: March 2022

ABSTRACT: With the reform of the current arbitration act, Spain tries to unify the criteria of the case law in all kind of questions related to arbitration, concentrating the competence in the High Courts of the Autonomous Regions, remaining the first instance courts the only competent for the enforcement of arbitral awards. The corporate arbitration for the solution of disputes in the so called "sociedades de capital" and with its shareholders is expressively ruled. It is no longer necessary that in arbitration proceedings according to law, the arbitrator is a lawyer admitted to a bar, being sufficient to be jurist. The previous activity as mediator is not compatible with the arbitrator. The arbitral award always need to have a motivation, not being possible another agreement between the parties. In case of an institutional arbitration procedure, the institution has to procure for the capacity and the independency of the arbitrator, who also has to contract an insurance police. The non-compliance with the six months period for rendering the award, which is maintained, does not affect neither the validity of the arbitration clause nor the award. In case of an insolvency procedure, in principle the arbitration commitment is maintained. Finally, the law provides for a mechanism for the resolution of disputes between the General Administration of the State and its different entities.
Antitrust Claims in Arbitration: the U.S. Perspective
Authors: Santos Mauricio Gomm Ferreira dos
Published: March 2022

ABSTRACT: Focusing on Antitrust Claims in arbitration proceedings under the U.S. courts, the article introduces the Sherman Antitrust Act and Clayton Antitrust Act that regulated competition of enterpri­ses in the U.S. The article also touches on the issue of arbitrability of antitrust claims through the analy­sis of crucial precedents such as the Mitsubishi Motors case, and under the Federal Arbitration Act.
Arbitrabilidade dos Litígios Sobre a Validade de Deliberações Sociais
Authors: Sampaio Caramelo António
Published: March 2022

ABSTRACT: For claims aiming at the annulment or the declaration of nullity of shareholders' resolutions to be lawfully decided by arbitrators, it is not sufficient to meet the arbitrability criteria set forth by statutory law or by courts' case law. It also necessary to organize the arbitral proceedings in such a way that the awards rendered by arbitrators on such claims can be effective vis-à-vis all the shareholders and the company. This requires the fulfillment of certain conditions which, if they are not determined by the applicable law or regulation, must be provided for by the arbitration agreement (in most cases, inserted in the company's articles of association). Only in this manner will arbitration be able to assure, in a way similar to that offered by state courts, the protection of shareholders' rights and the company's interest in keeping its resolutions stable and unmodifiable.
Contratos Internacionais e os (Futuros) Princípios da Haia: Desafios da Aplicação e Interpretação do Direito Não Estatal (Non-State Law)
Authors: Gama Jr. Lauro , Saumier Geneviève
Published: March 2022

ABSTRACT: In 2009, the Hague Conference on Private International Law mandated the preparation of an instrument on choice of law in international commercial contracts to a group of experts. The following paper examines the issues canvassed by the Working Group in relation to the designation of non-State law in international contracts. In particular, the paper considers the arguments supporting the proposal to sanction the parties' ability to designate non-State law to govern their contract, whether or not they have also agreed to submit any eventual disputes to arbitration.
Iuria Novit Curia em Arbitragem e as Cortes Europeias
Authors: Furtado Leonardo Mäder
Published: March 2022

ABSTRACT: This essay deals with the boundaries of the arbitrators' mandate when deciding a case based on a law legal ground not pleaded by the parties. In some legal systems such practice is referred as iuria novit curia. The writer sought for the decisions on this issue rendered by the courts from countries frequently used as seats of international commercial arbitration and the interesting about the matter is that the due process of law principle plays an important role in the mission of the arbitrator, i.e. on whether or not the arbitrator should act with the adage of iuria novit curiae.
Bilateral Arbitration Treaties and Efficiency: a New Proposal on and an Old Challenge to International Commercial Arbitration
Authors: Guandalini Bruno
Published: March 2022

ABSTRACT: Professor Gary Born proposed the adoption of a Bilateral Arbitration Treaty ("BAT") during the final speech of the 2012 Kiev Arbitration Days entitled "BITs, BATs and Buts". The idea postulates that the concept of Bilateral Investment Treaty applied to international commercial arbitration where determined disputes between parties from the two BAT countries would be by default submitted to arbitration without any direct consent to arbitration. Professor Born mentions both the reasons countries would want to adopt BATs and the "substantial grounds for doubting the wisdom and usefulness of BATs" - the "Buts". This text does not have the purpose of rejecting the proposal of Born. Quite the reverse, it will emphasize that efficiency is a good and legitimate motivation to adopt them. However, the primary purpose is to predict the efficiency of a BAT in comparison to the traditional system based on the New York Convention. Finally, the text will explain that there are some other Buts that will decrease any advantage the BAT could have in comparison to the traditional international commercial arbitration.