bluuebunny/crossref_metadata_2025 huggingface dataset:
Free Trade Is Not Free: The Costs of Trade Compliance for Businesses
Authors: Rose Lila
Published: March 2022

This article will examine trade compliance from the perspective of businesses that import and export. Though free trade agreements (FTAs), and specifically the North American Free Trade Agreement (NAFTA) are voluntary, we discuss why this may not hold true in the real world. Next we will lay out the basic elements of a trade compliance program to identify the cost components for a business that wants to take advantage of NAFTA or other FTAs, including staffing and software. Fines and penalties are briefly discussed as another potential cost. We will then examine the Global Trade Management (GTM) software industry, which has been created in part as a response to the complexity of FTAs, before a final conclusion on the net benefits for importers/exporters.
The Union Customs Code
Authors: Aigner Susanne
Published: March 2022

The Union Customs Code (UCC) applies since 1 May 2016. The new Code is an important tool of the Customs Union and aims at achieving modernization through full automation, streamlined and harmonized procedures and processes and modern methods of control and risk management. It also pursues achieving better security and safety as well as facilitation of legitimate trade.
Insurance and Consumer Protection in WTO Law: A Chinese Perspective
Authors: Zhang Lin
Published: March 2022

Consumer interests have been protected by the WTO legal regime nowadays. Taking China as an example, it demonstrates that the mechanism of insurance possesses the potential to reinforce the fulfilment of consumer protection by developing countries. Further, the WTO legal regime ought to embrace both ex ante and ex post mechanisms in the aspect of consumer protection.
Cost of Production Calculation in EU Anti-Dumping Law: WTO Consistent As Such After EU  Biodiesel
Authors: Furculi?a Cornelia
Published: March 2022

To consider the consistency of the method of calculation of the cost of production based on Article 2(5) of the EU Anti-dumping Basic Regulation, an assessment of the reasoning of the Appellate Body (AB) in EU – Biodiesel case is necessary in the context of the ordinary meaning of the Antidumping Agreement and existing WTO case law; four main situations illustrate how the application of Article 2(5) of the EU Anti-dumping Basic Regulation will be influenced by the EU – Biodiesel case: the issue of input dumping in a distorted market, the problem of possible alternatives for China if recognized as a Market Economy (ME), the question of double remedy, and the EU modernization of trade remedies.
Is the Supreme and Constitutional Courts Rebellion Against EU Law a Threat for the Lack of Direct Effect of the New Generation EU Free Trade Agreements?
Authors: Beretta Laura Carola , Smiatacz Agnieszka
Published: March 2022

This article presents the current perspective on the roles of Constitutional Courts of the EU Member States in the future implementation of the new generation Free Trade Agreements (FTAs)_, particularly concerning the application of the ‘counter-limits doctrine’. According to such doctrine, whenever national law amounts to a breach of EU law, the judge shall apply European Union law. However, if and when provisions of EU law would infringe on basic fundamental rights protected by the Constitution, then the Constitutional Court would declare the primacy of domestic law to protect the citizen’s fundamental rights. The present article discusses the current trend in the judicial rebellion pending in the EU against the Court of Justice of the European Union (CJEU) and argues that it should be tackled by the European Commission in a firm and strong manner, as the above situation adversely impacts also the everyday application of the new generation of FTAs by the EU.
The New Brazilian Anti-Dumping Regulation: A Balance of the First Years
Authors: Kanas Vera , Müller Carolina
Published: March 2022

In 2013, Brazil issued a new anti-dumping regulation: Decree 8058/2013. The new rules came under a context of enhancement of the trade remedies system, in the scope of an industrial policy that aimed to protect the domestic production against imports. Since then, Brazilian public policies changed significantly, becoming more focused on seeking new markets for exports instead of protecting the domestic market. Nonetheless, the new anti-dumping law has changed permanently the trade remedies system in Brazil.

This article reviews developments in the modernization of Brazil’s anti-dumping law. What it means for companies using the law or subject to it is important. Here are the key things you need to know. First, the new anti-dumping legislation was designed to encourage full participation by the exporters, providing for a mandatory lesser duty benefit for cooperating exporters, and for several opportunities of defence. Second, the new legislation provides for a detailed administrative process, involving deadlines applicable to the interested parties and to the investigating authority, with the purpose of expediting the process. Third, although the Brazilian law provides for several kinds of reviews, some of them were not used yet. Finally, anti-dumping duties may be suspended due to public interests, normally after an administrative procedure for this end.
The Paradox of the Nairobi Ministerial Decision on Export Competition: Lessons for the Future
Authors: Muhambe Dennis
Published: March 2022

The Nairobi Ministerial Decision on Export Competition was lauded as WTO ’ s most significant outcome on agriculture negotiations. However, despite the Decision ’ s requirement that WTO developed country Members immediately eliminate their export subsidies, only Australia has revised its schedule of commitments, scrapping all its export subsidy entitlements. This article therefore analyses the relationship of the Nairobi Decision with the existing obligations under the WTO Agreement on Agriculture; the legal value of the Decision; the challenges in identifying the nature of the Decision; and, whether and how it could have been drafted in a better way to facilitate its implementation.
The Concept of Good Faith in the Particular Case of Preferential Arrangements
Authors: Heredia Alejandro García
Published: March 2022

Under EU preferential trade arrangements reduced or zero rates of customs duties apply to goods originating in certain countries. However, a customs debt may be incurred when the certificate of origin of the goods is deemed to be incorrect. In such cases, import duties are collected by way of post-clearance recovery since imports should not have benefited initially from preferential treatment, whereas importers may plead good faith to claim the repayment or remission of customs duties. The plea of good faith is based on the grounds of an error made by the competent authorities themselves and on the fact that the debtor was not aware nor should be aware of the irregularities committed in the country of origin. Two issues arise: (1) to what extent are EU importers required to be aware of the irregularities committed in the countries of origin; and (2) what is the impact that a notice to importers published by the European Commission may have on the good faith of importers. The first issue depends basically on the scope of the principle of good faith, so it is necessary to take into account the degree of diligence (duty of care) that should be required to EU importers. The second issue deals with the minimum level of legal certainty that may be required by notices to importers which have a direct impact on the good faith and may therefore be decisive as to determine whether importers should have been aware of irregularities committed in the country of origin.
On Fissionable Cows and the Limits to the WTO Security Exceptions
Authors: Balan George-Dian
Published: March 2022

Some WTO Members are of the view that the WTO security exceptions are self-judging. However, several others offer a more balanced position: while recognizing the broad discretion enjoyed by Members, they also acknowledge the limits of these exceptions and the WTO adjudicating bodies’ power to make findings and issue recommendations on the matter.

Panels and the Appellate Body have normally jurisdiction to deal with cases in which defences based on security exceptions are raised. The Article XXI test should draw inspiration from the elements of the well-established Article XX of GATT 1994 test, adapted to the particular circumstances of the ‘mother of all exceptions’. The famous ‘it considers’ does not offer a carte blanche to the Members invoking security exceptions and refers only to the necessity test, which consists of a verification of whether it is plausible to consider the measure at issue necessary for the protection of the respective essential security interests, from the perspective of the invoking Member. There are objective elements conditioning the applicability of the security exceptions. Cows, for instance, cannot be considered fissionable materials. The limits of the invocation of the security exceptions should be the good faith and the abuse of rights.
Government Procurement Outside the GPA: A Developing Country View
Authors: Dasgupta Anupal , Chandy Sandeep Thomas
Published: March 2022

Since the early days of the General Agreement on Tariffs and Trade (GATT), government procurement has been a topic sensitive to the developing world. Developed nations with the aim of promoting competition, transparency and enhanced value for money, entered into a plurilateral agreement to govern government procurement. This was later revised to enhance the level of commitments. Currently, over forty-eight WTO Members are signatories to the plurilateral agreement on government procurement. This leaves a large proportion of the membership still tied to the GATT-era commitments on government procurement. The extent of these commitments was later extended to other multilateral agreements such as the TRIMS (Trade Related Investment Measures), SCM Agreement (Agreement on Subsidies and Countervailing Measures), and the General Agreement on Trade in Services (GATS). This article aims to identify the extent of the commitments related to government procurement in these multilateral agreements and map out the policy space available to the developing countries.
Rules of Origin Under the Legislation of Ukraine and Its Correlation with International Treaties to Which Ukraine Is a Party, Including FTAs and PEM Convention
Authors: Isakhanova Nataliia
Published: March 2022

In this article, the author analyses the main rules in Ukraine for determination of the country of origin of goods, taking into account the correlation of rules of origin provisions, which are enshrined, on the one hand, in the domestic legislation of Ukraine and, on the other hand, in international treaties to which Ukraine is a party, including (FTA)s Free Trade Agreement and Pan-Euro-Mediterranean (PEM) Convention.

Revised Kyoto Convention Appendix K, EU-Ukraine Association Agreement, PEM Convention, Customs Code of Ukraine, the ‘wholly produced’ criterion of origin, Criterion of sufficient processing of goods, special (free) economic zone, ad valorem percentage rule of origin
The Non-preferential Certification of Origin in Argentina
Authors: Lascano María Noel
Published: March 2022

The new provisions on the non-preferential certification of origin came into force in Argentina in December 2018, leaving behind a long-standing provision that for over twenty years ruled the requirements and conditions for the admissibility of such certification. The new origin certification provides for a paperless administration, attempting to simplify the import procedure and make it faster. However, its current regulation maintains certain problems that arose out of the previous one and which had seemed to be solved after several rulings issued by the Argentine courts.

Non-preferential certification of origin, antidumping, countervailing duties, safeguard measures, Customs authorities’ verification powers, statistical purposes
In the Name of Free Trade: WTO against the Brazilian Tax Incentives
Authors: Echevarría Gorka
Published: March 2022

The Tax incentives offered by Brazil to local production triggered a WTO dispute by the European Union and Japan against the presumably ‘discriminatory tax advantages’ that for years have severely harmed these countries’ automotive and technological industries. This article explores, through the review of the claims submitted by the parties to the dispute, the Panel and the Appellate Body’s resolutions, if these tax incentives effectively increased the border protection in Brazil by imposing a higher tax burden on imported goods than on domestic goods; conditioning tax advantages to the use of domestic goods and, providing export-contingent subsidies.

WTO, Brazil, GATT, TRIMS, INOVAR-Auto, Informatics, Tax incentives, Subsidies
The German Federal Constitutional Court’s Judgment on the PSPP: What happened to the EU law Supremacy? Implications of the Judgment for the Trade and Customs Policy of the European Union
Authors: Rovetta Davide , Smiatacz Agnieszka
Published: March 2022

The German Federal Court’s judgment on the Public Asset Purchasing Programme (PSPP) and the European Central Bank on the one hand calls into question the supremacy of European Union law. On the other hand, perhaps with some sound arguments, the mentioned Constitutional Court criticized the Court of Justice of the European Union (CJEU) for granting very limited judicial protection against acts like the challenged ones. It is the view of the German Federal Constitutional Court that the Court of Justice of the European Union by granting ‘wide discretion’ to the EU institutions, coupled with applying a ‘limited judicial review standard’, would not be able to guarantee appropriate judicial protection against EU law acts, which can be unlawful. We argue here that the reasoning as adopted in the judgment of the German Constitutional is not a new matter in the European Union, as the conflicts between the CJEU and the highest national courts did occur in the past. In fact, the judgment of the German Constitutional Court is a clear indication that according to some of the highest national courts, the unconditional supremacy of the EU law cannot be accepted. Instead, the scope of the interpreted EU measures should also align with the highest level of the national legal norms, such as constitutional norms or fundamental rights.We are also arguing that it would be up to the European Commission to re-establish the order via the infringement proceedings tool, yet that the Commission should be strongly endorsed among the EU Member States for taking such measures. It is, however, possible that the following matter can be resolved without restoring to such measures. From a substantive point of view, however, we have the regret of concluding that the German Federal Constitutional Court raised valid substantive arguments against the Court of Justice of the European Union. Finally we examine the potential scope of implications, which could occur in the trade and customs fields in the European Union.

EU supremacy, PSPP, ECB, Constitutional courts, judicial review
An Analysis of Mean Spillover Effects of US-China Trade War on Sub-Saharan Africa
Authors: Ncanywa Thobeka , Mongale Itumeleng , Ralarala Ombeswa
Published: March 2022

Since 2018, the United States of America increased import tariffs especially to trading partners like China. This was in response to a huge trade deficit leading to escalating the US–China trade war. The spillover effects of the US–China trade war on some leading Sub-Saharan African countries namely Nigeria and South Africa is worthy of consideration. Using the (1) autoregressive distributive lag methodology and (2) formulated four trade models for current account balance, trade balance, tariff rates and foreign direct investment (FDI) in the US–China–Africa saga provide this perspective. They show strong spillover effects on the current account balance model, tariff rates, and FDI relationships. Consideration of trade balance as an indicator showed insignificant results. The result is an endorsement of open trade because it contributes to economic success in so many ways.
The Spillover Effect of the US-China Trade War on Exports of Major Trading Partners of US and China
Authors: Masron Tajul Ariffin , Subramaniam Yogeeswari , Nor Eliza
Published: March 2022

Under the US-China trade war, several countries could gain the most from the tension. This study aims to investigate how the US-China trade war affects the exports of major trading partners of the US and China, which are also competing with China and the US for the same markets of the US and China, respectively. Ten selected major exporting countries are utilized as the sample of this study. The results of Fully Modified Ordinary Least Squares (FMOLS) and Dynamic Ordinary Least Squares (DOLS) show that the US-China trade war has a significant effect on exports of US’s and China’s top ten trading partners. Therefore, while the US and China might be struggling to find new avenues for their exports, some countries can reap the positive side-effect of the trade war, which raged between the US and China.
Tackling Technical Barriers to PPE: Pathways to Mutual Recognition Agreements in the Post-Pandemic Future
Authors: McMahon Joseph A. , Fu Jiangyuan
Published: March 2022

As the coronavirus disease (COVID-19) continues to spread around the world, international trade has prompted widespread fears especially when it comes to the scramble of essential goods. Technical barriers to trade (TBT) are necessary to ensure the quality of exports, and for the protection of human, animal, and plant life or health. TBT varies from country to country and this issue is more pronounced when it comes to personal protective equipment (PPE) amid COVID-19. Mutual recognition plays an important role in facilitating the trade of essential goods, in particular during a pandemic. However, the number of existing mutual recognition agreements (MRAs) on essential goods for a pandemic is limited. It is envisaged that in the post-pandemic future, more countries will endeavour to negotiate MRAs on essential goods. However, issues such as origin-based bias under MRAs remain arguably unclear. This article seeks to analyse the role mutual recognition plays when it comes to trade in PPE in time of global pandemic, identify the issues with existing MRAs on PPE and suggest a model provision for the future MRA negotiations.

technical barriers to trade (TBT), personal protective equipment (PPE), medical devices, mutual recognition agreements (MRAs)
Systemic Issues in the Panel Report in Indonesia – Chicken (Article 21.5: Brazil)
Authors: Remigio Alejandro Matsuno , Elzahar Nada Morsy , Sultan Sadia
Published: March 2022

The Panel Report in the compliance proceedings under Article 21.5 of the Understanding on Rules and Procedures Governing the Settlement of Dispute (DSU) in the case Indonesia – Measures Concerning the Importation of Chicken Meat and Chicken Products (Indonesia – Chicken (Article 21.5 – Brazil)) provides interesting guidance on systemic issues regarding the compliance phase of the WTO dispute settlement procedures.

Scope of Article 21.5 of the DSU, Amended measures, Reasonable Period of Time, RPT, Compliance proceedings, Judicial economy, Import restrictions, Undue delay in approvals, Article XI of the GATT 1994, Article 8, Annex C of the SPS Agreement, Chicken meat and chicken products
Focus EU: Import Control System 2 at the Starting Gate
Authors: Fruscione Alessandro
Published: March 2022

On 15 March 2021, a new import control system for the European Union was launched, called Import Control System 2 (or ICS2): it will guarantee a more efficient and effective import control activity and facilitate communications between economic operators and customs administrations of Member States. However, a gradual adaptation of the information systems will be necessary and, further, different procedures, especially for postal operators and express carriers, who are the first to deal with the new system, will be needed.

There are three versions of the new system, the first just entered into effect and the others to be implemented by 2024: Release 1 requires postal operators and express carriers to submit a subset of their Entry Summary Declaration data, for goods transported by air only; Release 2 will require all air carriers, for all goods transported by air, to integrate the subset of data with the other information required for the complete Entry Summary Declaration; Release 3 requires specific functions to submit the complete Entry Summary Declaration for all goods carried by means of transport other than air, and therefore will concern maritime, rail and road operators as well as certain importers and recipients of the goods in the European Union.

Declaration, Control, Summary, Transport, Goods, Carriers, Air, Postal, Import
Shaping Mutual Recognition Regimes in Asia: Some Lessons from the Japan-Singapore Arrangement
Authors: Naiki Yoshiko
Published: March 2022

Many debates have been focused on mutual recognition in the context of the EU or the US-EU framework. Instead, this paper attempts to evaluate the rise of mutual recognition in Asia. Using an empirical approach, this paper inquires whether or not mutual recognition regimes are emerging in Asia, and if so, how these new regimes differ from the models in the EU or transatlantic framework. To summarize, this paper observes that mutual recognition in Asia simply remains a continuous learning process between governments, without fully facilitating global administrative actions that can ‘promote transparency, participation, and accountability’.
Balancing and Proportionality in US Commerce Clause Cases
Authors: Mathis James H.
Published: March 2022

The US dormant commerce clause doctrine allows for a true balancing test between legitimate state objectives and the burdens placed upon commerce.However, the doctrine relies strongly on ‘pre–screening’ facts to determine whether or not a law is discriminatory. The difference between a law that is de facto discriminatory and one which is ‘even handed’ but incidentally burdens commerce is a fine line, and it is not clear in the US practice that the courts have been able to give the doctrine a consistent effect over time.
A Corrupt Way to Handle Corruption? Thoughts on the Recent ICSID Case Law on Corruption
Authors: Wendler Carsten , Kulick Andreas
Published: March 2022

It is a well-established practice in international commercial arbitration that tribunals do not accept jurisdiction in disputes that involve corruption. While investment arbitration tribunals endorse such reasoning, the authors challenge the approach. Investment arbitration disputes differ from commercial arbitration disputes in that the Respondent, that is, the Host State, is vested with puissance publique and hence may pursue its interests unilaterally – in contrast to a private entity, it does not need a tribunal to get what it seeks. Moreover, the authors argue that declining jurisdiction is both detrimental from a policy perspective as well as subject to fl awed legal reasoning. Therefore, they seek to promote a balancing of the investors’ responsibilities vis-à-vis corruption with their rights on the merits stage. Only this approach promises both sound legal reasoning and a solution that pursues a policy jointly targeting corruption and conforming with the investment regime’s ultimate goal: to foster economic development by way of protecting investments.

‘There is no kind of dishonesty into which otherwise good people more easily and frequently fall, than that of defrauding the government.’

Benjamin Franklin
Predatory Pricing in China: In Line with International Practice?
Authors: Emch Adrian , Emch Adrian
Published: March 2022

China’s Anti-Monopoly Law (AML) prohibits a dominant company from selling products at prices below cost without legitimate reasons.

Chinese antitrust agencies and courts have provided some signals as to how they will enforce the predatory pricing provision in the AML and similar provisions in other laws. For example, in 2009, the National Development and Reform Commission (NDRC) circulated for comments a draft regulation implementing aspects of the AML, including its predatory pricing provision.

However, all in all, the law on predatory pricing is still relatively undeveloped in China at this stage. As US and EU courts have long dealt with the fundamental questions raised by predatory pricing claims, we assess the existing and draft rules in China against the backdrop of US and EU jurisprudence. We focus in particular on four factors: existence of dominance/monopoly power; definition of the benchmark used in a cost test; injury to competition; and absence of pro-competitive justifications.
EU-Russia Trade Relations: It Takes WTO to Tango?
Authors: Van der Loo Guillaume
Published: March 2022

On 22 August 2012, Russia finally became, nineteen years after its application, a member of the World Trade Organization (WTO). This historical step was applauded by many EU officials as they argue that Russia's WTO accession not only means the country's definitive accession into the world market economy, but that it also creates a window of opportunity for deepening EU-Russia trade relations. The current EU-Russia legal framework, the Partnership and Cooperation Agreement (PCA), is limited in its scope and contents and does not provide the EU with a solid legal instrument to rely on in its many trade disputes with Russia. Therefore, this article analyses to which extent Russia's multilateral WTO accession commitments will broaden and deepen the bilateral PCA in order to reduce or settle these trade conflicts. Particular attention will be devoted to the EU's role in Russia's WTO accession process. On the basis of three case-studies (i.e., (i) Russia's sanitary and phytosanitary (SPS) import bans, (ii) energy disputes and (iii) Russia's export duties on raw materials), the author argues that the results are rather mixed. In addition, it will be demonstrated that the prospect of an EU-Russia Free Trade Area (FTA) remains unrealistic because the feasibility of such an undertaking is hampered by several legal and political obstacles.
The Collective Complaint Procedure of the European Social Charter: Some Lessons for the EU?
Authors: Lukas Karin
Published: March 2022

The Collective Complaint Procedure of the European Social Charter deals with issues that have implications beyond individual situations, for specific groups or systematic problems. The procedure is of critical importance, as it gives its monitoring body, the European Committee of Social Rights (ECSR), the possibility to assess a situation in depth. In this context, the Committee has often dealt with the EU legal framework. This interaction moved in two directions. On the one hand, the EU framework has an informative character for decisions on collective complaints; violations of EU law are potential indicators for violations of the respective standards of the European Social Charter. On the other hand, certain legislative and policy activities by EU institutions as implemented by Member States have been found to be incompatible with the standards of the Charter. This tension has become particularly apparent in matters of asylum and migration law, and in view of austerity measures in response to the economic crisis.
Collective Redress in the European Union: Reflections from a National Judge
Authors: Jones Graham
Published: March 2022

Where stands Collective Redress in the European Union (EU) following the Commission's Communication and Recommendation on common principles for collective redress mechanisms? This article reviews the recent history and current position of collective redress in England and Wales; states the author's view of what should be common principles for any system of collective redress; summarizes current collective redress schemes in Member States; considers the common principles recommended by the Commission; and addresses expressed but unjustified fears of abusive litigation. It concludes that Communication and Recommendation are generally to be welcomed but lack rigour and clarity as to the fundamental issue of an 'opt-in' or 'opt-out' basis for collective redress; and that real progress will be achieved only if the Recommendation is construed as providing that collective redress mechanisms should generally be 'opt-in' but, vitally, 'opt-out' where and to the extent that justice requires.
The EU-Turkey Customs Union: From a Transitional to a Definitive Framework?
Authors: Pirim Ceren Zeynep
Published: March 2022

The possibility for Turkey to become a Member State of the Community is provided by the Ankara Association Agreement concluded between the parties on 12 September 1963. The Agreement sets up one of the most comprehensive external relationships that the Community has ever established with a third country. According to the EC-Turkey association law, the customs union constitutes a transitory framework prior to complete integration between the parties. However, academic and political works are proposing that the integration of Turkey to the EU acquires a dimension other than the accession framework. These works put forward that the EU-Turkey customs union should be conceived, not as a transitory stage preparing Turkey to a complete accession to the EU, but as a definitive framework which should continue to govern the relations without a membership perspective. The paper strives to assess the possibility of using the EC-Turkey customs union as a definitive framework of the relations between the parties and seeks to demonstrate that such a framework proves to be not only improbable but also impossible.
International Standards as Global Public Goods in the World Trading System
Authors: Deng Fei
Published: March 2022

International standards have assumed special legal significance in the World Trade Organization (WTO) Agreement on Technical Barriers to Trade (‘TBT Agreement’). This article conceptualizes international standards as global public goods and argues for applying global administrative law principles to vet international standards before they are afforded quasi-legislative status in the WTO law. We traced how the WTO Appellate Body has changed its original hands-off approach in EC – Sardines in 2002 to a more intrusive approach in US – Tuna II in 2012.We submit that the WTO Appellate Body’s new approach to international standards marks a distinctive pathway for the development of global administrative law in producing global public goods. The compliance with global administrative law principles set out in the TBT Committee Decision in turn provides international standardizing bodies with additional legitimacy and accountability. However, contrary to popular opinion, we submit that adoption by consensus is not a necessary condition for a standard to be recognized as an international standard in the world trading system.
The European Unions External Action: Coherence in European Union Foreign Policy Despite Separate Legal Orders?
Authors: Engbrink S. Dennis
Published: March 2022

The European Union (EU)’s external action is a policy area which continues to be split between an intergovernmental (Common Foreign and Security Policy, CFSP) and a supranational legal regime. Despite this dualism of legal orders the authors of the Lisbon Treaty envisage nevertheless a coherent EU foreign policy. This article will take a look at the reforms brought about by the Lisbon Treaty and will examine the separate legal orders and in particular the demarcation line drawn by Article 40 TEU, which has not been applied by the European Court of Justice yet. It will also analyse legal principles in the Treaties which promote coherence, the role of the High Representative (HR/VP) in securing coherence and the EU’s external representation. This article argues that despite the continuing difficulties the Lisbon Treaty has made the coherence of the EU’s external action more likely.
Purely Internal Situations and the Freedom of Establishment Within the Context of the Services Directive
Authors: Faustinelli Elisa
Published: March 2022

The Services Directive aims at creating a single market for services by removing barriers to trade and enhancing the free movement of services and the freedom of establishment within the European Union (EU). Nonetheless, since its adoption, it has prompted several practical questions, calling for judicial clarification. In Trijber and Harmsen, the Court missed the occasion to answer one of the most contended questions surrounding this piece of EU legislation: do the provisions on freedom of establishment enshrined in the Directive apply to purely internal situations? The present case-note discusses this point, providing for an interpretation of the scope of application of the freedom of establishment Chapter, and presenting the judgment in light of two diverging trends in the case law of the Court. The annotation concludes with the review of other specific substantive issues arising from the case.
Regulatory Competition Within the Eurasian Economic Union and the European Union: A Comparative Legal Analysis
Authors: Klofat Aleksandra
Published: March 2022

This article investigates the potential for regulatory competition within the legal framework of the Eurasian Economic Union (EEU). By comparing the legal structures of the EU and the EEU, this article outlines the ways in which regulatory competition is embedded in each of the legal frameworks of these integration areas. The empirical focus of this article is based upon the respective founding treaties, tax law and corporate law within each of the integration initiatives. The analysis shows that the EEU is attempting to emulate the integration process and the legal structures of the EU in several ways. However, due to the centralist tendencies within the EEU, there is little space for regulatory competition to emerge on the general institutional tier. The questions of whether and to what extent the EEU’s legal framework will effectively enable regulatory competition are greatly dependent upon the particular area of law that is applied.
The New EU Tobacco Products Directive and Standardized Packaging: [in the Name of Smooth Functioning of the Internal Market]
Authors: Obolevich Viktoria
Published: March 2022

This article conducts a selective legal analysis of the new Tobacco Products Directive 2014/40/EU, which was formally adopted in April 2014 and which, except for a few provisions, should be implemented in all EUMember States by 20 May 2016. The dominant focus of the article is on the labelling and packaging requirements (including standardized packaging). The labelling and packaging measures, despite ambitious and noble targets, have raised controversial debates about their effect in decreasing tobacco consumption. It has also begged the question whether these rules will contribute to facilitating free movement of tobacco products in the internal market as planned. In light of recent legal challenges and the ECJ’s Preliminary Ruling in Philip Morris Brands SARL and Others v. Secretary of State for Health, the article assesses the validity of the proposed measures under the principles of subsidiarity, proportionality and fundamental rights, as well as the chosen legal basis for the Directive. It continues with the examination of the minimum requirement of the Directive and the possibility for Member States to introduce further requirements relating to packaging.

 

Overall, the article concludes that the Directive’s chosen model of partial harmonization presents a fresh approach to the regulation of labelling and packaging of tobacco products in the internal market. However, it might generate the same results as in the case of minimum harmonization. Namely, further standardization of packaging of tobacco products at the national level will lead to the lack of a harmonized approach, thereby affecting the smooth functioning of the internal market. As a result, new harmonizing rules will be required in the future.
Bosmans Second Life? The Eurasian Economic Union Court and the Free Movement of Professional Athletes
Authors: Entin Kirill , Pirker Benedikt
Published: March 2022

The present article examines a recent advisory opinion handed down by the Eurasian Economic Union Court. In the remarkably bold decision, the Court continued to push for the construction of a veritable EAEU internal market. It managed, within one advisory opinion, to further the coherence of its internal market law reasoning, expand on the principles of direct effect and primacy as well as the horizontal effect of fundamental freedoms in EAEU law, provide important definitions in EAEU law, strengthen the authority of the Commission and its decisions and emphasize the duty of loyal cooperation of Member States for the full effectiveness and successful implementation of EAEU law. As only criticism, one may deplore the EAEU Court’s lack of effort to start building a coherent jurisprudence by means of referring to its own case law.
The Compliance and Dispute Settlement System of the European Energy Community
Authors: Verhagen Gijs
Published: March 2022

This article assesses the compliance, enforcement and dispute settlement procedure of the Energy Community (EnC). The EnC is an international organization composed of the European Union (EU) and several (South-)East European states, whose main goal is to integrate and harmonize the energy sector of the non-EU member countries with the energy sector of the EU by (among others) offering the prospects of easier access to foreign investments. This however requires implementation by those countries of the mandated rules as set by the EnC, which in practice are similar to the same rules and laws that are required within the EU itself. The implementation of these rules has been proven to be lacking, prompting active compliance enforcement by the Energy Community Secretariat, the permanent body tasked with monitoring compliance. For this, the EnC has a dispute settlement system which is highly diplomatic of nature, and which is most often already effective at enforcing compliance simply by negotiation. However, this dispute settlement system is still seen as lacking a few aspects, such as real sanctions, that would make it more effective at enforcing compliance of the rules of the EnC.
Swedish Match 2018: Can the Court Actually Advise or Make the Commission Consider the Evidence?
Authors: Elazarova Vicktoria
Published: March 2022

This case review discusses the 2018 Swedish Match judgment of the European Court of Justice, arguing that the ECJ makes an implicit statement on the horizontal allocation of competences between itself and the European legislator. In order to contest the prohibition on snus in the Tobacco Products Directive of 2014, Swedish Match relies on new scientific evidence that came into light after the adoption of the Directive. The ECJ raises three main points in order to deny the request for annulment, but ultimately fails to engage with Swedish Match’s main argument. This can be explained by considering the Court’s reluctance to engage with scientific evidence and the discretion it awards to the European legislator in making political choices amidst scientific uncertainty. Nevertheless, this judgment, in comparison to others where the Court uses the precautionary principle to explain the legislator’s choice, is not dealing with scientific evidence that existed during the creation of the legislation. Therefore, the question here should be not whether the legislator was right in adopting the Directive when it did, but rather whether it is right in maintaining it now when new evidence that may reduce the scientific uncertainty has come to light. The Court, however, cannot answer this question and it does not. Thus, this judgment showcases a gap in the interplay between the EU institutions: legislation adopted on the basis of precaution cannot be adequately reviewed by the Court on the basis of new scientific evidence that could potentially reduce the scientific uncertainty and trigger an annulment or amendment.
Rule of Law Crisis, Judiciary and Competition Law
Authors: Bernatt Maciej
Published: March 2022

This article discusses the implications of the rule of law crisis on a core area ofEUlaw: competition law. It analyses the reforms of the judiciary in selected EU Member States and the reaction of EU institutions. The article shows that the reforms of the judiciary give rise to doubts regarding the independence and expertise of courts which are responsible for reviewing the decisions of national competition authorities adopted under Articles 101–102 Treaty on the Functioning of the European Union (TFEU) and national competition laws. As a result, the effective judicial protection required by EU primary law is undermined. In addition, mutual trust, upon which the decentralized enforcement of EU competition law is based, is put into question. The article calls upon EU institutions, and in particular the European Commission, to monitor closely the developments in Member States which may affect the enforcement of EU (and national) competition rules.
China’s Take on National Security and Its Implications for the Evolution of International Economic Law
Authors: Huang Chieh
Published: March 2022

This article explores the concept of national security in China’s legal system and the potential impact for the future of international economic law. By mapping the legal evolution of the concept, this article argues that its expansion reflects China’s changing role in global politics and the global economy. When ‘national security with Chinese characteristics’ is unpacked, we can find multidimensional concerns about a stable and prosperous China. While China displays no intention to challenge the current international economic legal order, this article argues that China has created the foundation to develop a mechanism to project its concept of national security through the Belt and Road Initiative. In this alternative order parallel to the current one established with the US dominance, economic development is considered as an integral part of peace and security.

national security, China, investment screening, new international economic order, geoeconomics
Targeted Economic Sanctions and WTO Law: Examining the Adequacy of the National Security Exception
Authors: Bogdanova Iryna
Published: March 2022

Individual states increasingly rely upon targeted economic sanctions to achieve their foreign policy goals. The legality of such unilateral sanctions remains debatable in public international law. However, their proliferation and possible negative repercussions encourage targeted states to question their legality before international tribunals, including the World Trade Organization (WTO) dispute settlement system. Against this backdrop, the article analyses three types of recently enacted unilateral targeted sanctions. In particular, sanctions imposed on human rights grounds (‘Magnitsky-style sanctions’), those targeting perpetrators of cyber-attacks, and sanctions impacting trade in information and communications technology and services (ICTS) (e.g.,Huawei sanctions) are discussed. The subsequent analysis focuses on the possible WTO-inconsistency of these economic restrictions. Following this, the possibility to justify such sanctions under the national security exception of Article XXI(b)(iii) of the General Agreement on Tariffs and Trade (GATT) is explored. The conclusion emphasizes that the national security exception cannot be used to justify all types of unilateral economic sanctions, even if these measures are introduced to address national security concerns. This conclusion not only demonstrates inevitable boundaries of the national security clause but also reinforces the general tendency of questioning the legality of unilateral economic sanctions.

economic sanctions, national security, WTO, Magnitsky-style sanctions, cyber sanctions, information and communications technology and services, Huawei sanctions
On The 50th Anniversary of the New York Convention, Revisiting Annulment and Vacatur Through the Prism of In Re: Chromalloy, Baker Marine, and TermoRio
Authors: Martinez-Fraga Pedro J.
Published: March 2022

ABSTRACT: Within the framework of what the author calls the need for "juridic or jurisprudential globalization" as a necessary counterpart to economic globalization, the article explores the tension between the permissive wording of the Convention's Article V (1)(e) asserting that recognition and enforcement of an arbitral award may be refused pursuant to subsection (1)(e) of Article V, and the mandatory stricture enunciated in the very Convention's Article VII (1) providing that parties shall not be divested or any right that they may have to avail themselves of the benefits of an arbitral award rendered in conformance with the laws or treaties of the country where such award is sought to be relied upon. This analysis is undertaken by tracing the contours of the three seminal cases addressing this issue, which culminate with the pronouncement by the Court of Appeals of the District of Columbia's decision, entered scarcely one year before the fiftieth anniversary of the New York Convention of 1958, in the case styled TermoRios S.A. E.S.P. v. Electranta S.P., 487 F.3d 928 (C.A.D.C., 2007). Contrary to the more conventional exegeses interpreting this authority, the author concludes that analytically the Second Circuit Court of Appeals and the District of Columbia Court of Appeals are not conceptually at odds and have found the very embryonic paradigm in TermoRios that may lead to a reconciliation of the permissive and mandatory strictures of the Convention with respect to the recognition, confirmation, and enforcement of judgments.
Hacia un Sistema de Control Efectivo de la Legalidad Internacional en Materia de Inversiones. El Arbitraje Internacional de Inversiones: Su Tratamiento Singular Reciente a Partir del Derecho Convencio
Authors: Medina José María Chillón
Published: March 2022

RESUMEN: Es bien sabido que el arbitraje es la técnica indispensable de resolución de conflictos en el panorama de las relaciones económicas internacionales. Esta afirmación de principio comporta la edificación de un régimen jurídico que se ha ido distanciando progresivamente del arbitraje común. El arbitraje internacional o trasnacional de inversiones ha mostrado de entrada un claro perfil de mecanismo de protección y de garantía, suministrando un cauce bien delimitado, rápido y seguro de resolución de las controversias relativas a esas inversiones. Como tal viene a ser el último eslabón en una cadena de instrumentos y de instituciones protectoras de las inversiones foráneas en el marco de los Estados. Pero en los últimos tiempos, un vuelco notable se ha dado en la configuración y en la aplicación de esta suerte de arbitraje, que se ha ido distanciando a su vez del arbitraje común internacional, de carácter comercial, para ir formando, de la mano de un Derecho internacional, convencional y consuetudinario, y de una práctica arbitral decidida y clarividente, un sistema eficaz de control de la legalidad internacional en este ámbito. Los árbitros se van convirtiendo, con algunas matizaciones que sería necesario esclarecer en todo caso, en los jueces privilegiados de este nuevo contencioso que se construye sobre la técnica arbitral y que analiza los comportamientos y actitudes de los Estados que pudieran constituir obstáculos al normal desarrollo de la operación de inversión realizada. Preciso es conocer el fundamento, la naturaleza, el alcance, los limites, el contenido y el modus operandi de esta forma de control que se abre camino de forma amplia y contundente en el mundo de nuestros días. Separar conceptualmente este arbitraje de inversiones, basado en un Tratado, fundamentalmente hoy, del arbitraje comercial internacional es la primera tarea por cumplir en este reto de la identificación y de la singularización de esta forma de control de legalidad internacional al que asistimos.