bluuebunny/crossref_metadata_2025 huggingface dataset:
Interpreting WTO Rules in Times of Contestation (Part 3) Could the United States Justify Its Tariffs on Aluminium and Steel Invoking Article XXI(b) of the GATT?
Authors: Duque Gustavo Adolfo Guarin
Published: March 2022

‘Could the United States justify its measures on aluminium and steel invoking article XXI(b) of the GATT?’ is a paper written under the legal framework of the World Trade Organization. It focuses on the justiciability of the Trump administration’s tariffs, quotas and waivers on imported steel and aluminium in the light of Article XXI(b) ii and iii of the GATT 1994.
Trade Disputes and the Agriculture Policies in the Developing World: Time to Clawback the Development Space under the WTO
Authors: Bharadwaj Prakhar , Nedumpara James J.
Published: March 2022

Certain rulings relating to the Agreement on Agriculture have limited the development space available to developing countries, including India. At least two out of three ‘pillars’ of the Agreement which comprise of disciplines related to tariffication, agricultural market support and agricultural exports have been interpreted in a manner which would prohibit traditionally used measures such as quantitative restrictions at the border and minimum support price to farmers. This article will focus on disciplines on quantitative restrictions and the interpretation of the Panel and AB in Indonesia – Import Licensing Regimes which confirmed the ordinary meaning of Article 4.2. Further, it will analyse the rulings in Korea-Beef and China-Agricultural Producers which dramatically limit the agricultural support that can be provided by WTO members. Innovative arguments for development-friendly outcomes will be explored. However, as this article will demonstrate, such arguments will do little to address the systemic disadvantages that plague agricultural disciplines in developing countries today.
Beyond Rules and Agreements: Reading the Tea Leaves
Authors: Anuradha R. V.
Published: March 2022

‘The even, uneven, and complex nature of the ground in the front or on the sides or in the rear should be examined.’

 

In the rapidly evolving stage of world trade, India needs to redefine its role from one that reacts to events, to one that shapes the same. The challenges to this are many: India is currently facing a spate of disputes at the WTO; its status as a developing country entitled to special and differential treatment is being questioned by a few countries, and; the development agenda for WTO reform on issues ranging from services to agriculture set forth at the Doha Round in 2001, remains unfinished.

Since the 11th Ministerial Conference in 2017, the format for negotiations at the WTO has also changed with the mushrooming of ‘joint ministerial grounds’- which are informal groups dedicated to discussions on E-commerce, Investment Facilitation, Domestic Regulation in Services, and micro, small and medium enterprises (MSMEs). India has been sceptical about engaging with such issues, the concern being that when there is unfinished business under the WTO’s Doha Agenda, Members cannot divert attention to new issues without a clear mandate.

India needs to develop a clear strategy to address each of these challenges. This article discusses a few options that India could consider in reshaping its vision and role in the world of trade.
Designing an FTA Strategy: The Red Flags to Avoid and the Options to Win: A Negotiators Perspective
Authors: Srivastava Ajay
Published: March 2022

Free Trade Agreements (FTAs) have emerged as the policy tool of choice for many countries seeking to promote exports. However, much of world trade still takes place outside FTAs. This Article explores the reasons behind low utilization of FTAs. Further, it considers mechanisms to increase utilization of FTAs, such as the active participation in global value chains. The alternative to FTAs is the selective lowering of import duties on an MFN basis. This article finds that lower import duties could create conditions for high growth in trade and investment and help the economy in at least four ways: increase in export, improvement in ease of doing business, reduction in export promotion schemes and reduction of impact on the local industries. Finally, the article concludes that reduction in duties must be accompanied by the establishment of quality and standard infrastructure.
Twenty-Five Years of Reasonable Care Under US Customs Law
Authors: Smiszek Michael R.
Published: March 2022

It is now more than twenty-five years since ‘reasonable care’ became the ubiquitous benchmark of importer conduct under US customs law. This article explores the impact of the reasonable care standard on US importers since its inception in 1993 as part of the ‘Customs Modernization Act’. The statutory and regulatory basis for reasonable care is examined, as is the evolution of the relationship under reasonable care between US Customs and Border Protection (CBP) and importers. The closely related effects of the companion tenets of reasonable care introduced by CBP – ‘shared responsibility’ and ‘informed compliance’ – are also discussed. This article then examines with specificity recent section 592 caselaw from the US Court of International Trade and the Court of Appeals for the Federal Circuit that has clarified the scope and meaning of reasonable care. Also addressed are troubling developments, separate from but closely tied to reasonable care, concerning the expansion of personal liability under section 592 found in the recently promulgated judicial standard regarding the ‘introduction’ of goods into the United States.

Smiszek, Trek Leather, reasonable care, Mod Act, Customs Modernization Act, Section 592, Trade Facilitation and Trade Enforcement Act, first sale valuation, 19 U.S.C. § 1592, 19 C.F.R. § 171
Transfer Mispricing on Intra-group Trading Performed by Multinational Manufacturing in Indonesia: Evidence from Indonesian Tax Court 2015–2019
Authors: Tambunan Maria R.U.D.
Published: March 2022

Price setting on intra group trading by multinational manufacturing companies, which leads to market value underpricing or overpricing, causes transfer pricing disputes in Indonesia. This is reflected in Indonesian tax court cases. Based on the cases, almost all products manufactured by Indonesian contract manufacturer were sold to affiliates. This article discusses transfer pricing cases on intra group trading by multinational enterprises (MNEs) in Indonesia according to tax court decisions during 2015–2019 fiscal years. The cases covered in the Tax Court Decisions were submitted by taxpayers and include cases that were accepted and rejected by the board of judges. Research shows that common disputes are mainly triggered by determination of fair calculation on Cost of Goods Sold (COGS) items, miscalculation of COGS, different comparable data used to assess the application of the fair market price and mistake in recording the volume of goods traded. This phenomenon requires proper attention from the tax authority.

Intra group trading, international tax, transfer pricing
The Impact of United States of America-China Trade War on Market Capitalization of Emerging Economies
Authors: Karambakuwa Roseline Tapuwa , Ncwadi Ronney
Published: March 2022

This article evaluates the impact of United States of America (USA)–China trade war on market capitalization of emerging economies. A major determinant of growth in emerging economies is market capitalization, which is the share price times the number of shares outstanding for listed domestic companies. Empirical literature suggests that the development of stock market hence market capitalization is affected by macroeconomic variables such as interest rate, exchange rate, gross domestic product, current account and money supply. Using a panel vector error correction model with USA tariffs as a proxy for trade war, this article proves that USA–China trade war has a negative impact on market capitalization of the emerging markets. Interest rates, exchange rates and trade balance have a positive impact on market capitalization of emerging markets. This article recommends that emerging economies manage interest rates, exchange rates and trade balances in order to offset the negative impact of the USA–China trade war.
Understanding the US-China Trade War: Causes, Consequences and Economic Impact
Authors: Kumar Mishra Ram , Karthik M
Published: March 2022

A trade war is a situation in which countries restrict each other’s trade by imposing tariffs or quota on imports. A latest example of a trade war is the one currently going on between the US and China. China with its large manufacturing base has captured the world markets. China’s growth is viewed as a threat to America’s supremacy in world trade. We focus on trade history and explore the trade statistics of China and the United States, the factors that led to the trade war, the journey of China in WTO and America’s appeal to amend WTO rules to ensure fair play. We also outline the outcome of the current war in terms of trade diversion, trade beneficiaries, reaction of NASDAQ (National Association of Securities Dealers Automated Quotations) and Shanghai stock exchange (SSE), & the impact it has on the consumers.
How the European Commission Implements WTO Rulings and European Courts’ Judgments Annulling Trade Defence Regulations: Identifying Similar Trends
Authors: Borovikov Edward , Tuominen Nicoleta
Published: March 2022

This article intends to offer an overview of the most recent, as well as historical European Commission (‘Commission’) practice of implementing \WTO Dispute Settlement Body (‘DSB’) rulings and judgments of the European Union Courts of Justice (‘CJEU’) in favour of successful \applicants. The success consisted in the annulment of a Commission (or formerly, Council) Regulation imposing EU anti-dumping and \countervailing measures. This practice evolved over the last years and may still not be completely settled. Based on our in depth review conducted \for this article, we cannot but conclude that the reason is that the European Union’s (‘EU’) trade defence policy has and keeps evolving towards \more protection of its domestic industries. As a result of this development, we have witnessed how EU institutions, including the Courts, have \assisted the Commission in maintaining the imposition and collection of EU Trade Defence Instruments (‘TDI’) measures for as long as possible. \This was condoned despite the complete annulment of the regulations imposing those measures. As conclusion, we share some practical recommendations \and provide options to parties interested in challenging an EU TDI measure before the EU Courts or/and WTO.

WTO Dispute Settlement Body, European Union Court of Justice, European Commission, anti-dumping, countervailing duty/measure, implementing rulings and judgments, applicants favourable implementation, prospective implementation, retroactivity and non-retroactivity, ‘curable’ illegality, reimbursemen
Venezuela v. Council: The Standing of Third Countries Before the EU Courts
Authors: Kuplewatzky Nicolaj
Published: March 2022

Venezuela v. Council is the first direct action before the Court of Justice of the European Union that will consider whether third countries may act as applicants to challenge acts of the European Union under the fourth paragraph of Article 263 TFEU. Specifically at issue in that case is the determination of ‘legal personality’ and ‘direct concern’. Both matters are threshold conditions for the question of admissibility of a case before the EU Courts. On 20 January 2021, Advocate General Hogan delivered his Opinion on the satisfaction of those conditions. Therein, he finds that Venezuela satisfies both the conditions for ‘legal personality’ and ‘direct effect’. This case note seeks to summarize and reflect on the Advocate General‘s assessment.

Anti-Dumping, Significant Distortions, State Capitalism, European Commission, Constructed Normal Value, Third Country, Input Prices, China, Russia, Trade Defence
Rules of Origin in RCEP Agreement: Advancement and Convergence
Authors: K. Dinh Duy
Published: March 2022

The paper analyses the rules of origin (RoO) in the Regional Comprehensive Economic Partnership (RCEP), the largest free trade agreement (FTA) between Asia-Pacific nations. Despite some limitations, it is evidenced that origin provisions and product-specific rules in the RCEP manifest many advanced features as compared to the ASEAN Trade in Goods Agreement (ATIGA). Such advanced features narrow the gap between the ASEAN’s FTAsand new generation FTAs in terms of RoO regimes. The RCEP is also expected to become a stepping stone towards the convergence of RoO in the ASEAN’s FTAs.

ASEAN, ATIGA, origin, RCEP, rules of origin, RoO
US Customs Rulings Highlight Importance of Arm’s Length Valuation Requirement
Authors: Fraedrich Laura , Bisbas Andrew
Published: March 2022

Companies that import merchandise into the United States must exercise reasonable care when determining the dutiable value of the merchandise they are entering, calculating duties owed on the shipment based on that dutiable value and applicable duty rates, and submitting payment for total duties owed to US Customs. In doing so, importers must properly apply the valuation statute and associated guidance to the circumstances of their transaction to minimize tariff liability and avoid penalties for providing inaccurate information to US Customs. In multi-tiered transactions that involve related parties, there are multiple transactions that can potentially serve as a basis for valuation of a given entry. Furthermore, the arm’s length requirement must be satisfied to render transactions between related parties usable for valuation purposes. The two recent US Customs rulings discussed in this article show that in the context of multi-tiered transactions, importers have the opportunity to limit tariff liability on imports of commercial merchandise so long as they properly apply the valuation statute. The discussion underscores the practical importance of satisfying the arm’s length requirement for transactions between related parties and clearly presenting the associated legal reasoning and documentation to US Customs.

Arm’s Length, Valuation, Appraisal, Transaction Value, First Sale, Related Party Transaction, Reasonable Care, Dutiable Value, Duty Liability, Tariff Liability, Transfer Pricing
Bribery and Corruption at the Border: Mexico: An Outstanding Challenge to Be Overcome by the Mexican Government
Authors: Ortiz Turenna Ramirez
Published: March 2022

Mexico has a challenging dichotomy between trade growth, efficiency at customs and at the same time national security. Corruption and bribery at the ports of entry has been tackled by decades through different Administrations. However, the multiple agencies involved, an extensive legal framework applicable to foreign trade operations, the enforcement criteria against bribery and corruption, as well as the recent militarization of several customhouses, represents some of the various factors that make this target difficult to eradicate.

Through this article, we will begin by examining the National Anticorruption System, its legal framework and regulations, as well as the combination with our customs’ infrastructure and operation, some new policies that links both legal bodies, as well as public cases related to corruption at the border.

One major topic in this Article, refers to the customs militarization initiative in Mexico, the creation of the new National Customs Agency (directly reporting to the Executive Power and replacing the General Customs Administration, the short run consequences that we have experienced so far, the potential risks that this entails, as well as proposals aimed at the implementation of best practices at customs.

Bribery Act 2010, bribery and corruption, corporate offence, commercial organization, failure to prevent, extra-territorial reach, strict liability, Deferred Prosecution Agreement
A Canadian Border Carbon Adjustment? GATT Compliance and Underexplored Exceptions
Authors: Arko Annie
Published: March 2022

Canada is one of thirty-one countries covered by a national carbon pricing mechanism. Complementary border carbon adjustment (BCA) on imports is the next step for preventing carbon leakage from these thirty-one jurisdictions. Existing commentary assessing the legitimacy of a BCA under the General Agreement on Tariffs and Trade (GATT) focuses on the European Union (EU) and the United States (US) and favours the more conventionally used exceptions for protecting environment and conserving natural resources through Articles XX(b) and (g). This article contributes to the literature by flagging that Article XX(b) may not be the most promising route for Canada and provides a fresh characterization of Article XX(g). This article further breaks with convention and takes the road less trod by considering the strength of Articles XX(a) public morals, (d) compliance with laws and regulations, (f) national treasures, and XXI security exceptions. It is challenging to fit modern solutions to complex problems into the GATT, but the WTO needs to demonstrate its responsiveness to change in order to maintain relevancy and legitimacy. Afterall, there can be no trade on a dead planet.

Border carbon adjustment, WTO, Article XX GATT, Article XXI GATT, Canada, climate change, climate action, carbon pricing
Delivering International Legal Aid in the Twenty-First Century: Twenty Years of Experience at the ACWL
Authors: Roessler Frieder , Meagher Niall
Published: March 2022

When it began in 2001, the Advisory Centre on WTO Law (ACWL) was an experiment in providing legal aid at the international level. This essay examines the reasons for the success of this experiment by explaining the mandate and structure of the ACWL. It also describes the services provided by the ACWL and discusses how the ACWL has sought to ensure that it provides these services in response to the needs expressed by developing and least-developed countries and in a manner consistent with its mandate. The essay concludes that the ACWL owes its success to the manner in which clarity of its mandate and a governance structure that ensures its impartiality and independence have enabled it to maintain the confidence of its users. The essay notes also that recent developments in international trade have not reduced the demand for the ACWL’s service

Advisory Centre on WTO Law (ACWL), international legal aid, public good, capacity development, legal advice
Litigating WTO Disputes in Spanish or French
Authors: Yanguas Tatiana , Tejeda Marco Tulio Molina
Published: March 2022

WTO Members may resolve their disputes in any of the WTO official languages: English, Spanish, or French. This article addresses the litigation of WTO disputes in Spanish and French. We provide a general overview of the WTO disputes that have been conducted in these languages and address the strategic considerations that should be made before choosing a language other than English for litigation. We conclude that the final decision on what language is more suitable for litigation will respond to each party’s individual needs, and thus, will inevitably vary from one party to another.

GATT, WTO, dispute settlement, languages, Spanish, French, international litigation
Services as Key for the Conclusion of the Doha Round
Authors: Leal-Arcas Rafael
Published: March 2022

This article aims to stress the importance of services negotiations for the conclusion of the Doha Round. It is argued in the article that trade in services is of high importance for the economies of both developed and developing countries, and that there remains substantial scope for many World Trade Organization (WTO) countries to make further commitments towards greater liberalization within the services sectors and within all modes of supply provided in the General Agreement on Trade in Services (GATS). After an explanation of the notion of trade in services, the article analyzes the GATS, the progressive liberalization of trade in services in the framework of the Doha Round, the request/offer method of negotiations in services trade viewed from the perspective of the European Communities, and the July 2008 WTO Mini-Ministerial Conference in relation to services.
Paths to Harmonization: Legal Evolution of Internal and External Trade in Services through Personal Mobility in the EU
Authors: Mola Lorenza , Bertola Giuseppe
Published: March 2022

Ensuring that legal frameworks are consistent with market integration is always complex, and the task is particularly problematic in the services sector. This article focuses on liberalization and regulation processes within the European Union (EU), and on their interaction with multilateral negotiations and commitments, in areas of international economic activity involving temporary mobility of natural persons. We first review legal techniques aimed at resolving tensions between regulation and economic integration, then discuss their application in the context of the European Community Single Market programme’s completion and of the European Community (EC) and its Member States’ participation in the General Agreement on Trade in Services (GATS). Our analysis of the different configurations and effectiveness of the legal instruments in the two contexts suggests that interactions between internal and external negotiations may foster efficient integration of markets and policies.
The Impact of European Citizenship on the Association of the Overseas Countries and Territories with the European Community
Authors: Kochenov Dimitry
Published: March 2022

This article outlines the far-reaching impact of the introduction of the concept of citizenship of the European Union (EU) on the rules governing the association of the overseas countries and territories (OCT) of the Member States with the European Community (EC). Potentially, such association after Maastricht is principally different from the preceding legal regime: Community law applicable overseas does not stop at the confines of Part IV EC, EU citizenship playing an important role in spelling out the rules for association.
Redressing the Legitimacy Deficit within the World Trade Organization: The Aspect of External Transparency
Authors: Pásztor Tamás
Published: March 2022

The World Trade Organization (WTO or hereinafter 'Organization') has been facing serious legitimacy challenges since its very creation. The legitimacy deficit mentioned, among other factors, is the consequence of the anti-democratic decision-making mechanism applied within the Organization. This anti-democratic nature of the decision-making system derives from the fact that representation exists only in a very narrow sense while organized civil society is excluded from deliberations completely. In addition, accountability and judgment as from the affected become impossible due to the confidentiality of many political documents and the disinterest of national parliaments. These shortcomings encompass what has been popularly referred to in the academic literature as the issue of 'external transparency'. The article argues that the external transparency issue within the Organization is a problem that needs a multi-level and multi-dimensional approach. Contrary to many unrealistic proposals in the academic literature, however, it endeavors to draw up an adequate and implementable external transparency reform proposal, which takes into consideration the realities and also the special characteristics of the WTO.
National Courts as Guardians and Ordinary Courts of EU Law: Opinion 1/09 of the ECJ
Authors: Baratta Roberto
Published: March 2022

Opinion 1/09 may be considered as one of the most conspicuous contributions the European Court of Justice (ECJ) has given to the constitutional building of the European Union (EU). For the first time in its case law, it has labelled national courts as the 'guardians' and 'ordinary courts' of the EU legal order, focusing particularly on their role of referring courts in the preliminary ruling procedure. Reiterating a monistic approach, national courts have been entrusted with judicial powers Member States cannot rule out. Even though the ECJ remains the ultimate umpire of the EU legality, the Opinion makes the preliminary ruling procedure an instrument of judicial protection of individual rights stemming from EU law.
The Compatibility of Future EU Investment Agreements with EU Law
Authors: Dimopoulos Angelos
Published: March 2022

Compatibility with EU law presents a key challenge for the success of EU investment policy. When EU institutions conclude EU IIAs, they should consider the limitations imposed by primary EU law and the impact of EU IIAs on the legality and validity of secondary Union law. As comprehensive EU IIAs will integrate investment liberalization and protection and will be (partly) based on BITs, significant adjustments to BIT language are required in order to ensure compatibility: the definition of investor has to respect Article 54 TFEU, exceptions reflecting the TFEU should be included to the provisions on capital transfers, Most Favoured Nation (MFN) and National Treatment, and the subject-matter and the available remedies under investor-state arbitration should be limited so as to respect the autonomy of the EU legal order. Equally important, EU IIAs provisions on Fair and Equitable Treatment (FET), umbrella clauses and expropriation have to establish linkages with internal Union rules, promoting legal certainty and avoiding future challenges of secondary Union rules.
Incorporating the OECD Guidelines in International Investment Agreements: Turning a Soft Law Obligation into Hard Law?
Authors: van der Zee Eva
Published: March 2022

This article has been written as a response to two recent developments. First, as a response to the recent update of the Organisation for Economic Co-operation and Development (OECD) Guidelines on 25 May 2011, which seem to have taken a form based on human rights due diligence. Second, as a response to the resolution by the European Parliament of 6 April 2011 on the future EU international investment policy in which it asks the Commission to include, in all future agreements, a reference to the updated OECD Guidelines.

This article examines how human rights due diligence, as enshrined in the OECD Guidelines, could be incorporated in international investment agreements (IIAs). Therefore, the concept of human rights due diligence as introduced in the UN Guiding Principles and the OECD Guidelines was explored. It includes empirical research as to how multinationals (MNEs) currently incorporate the concept of human rights due diligence in their policies in order to facilitate investors and policymakers with the knowledge necessary to give an adequate response to this concept. It continues by providing several options as to how the OECD Guidelines could be incorporated in investment agreements, including the advantages and disadvantages of these options.
First Judgments of the Court of the Eurasian Economic Community: Reviewing Private Rights in a New Regional Agreement
Authors: Ispolinov Alexei S.
Published: March 2022

This article provides a brief summary of the establishment and jurisdiction of the Court of the Eurasian Economic Community, as well as an analysis of the first judgments of the Court rendered in 2012 from the point of view of the general effectiveness of the judicial protection of the rights of private parties on the level of the Eurasian Economic Community. The author draws up certain parallels between the Court and the Court of the European Union from a historical point of view and submits that the Court could definitely be placed among the so-called new-style institutions of international justice. Based on that the author suggests some lessons that the Eurasian Economic Community could learn from the development of the Court of the European Union, its case law and the role it has played in the development of the European Union legal order.
TBT-Plus Rules in Preferential Trade Agreements
Authors: Rigod Boris
Published: March 2022

The subject of this article is the technical barriers to trade (TBT) provisions in preferential trade agreements (PTAs). More precisely, it inquires into TBT provisions in PTAs that go beyond the scope of the rules enshrined in the World Trade Organization's (WTO) TBT Agreement. To this end, it aims to answer three questions. First, what kind of new TBT rules do modern PTAs contain? Second, what explains their existence, given that PTAs usually already incorporate or resemble WTO rules on domestic regulatory measures, such as Article III of the GATT 1994 or the TBT Agreement, which address technical barriers to a certain extent? And, finally, are such rules consistent with the requirements set forth by WTO law? For purposes of illustration, the recently concluded free trade agreement (FTA) between the European Union (EU) and Korea is used as a case study.
Solving Conflicts with International Investment Treaty Law from an EU Law Perspective: Article 351 TFEU Revisited
Authors: von Papp Konstanze
Published: March 2022

This article is meant to contribute to the discussion of the relationship between European Union (EU) and international law. It focuses on bilateral investment agreements between EU Member States (intra-EU BITs), the majority of which will continue to have practical relevance. So how should one deal with a scenario in which the compliance with EU law (e.g., state aid law) means that a Member State must breach its obligation under an intra-EU BIT (e.g., by cutting returns on income from an investment protected thereunder)?

The article answers this question by critically analysing the protection granted to pre-existing international obligations of the EU Member States under so-called anterior treaties. It criticizes established case law under Article 351 TFEU as having emphasized the wrong issues, and suggests to turn the discussion back to the real questions: precisely when is there a conflict, and how far do a Member State’s duties under Article 351(2)TFEU reach? It is argued that reconsidering Article 351 TFEU will foster doctrinal clarity and flexibility in dealing with the ‘obligations’, and also the ‘rights’ of the EU Member States under anterior treaties. Doctrinal clarity and flexibility will then benefit the relationship between EU and international law more generally.
The Ambit of Judicial Competence after the EU Antitrust Damages Directive
Authors: Wright Kathryn
Published: March 2022

This article explores how the EU Antitrust Damages Directive and linked initiatives affect the ambit of national courts’ competence. In particular, it focuses on the combination of the probative effect of national competition authority findings of infringement, the limitation of courts’ powers of disclosure, and advice to national courts on quantum under the new Directive on damages actions for competition infringements, and European Commission and national competition authority opinions to national courts under existing Regulation 1/2003 on the enforcement of the EU competition rules. The article contributes to the understanding of the interaction of courts and regulatory authorities in the enforcement of EU law. It argues that while the Directive aims to increase actions for damages in national courts, and in one sense therefore empowers those courts, in a number of ways it also constrains their jurisdiction. It finds that hard and soft law tools interact to limit national courts’ competence.
The Visnapuu Case: The Narrow Interpretation of Article 37 TFEU and the Consequent Failure in the Application of the Certain Selling Arrangements Doctrine: European Court of Justice, Fifth
Authors: Cicco Lucio Di
Published: March 2022

In Visnapuu the Court of Justice held, inter alia, that a Finnish measure governing the exceptions to the monopolist’s exclusive rights was separable from the operation of the monopoly. Therefore, the Court assessed it in the light of Article 34 Treaty on the Functioning of the European Union (TFEU) instead of Article 37 TFEU. It is worth noticing the remarkably narrow interpretation of Article 37 TFEU and its consequences on the application of Article 34 TFEU where a monopoly is at stake. In particular, in such circumstances, some concerns arise with respect to the suitability of the paragraph 16 proviso of Keck.
Critiquing the Transatlantic Trade and Investment Partnership (TTIP): Systemic Consequences for Global Governance and the Rule of Law
Authors: Larik Joris
Published: March 2022

Considering the implications of the Transatlantic Trade and Investment Partnership (TTIP) for the architecture of global (economic) governance, including the international rule of law, the article addresses some of the most pertinent systemic consequences TTIP is likely to produce, based on the shape the agreement is currently taking. The article’s main arguments are that despite representing innovation and added value in some areas, TTIP may produce negative consequences in at least three respects. Firstly, it will cater to an imbalance in terms of access to justice in the area of investment protection; secondly, by providing a way out for the World Trade Organization's (WTO) two most active litigants, it can contribute to the de-judicialization of international trade law; and thirdly, it creates potential for a fierce backlash from the rest of the world as regards the global promotion of an overtly transatlantic regulatory and normative agenda.
The Signing, Provisional Application, and Conclusion of Trade and Investment Agreements in the EU: The Case of CETA and Opinion 2/15
Authors: Kleimann David , Kübek Gesa
Published: March 2022

The ‘Wallonian Saga’ associated with the threat on behalf of the Wallonian regional government to block the signature of the Comprehensive Economic and Trade Agreement (CETA) in October 2016 has illustrated a number of structural weaknesses of the European Union as an external treaty-maker in the field of EU Common Commercial Policy. These weaknesses concern issues of both democratic representation and the effectiveness of EU multilevel governance. The legal question of competence that determines the Union’s power to conclude external commercial treaties by itself or, in the alternative, jointly with the Member States has now been clarified by the CJEU in Opinion 2/15. Against this backdrop, this article examines and discusses the constitutional fundamentals of EU economic treaty-making. The article provides an explanatory account of the division and nature of treaty-making competences in the EU; outlines the distinct modalities and procedures that the conclusion of international treaties as ‘EU-only’ or ‘mixed’ require respectively; discusses the law and practice of the provisional application of international economic treaties by the EU; reviews legal avenues that enable the entry into force of a mixed agreement despite its rejection by an individual Member State; and gives an overview of the relevant CJEU case law and the Court’s conclusions in Opinion 2/15. Normatively, we argue in favour of adjusting the scope of future EU trade and investment agreements to the realm of EU exclusive competences in order to remedy the functional deficiencies of EU treaty-making that were exposed in the ‘CETA-drama’. At the same time, we emphasize the need for – and outline a path towards – a qualitative change in EU and Member State institutional practice that fully employs the channels of vertical political participation in the Union’s multilevel governance structures so as to strengthen the legitimacy of EU economic treaty-making.
Cultural Heritage in European Union Law and Policies
Authors: Psychogiopoulou Evangelia
Published: March 2022

The purpose of this article is to explore how the European Union (EU) has been confronted with cultural heritage. What powers have been attributed to the European institutions in the field of cultural heritage and how have they been exercised? The article discusses the EU’s competences and available means of action with respect to cultural heritage, and scrutinizes the ways they have been used. The analysis examines the cultural heritage provisions of the EU constitutional texts and the definitional complexities that surround them, it presents early activity in the field of cultural heritage, before the adoption of the Treaty of Maastricht which provided the EU with a formal cultural competence, and it disentangles the cultural heritage policy practice of the European institutions in a post-Maastricht context, looking first at the EU cultural policy proper and secondly, at a broader range of EU policies with a cultural heritage dimension. The article verifies consistency in the development of EU cultural heritage action and expands on the instrumental logic that drives it forward and on the effects of economic integration on the measures adopted.
The CJEUs Opinion 2/15 and the Future of EU Investment Policy and Law-Making
Authors: Hainbach Philip
Published: March 2022

On 16 May 2017, the Court of Justice of the European Union (CJEU) issued its Opinion 2/15 on the requisite competence of the European Union to conclude the EU-Singapore Free Trade Agreement (EUSFTA) without additional ratification by the Member States’ parliaments. The decision produced implications that extend beyond the specific EU-Singapore relation by defining generally how far the exclusive EU competence of the Common Commercial Policy (CCP) under Article 207(1) TFEU stretches post-Lisbon. By ruling that all EUSFTA subjectmatters except non-direct forms of investments and investor-state dispute settlement (ISDS) fall within the scope of the CCP, the Court adopted a broad view that grants much leeway to EU institutions in exercising treaty-making powers exclusively.While this was clearly meant to simplify the internal division of competences and strengthen the EU’s role as a credible, reliable and unitary actor in external economic relations, the Case Review will highlight two negative side effects for the future of EU investment policy and law-making. It will argue that the Opinion negatively impacts the EU’s ability to use its unitary political weight to continue shaping the reformation of international investment law and incentivizes a discontinuation of concluding contemporary trade and investment issues jointly together in one comprehensive economic agreement.
A Very Specific and Exhaustive Harmonization of Energy from Renewable Sources: C-549/15, E.ON Biofor Sverige AB v. Statens Energimyndighet [2017] ECLI:EU:C:2017:490
Authors: Maletic Isidora
Published: March 2022

The European Union Court of Justice has ruled that Article 18(1) of Directive 2009/28/EC on the promotion of the use of energy from renewable sources does not oblige Member States to authorize imports, via their interconnected national gas networks, of biogas satisfying the sustainability criteria in that directive and intended for use as biofuel. The Court had been asked whether that provision, adopted on the basis of internal market harmonization (pursuant to what is now Article 114 TFEU), obliges Member States to accept sustainable biogas imported via the network of interconnected national gas pipelines and, in the negative, whether that provision breaches the EU free movement of goods rules. The judgment, implicitly exploring the contours of competence as well as ‘exhaustive’ harmonization (in this case, in the economically sensitive renewable energy context), is emphatic of the characteristic symbiosis of ‘positive’ and ‘negative’ integration in the internal market.
WTO Adjudication and the Security Exception: Something Old, Something New, Something Borrowed  Something Blue?
Authors: Vidigal Geraldo
Published: March 2022

For twenty years, World Trade Organization (WTO) Members managed to avoid invoking the security exception before WTO panels, leaving unresolved the tension between the self-judging element explicit in its text and the compulsory jurisdiction of WTO panels. Then, in 2017 and 2018, a dozen panels were established after the respondent declared that it deemed the challenged measures necessary to protect its essential security interests. The first panel report to examine the issue, in Russia – Traffic in Transit, was adopted in April 2019 without appeal. Its interpretation of General Agreement on Tariffs and Trade (GATT) Article XXI significantly limits the scope of the self-judging element in the provision and devises a three-step legal test to be met by Members invoking the exception, with the declared objective of safeguarding ‘the object and purpose of GATT 1994 and the WTO Agreements more generally’. This article examines and discusses this interpretation and its effects over the role of the WTO in international trade relations, viewing it as the latest episode in the long-standing tension between mechanisms providing for compulsory international adjudication and the view that, where states deem their essential interests to be involved, the submission of disputes to adjudication remains subject to their sovereign determination.
Of Binding Provisions and Trust Marks; Roadmap to a Global Legal Framework for the Digital Economy
Authors: Kamau Maryanne , Willems Arnoud
Published: March 2022

The digital economy is dynamic, fast expanding, and truly global. The legal framework that currently applies to the digital economy is either divided, fragmented, ad hoc, out of date, or nonexistent. Some legal initiatives quixotically aim at stopping cross-border data flows, reflecting consumer fears regarding privacy and security or government fears about losing tax revenue. The fragmented regulatory environment does not help companies ‘scale up’ digital technologies; in turn, this hampers innovation and global economic growth. In addition, some less digitally developed actors complain that current rules allow or even foster unfair competition.

 

This article proposes a new and global legal framework for the digital economy: structured cooperation between states and companies under the administration of an autonomous body. States may resist giving up sovereignty, and citizens may fear erosion of their legal rights. However, uniform, consistent, and enforceable rules would benefit both states and citizens. Tax revenue could be fairly assessed and distributed, for example, and citizens and businesses would no longer face divergent privacy and security rules. Regulation would become more legitimate because both public and private stakeholders would participate in rulemaking, including smaller players and digital latecomers. Companies that subscribe to the framework would receive a global ‘trust mark’ that would boost consumer confidence. In sum, a global legal framework, as contemplated, would match the global character of activities in the digital economy
The Reform of the European Stability Mechanism: Process, Substance, and the Pandemic
Authors: Markakis Menelaos
Published: March 2022

The European Stability Mechanism (ESM) has been instrumental in safeguarding the financial stability of the Euro area and of its Member States. This article looks at the tumultuous process of reforming the ESM. It analyses the main changes that would be brought about by the draft revised ESM Treaty, whose text was agreed upon in June 2019 and finalized in December 2020. These concern the ESM’s purposes and operations; the procedure for granting stability support to a Euro area Member State; precautionary financial assistance instruments; single-limb collective action clauses; and the common backstop to the Single Resolution Fund. The focus then shifts to the changes agreed upon in response to the COVID-19 crisis. A new credit line has been introduced, the Pandemic Crisis Support, which builds on an existing instrument. It is argued that the reforms posited in the draft revised ESM Treaty would plug important gaps in the framework of the Economic and Monetary Union. Nevertheless, some of the ESM’s underlying vulnerabilities would remain, notably as regards its governance, the status of non-Euro area Member States, and the framework for its transparency and accountability. A more comprehensive reform could have taken place, which would have improved upon the overall structure of the Euro area.

European Stability Mechanism, ESM Treaty, ESM reform, Pandemic Crisis Support, European Monetary Fund, economic governance, accountability
O Controle de Conformidade da Sentença Arbitral Estrangeira à Ordem Pública Material: a Contribuição da Experiência Francesa e Internacional para Prática Brasileira
Authors: Deluiggi Marco
Published: March 2022

ABSTRACT: The growing use of arbitration as a mechanism to resolve international commercial disputes has been significantly increasing the number of foreign arbitral awards brought for recognition to Brazil's Superior Tribunal of Justice. In this process, the STJ must ascertain, among other aspects, whether the foreign arbitral award is in conformity with material public policy. The present study proposes, based on the international experience, what notion of public policy should be considered by the judiciary at the time of this analysis, and the extent of the judiciary's powers in reaching such a decision. The solution suggested seeks to assure the efficacy of international arbitration while also respecting the fundamental interests of the State.
Considerações sobre a Dialética Tratado-Costume e o Desenvolvimento Progressivo no Direito dos Investimentos Internacionais
Authors: Ramina Larissa
Published: March 2022

ABSTRACT: This article analyzes the development of Bilateral Investment Treaties (BITs), and the issues arising out of the possible adoption of a multilateral treaty on the subject. Furthermore, after identifying provisions which are common to most BITs, the article examines whether they could be regarded as "accepted as law", pursuant to article 38, § 1º, b, of the Statute of the International Court of Justice, or according to the traditional concept of custom. The article also deals with issues that may arise out of dispute resolution mechanisms in place between States and investors. Finally, the author considers the need and possibilities of including in BITs provisions against transnational corruption.
Incoterms e Técnica Contractual
Authors: Jolivet Emmanuel
Published: March 2022

RESUMO: Os Incoterms 2000, regras da Câmara de Comércio Internacional para a interpretação de termos comerciais, entraram em vigor no dia 1º de janeiro de 2000. No momento em que se discute a possibilidade de uma revisão, as relações entre os Incoterms e a técnica contratual merecem atenção. A análise da prática cotidiana dos Incoterms parece contribuir de forma útil para o debate sobre a pertinência dessa revisão.
Independência, Imparcialidade e Suspeição de Árbitro
Authors: Leite António Pinto
Published: March 2022

ABSTRACT: The independence and impartiality of arbitrators is of the essence in the development of international trade arbitration. The fact that parties may appoint non-neutral arbitrators has given rise to negative reactions within the international arbitration community. However, there are some questions that need to be considered, namely: the non-neutrality of party-appointed arbitrators and the presiding arbitrator's role ensuring fair trial, tacit acceptance by one party of the non-neutrality of the arbitrator appointed by the other party and the motion of suspicion on the arbitrator within such context, the contractual nature of arbitration and the appointed arbitrators' disclosure duties, the criteria to appraise the arbitrator's subjective impartiality and the principle of good faith, the partyappointed arbitrator's role of cultural translation within international arbitration and the party's possible research duties on the independence of the arbitrator appointed by the other party.
The Law Applicable to the Merits of the Dispute
Authors: Silberman Linda , Ferrari Franco
Published: March 2022

ABSTRACT: This paper critically examines in depth the various approaches that have been resorted to by arbitral tribunals to determine the law on the basis of which to address the substantive issues of a dispute. It shows that a conflict of laws analysis is necessary even where the parties to the dispute have chosen the applicable law and suggests normative solutions for ascertaining the applicable law. It also addresses, however, the consequences of an erroneous choice of law decision by the arbitrators in the context both of annulment and recognition and enforcement of arbitral award.