bluuebunny/crossref_metadata_2025 huggingface dataset:
The Interpretation of Treatment No Less Favourable Under Article III:4 of the GATT 1994 and Article 2.1 of the TBT Agreement: A Comparative Analysis
Authors: Alcover Maria , Garcés Ana María
Published: March 2022

In recent years, the World Trade Organization has witnessed several disputes dealing with the national treatment obligation under Article 2.1 of the Agreement on Technical Barriers to Trade. This obligation has not been interpreted in the same way as in Article III:4 of the General Agreement on Tariffs and Trade of 1994. Indeed, the Appellate Body has developed a legal standard for the term ‘treatment no less favourable’ under Article 2.1 of the TBT Agreement that differs from the one in Article III:4 of the GATT 1994. After describing the different legal standards under these two provisions and their respective application in the case law, this article reflects upon several questions. In particular, it examines the treatment of de jure/de facto discrimination under the TBT Agreement as compared to the GATT 1994, the exact meaning of ‘legitimate regulatory distinction’ as a non-treaty term created by the Appellate Body for purposes of Article 2.1 of the TBT Agreement, and the implications of the different rules on burden of proof for a complainant’s legal strategy when faced with discriminatory technical regulations.
Sealing Off Asbestos: The Appellate Bodys Interpretation and Application of the Product Characteristics Criterion Within the Definition of a Technical Regulation in the T
Authors: Base Maria Graciela , Bohanes Jan , Kugler Kholofelo
Published: March 2022

Prior to EC – Seal Products, in all World Trade Organization (WTO) disputes involving claims under the Agreement on Technical Barriers to Trade (hereinafter ‘TBT Agreement’), the Appellate Body deemed every contested measure to be a ‘technical regulation’ within the meaning of the TBT Agreement. The interpretation of the term ‘technical regulation’ is very important to WTO Members seeking market access. It serves as a gateway to the TBT Agreement, which offers complainants litigation avenues different from, and additional to, those available under the General Agreement on Tariffs and Trade 1994. This article analyses the evolution of the Appellate Body’s interpretation and application of the term ‘technical regulation’ from EC – Asbestos to EC – Seal Products, particularly in respect of ‘product characteristics’. The Appellate Body’s ruling in EC – Seal Products may reflect certain misgivings about the inclusion of prohibited product characteristics within the scope of a ‘technical regulation’, in the EC – Asbestos ruling. At the same time, the EC – Seal Products approach appears to introduce a greater degree of case-specific weighing and balancing of a rule versus exceptions to arrive at a characterization of the measure as a whole. This arguably reduces the predictability as to whether a measure as a whole will qualify as a technical regulation under the ‘product characteristics’ criterion. Given this greater flexibility and the resulting uncertainty, a clarification of the term ‘their related process and production methods’ in the definition in Annex 1.1 to the TBT Agreement, as an alternative to the ‘product characteristics’ criterion, would have been helpful. However, in EC – Seal Products, the Appellate Body did not avail itself of the opportunity to provide this clarification.
Circumvention of Anti-Dumping Measures: Law and Practice of Turkey
Authors: Baskin Serdar
Published: March 2022

Anti-circumvention is one of the most controversial areas in the Anti-Dumping Agreement Negotiations of the World Trade Organization (WTO). It seems that it is very difficult for members to reach an agreement on what constitutes circumvention and establishing rules and procedures for anticircumvention investigations. Although there are no internationally agreed rules and procedures regarding anti-circumvention investigations today, members are free to put into effect their own rules and procedures. Based on that fact, the number of anti-circumvention investigations have been increasing significantly in recent years in all over the world. Turkey is one of the most active countries in the use of anti-circumvention measures. This article aims to shed light onto Turkish anti-circumvention legislation and practices. The author hopes that this article will assist a better understanding of Turkish practice in this area and contribute to the efforts to reach an agreement on this matter within the multilateral rules based trading system.
Anti-Circumvention of Anti-Dumping Measures: Law and Practice of the United States
Authors: Spicer Margaret , Clarke Peggy
Published: March 2022

Circumvention is a mechanism used by companies to avoid applicable anti-dumping duties on merchandise they seek to ship (David W. Leebron, An Overview of the Uruguay Round Results, 34 COLUM. J. TRANSNAT’L L. 11, 20 (1995)). Companies can use different means to ‘circumvent’ an order, including minor alterations, transshipment, or by shipping parts not subject to the order for assembly in either the final destination country or a third country (ibid.). This has the effect of changing the country of origin for the merchandise, resulting in circumvention of the order.
GATT Article XX(a) Permits Otherwise Trade-Restrictive Animal Welfare Measures
Authors: Walter Jan , Offor Iyan I.H.
Published: March 2022

There is ample support in the literature (primarily recent academic commentary) for the proposition that trade restrictions aimed at protecting animal welfare can be justified under Article XX(a) of the General Agreement on Tariffs and Trade (GATT) 1994 and thus are complimentary to and compliant with the World Trade Organisation’s (WTO) free trade agenda, particularly in light of the EC – Seal Products case and the way it has affected interpretations of GATT Article XX(a).
Trade Rows Between China and the US: Are They Manageable?
Authors: Kong Qingjiang
Published: March 2022

During the 2016 presidential campaign, Donald Trump said ‘we can’t continue to allow China to rape our country’ and vowed to aggressively fight back against China’s unfair trade practices. He promised to declare China to be a currency manipulator, impose a 45% tariff on all Chinese imports into the US and use the full arsenal of US trade laws against Chinese unfair trade practices. Since the election the reality on the ground has not been so certain. Nevertheless, these policy initiatives do raise many legal and policy questions. The question is not whether President Trump can really do these things or whether he should do these things, and it is not valuable to speculate what he will achieve. Trade disputes are inevitable in high-pressure bilateral trade relations, and therefore the critical question whether the trade disputes between China and the United States are manageable overall, and to what extent they are manageable in the WTO context.
Trade Facilitation and Customs Compliance for Cost-Saving and Efficiency: Policies, Practices and Proposals  A China Case Study
Authors: Jiang Zhaokang
Published: March 2022

Under WTO and WCO obligations and its own initiatives, Chinese government, like other governments, especially China customs, in the recent years has been making great efforts to modernize trade and customs process to facilitate legitimate trade of efficiency and protect public interest for compliance. The recent developments, especially the nationally integrated customs clearance process, are welcomed by the international trade community though, uncertainties and concerns remain, particularly on non-tariff technical barriers, transparency, consistency, performance, and stability for ruling-making and implementation. With all the pilot programs and reform initiatives on informed customs and trade facilitation and compliance, we propose that a new round Customs Law and regulation review, modernization and revision is timely demanded for rule of law, legitimacy, consistency of the reforms. We encourage the trade community, at the same time of enjoying the trade facilitation advantages, to invest and implement in customs and trade compliance program, including promise, policy, process, procedure and people, to avoid costs arising from customs and trade compliance crisis.
Export Competitiveness and Trade Agreements: Analysis and Insights from Israels Experience
Authors: Benizri Yohan , Ronen Eyal
Published: March 2022

Israeli manufactured export performance has been on a growth path for the past two decades. This growth is partly due to the continuing shift in Israeli export specialization patterns from traditional products towards technology-intensified exports. However, Israel’s strong export competitiveness also derives from proliferating free trade agreements (FTAs) with its trading partners, especially the European Union (EU). This article analyses export statistics to provide data validating the positive impact of recent FTAs on Israel’s export comparative advantages across all sectors between 1995 and 2015. It employs an econometric framework to examine stability and specialization trends, as well as convergence. Furthermore, the authors add to the literature by performing a survival analysis, using the Kaplan-Meier Survival Rate model, to identify particular Israeli export sectors that have benefited from a longer period of competitive advantage than other sectors due to the EU-Israel Association Agreement.
Combating Customs Revenue Fraud in WCO East and Southern African Region: A Mirror Analysis Through the Lens of Malawi
Authors: Kalizinje Frank
Published: March 2022

Increasing trade volumes breeds the risk of Customs fraud which challenges Customs administrations to do more with limited resources. Against this backdrop, the study employs mirror analysis in order to identify, classify and approximate Customs revenue fraud in Malawi’s 2015 trade data. The analysis reveals plausible fraud cases in various products and this will inform Customs policies in risk analysis, enforcement and post-clearance audit. To this effect, a fraud control plan which will help in sealing revenue leakages has been suggested. Implications of the study on economic operators and trade facilitation are also addressed.
Feasibility of Harmonizing Customs Sanctioning Systems in the European Union: Some Considerations from a Belgian Point of View
Authors: Gevers Bert , Goossens Levi
Published: March 2022

The Belgian customs sanctioning system is hard and can feel oppressive since nearly all violations of customs (and excise) legislation are criminally sanctioned, rather severe (prison) sanctions can be imposed and offenders can be sanctioned for the mere violation of the law even if such violation only was caused by negligence without the intention to be non-compliant. A full harmonization of customs sanctions on the EU level could tone this down. Although EU Directive 2017/1371 will install an ‘approximation’ of the customs sanctioning systems of the EU Member States, the question remains whether the political will is present for full harmonization.
Meditations in an Emergency: The Appellate Body Deadlock  What It Is, Why It Is a Problem, and What to Do About It
Authors: Raina Akhil
Published: March 2022

The World Trade Organization Appellate Body (AB) is an interesting creature. It was not meant to hold the position it currently does. Yet, it is a part of the most successful system of international dispute settlement. Its ‘faceless, foreign judges’ (James Bacchus, Reflections of a Faceless Foreign Judge, in Trade and Freedom (Cameron May Publishers 2004)) have developed jurisprudence that is staggering in size and complexity. The AB is loved by some, sharply criticized by others. Despite having a ‘permanent seat’ on the AB, the United States (US) is (and has been) unhappy. It is currently blocking the selection process for these faceless judges, and will not budge till its concerns are addressed. Time is running out for the AB and soon it will not be able to function. This article examines US’s objections and the role of the AB It then proposes a way forward, in case the AB does end up drawn and quartered.
Dispute Settlement Mechanisms Under Free Trade Agreements and the WTO: Stakes, Issues and Practical Considerations: A Question of Choice?
Authors: Todeschini-Marthe Céline
Published: March 2022

Choice of forumclauses in free trade agreements (FTAs)might lead to overlapping jurisdictions with theWTO. In such cases,which dispute settlementmechanism prevails? How do or couldWTO panels asses their jurisdiction? And how does a party choose between the dispute settlement mechanisms provided by a FTA and the WTO? This article analyses how the WTO jurisprudence and general principles address, respectively might address the issue of conflict of jurisdiction, and outlines the considerations a party has to keep in mind when selecting a forum. To date, there is no clear-cut solution nor answer to the questions above.
Normal Value in Anti-Dumping Proceedings: Is Surrogate Value No Longer Applied Exceptionally?
Authors: Li Ye
Published: March 2022

The WTO Anti-Dumping Agreement provides the general rule on the determination of normal value and the exception which allows investigating authorities to disregard the cost records reported by the respondents in anti-dumping proceedings provided that certain conditions are satisfied. This article visits the recent development of the practices of investigating authorities of the EU, the US and China, noting that the exception rule has been increasingly employed by these authorities that use surrogate values to replace actually incurred costs reported by respondents in different manners and as a result inflate the dumping margin. This article also examines the WTO consistency of these practices in view of the Appellate Body ruling in EU – Biodiesel. This article finds that these practices driven by strong policy considerations are arguably WTO-inconsistent as applied, and will encourage other WTO members to do the same. This tendency is very concerning.
Mutual Administrative Assistance in Customs Matters
Authors: Wu Hao
Published: March 2022

Mutual administrative assistance in customs matters (CMAA) is a significant component of customs enforcement. It is essential to impose international norms on this matter and, therefore, there are increasingly CMAA agreements and conventions between countries – at the bilateral, regional and global levels. The World Customs Organization (WCO) plays an important part in developing the agreements and conventions. This article looks into these international legal instruments, and examines the relevant work done by the WCO.
Trader Participation in the EU Customs Decision-Making Process: Is There Room for Improvement?
Authors: Muñiz Pablo
Published: March 2022

EU measures on customs-related matters can have a direct impact on the daily business operations of economic operators and can result in serious consequences for traders, both on the financial front and on their supply-chain operations. However, economic operators may become aware of these new measures and their consequences only when such measures have already been adopted and their application is imminent. Traders may then wish that they had participated in the decision-making process, sharing their views with the EU institutions before the measures were adopted. The author sets out how traders can recognize relevant customs developments at an early stage in the adoption process. He then identifies the main players in the institutional framework involved in the adoption of customs measures. Finally, the author examines how traders can participate in the EU customs decision-making process and, in particular, whether improvements to the existing participation procedures are needed.
The Effects of CETA on the Continuous Implementation of the Precautionary Principle within the European Union
Authors: Zankl Martin Wolfgang
Published: March 2022

After seven years of negotiations, the Comprehensive Economic and Trade Agreement (CETA) was finally approved and signed on 30 October 2016. It entered into force provisionally on 21 September 2017. A landmark deal between Canada and the European Union, CETA aims to establish regulatory branches in which the European Union, as opposed to Canada, will apply the precautionary principle as enshrined in European treaties, laws, and jurisprudence. Critics of CETA in Europe fear that it will result in a lowering of EU safety standards. In order to determine the legitimacy of such criticism, this article will analyse the relevant provisions of CETA to determine whether the deal will actually contribute to the weakening of the precautionary principle in Europe, which in turn would inevitably lead to a deterioration in environmental and human health standards.
Chinas Governance Approach to the Belt and Road Initiative (BRI): Relations, Partnership, and Law
Authors: Wang Jiangyu
Published: March 2022

This article looks at how China conducts intergovernmental relations with the BRI countries. By examining the normative documents produced in the BRI cooperation as well as the rather informal BRI dialogue mechanisms, this article argues that China adopts a partnership-based, relational approach in ordering bilateral, regional and global economic cooperation. The Chinese approach may offer an alternative governance model in international relations but we have to wait and see what will eventually happen in the already very dynamic BRI process.
The New NAFTA: A First Look
Authors: Horlick Gary
Published: March 2022

The newly negotiated US Mexico Canada Agreement [USMCA in the US, following the TPP tradition of not mentioning Free or Trade] changes very little of significance in NAFTA beyond adding some items already mostly agreed on by all three countries in TPP. The negotiation took so long that the Democrats took control of the US House of Representatives, raising interesting questions about whether they will vote to ratify without changes in labour and environmental enforcement, pharmaceutical IP, and possibly more.
WTO Agreement on Trade Facilitation (TFA): General Rules on Simplification, Harmonization and Modernization of Administrative Procedures
Authors: Armella Sara
Published: March 2022

The Trade Facilitation Agreement (TFA) stands in the wake of the Kyoto Convention and other international Conventions concluded under the auspices of the WTO and the World Customs Organization (WCO) which contributed to the development of an international customs law. That customs law has introduced a change in the supranational regulatory framework inasmuch as for the first time, it lays down specific criteria and rules in relation to customs procedures and controls and rights of the economic operators. The TFA contains a number of provisions for the protection of private operators, aimed at ensuring the implementation of certain fundamental principles in dealings between traders and customs administrations. The important principles that are worth mentioning in this respect include: transparency; legal clarity; information for traders; the right of defence; and the right to judicial protection.
Harmonization of Non-Preferential Rules of Origin
Authors: Azzam Mette Werdelin
Published: March 2022

The WTO Agreement on Rules of Origin aimed at the harmonization of non-preferential rules of origin. The harmonization has not yet been finalized and negotiations at the WTO have stalled. Rules of origin will, however, continue to be needed for the customs clearance of internationally traded goods.
Radioscopy of the Non-Preferential Origin in the Tunisian Customs Legislation
Authors: Abdallah Mohamed
Published: March 2022

Tunisia has undergone a legislative evolution in the non-preferential origin field, with the promulgation in 2008 of its new customs code. This article is intended to draw a radioscopy of Tunisian customs legislation concerning the non-preferential origin in order to present its main aspects. In particular, this article first explains the criteria and conditions for obtaining non-preferential origin and, then, the proofs of origin to be presented at customs clearance.

 

The author tries to demonstrate along the article that the provisions adopted by the Tunisian legislator in determining non-preferential origin is based on international standards and best practices, particularly those of the European Union – Tunisia’s first trading partner.

However, Tunisia’s trade policy has so far failed to activate the role that non-preferential origin can play in protecting the economy against the unfair practices and dumping applied by some countries.
Trade in Nanotechnology: Can the WTO Provide an Objective Balance Between the Risks and Benefits?
Authors: Abdollahi Mohsen , Kazemi Azar Shahriar
Published: March 2022

A strict definition of nanotechnology characterizes it as the manipulation of atoms and molecules at the scale of approximately one-billionth of a metre (one nanometre) or smaller in size. Scientific activity at such a scale has provided enormous potential, especially in the environmental field. Nonetheless, recent studies show that nanoparticles present unique and significant health risks. These unique risks raise the questions whether the nanoscale products traded daily regulation should be subject to the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) and the Technical Barriers to Trade (TBT Agreement)? If so, would the Agreements objectively balance the unique risks and benefit? An examination Agreements and WTO jurisprudence, shows that yes, the Agreements are capable of this goal.

Nanotechnology, WTO, the SPS Agreement, the TBT Agreement, Environmental Risks, Business Benefits, Balance
How to Suspend Trade Defence Remedies Applied in the Eurasian Economic Union: Recent Trends
Authors: - -
Published: March 2022

Brazil has been known as a challenging country for multinational and national enterprises interested in either importing into Brazil or exporting from it. Even though it represents a highly attractive consumer market, the political, economic, administrative and regulatory environment make Brazil a risky business partner. From Trade Policy to Customs procedures, structural and legal changes are shaping the future for international trade as a whole. This article explores, through data collection and its corresponding analysis, progress made towards implementing trade facilitation and liberalization measures as well as those still in need for further attention.

Receita Federal, Mercosur, Brazil, liberalization, facilitation, AEO, ATA Carnet, Ex-Tariff, Ruling, Consultation.
Effect of and Compliance with Judgments of the Court of Justice of the European Union: The Case of Trade Defence Measures
Authors: Natens Bregt , Willems Arnoud , de Knop Sven
Published: March 2022

When is litigation successful? Using the example of trade defence measures, this article addresses the effect of and compliance with judgments of the Court of Justice of the European Union. Its premise is that if a favourable judgment does not result in an improvement of the legal or economic position of the applicant, there is no incentive to litigate. This reduces accountability for EU institutions, turning the effect of and compliance with judgments into a fundamental question of judicial protection. With that in mind, this article sets out the differences in the effect of annulments and invalidations. It then turns to how this effect translates into compliance obligations, and how the EU institutions have complied with judgments in trade defence cases.

Court of Justice of the European Union, litigation, effect of judgments, annulment, invalidation, implementation, measures taken to comply, Article 266 TFEU, trade defence, anti-dumping, anti-subsidy
Customs Value and Transfer Pricing: WCO and ICC Solutions to Be Adopted by Customs Authorities
Authors: Fabio Massimo
Published: March 2022

Intercompany transactions represent nowadays more than 60% of the total market. Businesses dealing with cross-border trade need to comply with the Transfer Pricing (TP) rules for income tax purposes and are obliged to reconcile transfer pricing adjustment with customs value. Such a reconciliation under the traditional customs approach is really burdensome. Just recently, World Customs Organization (WCO) took note of this issue and invited all customs authorities to apply the International Chamber of Commerce (ICC) solutions to ease the customs relation and speed the international trade. The modern approach implies to integrate the TP documentation with a customs dedicated section, establish a transparent discussion with the customs offices and finalize an agreement. It will be the best way to set an effective TP/customs procedure, in any country impacted by the application of the TP policy, to apply the best reconciliation mitigating the administrative costs and neutralizing any risk of sanction in the global marketplace.
The ACWL’s Secondment Programme: Reflections by Three Former Seconded Lawyers
Authors: Nguyen Thi Nhung , Singh Shailja , Kaunda Angela Tamanda
Published: March 2022

The Advisory Centre on WTO Law (ACWL’s) Secondment Programme for Trade Lawyers provides government lawyers from developing countries and least-developed countries (LDCs) a unique opportunity to gain practical experience and additional theoretical training in WTO law. Since 2005, about fifty government lawyers from ten different LDCs and eighteen different developing countries have participated in the Secondment Programme. This article reviews the criteria for participation in the Programme and the selection process. It also reviews feedback from former participants, and notes that the vast majority of former seconded lawyers continue to work for their governments, and have found the work experience and skills gained from the Secondment Programme have contributed to their government’s capacity to understand and manage WTO issues. They also found that their participation in the Programme enhanced their professional development and career advancement. The article reviews the individual reflections of three former junior counsel from India, Malawi and Viet Nam who joined the Secondment Programme in 2014–2015, and found the experience to be enriching.

ACWL, WTO law, international trade law, disputes, training, junior counsel, ACWL lawyers, Secondment Programme, government officials
Continuity and Change in the EU Regulatory Framework on GMOs, after the WTO Dispute on ‘Biotech Products’
Authors: Poli Sara
Published: March 2022

This article assesses to what extent the EU regulation of genetically modified organisms (GMOs) has changed after the release of the Panel’s decision on the biotech dispute and the impact that the Community’s way of implementing the biotech reports has on the Agreement on Sanitary and Phytosanitary Measures (SPS Agreement). The author contends that currently in the EU regulatory framework on GMOs there are both elements of change and continuity with respect to the situation pre-dating the World Trade Organization (WTO) biotech dispute. She further argues that in implementing the biotech reports the EU may have weakened the function of the SPS Agreement as a sword against trade restrictive measures, which are not supported by scientific evidence. Yet, if we take the view that the SPS Agreement should be intended to bite only vis-à-vis purely protectionist measures, the EU’s handling of the biotech dispute does not really defeat this purpose of the SPS Agreement.
The External Dimension of EU Cultural Action and Free Trade: Exploring an Interface
Authors: Psychogiopoulou Evangelia
Published: March 2022

The purpose of this article is to reach a better understanding of the ways in which culture has been integrated into the EU's external economic relations, particularly through the efforts deployed for enhanced cultural cooperation with third countries. The analysis examines how the EU has sought to promote the diversity of its cultures while fostering more balanced cultural exchanges with partner countries and regions via the negotiation of cultural cooperation protocols accompanying its trade and economic agreements, and the conclusion of specific agreements on cultural cooperation. Following an overview of the EU's cultural powers in general, the analysis focuses on three cultural cooperation protocols, negotiated with the Cariforum states, the Central America group of countries and Korea, and the cultural cooperation agreement entered into with Colombia and Peru. Designed to intensify cultural cooperation, these instruments create a framework for engaging in strengthened policy dialogue on culture and cultural diversity via recourse to a variety of tools. The analysis explores the main features of the collaborative arrangements made; investigates the means selected for encouraging and advancing cultural interaction; identifies the similarities and the differences between the cultural cooperation strategies devised; and places them within the broader trade versus culture debate that has characterized their elaboration.
Lost in Translation: The Role of African Regional Courts in Regional Integration in Africa
Authors: Osiemo Onsando
Published: March 2022

African RTAs are flexible legal regimes. These agreements are not designed to commit their members to scrupulous and rigorous adherence; rather they have been designed as flexible regimes of cooperation.

If enforcement is not intended (in reference to African RTAs) a scarcity of formal trade agreement disputes should be no surprise.

The European Union (EU) and its Treaty on the Functioning of the European Union (TFEU) and its predecessors has been hailed as the yardstick for Regional Trade Agreements (RTAs). The provisions of the TFEU have served as templates for RTAs across the world. Among the most influential of these provisions are those on Dispute Settlement Mechanism (DSM), centred on the Court of Justice of the European Union (CJEU).The CJEU has played a major role in the integration process of the EU through its proclamations of principles such as direct effect and the supremacy of community law. All the African RTAs have provided for DSMs and Regional Courts in their treaties that emulate the EU rule-based DSM and its CJEU. This paper appraises the paradox of the leading role played by the CJEU in European integration and yet its clones, amongst them the African Regional Courts, have failed to play a similar role in African regional integration. Taking the TFEU and the EU Court of Justice as benchmarks, the paper examines African RTAs' treaty provisions on DSM and African Regional Courts with their jurisprudence and evaluates their impact in regional integration in Africa. The paper finds that African RTAs' treaty provisions on implementation of integration, particularly those on sanctions for infringements, are weak and the impact of the African Regional Courts in the integration process is minimal.
Developing Search Engine Law: It Is Not Just about the Right to Be Forgotten
Authors: Sancho Diana
Published: March 2022

The conflicting interests in the search engine context raise specific legal questions regarding the protection of personality rights on the Internet, as evidenced by the CJEU in Google Spain. This decision confirms the Court’s reliance on the data protection mechanisms and legal structures to guarantee a complete and effective protection of data subjects in the European Union. The clear endorsement of the European data protection’s long-arm policy and, particularly, the strict classification of search engines as controllers of third party data, has not satisfied the expectations of those who advocate for a debate about whether data protection legal structures alone can frame the legal issues raised by third party data processing carried out by search engines.
The Transatlantic Trade and Investment Partnership and the Developments in the Area of Privacy and Data Protection
Authors: Hijmans Hielke
Published: March 2022

This article discusses the relationship between the Transatlantic Trade and Investment Partnership (TTIP) and the respect for the fundamental rights to privacy and data protection as guaranteed in European Union (EU) law.

On the basis of an explanation of the EU approach on data protection, it argues that TTIP is not the right place to regulate fundamental rights, and, more specifically that the TTIP should not cover the conditions for exchanging personal data across the Atlantic Ocean. The TTIP would not be an appropriate instrument for bridging the transatlantic divide on privacy and data protection.

However, a global approach on privacy and data protection may be an attractive perspective, although complicated. The United Nations would be the right forum, instead of a trade agreement.
Re-Launch of the Proposal for a Common Consolidated Corporate Tax Base (CCCTB) in the EU: A Shift in Paradigm
Authors: Niazi Shafi U. Khan
Published: March 2022

The European Commission has recently announced that it will revisit its earlier draft legislation on Common Consolidated Corporate Tax Base (CCCTB). The article analyses the CCCTB relaunch and investigates changes in the new policy move. With the exception of the new CCCTB regime for companies, no other significant departure is apparent in the ultimate long-term objectives of the revised plan. However, this article argues that there is a remarkable shift in the pursuit of a path towards a CCCTB system. It evaluates the changed course of action against the European constraints and integrational theories as well as the growing global imperatives of contemporary tax policymaking pursuant in particular to the Base Erosion and Profit Shifting (BEPS) project. The study concludes that the new direction set forth by the Commission is pragmatic and it is likely that the shift may, for the first time in European history, result in tangible progress on rules for a common tax base in the single market.
Brexit and Preferential Trade Agreements: Issues of Termination and Survival Clauses
Authors: Kikarea Eirini
Published: March 2022

This article examines the fate of preferential trade agreements (PTAs) concluded between the United Kingdom (UK), the European Union (EU) and third States after Brexit. It examines EU-only and mixed PTAs separately. Regarding mixed PTAs, it is argued that Brexit will not lead to their automatic termination. The UK will possess all rights and obligations under these agreements, unless they contain provisions limiting their scope, such as respective powers and territorial application clauses, often found in bilateral mixed PTAs. The effect of the former is that the UK will remain Party to mixed PTAs but will not fall within the personal scope of rights and obligations thereunder. This situation gives rise to a series of questions, among others, whether the UK will be able to terminate the treaties and whether survival clauses will be triggered. It is argued that the UK will be able to rely on PTAs’ termination provisions and potentially Article 62 VCLT (fundamental change in circumstances), and that survival clauses are also triggered by permanent de facto termination events. Regarding EU-only treaties, it is argued the UK will be neither bound thereby under international law nor obliged to act in conformity with them under European law.
Does Trade Equal Peace? The Role of the WTO in International Peace
Authors: Mollaian Saba L.
Published: March 2022

This article contends that the World Trade Organization (‘WTO’) plays a vital role in the maintenance of international peace through continued international trade. In exploring this argument, the article looks to the history of the General Agreement on Tariffs and Trade (‘GATT 1947’) and the WTO. After doing so, the article analyses the other side of the coin:  when trade is weaponized through the use of the General Agreement on Tariffs and Trade  (‘GATT 1994’) security exception Article XXI. Lastly, the article discusses the effectiveness of  trade sanctions and whether the security exception is in need of reform in order for the WTO to  better engage in the pursuit of international peace through international trade.
The EU’s Response to the COVID-19 Crisis and the Trajectory of Fiscal Integration in Europe: Between Continuity and Rupture
Authors: Dermine Paul
Published: March 2022

This article offers a first analysis of the EU’s fiscal response to the COVID-19 crisis. Beyond an account of the main initiatives of which it is comprised (the suspension of the Stability and Growth Pact, the Support to mitigate Unemployment Risks in an Emergency (SURE) instrument and the recovery plan), it provides an assessment of this response’s position in, and likely influence on, the long-term trajectory of economic and fiscal integration in Europe. Analysing its main features and the core issues and challenges it raises, it identifies the elements of continuity and rupture which characterize this response, the legacies on which it builds, and the shifts and changes that it embodies. The article shows that, as a policy initiative which in many regards breaks away from past practices and orientations, the EU’s fiscal response to COVID-19 presents novel, disruptive features, which raise new legal questions, and open new avenues for exploration. It also reveals that next to clear elements of rupture, this response is also largely embedded into the wider, pre-existing policy framework of EU economic governance which we inherited from the Eurozone crisis. In many regards, it continues the institutional philosophy of that system, and perpetuates the main constitutional challenges that it raises.

European Union, COVID-19, fiscal response, recovery plan, transformations, legacies
Is It Possible to Use State-Owned Enterprises to Promote Industrial and Technological Development Under Article 17.4 of the CPTPP?
Authors: Iglesias M. Juan Pablo
Published: March 2022

The Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) establishes, in its Chapter 17, the most extensive ‘behind the border’ regulation of stateowned enterprises (SOEs) among the bilateral and multilateral treaties. Prima facie, its rationality can be explained by the original purpose of the United States (former drafter of the Trans-Pacific Partnership Agreement (TPP)) to discipline the state capitalism policies employed by some Asian signatories. Considering this context, this article examines the meaning of the key normative concepts contained in Article 17.4 of the treaty (i.e., ‘commercial activities’, ‘non-discrimination’ and especially ‘commercial considerations’) and discusses to what extent such concepts recognize or restrict the freedom of the Parties to create and manage SOEs committed to promote national industrial and technological development, using as benchmark for this assessment Article XVII of the GATT and the interpretations made by the WTO adjudicators. It concludes that the wording of Article 17.4 is compatible both with an interpretation that allows the existence of such types of entities and with an interpretation that does not.

State-owned enterprises, non-discrimination, commercial considerations, differential treatment, industrial development, competition, trade, mission
Arbitration and Crisis
Authors: Horsmans Vincent , Horsmans Guy
Published: March 2022

ABSTRACT: The economic crisis didn't affect Brazil as it did in United States and in Europe. Brazil took an advantage of this period and became a leadership among others developing countries (I). Consequently, people who work with international commerce were obliged to find better ways to protect humanistic goals of law. Thereby, they were led to analyze the legal education, essentially the methods of comparative law, in addition to the role of the jurists, who were forced to put into practice creativity and imagination in theirs researches and actions (II). Jointly the crisis, many innovations had arisen to overcome the situation. There are many examples: in France was established a mediation process to resolve credit disputes, which improves the society and became an indispensable item in the commercial life; in Belgium had commenced a great debate about the solutions presented by public authorities to deal with the situation of the principal bank of the country (III). Talking about this context of economic crisis we choose to approach the arbitration crisis according to the sign of Phillipe Fouchard: the excess of the diversions and litigation related arbitral proceedings withdraw the specificity and the value of arbitration. We adopted the solutions proposed by professors Jens Damman and Henry Hansmann. We worked, by this article, to suggest a creation of a public and international legal authority specialized in economic subject. This authority must get some inspiration by the lessons and explore the possibilities opened by international arbitration (IV). Our great wish is to see our Brazilian friends working in this project, exercising the functions of artisans and exhilarating in a legal laboratory, without the one, the G20 will hardly promote a global economy full of solidarity.
As Providências Cautelares e a Arbitragem: em Que Estamos?
Authors: Júdice José Miguel
Published: March 2022

ABSTRACT: The objective of this text is to present an overview of the Portuguese situation in relation to interim measures. The Portuguese Arbitration Law (Law nº 31/86) is outdated and does not face the issue of interim measures, procedural orders and other legal instruments that are central to the arbitration theory and practice. However the Portuguese arbitrators and practitioners as a whole are obliged to work in a legal environment in which interim measures are each year more common and relevant. The article tries to propose the needed solutions in accordance with the Portuguese legal system, paying tribute to the South American evolution, in particular the Brazil, where innovative approaches may be an inspiration. It is also analysed the project of a new arbitration law, prepared by the Portuguese Arbitration Association upon a request by the Portuguese Government, that in 2011 is being discussed at the Portuguese Parliament.
New Rules for Litigation and Domestic Arbitration in Switzerland
Authors: Scherer Matthias
Published: March 2022

ABSTRACT: Switzerland is one of the world's leading places for international arbitration proceedings. Swiss arbitration law is based on a dual system. International arbitration proceedings are governed by the Swiss Federal Act on Private International Law ("PIL Act"). Until recently, domestic arbitration proceedings were governed by a treaty among the Swiss cantons-the Intercantonal Concordat on Arbitration ("Concordat"). On 1 January 2011, the unified Swiss Federal Code of Civil Procedure ("SCCP") entered into force. This is the most important development in the Swiss legal order since the unification of the civil, commercial and criminal law at the beginning of the 20th century. The SCCP abolishes and replaces the 26 cantonal codes of civil procedure as well as the Concordat on domestic arbitration which, while modern when it was established in 1969, no longer met the expectations of users in the 21st century. The present paper summarizes some of the key features of the SCCP in the field of arbitration.
Como Resolver Disputas Sobre Nomes de Domínio na Internet
Authors: Mason Paul Eric
Published: March 2022

ABSTRACT: The present article describes the UDRP - Uniform Domain Name Dispute Resolution Policy - the rules and procedures for which were approved in 1999. The UDRP procedure is the primary method used to resolve disputes between domain name registrants and trade or service mark holders on the internet. The article further touches on aspects of the Arbitration and Mediation Center of the World Intellectual Property Organization, and the scenario Brazil is facing with the new rules governing disputes over domain names containing the extension .br.
Monetary Relief In Lieu of Anti-Suit Injunctions for Breach of Arbitration Agreements
Authors: Volders Bart , Pierre-Fierens Jean
Published: March 2022

ABSTRACT: The demise of anti-suit relief within the EU as a result of the decision of the European Court of Justice in West Tankers has been the subject of intense debate in legal literature. However, as an alternative to (court-ordered) anti-suit injunctions, monetary relief for breach of an arbitration agreement could step in as a viable substitute remedy.
O Caso Julgado na Arbitragem Internacional. Alguns Pontos a Considerar
Authors: Pérez Francisco G. Prol
Published: March 2022

ABSTRACT: The interpretation of the effects of res judicata can vary greatly depending if such interpretation is made by a lawyer of Common or Civil law. The same evaluation of the three elements necessary to distinguish that we are facing a res judicata issue (i.e. identical parties, identical contractual object, and identical cause of action) can differ considerably if they are examined by lawyers from different legal traditions. Thus, in relation to the 'identical parties' element, the author evokes the Anglo-Saxon figures of Trust and Privy and the problems arising for the companies of a same group. In relation to the 'identical object' element, the author talks about the need to resolve all the disputes between the parties in the original lawsuit, and regarding the 'identical cause of action', the author refers to the existence of proceedings that may not produce a res judicata effect.
A Fixação do Dano na Jurisprudência Arbitral
Authors: Nanni Giovanni Ettore
Published: March 2022

ABSTRACT: The award of damages arising out of contractual breach is dictated by specific rules, which are often under looked by parties and lawyers. The main purpose of this paper is to outline the elements underlying the concept of contractual damages in arbitration, a subject of key importance for lawyers from the moment of executing the contractual provisions until the award in damages is finally rendered.
Can Counsel Ethics Beat Guerrilla Tactics?: Background and Impact of the New IBA Guidelines on Party Representation in International Arbitration
Authors: Sussman Edna
Published: March 2022

Abstract: The call for guidance on counsel ethics in international arbitration has intensified in recent years and has led to action. Following a comprehensive review of the subject, in May of 2013 the International Bar Association issued its Guidelines on Party Representation in International Arbitration (the "Guidelines"). In developing its recommendations, the IBA's Arbitration Committee investigated the different ethical and cultural norms and disciplinary rules that apply to counsel in international arbitrations. While these are only Guidelines with no inherent authority, the Guidelines are likely to foster significant changes. This article reviews the history of the development of the guidelines, provides an overview of the provisions of the Guidelines and offers comments on the implementation of the Guidelines.
The ICSID Convention and nationals of another contracting State that are owned by nationals of the respondent State: back to basics
Authors: Soule Cedric
Published: March 2022

ABSTRACT: The ICSID tribunal in Venoklim Holding B.V. v. the Bolivarian Republic of Venezuela held in its award that the claimant, though incorporated in The Netherlands, did not qualify as a foreign investor under the ICSID Convention because it was owned by Venezuelan nationals. However, this holding is contrary to the plain meaning of the ICSID Convention and runs counter to established case law on the issue. Thus, the purpose of this article is to review the ICSID Convention and relevant ICSID jurisprudence to show that Venoklim Holding B.V. and all foreign juridical persons that are owned by nationals of the respondent State should be considered as foreign investors under the ICSID Convention over which an ICSID tribunal has jurisdiction.
Os sistemas monista e dualista na arbitragem comercial
Authors: Dias Aline Henrique
Published: March 2022

ABSTRACT: In the context of commercial arbitration, the article focus on a critical analysis of the reasons that are usually considered by different countries to opt for a monist system (a single law to regulate arbitration) or a dualist system (one law to regulate domestic arbitration and another law to regulate international arbitration).