bluuebunny/crossref_metadata_2025 huggingface dataset:
The Trans-Pacific Partnership Tobacco Carve-Out Precedent
Authors: Ireland Robert
Published: March 2022

The Trans-Pacific Partnership (TPP) text includes an article allowing the parties’ ability to deny the possibility of challenges to their tobacco control measures under the Investor-State Dispute Settlement (ISDS) provisions. Several TPP parties as well as public health advocates had sought this “tobacco carve-out” to prevent transnational tobacco companies (TTCs) from using the TPP to challenge tobacco control laws, particularly cigarette plain packaging requirements, as they have done using bilateral investment treaties (BITs). TTCs had lobbied the negotiators not to include the tobacco carve-out in the TPP. Regardless if the TPP is ultimately ratified by the parties, the TPP tobacco carve-out will likely be precedent for the insertion of language protecting tobacco control measures in future bilateral and multilateral international trade and investment treaties. Moreover, the TPP tobacco carve-out is another in a growing list of legal and policy defeats for TTCs. This article summarises the state-TTC conflict that influenced and resulted in the TPP tobacco carve-out.
Perspectives for the World Trade System: From Multilateral Integration to Free Trade Agreements?
Authors: Altemöller Frank
Published: March 2022

The difficulties encountered in multilateral trade negotiations well illustrate the significant obstacles confronting further development of the World Trade System. At the same time, however, Free Trade Agreements (FTAs) become increasingly important. The successful negotiations of the Comprehensive Economic Trade Agreement and the Trans-Pacific Partnership are recent examples of this trend. Will FTAs come to be viewed in the future as the dominant model for international economic integration? This article focuses on the interaction between the World Trade System and FTAs and identifies the prospects for the multilateral system in a constantly changing economic, political and geopolitical environment.
The Question of Private Standards in World Trade Organization Law
Authors: Chea Laichea
Published: March 2022

There has been a remarkable increase in recent years in the number of private standards developed by private companies and non-governmental organizations. The increase of these private standards has a significant impact on international trade, thus creating an obstacle for exporters from developing country World Trade Organization (WTO) Members. For this reason, there have also been many controversial discussions on the issue of private standards in WTO Committees as well as in other international fora. In the WTO context, the most frequently asked question is whether private standards are covered by WTO agreements such as the Agreement on Technical Barriers to Trade or Agreement on Sanitary and Phytosanitary Measures. This article will discuss whether private standards are regulated under these agreements and whether they can be challenged under the WTO.
The Brexit: Implications for the WTO, Free Trade Models and Customs Procedures
Authors: Pickett Eric
Published: March 2022

Following the vote of British people in favour of the UK leaving the EU (so-called Brexit) there was much discussion and confusion about the future relationship between the UK and the EU, as well as the future trade relations between the UK and third countries. In Feb. 2017 the UK Government issued a White Paper which has clarified its position and was the basis for the vote in the Parliament to trigger the negotiations with the EU. According to that paper the UK will pursue a new strategic partnership with the EU, including ‘an ambitious and comprehensive Free Trade Agreement (FTA) and a new customs agreement’. Furthermore, the UK wants to take advantage of the opportunity to negotiate its ‘own preferential trade agreements around the world’. Based on these assumptions, this article will first describe the withdrawal process, and then the status of the UK in the WTO after the Brexit. Finally, the consequences of the available options for customs and trade policy matters will be addressed, in particular for economic operators in the UK and the EU, who will bear the main burden of the forthcoming changes.
Multicoloured in a Monochrome World: WTO and Conflicting Regulatory Purposes
Authors: Raina Akhil
Published: March 2022

The recent Seals case at the WTO exposed a phenomenon long hovering on the horizon: national measures enacted for purposes which, in operation, conflict with one another. This essay is an inquiry into the nature of such measures. It explains why legal tests germane to single-purpose measures cannot (and should not) be transposed onto complex, contradictory multi-purpose ones. The essay advocates for relinquishment of some old ideas of the Appellate Body, and for the development of fresh ones.
The Process of Qualifying for Trade Agreements and the Differences/Challenges Around the World from an Industry Perspective
Authors: Irmen Melissa , Lloyd Michiko , Chen Jessie
Published: March 2022

Trade agreements offer many opportunities for importers and exporters alike. To maximize the benefits of a trade agreement, traders must know how to successfully apply the agreement rules. This article summarizes some basic preferential treatment rules and describes some variations and challenges companies engaging in global trade face in realizing these benefits.
Prior Judicial Involvement in Investor-State Dispute Settlement: Lessons from the Courts Rhetoric in Opinion 2/15
Authors: Lenk Hannes
Published: March 2022

The Court of Justice of the European Union has long protected the integrity of the Union legal order from external impact of judicial and normcreating processes. Initially concerned with the harmonious interpretation and application of Union law, the principle has gradually developed into a shield that protects the judicial prerogatives of the Court against international courts and tribunals. Now, the Court stands before a new challenge; Opinion 1/17 on the compatibility of the Comprehensive Economic and Trade Agreement between the EU and Canada was only very recently registered on the Court ’ s docket. The assessment of core features of the post-Lisbon trade and investment policy, not least the investment court system, will be eagerly awaited. But the recent judgment of the Court in Opinion 2/15 over the allocation of competences for the conclusion of the EU – Singapore free trade agreement may already entail some hints as to the Court ’ s stand on investor-State dispute settlement provisions. In fact, the Court ’ s rhetoric resembles statements made previously in the context of the European Patents Court in Opinion 1/09. The Court is in particular concerned with the profound effect of investor-State tribunals on domestic courts in the Member States, who are deprived of hearing disputes that would otherwise come before them. In terms of competence allocation, this removes the investor-State dispute settlement provisions from the purview of exclusive Union competences. In terms of compatibility, it may put these mechanisms, and incidentally the investment court system, on a collision course with the principle of autonomy of the Union legal order.
Bilateralism and Unilateralism: The Future of International Trade Relations?
Authors: Altemöller Frank
Published: March 2022

The most recent developments in international trade relations are characterized by a marked increase in free trade agreements – in particular bilateral agreements – whereas the development of the World Trade System, on the other hand, is in virtual stasis. Free trade agreements forge consolidated areas of economic integration that open up a multitude of strategic options for stakeholders. This raises fundamental questions: What are the structural incentives that trade agreements, in particular bilateral strategies, open up – and are they superior, for example, to those offered by a multilateral approach? This article offers differentiated responses to these questions and concludes with a look at what the future holds for the changing shape and reorganization of international trade policy. Within this context, the article also examines the WTO decision making practice relating to unilateral action, and also focuses on the especially topical issue of ‘border tax adjustments’.
A MES to be adjusted: past and future treatment of Chinese imports in EU anti-dumping investigations
Authors: Antonini Renato
Published: March 2022

For decades, European Union (EU) anti-dumping laws have provided that the normal value of imports from China had to be based on prices and costs of a third country, the so-called analogue country methodology. WTO law considerations led the EU to abandon this methodology. However, Chinese imports will continue to be subject to a special treatment. The EU introduced an allegedly country-neutral methodology to adjust the normal value when significant distortions linked to government intervention are found. This methodology, which clearly targets Chinese imports, appears to be very similar to the one found to be WTO inconsistent in EU-Biodiesel.
The EU-Mexico Global Agreement: A Groundbreaking Precedent for Animal Welfare in Trade Policy
Authors: Ghislain Stephanie
Published: March 2022

On 21 April 2018, after only two years of negotiations, the European Union and Mexico announced the conclusion of the modernization of their 1997 ‘Global Agreement’, covering both political and trade cooperation between the two partners. The new text includes a unique chapter on animal welfare and antimicrobial resistance – sending a strong statement to the world that animal welfare matters and is critical to protect Europe’s values and the health of European citizens. As such it sets a groundbreaking precedent for international and EU trade policy, as well as for animal welfare.

As the world’s fourth producer of eggs (most of them from caged hens), the seventh of poultry meat, the sixth of beef, and the fifteenth of pork, Mexico is a key country for animal products. It has the second largest amount of livestock among Latin American countries behind Brazil, accounting for around 550 million chickens, 34 million heads of cattle and 17 million pigs. (FAO statistics collected for 2016.) Promoting better animal welfare standards through the newly concluded agreement could thus improve the life of millions of farm animals, wild animals kept in captivity and those used for scientific purposes.
Non-Preferential Origin and Made in Italy
Authors: Satta Tiziana
Published: March 2022

This article examines the rules on non-preferential origin under international law, the European Union (EU) law and Italian law. In particular, the article explains that while the Union Customs Code (UCC) provides rules on non-preferential origin in EU level, the EU Member States may adopt national laws that are in full compliance with the EU Treaties and regulations. The article then examines the Italian legal framework providing rules on non-preferential origin.

 

In addition, the article highlights the difference between ‘intellectual property rights’ (where the trademarks are found), the ‘made in’ regulation and the provisions on ‘product labelling’. The article further analyses the problems that have emerged over time in relation to the ‘false indication of origin’ and the ‘fallacious indication of origin’ under the Italian legislation, and how the regulatory provisions have developed over time. The article emphasizes the importance of the discipline of ‘made in’ for Italy due to the ‘manufacturing’ vocation of the country.

Finally, the evolution of the jurisprudential orientation is represented by an address of ‘legal origin’ (understood as traceability of an asset to a particular producer, without detecting the connection of the asset to the territory), to the recognition of a ‘customs origin’ which, on the other hand, takes the territory into consideration.
The WTO’s Exclusive and Compulsory Jurisdiction v.Dispute Resolution Mechanisms in Regional Trade Agreements: A Clash of Jurisdiction?
Authors: Furner Courtney , Lederer Nadine , Sergaki Claire
Published: March 2022

Recently, the number of regional trade agreements (RTAs) has flourished and at the same time, trade disputes are increasing. The dispute settlement mechanisms (DSMs) in those RTAs may be potentially at odds with the DSM of the World Trade Organization (WTO), the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). The interaction between the DSMs of the WTO and in RTAs raise various concerns, including forum shopping and conflicts of jurisdiction. The key question is: which DSM should prevail? The relationship between the DSU and the default DSM in the North American Free Trade Agreement (NAFTA) provides an example of such an interaction and illustrates the potential fragmentation in case of overlapping jurisdiction. In the Mexico – Tax Measures on Soft Drinks and Other Beverages case, the WTO’s Appellate Body was reluctant to adopt a straightforward position on such overlaps. Thus, at least for now, there are many open questions, but no clear-cut answers. After providing an overview of the legal framework and discussing this important case, the authors propose solutions as to how to deal with jurisdictional overlaps in trade disputes.

World Trade Organization (WTO), Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Mexico – Soft Drinks, regional trade agreements (RTA), North American Free Trade Agreement (NAFTA), dispute settlement mechanisms, jurisdiction, proliferation, multiplication, international courts and tribunals
WTO Negotiations: The Unfinished Doha Development Agenda and the Emergence of New Topics
Authors: Dufour Genevieve , Pavot David
Published: March 2022

This article focuses on the state of progress of negotiations at the World Trade Organization. Since 2001, WTO Members have been working towards the conclusion of the Doha Development Round. While negotiations have been stagnant for a long time, the arrival of Roberto Azevêdo has brought a new impetus to the discussions and led to the adoption of the Bali Package in 2013, making it possible to close the debates on about 10% of the subjects. Unfortunately, the post-Bali discussions were less positive since, although they produced interesting results in some areas, they did not produce satisfactory results on one of the most important multilateral trade issues, namely domestic support measures for agriculture. Even more problematically, the Nairobi ministerial noted a new difficulty, namely a lack of consensus on the very content of future negotiations. In this context, the ministers met in Buenos Aires in 2017 without a clear agenda. With an American administration not very inclined to multilateralism, and a group of countries ready to block any progress that is not favourable to developing countries, this Ministerial was a dead end. However, the Buenos Aires Ministerial was marked by the creation of three informal working groups. In parallel, many Members enthusiastically joined an initiative of the International Trade Centre on the empowerment of women in trade, suggesting that a new theme may have emerged at the WTO. The Nur-Soultan Ministerial Conference in June 2020 will determine whether Members are ready for a redefinition of the Negotiating Agenda.

WTO Ministerial Conference, Doha Round, Plurilateral initiatives, WTO à la carte, Negociation Agenda, Buenos Aires Ministerial Conference, Gender
Fair Comparison, Objective Examination and Positive Evidence in Undercutting Margins Computed in EU Trade Defence Investigation? No, Thanks
Authors: Antonini Renato
Published: March 2022

In recent years, the European Commission has changed its practice of assessing price undercutting in trade defence investigations where the exporter sells via related sales subsidiaries. In such cases, undercutting was calculated on the basis of a ‘constructed export price’, obtained by deducting selling, general and administrative costs and notional profits from the actual export price. This practice was successfully challenged in Case T-301/16 Jindal v. Commission, where the General Court found that the European Commission had failed to compare prices at the same level of trade. The General Court also highlighted the importance of calculating undercutting on the basis of the actual prices charged to the first independent buyers.
Palm Oil for Fuels: WTO Rules and Environmental Protection
Authors: Limenta Michelle
Published: March 2022

Biofuels are one of the renewable energy sources that present an alternative ‘clean’ energy to fossil fuels. However, their increased demand and use has led to concerns about their impacts on sustainability and climate change. Regulators worldwide attempt to regulate biofuels and their impacts in their domestic policies. In 2018, the European Union revised its original Renewable Energy Directive (RED) to integrate both sustainability criteria and the so-called indirect land use change (ILUC) for biofuels. The crux of the matter is that the EU Commission classified palm oil as the only biofuel feedstock crop with a high ILUC-risk. Consequently, it cannot be counted by the EU Members in attaining their specific targets of renewables transport and it will have to phased out by 2030. Palm oil is one of the most effective source materials used to produce biofuels, but the industry has attracted criticism as their activities are linked to widespread deforestation and the loss of biodiversity. As palm oil is not produced in the EU but imported, this policy measure is likely to have a significant impact on trade. This article seeks to analyse whether the ILUC policy as an environmental process and production method (PPM) measure with extraterritorial reach can be contested as breaching World Trade Organization (WTO) rules of non-discrimination under Article III of the General Agreement on Tariff and Trade (GATT), and whether the measure can be justified under the general exceptions in Article XX of the GATT.

palm oil, biofuels, indirect land-use change (ILUC), high ILUC-risk fuels, GATT, process and production method (PPM)
The Real Cost of Rules of Origin: A Business Perspective to Discipline Rules of Origin in a Post COVID-19 Scenario
Authors: Inama Stefano , Ghetti Pier Paolo
Published: March 2022

In the day-to-day business life, rules of origin (RoO) are part of the cross-border routine and have to be administered in an efficient manner to facilitate customs clearance and not hinder trade. Toward this goal, addressing some of stigma over the cost of compliance with rules of origin can provide concrete support to trade policy makers and administrators for the introduction of reforms that could serve to stimulate world trade in the post Coronavirus disease 2019 (COVID 19) scenario. There is a real need to establish a public-private dialogue to simplify customs procedures related to rules of origin addressing the day-to-day hurdles that business is facing. It is hoped that the shock to world trade caused by the COVID 19 pandemic provides renewed energy to trade negotiations for drastic and pragmatic reforms towards convergence and simplification of rules of origin to support business, especially Small-Medium size enterprises (SMEs).

Rules of origin, compliance costs, customs procedures, certificate of origin, supplier declaration, exporter declaration, Proof of origin, accounting segregation, Revised Kyoto Convention, Third country invoicing, direct consignment, Product specific rules of origin (PSRO).
The Arbitration Panel Ruling on Ukraine’s Certain Wood Restrictions under the EU-UA Association Agreement
Authors: Makhinova Anzhela , Shulha Mariia
Published: March 2022

On 11 December 2020, the first Arbitration panel ruling in the European Union’s (EU’s) trade dispute under a bilateral preferential trade agreement was issued. This dispute concerns Ukraine’s export restrictions on raw timber and sawn wood of ten specific wood species referred to in the relevant Ukrainian law as ‘rare and valuable species’ and all ‘unprocessed timber’ for a period of ten years. The Arbitration panel found a violation by Ukraine’s ten-year export restriction on all ‘unprocessed timber’ of Article 35 of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part (Association Agreement), while justified restriction on ‘rare and valuable species’ under Article XX(b) of the General Agreement on Tariffs and Trade 1994 (GATT 1994), as applied in Article 36 of the Association Agreement. This dispute was not only interesting as the first usage of the EU’s dispute settlement mechanism, but also because of the interpretation of the arbitration panel of ‘World Trade Organization (WTO)-extra’ obligation on the environment contained in the Association Agreement. The article reviews the case as well as analyses the EU’s claim and Ukraine’s defence.

Trade law, Environment, EU law, Trade dispute, Arbitration, Dispute settlement, WTO, Export restrictions, Article XX, preferential trade agreement, timber
Imported Products, Pesticides, and the Environment: The Compatibility of ‘Mirror Measures’ with WTO Rules
Authors: Baldon Clémentine , Braoudakis Nikos
Published: March 2022

With the current focus being on major environmental changes, environmental measures impacting trade are expected to proliferate. Taking stock on case-law and scholarship work, this article takes the example of possible ‘mirror measures’ whereby the EU current prohibition to treat foodstuff with pesticides banned due to their adverse impacts on the environment would extend to imported products, suggesting that such measures could respect WTO law. It relies on the debate over production methods and extraterritoriality and argues that distinctions based on production methods according to their environmental impact may be admissible under the General Agreement on Tariffs and Trade (GATT).

Mirror Measures, WTO, GATT, Pesticides, Environment, Sustainable Development, Green Deal, Production Methods, Imported Products, Likeness, Article XX Exceptions, Extraterritoriality, Chapeau, Dispute Settlement Body, Public Morals, PPM
Cost Elements of Importing into Egypt: Understanding the Burden
Authors: Mahmoud Amr Feteha Hanafy
Published: March 2022

Import costs substantially influence many aspects of import flows, such as who imports, what is imported, and from whom. They also impact the goods that are available to consumers and the prices paid. A study estimating the main costs borne by importers to comply with customs procedures in Egypt reveals that complying with customs procedures generates a burden on importers estimated to range from 457 to-7,962 USD; releasing the shipment from the customs authority takes Six–seventeen days. Moreover, importers may pay storage fees for one–twelve days and demurrage fees for one–ten days. These outcomes illustrate the inefficiencies and unnecessary costs borne by importers, and the recommendations offer solutions for policymakers to facilitate optimal policy planning.

customs procedures, trade facilitation, non-tariff measures, customs clearance, shipment releasing
Extending International Legal Aid from Trade to Investment: An Advisory Centre on International Investment Law
Authors: Ortino Federico , Sauvant Karl P.
Published: March 2022

Several mechanisms at the international level provide legal aid to lower-income States to strengthen ‘access to justice’ and ‘equality among States’, whether through direct financial support or institutional legal assistance. After reviewing the concept of international legal aid, this article makes the case for the creation of an Advisory Centre on International Investment Law (ACIIL) to provide support to respondent States involved in disputes brought by private investors based on international investment treaties and other instruments, as part of investor-State dispute settlement (ISDS). The increasing costs, complexity and number of investor-State arbitrations has strengthened the need for an international legal aid mechanism in this area, to put under-resourced developing countries in a better position to have affordable access to justice and defend themselves adequately in international investment disputes. This would level the playing field, strengthen the confidence of governments in a reformed investment regime and thereby enhance its legitimacy. Drawing on the experience of the Advisory Centre on WTO Law (ACWL), the article discusses the rationale, key features and current policy challenges of an Advisory Centre on International Investment Law.

Advisory Centre on WTO Law, Advisory Centre on International Investment Law, international legal aid, access to justice, investor-state disputes, international investment law, multinational enterprises
The European Union’s Proposed Carbon-Border Adjustment and Its Impact on Trade With Africa
Authors: Gergondet Edouard
Published: March 2022

On 11 December 2019, the European Commission officially presented its proposed carbon border adjustment mechanism (CBAM), which seeks to address carbon leakage by putting a price on carbon-intense imports into the European Union (EU). In essence, importers in targeted sectors (cement, electricity, fertilizers, iron, steel and aluminium) would be required to monitor and declare greenhouse gases (GHG) emissions embedded in products coming from outside the EU so as to purchase and surrender each year ‘certificates’ offsetting such emissions. Such a carbon border adjustment, to the extent it only covers specific sectors, at least in its initial phase, would not equally affect African countries. Trade with most of the continent would – in general – not be subject to such an adjustment. However, specific industries, primarily in Northern and Southern Africa, including in least developed countries, would shoulder the pain associated with such an adjustment, both in terms of costs and risks of trade diversion. Africa has little contributed to the situation which the EU seeks to tackle by putting a price on carbon globally. In order to mitigate the impact on Africa, specific tools should be considered, including outright exclusions, reinforced cooperation towards decarbonization and partnerships building on existing trade agreements.

Africa, Algeria, Egypt, Libya, Morocco, Tunisia, Mozambique, South Africa, Zimbabwe, Trade, Environment, Energy, Carbon Leakage, Carbon Border Adjustment, Border Adjustment, European Union
The Role of Trade Facilitation and Other Policy Strategies in the Successful Implementation of AfCFTA
Authors: Attia Sayed
Published: March 2022

The purpose of this research paper is to discuss the importance of trade facilitation in the successful implementation of the African Continental Free Trade Area (AfCFTA). The AfCFTA brings a great potential to African economies by creating a single market with the elimination of tariffs and non-tariffs barriers (‘NTBs’); providing a push for the development of industrial capacities; encouraging the emergence of continental value chains; contributing to promoting intra-African trade; creating jobs; and ensuring economic transformation and prosperity in Africa.

However, this potential requires a trade environment featured with simplified and harmonized trade border procedures for the smooth movement of goods among African countries. The importance of trade facilitation for the successful implementation of the AfCFTA emerges from the fact that it will work as a panacea for intra-Africa trade ills of increasing trade costs arising from NTBs; inefficient transportation; weak logistics infrastructure; cumbersome regulatory procedures; lengthy customs processes; and incoherent business documentation, thereby placing Africa at a competitively disadvantaged position.

The paper concludes that trade facilitation has a crucial role in maximizing the benefits of the AfCFTA. Furthermore, it recommends that the existence of wide productive capacity and diversified manufactured products that can be exchanged regionally, continentally and internationally through a flexible trade facilitation environment, should be supported to galvanize the outcomes of the AfCFTA.

AfCFTA, Trade Facilitation, Boosting Intra-African trade, Empowered Private Sector, Industrialization, Sustainable Economic Growth, TBT, SPS, NTB
OFAC Sanctions Trends Under the New Biden Administration
Authors: Clark Deanna , Jeffery Alexander
Published: March 2022

Though dramatically different in terms of style and rhetoric on how to best lead the country, it remains to be seen how different United States trade policy between the current and former administration, and in particular President Biden’s use of Executive Orders to implement sanctions, will be used in shaping the global priorities of the United States. This article highlights the top countries facing the Department of Treasury’s Office of Foreign Assets Control (OFAC) activity under the new Presidency and what direct, and indirect, messages reveal themselves through these first actions by the Biden Administration.

OFAC, Designations, Sanctions, Biden Administration, China, Burma, Saudi Arabia, Iran, Drug-Trafficking, Democracy
Towards pan-European Hedge Fund Regulation? State of the Debate
Authors: Athanassiou Phoebus
Published: March 2022

Despite having been part and parcel of the European asset management universe for several years, hedge funds have been bypassed by the regulatory initiatives which have recently transformed Europe’s financial services landscape. That concerted action has yet to be undertaken in this field and that the European market for the cross-border distribution of hedge fund products continues to be fragmented has less to do with the absence of a European debate on hedge fund regulation than it has to do with the lack of a clear vision on what the future should hold for them. The purpose of this article is to critically examine hitherto European initiatives and proposals for the future regulation of hedge funds, assessing the prospect of their transformation into concrete regulatory action in the foreseeable future. Our account of European initiatives will be preceded by an inquiry into the treatment of hedge funds under Community law and by a brief comparative examination of contemporary hedge fund regulation in the EU.
Joined Cases C-402/05P and C-415/05P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities Judgment
Authors: Lavranos Nikos
Published: March 2022

With its Kadi-judgment, the European Court of Justice (ECJ) firmly rejected the first instance Kadi/Yusuf-judgments of the Court of First Instance (CFI). The ECJ made unambiguously clear that Community law, in particular its basic, core fundamental rights values prevail over any international law obligations of the EC and its Member States, including UN Security Council Resolutions and the UN Charter. As a consequence thereof, individuals targeted by UN sanctions must have access to full judicial review in order to be able to ensure the effective protection of their fundamental rights, including procedural rights as guaranteed by the European Convention on Human Rights (ECHR). As a result, the ECJ proved that the Community is indeed based on the rule of law and that the fight against terrorism – how important it may be – cannot be used as a justification for completely abrogating European constitutional values as guaranteed within the Community and its Member States.
WTO DSB Decisions in the EC Legal Order: Approach of the Community Courts
Authors: Tsymbrivska Oksana
Published: March 2022

This article examines the position of the Community courts on the issue of the internal effect of the World Trade Organization Dispute Settlement Body (WTO DSB) decisions in the EC legal order from the Biret cases to the Van Parys case, as well as the arguments that were accepted as a basis for it. Moreover, it focuses on the extent to which WTO DSB decisions are binding on the European Court of Justice (ECJ). On the basis of a detailed analysis of the relevant case law of the Community courts, it is argued that the DSB decisions do not have direct effect in the EC legal order, however still remain binding on the EC as a party to the particular WTO disputes.
The Story of the EU and the Happily Roaming Consumers Case No. C58/08, Vodafone Ltd, et al. v. Secretary of State for Business, Enterprise and Regulatory Reform
Authors: Maletic Isidora
Published: March 2022

Once upon a time, there were roaming charges and disgruntled consumers. As a result of a preliminary ruling1 concerning the validity of a legislative measure2 on roaming on public mobile telephone networks within the European Union (hereinafter 'Union'), the regulation of roaming charges may have been changed forever. The reference had been made in proceedings between operators of public mobile telephone networks, including Vodafone Ltd, Telefónica O2 Europe plc, T-Mobile International AG, and Orange Personal Communications Services Ltd, and the Secretary of State for Business, Enterprise and Regulatory Reform. The roaming regulation aimed to cap the wholesale and retail charges mobile operators could charge for the provision of roaming services on public mobile networks for voice calls between Member States. The validity of the roaming regulation was challenged on three grounds, namely that its legal basis was inadequate, that it infringed the principle of proportionality, and that it offended the principle of subsidiarity. It was left to the Court of Justice to seal the fate of the roaming consumers.
Regulatory Cooperation to Remove Non-tariff Barriers to Trade in Products: Key Challenges and Opportunities for the Canada-EU Comprehensive Trade Agreement
Authors: Krstic Stanko S.
Published: March 2022

Regulatory cooperation to eliminate non-tariff barriers to trade (NTBs) resulting from differences in product standards and technical regulations has become a prominent issue in Preferential Trade Agreement (PTA) negotiations. This paper looks at the most important challenges and opportunities for a successful model for regulatory cooperation under the Canada-EU Comprehensive Trade Agreement (CETA). It argues that the CETA will represent a compromise between the two dominant models in international trade: the EU and North American approach to regulatory cooperation in PTAs. In addition, because of the specificity of Canada's federal structure, it is argued that the CETA will be able to bring about greater regulatory coherence within Canada by disciplining provincial regulation that results in NTBs. This paper argues that, while a sui generis case, in order for it to be successful, regulatory cooperation under the CETA will have to incorporate certain elements established in theory and in previous state practice. Finally, as a first comprehensive transatlantic PTA, regulatory cooperation under the CETA will in itself become a model for future such endeavours between economically developed countries, especially in its implementation aspect.
Multilateral Aspects of Advanced Regulatory Cooperation: Considerations for a Canada-EU Comprehensive Trade Agreement (CETA)
Authors: Mathis James H.
Published: March 2022

This article considers equivalency recognition for goods and for services in the context of the applicable WTO agreements and provisions. The discussion of equivalency arises from certain elements presented by the Canada-EU Comprehensive Trade Agreement (CETA), in which economically developed territories with well-established regulatory systems might choose to use equivalency instruments to further regulatory cooperation. The conditionally open character of equivalency recognition in the WTO may be an opportunity for these members to design a system that, while recognizing each other's domestic regulations, might offer additional possibilities for the inclusion of other WTO members.
Differentiated Integration Revisited: EU Energy Policy as Experimental Ground for a Schengen Successor?
Authors: Glachant Jean-Michel , de Hauteclocque Adrien , Ahner Nicole
Published: March 2022

For the EU-27, the accommodation of national diversity and conflicting preferences with regard to the pace and scope of the development of the EU energy policy remains a major problem. The resulting institutional paralysis, low reactivity to events, and changes as well as systematic political horse-trading call for an alternative framework that allows some pioneering Member States to promote ad hoc common policies while escaping the formal and procedural requirements of EU law. The 'Schengen agreement' is a successful example of such differentiation. Following this example, this article argues that a 'Schengen-ing' of some areas of EU energy policy might move beyond the realm of theory. The possibility to move forward by means of intergovernmental agreements between a number of Member States in certain areas of EU energy policy will be exemplified by two areas that are predestined for a Schengen successor: nuclear and gas security of supply policy.
The Horizontal Direct Effect of EU International Agreements: Is the Court Avoiding a Clear Answer?
Authors: Gáspár-Szilágyi Szilárd
Published: March 2022

This article looks at a less discussed topic in European legal scholarship: the horizontal direct effect of EU international agreements and the Court of Justice's apparent reluctance to expressly confirm it. It is argued that the direct effect of EU international agreements has been confirmed in proceedings involving private individuals/professionals against the private regulatory bodies of a profession or a State-owned and controlled entity. However, direct effect has not yet been expressly confirmed in cases involving veritable horizontal relationships, between private parties of equal positions and with equal functions. Whilst, the choice for this reluctance was understandable three decades ago, the time feels right to expressly acknowledge it and keep up with international trends.
Defining Indirect Expropriation: The Transatlantic Trade and Investment Partnership and the (Elusive) Search for Greater Certainty
Authors: Ortino Federico
Published: March 2022

The article assesses the definition of indirect expropriation included in the recent European Union (EU) proposal within the context of the Transatlantic Trade and Investment Partnership (TTIP) negotiation. The article argues that, while the EU proposal is likely to have narrowed the scope of the concept of indirect expropriation, in terms of providing ‘greater certainty’, we are not there yet. Like similar attempts before it, the EU proposal refers to a variety of different legal approaches without sufficiently clarifying their content and relationship. While this lack of clarity emphasizes the indecision among policy makers, including the EU, about where to draw the line between an indirect expropriation and a legitimate regulatory measure, it ultimately suggests that there are still doubts about the proper function of international investment law.
Wrong Way to Direct Effect?: Case Note on the Advisory Opinion of the Court of the Eurasian Economic Union Delivered on 4 April 2017 at the Request of the Republic of Belarus
Authors: Rosanò Alessandro
Published: March 2022

In an advisory opinion delivered in April 2017, the Court of the Eurasian Economic Union held that direct effect may result from the provisions of the Treaty on the Eurasian Economic Union governing competition. The Court’s reasoning was based on the fact that under this Treaty, competition is a common policy that envisages the application of unified legal regulations by the Member States of the Eurasian Economic Union. The case note aims at underlining how this kind of approach differs from the general trend in the field, especially considering the European Court of Justice’s holding in Van Gend en Loos. Additionally, some thoughts are devoted to the nature of the Eurasian Economic Union, in order to understand whether it could be considered a supranational organization.
In Search of the Political Question Doctrine in EU Law
Authors: Butler Graham
Published: March 2022

There are situations in EU law where questions posed to the Court of Justice of the European Union can be considered political questions. Parties before the Court have made a number of attempts to claim that for such political questions, the Court ought to adopt the political question doctrine, and decline to provide a judgment. To date, the Court has refused to explicitly consent to such requests, and it would appear that there is no obvious political question doctrine in EU law. Yet, on closer inspection, there are hints of the doctrine shining through the Court’s case law. The breadth of the EU law means that political questions can arise in many different legal disputes. In particular, given that some matters come close to political developments and choices, it is conceivable that the Court could invoke the political question doctrine at some future juncture. This article goes in search of the doctrine in EU law, and highlights where the Court ought to invoke the doctrine within the constitutional design of the EU treaties in defined circumstances. The contribution embraces the view that if the doctrine is invoked, the Court should set down a specific test with determinable criteria for what constitutes a political question, which it has not done to date.
Trade Conflicts: Whither the WTO?
Authors: Bronckers Marco
Published: March 2022

The WTO is in a state of crisis. Yet its problems did not start with the Trump Administration. And although this has been the focus of much criticism from the United States, the Appellate Body should not be the priority in reforming the WTO. More differentiation amongst its members and its rules is needed, to reflect varying levels of development. In addition, more room for plurilaterals ought to be created. China’s atypical economic model ought to be reconciled with the WTO’s market-orientation. This can be done through an update of its Protocol of Accession to the WTO, or perhaps through a newly conceived plurilateral agreement. Such a bridging mechanism would reflect a renewed engagement of China with the WTO, and could help to recommit the United States to a rules-based system. The EU should take initiatives to make this happen.

Appellate Body, China, Developing countries, Dispute settlement, EU trade policy, Made in 2025, Non-market economy, Plurilaterals, Protocol of Accession to the WTO, Special and Differential Treatment, State capitalism, State-owned enterprises, US trade policy, WTO-crisis
Mediação de Conflitos e Políticas Públicas  A experiência com a Mediação Comunitária em Distritos de Alta Vulnerabilidade da Grande São Paulo
Authors: Neto Adolfo Braga
Published: March 2022

ABSTRACT: Mediation may be used in many areas. One of the most used areas is the Mediation for Communities. Brazil has some experience in specific cities. São Paulo is one of these examples with an ambitious and project. Today the Federal Government has concrete intentions to adopt mediation as a public policy. This fact demands an alert in relation to this policy which must continue independent of politic changes and have connections to others projects.
La Conception Francaise de LArbitrage International  Reflexions au Sujet des Arrets Putrabali, Cass. Civ. 1, 29 Juin 2007
Authors: Weiller Laura
Published: March 2022

RESUME: La conception autonomiste de l'arbitrage international mise en oeuvre par la Cour de cassation française a trouvé un point d'aboutissement avec les arrêts Putrabali rendus du 29 juin 2007. Une justification positive a en effet pour la première fois été apportée au principe d'autonomie de la sentence arbitrale, "décision de justice internationale" dont la reconnaissance et la régularité ont en conséquence vocation à être examinées au regard des règles applicables dans le pays où sa reconnaissance et son exécution sont demandées.

Le traitement de l'inconciliabilité de décisions pouvant résulter de la consécration de cette autonomie de la sentence interna­tionale est assuré par le recours au mécanisme de l'autorité de chose jugée "fonctionnalisé" à cet effet, mais le fondement de la loyauté procédurale pourrait aussi, selon certains, être efficacement utilisé.
Reconhecimento e Execução de Sentenças Arbitrais na América Latina: um Conflito de Convenções
Authors: Freire Paula Serra
Published: March 2022

RESUMO: Existem, na América Latina, inúmeras convenções em vigor portando sobre o reconhecimento e execução de sentenças arbitrais estrangeiras. Como muitas das disposições aí previstas são contraditórias, pode-se afirmar que os conflitos de convenções são uma realidade que merece ser estudada. Preliminarmente, veremos uma breve síntese dos instrumentos internacionais que tratam do tema e que estão atualmente em vigor na região. Em seguida, serão estudadas as possíveis soluções aos conflitos que possam surgir entre eles. Essas soluções podem ser de dois tipos: aquelas previstas na Convenção de Viena de 1969 sobre o Direito dos Tratados e as soluções desenvolvidas pela doutrina internacional.
Droit des Investissements et Ordre Substantiel
Authors: Hamida Walid Ben
Published: March 2022

RESUME: Le droit des investissement connait aujourd'hui un développement spectaculaire. L'avènement de l'arbitrage unilatéral fondé sur les traités d'investissement a véhiculé une jurisprudence nouvelle et originale. L'article examine le problème de la cohérence actuel du droit des investissements. L'auteur identifie deux incohérences. D'une part, l'incohérence interne résultant du fait que les tribunaux arbitraux ont parfois divergé sur l'interprétation d'une même règle. D'autre part, l'incohérence externe qui découle de la difficile cohabitation de ce nouveau droit avec des branches telles que le droit communautaire ou le droit du FMI. L'auteur enfin propose des solutions pour remédier à ces incohérences.
Algumas Considerações sobre o Processo de Revisão e as Novas das Regras de Arbitragem Comercial da UNCITRAL
Authors: Alem Fabio Pedro
Published: March 2022

ASBSTRACT: This article analyzes the main aspects related to the revision process and the new UNCITRAL arbitration rules, specially in connection with (i) curiosities derived from the discussions occurred during the revision process; (ii) the main points that had to be left to further analysis and approval; and (iii) the main aspects involving the new rules.
Os Efeitos Processuais da Inclusão de Cláusula Compromissória nos Estatutos Sociais das Companhias
Authors: Câmara Alexandre Freitas
Published: March 2022

ABSTRACT: This paper analyzes the procedural effects of the arbitration clause in the corporation statutes, trying to determine not only which effects are those, but also who are the people affected by them. The analysis comes from the settlement of the legal nature of the corporation statute and from the way Brazilian Procedural Law settles the arbitration clause.
A Reforma do Direito Francês da Arbitragem, sob a Ótica da Legibilidade e da Eficácia  A Propósito do Decreto de 13 de Janeiro de 2011
Authors: Spinelli Julie , Kleiman Elie
Published: March 2022

RESUMO: O tão esperado decreto reformando o direito da arbitragem acaba de ser publicado. Esse texto, que consagra inúmeras posições jurisprudenciais, visa a dar ao direito da arbitragem francês uma maior legibilidade e a favorecer a flexibilidade e a eficácia processual.