bluuebunny/crossref_metadata_2025_split huggingface dataset:
Successfully Articulating National Constitutional Identity Claims: Strait Is the Gate and Narrow Is the Way
Authors: Millet François-Xavier 
Published: April 2022

Article 4(2) Treaty of the European Union (TEU) has not played any autonomous role up to now. Cases involving that provision have not been handled differently by the Court than cases involving derogations to free movement. In this article, after an analysis of the existingcase law on Article 4(2) TEU, I make the case for a bolder and exceptional use of Article 4(2) TEU where genuine national constitutional identity claims (NCI claims) directly clash with provisions of EU law. I provide a normative framework of analysis to identify genuine NCI claims and determine how the Court should address them. ‘Strait is the gate and narrow is the way’ is certainly a relevant metaphor to capture the possibility for genuine NCI claims to be successful. In view of its own mission and constraints, the Court is only to accept well motivated, narrow claims that are strictly based on crucial and distinctive features of national law that are embedded in the national Constitution and do not run against the own constitutional identity of the Union.
Member State constitutional identity, Article 4(2) TEU, Extraordinary function, Constitutional conflicts, Instructions for use, Constitutional courts, Court of Justice, Balancing between national identity and fundamental rights, European Union constitutional identity, National and European constitutionalism
Part 1 – Stereotyped Assumptions versus Sex Equality: A socio-legal analysis of Equality Laws in the European Union
Authors: Cnossen Christine 
Published: April 2022

This article seeks to evaluate the legal developments of the European Community in its attempts to eliminate sex discrimination and inequalities in treatment between men and women and to analyse, from a socio-legal perspective possible inefficiencies of the Community’s primary and secondary legislation on the issue. In the light of the Intergovernmental Conference and the European Community’s aspirations to become a fullfledged federal state, the social dimension of European Integration acquires relativeimportance from a legal, political as well as economic perspective.
In a second follow-up article the authors will attempt to provide a comparative analysis of the evolution of equality law and policy and the social parameters in labour relations between men and women that exist in two alrerady established federal states, the United States of America and Canada.
Why Do We Care? The Shifting Concept of Care in New Zealand and in the United Kingdom
Authors: Masselot Annick , Russell Roseanne 
Published: April 2022

In recent years, there has been increased activity on the part of legislators and policy-makers as they attempt to reconcile paid work and unpaid care. This article explores the different approaches adopted by two common law jurisdictions: New Zealand and the United Kingdom. These case studies attempt to take a more expansive approach to the concept of care by purportedly disentangling the act of caring from traditional conceptions of motherhood. In the UK, this has been done by permitting mothers to transfer entitlement to caring leave to fathers but is underpinned by implicit assumptions that the primary responsibility for care will remain with the mother. In New Zealand, there has been a departure from historic reliance on gender identities to take a more gender-neutral approach by providing caring leave to whoever is a primary carer for a child regardless of biological connection. One unintended consequence of this has been that biological mothers have been left with the barest post-natal health and safety protection. These case studies reveal how difficult it is for legislators and policy-makers to devise care-giving protections that are not in some way tainted by the legacy of traditional care/home/women and work/market/men dichotomies and demonstrate the need for new models based on ungendered assumptions of universal care.
Care, Parental Leave, Maternity Leave, Family.
Implementation of the H&M Global Framework Agreement in Cambodia: Producing Outcomes for Industrial Democracy Despite a Challenging Context?
Authors: Norpoth Johannes , Kaltenborn Markus , Neset Carina 
Published: April 2022

Global Framework Agreements (GFAs) are expected to be a more effective instrument for safeguarding collective labour rights in global supply chains than the unilateral instruments of private regulation adopted previously. The direct involvement of global union federations as contractual partners has significant potential in this regard. However, the effects of GFAs in supply chains have so far been under-researched. Since the exercise of collective labour rights is often prevented or undermined in producer countries of the Global South, and global supply chains are characterized by unstable and volatile relationships between global brands and local suppliers, the effective local implementation of GFAs faces particular challenges. Against this background, this article provides a qualitative analysis of expert interviews to examine how the implementation of the GFA of the global fashion brand H&amp;M in Cambodia has influenced power relations between key stakeholders in the Cambodian garment industry and to what extent the agreement contributes to promoting ‘industrial democracy’ in the H&amp;M supply chain in Cambodia.
Platform Work, Temporary Agency Work, Temporary Agency Work Directive, Atypical Employment
Dismantling the Trojan Horse in Singapore: A Critical Evaluation of the Implied Term of Mutual Trust and Confidence
Authors: Tan Kah-Wai 
Published: April 2022

In the law of employment contracts, an implied term in law that has held sway over various Commonwealth jurisdictions is the implied term of mutual trust and confidence. The term gives rise to hidden but major implications for employment relations around the world. Yet few seemed to question its utility and foundational basis until the High Court of Australia’s unanimous rejection of the term in Commonwealth Bank of Australia v. Barker. In Singapore, it is also often assumed that the implied term is accepted law even though the legal position actually remains wide open. This article seeks to critically examine the genesis of the term and its operation in Singapore. It also argues that despite the Singapore High Court’s repeated endorsement of this term, there are compelling reasons in both policy and principle as to why such a term should be rejected in Singapore.
Employment Law, Implied Terms, Mutual Trust and Confidence, Contract Law, Singapore
The WTO and the Political Economy of Globalization
Authors: Hart Michael 
Published: April 2022

“Today we have the opportunity to complete the construction of a universal trading system, bringing together industrial, developing and transition economies within the same agreed and enforceable international rules and disciplines. Seizing this opportunity will be a vital contribution not only to increasing global prosperity, but also to enhancing stability and peace.”
WTO, International Trade Trends and Statistics, 1995
“By signing the Uruguay Round of GATT, governments have further accelerated global economic growth and development by removing all constraints on trade, regardless of social, ecological, and moral implications. Instead of accepting the incontrovertible empirical evidence that economic globalization can only increase the problems we face today, governments, under pressure from the TNCs, insist in pursuing it still further.”
Edward Goldsmith, The Case Against the Global Economy, 1995
Linking International Trade and Labour Standards: The Effectiveness of Sanctions under the European Union’s GSP
Authors: Cuyvers Ludo , Zhou Weifeng 
Published: April 2022

Linking international trade and labour standards is one of the ways to make countries comply with their international obligations to respect core labour standards. Under the European Union’s Generalized System of Preferences (EU’s GSP), trade preferences of Myanmar in 1997 and Belarus in 2006 were withdrawn for the use of forced labour and for violations of the freedom of association. This paper highlights the EU’s GSP scheme and idea of linking EU trade policy to core labour standards. Based on two case studies, we investigate the trade effects of the EU sanctions on the target country and analyse the effectiveness of the EU’s GSP sanctions. We find that using the EU’s GSP regime to sanction countries which violate the core labour standards has very limited effectiveness. However, sanctions can be an effective way to demonstrate the political commitment to a particular set of values and norms such as core labour standards. Sanctions may also deter other countries from committing violations.
If Europe must have a stronger social dimension, so should its trade policy.
– Former EU Trade Commissioner Peter Mandelson
Could Least Developed Countries (LDCs) and Other Developing Countries Which Have Not Been Able to Establish Legal Framework for the Application of Trade Remedy Measures Make a Beginning by Establishin
Authors: Kisiri Marwa , Manyara Elijah , Baafi Nyame , Bizimuremyi Edward 
Published: April 2022

The rule based multilateral trading system created by World Trade Organization (WTO) recognizes that in pursuing liberal and open trade policies, countries may have to use trade remedy measures such as anti-dumping countervailing or safeguard measures in cases where their domestic agricultural producers or manufacturing industries are hurt or injured by imports. However, such trade remedy measures can be applied only after investigations undertaken in accordance with the detailed rules laid down by the Agreements on Anti-dumping Practices (ADP), Subsidies and Countervailing Measures and on Safeguards, it is established that increased imports are causing injury to the domestic agricultural producers or industry. As a result, over sixty developing countries, most of which are least developed or countries at lower stages of development, which have not been able to establish such framework because of financial and other constraints are not able to make effective use of the rights which these Agreements provide. The paper suggests that in the situation, the least developed and other developing countries which have not been able to establish legal and institutional framework for applying all of the three trade remedy measures, should be permitted to apply only safeguard measures, which from the administrative point of view would require only modest staff, by adopting an Understanding. It is also in this context important to note that after the conclusion of the Doha Round, all developing countries would be able to apply to agricultural products, special safeguard measures if the price of imports falls below specified price trigger or their volume exceeds specified trigger, irrespective of whether the imported goods which are causing injury are being dumped or being subsidized. The need to apply safeguard measures in accordance with the provision of the Understanding clarifying the rules of the Safeguard Agreement would arise only in a few cases of manufactured products where domestic industries complain that the increased imports are causing serious injury to them.
Ex officio Claimant: A Challenging Proposal for Reforming the WTO
Authors: Zdravkovic Uros 
Published: April 2022

The members of the World Trade Organization (WTO) are still very reserved in pursuing cases and rather willing to seek traditional negotiating methods for settling their disputes. Decisions to engage in litigations are subject to numerous non-legal determinants. Moreover, many developing and least-developed WTO members face the problem of accessibility of the system provided by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). Those states have been standing aside the DSU arena with no opportunity to enjoy the benefits of legal protection. Finally, affected private companies cannot access the DSU system, nor participate in procedures as third parties. Those entities always need to exert pressure on their governments to bring a claim and to obtain financial support for litigations. All those circumstances in the pre-litigation stage prevent effective delivery and distribution of justice in the WTO community. Therefore, the author proposes a reform of the DSU system by means of establishing a new central institution in the WTO – the ‘Independent Surveillance Body’ (ISB). This expert body would act as an institutional ex officio claimant empowered to survey the implementation of the WTO norms and to initiate procedures against members that violate the WTO law.
World Trade Organization, Dispute Settlement System, Ex-officio Claimant, Pre-litigation, Distributive Justice.
A Harmonized Interpretation of Freedom of Transit in the Fragmented International Legal System: Applying Article 31(3)(c) of the Vienna Convention on the Law of Treaties to the Russia – Traffic in Transit Dispute
Authors: Wu Hao 
Published: April 2022

The article applies Article 31(3)(c) of the Vienna Convention on the Law of Treaties to examining the relevance of accords that bear on freedom of transit. Taking the WTO dispute of Russia – Traffic In Transit as an example, the article experiments with a harmonized interpretation, in quest of consistent meanings, of norms on freedom of transit in the fragmented international legal system.
freedom of transit, fragmentation of international law, harmonized interpretation of norms, Russia, Ukraine, WTO dispute, Vienna Convention on the Law of Treaties (VCLT), landlocked developing countries (LLDCs)
WTO Dispute Settlement and Rule-Making: One Crisis or Two?
Authors: Mcdonald Brad 
Published: April 2022

The World Trade Organization (WTO) Agreements can be thought of as an incomplete contract that needs to be completed either through renegotiation, the judiciary, or non-judicial interpretation. It provides for all three, but only the judicial route has functioned regularly. With that route now (also) in crisis, there is doubt whether the contract itself can continue to deliver the relative stability and openness in trade policy that has underpinned exceptional global economic performance post World War II. The paper asks whether the multiple crises in the WTO might stem from a common cause of institutional design or culture. New challenges such as climate change and the interface of technology and security may brutally expose further implications of this weakness. The paper concludes with thoughts on a way out.
Dispute settlement, General Agreement on Tariffs and Trade (GATT), International Monetary Fund (IMF), International trade, World Trade Organization (WTO), WTO reform
Public Morality Exception at the WTO: Much Ado About Nothing?
Authors: Plouffe-Malette Kristine 
Published: April 2022

Public morality is one of the stated objectives for which WTO Members may seek to justify a measure that impedes trade. The value of considering this single objective is twofold. First, while all six trade disputes relating to the public morality exception have passed the public morality test, no measure has passed both the necessity test and the test in the chapeau paragraph. Second, it is questionable whether it is possible for a panel or the Appelate Body (AB) to recognize a measure as being of public morality. Moreover, if the EC – Seal Products dispute is the focus of the morality exception, it is important to look more closely at subsequent interpretations by panels and the AB, as nothing is less certain about the interpretation of this exception. Two trilogies emerge, firstly the US – Gambling, China – Publications and Audiovisual Products and the EC – Seal Products, and then Colombia – Textiles, Indonesia – Import Licensing and Brazil – Taxation, with the Canada-European dispute as the tipping point. This article is constructed in three parts that draw on the lessons learned from these two trilogies to highlight what remains of the public morality exception at the WTO.
public morality exception, WTO law, US – Gambling, China – Publications and Audiovisual Products, EC – Seal Products, Colombia – Textiles, Indonesia – Import Licensing, Brazil – Taxation
Untapping the Full Development Potential of Trade Along Global Supply Chains: ‘GVCs for LDCs’ Proposal
Authors: Cernat Lucian , Antimiani Alessandro 
Published: April 2022

There is clear evidence that existing preferential schemes contributed significantly to boosting least-developed country (LDC) exports (Klasen et al., 2016). Many seem to believe the multilateral trading system could offer little to LDCs as they have already obtained market access to critical markets under the current preferential schemes. Despite the LDCs’ reluctance to positively engage in recent WTO discussions, there is room for the global trading system and new multilateral initiatives to promote the participation of LDCs in global value chains (GVCs). Given that LDC exports are often further processed and ‘travel’ down the GVCs as part of third-country exports still facing tariffs, one could envisage a global preferential scheme based on LDC value-added, i.e., products originating in any WTO members should receive an ‘LDC preferential treatment’ proportionate to the value of LDC’s inputs content embodied in their exports, whenever exported to any other WTO member. We conceptualize this new ‘GVCs for LDCs’ proposal and estimate its economic potential using a dynamic Computable General Equilibrium (CGE) modelling framework. If LDC preferential market access is changed from the simple ‘direct export’ approach (e.g., the Generalised Scheme of Preferences (GSP)-like schemes currently in operation) to a GVC approach, LDC exports would receive a considerable boost (a 2.5% annual increase worth over USD 10 billion per year) and increased market premium for their products.
WTO, World Trade Organisation, CGE modelling, GTAP, development, Least Developed Countries, LDCs, global value chains, GVC, Generalized System of Preferences, GSP
Analysis of the Principles Applicable to the Review of Exclusive Broadcasting Licences Under EC Competition Law
Authors: Graf Thomas , Subiotto Romano 
Published: April 2022

This article discusses the Commission's review of exclusive broadcasting licences under EC competition law. It concludes that the Commission's practice suffers from a number of inconsistencies both as concerns market definition and substantive analysis. The authors submit that exclusive licensing is a legitimate and recognised practice for the commercial exploitation of broadcasting rights. There should therefore be a presumption in favour of the validity of such licences. Market definition and substantive analysis should be consistent with the competitive issue under examination. If the competitive issue is foreclosure, then competition authorities need to acknowledge the existence of alternative content that serves the needs of competing broadcasters equally well, regardless of the existence of dedicated viewer groups. A particular content's share of the relevant content market should serve primarily as a filter to eliminate licences involving low market shares from further scrutiny. Such licences a priori cannot raise competition issues, irrespective of their duration or scope. High market shares, on the other hand, do not automatically translate into an appreciable restriction of competition. Even in the case of high market shares, right-holders retain the right to grant licences on an exclusive basis. However, in such cases the duration and scope of the licence may need to be assessed in more detail, taking into account the full economic and legal context of the licence. An obligation for right-holders to license their content or to grant licences on a non-exclusive basis can only be contemplated in exceptional cases. Refusal to license, as such, even by a dominant undertaking cannot warrant such an obligation. The assessment of licences for new media rights should follow the same principles as the assessment of licences for traditional broadcasting rights. EC competition law should not be used as an instrument to make media policy. Competition law is platform neutral and does not provide a legal basis to favour or promote certain media platforms over other platforms. Indeed, using competition law as a media policy instrument would distort free competition and create serious legal uncertainties.
A New Era of ECN Cooperation–Achievements and Challenges with Special Focus on Work in the Leniency Field
Authors: Jaspers Maria , Dekeyser Kris 
Published: April 2022

The article gives an overview of the cooperation between antitrust enforcers in the European Competition
Network (ECN) three years after it coming into existence. It recalls the main principles behind this unique
cooperation form and gives an insight into its working methods, achievements and challenges. The authors,
working within the dedicated ECN unit in DG Competition, explain how the work-sharing and
information exchanges between the enforcers have resulted in an enhanced, strategic and coherent
application of Community competition rules throughout Europe. Focus is given to ECN’s increasing role
in influencing policy reflections beyond the legal obligations in Regulation 1/2003. This new era of ECN
cooperation is illustrated by work undertaken in the leniency field. The authors give a detailed account of
the ECN Model Leniency programme, unanimously endorsed by all ECN members in September 2006
as a solution for the multiple parallel leniency filing issue in Europe. The authors explain the background
and the status of this ground-breaking project and reveal the reflections behind its individual provisions.
Frequent Flyer Programmes under Article 82 EC—Is the Sky the Only Limit?
Authors: Emch Adrian 
Published: April 2022

Frequent flyer programmes (FFPs) are ubiquitous marketing tools used by airlines all over the world. Many airline passengers are members of FFPs, and most of them probably perceive FFPs as something positive.
This article examines the status of FFPs under EU competition law. More precisely, the article analyses the FFPs of dominant airlines under the law on loyalty rebates in implementation of Article 82 of the EC Treaty. Five particular characteristics of FFPs are closely scrutinized: the duration of the reference period, the retrospective nature, the multiplicity of reward levels, their character as bundled rebates and the particular efficiencies which FFPs can create.
The conclusion of this analysis is that the FFPs’ characteristics may conflict with the current law, to various degrees. Based on this finding, the article advances a number of propositions on how the law on rebates could be improved.
Finally, the article goes beyond the law on rebates, and examines the effects on competition of a particular feature of FFPs—the so-called principal-agent relationship.