bluuebunny/crossref_metadata_2025_split huggingface dataset:
Beyond Rules and Agreements: Reading the Tea Leaves
Authors: Anuradha R. V. 
Published: March 2022

‘The even, uneven, and complex nature of the ground in the front or on the sides or in the rear should be examined.’ In the rapidly evolving stage of world trade, India needs to redefine its role from one that reacts to events, to one that shapes the same. The challenges to this are many: India is currently facing a spate of disputes at the WTO; its status as a developing country entitled to special and differential treatment is being questioned by a few countries, and; the development agenda for WTO reform on issues ranging from services to agriculture set forth at the Doha Round in 2001, remains unfinished. Since the 11th Ministerial Conference in 2017, the format for negotiations at the WTO has also changed with the mushrooming of ‘joint ministerial grounds’- which are informal groups dedicated to discussions on E-commerce, Investment Facilitation, Domestic Regulation in Services, and micro, small and medium enterprises (MSMEs). India has been sceptical about engaging with such issues, the concern being that when there is unfinished business under the WTO’s Doha Agenda, Members cannot divert attention to new issues without a clear mandate. India needs to develop a clear strategy to address each of these challenges. This article discusses a few options that India could consider in reshaping its vision and role in the world of trade.
Twenty-Five Years of Reasonable Care Under US Customs Law
Authors: Smiszek Michael R. 
Published: March 2022

It is now more than twenty-five years since ‘reasonable care’ became the ubiquitous benchmark of importer conduct under US customs law. This article explores the impact of the reasonable care standard on US importers since its inception in 1993 as part of the ‘Customs Modernization Act’. The statutory and regulatory basis for reasonable care is examined, as is the evolution of the relationship under reasonable care between US Customs and Border Protection (CBP) and importers. The closely related effects of the companion tenets of reasonable care introduced by CBP – ‘shared responsibility’ and ‘informed compliance’ – are also discussed. This article then examines with specificity recent section 592 caselaw from the US Court of International Trade and the Court of Appeals for the Federal Circuit that has clarified the scope and meaning of reasonable care. Also addressed are troubling developments, separate from but closely tied to reasonable care, concerning the expansion of personal liability under section 592 found in the recently promulgated judicial standard regarding the ‘introduction’ of goods into the United States.
Smiszek, Trek Leather, reasonable care, Mod Act, Customs Modernization Act, Section 592, Trade Facilitation and Trade Enforcement Act, first sale valuation, 19 U.S.C. § 1592, 19 C.F.R. § 171
Transfer Mispricing on Intra-group Trading Performed by Multinational Manufacturing in Indonesia: Evidence from Indonesian Tax Court 2015–2019
Authors: Tambunan Maria R.U.D. 
Published: March 2022

Price setting on intra group trading by multinational manufacturing companies, which leads to market value underpricing or overpricing, causes transfer pricing disputes in Indonesia. This is reflected in Indonesian tax court cases. Based on the cases, almost all products manufactured by Indonesian contract manufacturer were sold to affiliates. This article discusses transfer pricing cases on intra group trading by multinational enterprises (MNEs) in Indonesia according to tax court decisions during 2015–2019 fiscal years. The cases covered in the Tax Court Decisions were submitted by taxpayers and include cases that were accepted and rejected by the board of judges. Research shows that common disputes are mainly triggered by determination of fair calculation on Cost of Goods Sold (COGS) items, miscalculation of COGS, different comparable data used to assess the application of the fair market price and mistake in recording the volume of goods traded. This phenomenon requires proper attention from the tax authority.
Intra group trading, international tax, transfer pricing
How the European Commission Implements WTO Rulings and European Courts’ Judgments Annulling Trade Defence Regulations: Identifying Similar Trends
Authors: Borovikov Edward , Tuominen Nicoleta 
Published: March 2022

This article intends to offer an overview of the most recent, as well as historical European Commission (‘Commission’) practice of implementing \WTO Dispute Settlement Body (‘DSB’) rulings and judgments of the European Union Courts of Justice (‘CJEU’) in favour of successful \applicants. The success consisted in the annulment of a Commission (or formerly, Council) Regulation imposing EU anti-dumping and \countervailing measures. This practice evolved over the last years and may still not be completely settled. Based on our in depth review conducted \for this article, we cannot but conclude that the reason is that the European Union’s (‘EU’) trade defence policy has and keeps evolving towards \more protection of its domestic industries. As a result of this development, we have witnessed how EU institutions, including the Courts, have \assisted the Commission in maintaining the imposition and collection of EU Trade Defence Instruments (‘TDI’) measures for as long as possible. \This was condoned despite the complete annulment of the regulations imposing those measures. As conclusion, we share some practical recommendations \and provide options to parties interested in challenging an EU TDI measure before the EU Courts or/and WTO.
WTO Dispute Settlement Body, European Union Court of Justice, European Commission, anti-dumping, countervailing duty/measure, implementing rulings and judgments, applicants favourable implementation, prospective implementation, retroactivity and non-retroactivity, ‘curable’ illegality, reimbursemen
Venezuela v. Council: The Standing of Third Countries Before the EU Courts
Authors: Kuplewatzky Nicolaj 
Published: March 2022

Venezuela v. Council is the first direct action before the Court of Justice of the European Union that will consider whether third countries may act as applicants to challenge acts of the European Union under the fourth paragraph of Article 263 TFEU. Specifically at issue in that case is the determination of ‘legal personality’ and ‘direct concern’. Both matters are threshold conditions for the question of admissibility of a case before the EU Courts. On 20 January 2021, Advocate General Hogan delivered his Opinion on the satisfaction of those conditions. Therein, he finds that Venezuela satisfies both the conditions for ‘legal personality’ and ‘direct effect’. This case note seeks to summarize and reflect on the Advocate General‘s assessment.
Anti-Dumping, Significant Distortions, State Capitalism, European Commission, Constructed Normal Value, Third Country, Input Prices, China, Russia, Trade Defence
Rules of Origin in RCEP Agreement: Advancement and Convergence
Authors: K. Dinh Duy 
Published: March 2022

The paper analyses the rules of origin (RoO) in the Regional Comprehensive Economic Partnership (RCEP), the largest free trade agreement (FTA) between Asia-Pacific nations. Despite some limitations, it is evidenced that origin provisions and product-specific rules in the RCEP manifest many advanced features as compared to the ASEAN Trade in Goods Agreement (ATIGA). Such advanced features narrow the gap between the ASEAN’s FTAsand new generation FTAs in terms of RoO regimes. The RCEP is also expected to become a stepping stone towards the convergence of RoO in the ASEAN’s FTAs.
ASEAN, ATIGA, origin, RCEP, rules of origin, RoO
US Customs Rulings Highlight Importance of Arm’s Length Valuation Requirement
Authors: Fraedrich Laura , Bisbas Andrew 
Published: March 2022

Companies that import merchandise into the United States must exercise reasonable care when determining the dutiable value of the merchandise they are entering, calculating duties owed on the shipment based on that dutiable value and applicable duty rates, and submitting payment for total duties owed to US Customs. In doing so, importers must properly apply the valuation statute and associated guidance to the circumstances of their transaction to minimize tariff liability and avoid penalties for providing inaccurate information to US Customs. In multi-tiered transactions that involve related parties, there are multiple transactions that can potentially serve as a basis for valuation of a given entry. Furthermore, the arm’s length requirement must be satisfied to render transactions between related parties usable for valuation purposes. The two recent US Customs rulings discussed in this article show that in the context of multi-tiered transactions, importers have the opportunity to limit tariff liability on imports of commercial merchandise so long as they properly apply the valuation statute. The discussion underscores the practical importance of satisfying the arm’s length requirement for transactions between related parties and clearly presenting the associated legal reasoning and documentation to US Customs.
Arm’s Length, Valuation, Appraisal, Transaction Value, First Sale, Related Party Transaction, Reasonable Care, Dutiable Value, Duty Liability, Tariff Liability, Transfer Pricing
Bribery and Corruption at the Border: Mexico: An Outstanding Challenge to Be Overcome by the Mexican Government
Authors: Ortiz Turenna Ramirez 
Published: March 2022

Mexico has a challenging dichotomy between trade growth, efficiency at customs and at the same time national security. Corruption and bribery at the ports of entry has been tackled by decades through different Administrations. However, the multiple agencies involved, an extensive legal framework applicable to foreign trade operations, the enforcement criteria against bribery and corruption, as well as the recent militarization of several customhouses, represents some of the various factors that make this target difficult to eradicate.
Through this article, we will begin by examining the National Anticorruption System, its legal framework and regulations, as well as the combination with our customs’ infrastructure and operation, some new policies that links both legal bodies, as well as public cases related to corruption at the border.
One major topic in this Article, refers to the customs militarization initiative in Mexico, the creation of the new National Customs Agency (directly reporting to the Executive Power and replacing the General Customs Administration, the short run consequences that we have experienced so far, the potential risks that this entails, as well as proposals aimed at the implementation of best practices at customs.
Bribery Act 2010, bribery and corruption, corporate offence, commercial organization, failure to prevent, extra-territorial reach, strict liability, Deferred Prosecution Agreement
A Canadian Border Carbon Adjustment? GATT Compliance and Underexplored Exceptions
Authors: Arko Annie 
Published: March 2022

Canada is one of thirty-one countries covered by a national carbon pricing mechanism. Complementary border carbon adjustment (BCA) on imports is the next step for preventing carbon leakage from these thirty-one jurisdictions. Existing commentary assessing the legitimacy of a BCA under the General Agreement on Tariffs and Trade (GATT) focuses on the European Union (EU) and the United States (US) and favours the more conventionally used exceptions for protecting environment and conserving natural resources through Articles XX(b) and (g). This article contributes to the literature by flagging that Article XX(b) may not be the most promising route for Canada and provides a fresh characterization of Article XX(g). This article further breaks with convention and takes the road less trod by considering the strength of Articles XX(a) public morals, (d) compliance with laws and regulations, (f) national treasures, and XXI security exceptions. It is challenging to fit modern solutions to complex problems into the GATT, but the WTO needs to demonstrate its responsiveness to change in order to maintain relevancy and legitimacy. Afterall, there can be no trade on a dead planet.
Border carbon adjustment, WTO, Article XX GATT, Article XXI GATT, Canada, climate change, climate action, carbon pricing
Delivering International Legal Aid in the Twenty-First Century: Twenty Years of Experience at the ACWL
Authors: Roessler Frieder , Meagher Niall 
Published: March 2022

When it began in 2001, the Advisory Centre on WTO Law (ACWL) was an experiment in providing legal aid at the international level. This essay examines the reasons for the success of this experiment by explaining the mandate and structure of the ACWL. It also describes the services provided by the ACWL and discusses how the ACWL has sought to ensure that it provides these services in response to the needs expressed by developing and least-developed countries and in a manner consistent with its mandate. The essay concludes that the ACWL owes its success to the manner in which clarity of its mandate and a governance structure that ensures its impartiality and independence have enabled it to maintain the confidence of its users. The essay notes also that recent developments in international trade have not reduced the demand for the ACWL’s service
Advisory Centre on WTO Law (ACWL), international legal aid, public good, capacity development, legal advice
Litigating WTO Disputes in Spanish or French
Authors: Yanguas Tatiana , Tejeda Marco Tulio Molina 
Published: March 2022

WTO Members may resolve their disputes in any of the WTO official languages: English, Spanish, or French. This article addresses the litigation of WTO disputes in Spanish and French. We provide a general overview of the WTO disputes that have been conducted in these languages and address the strategic considerations that should be made before choosing a language other than English for litigation. We conclude that the final decision on what language is more suitable for litigation will respond to each party’s individual needs, and thus, will inevitably vary from one party to another.
GATT, WTO, dispute settlement, languages, Spanish, French, international litigation
Incorporating the OECD Guidelines in International Investment Agreements: Turning a Soft Law Obligation into Hard Law?
Authors: van der Zee Eva 
Published: March 2022

This article has been written as a response to two recent developments. First, as a response to the recent update of the Organisation for Economic Co-operation and Development (OECD) Guidelines on 25 May 2011, which seem to have taken a form based on human rights due diligence. Second, as a response to the resolution by the European Parliament of 6 April 2011 on the future EU international investment policy in which it asks the Commission to include, in all future agreements, a reference to the updated OECD Guidelines. This article examines how human rights due diligence, as enshrined in the OECD Guidelines, could be incorporated in international investment agreements (IIAs). Therefore, the concept of human rights due diligence as introduced in the UN Guiding Principles and the OECD Guidelines was explored. It includes empirical research as to how multinationals (MNEs) currently incorporate the concept of human rights due diligence in their policies in order to facilitate investors and policymakers with the knowledge necessary to give an adequate response to this concept. It continues by providing several options as to how the OECD Guidelines could be incorporated in investment agreements, including the advantages and disadvantages of these options.
Solving Conflicts with International Investment Treaty Law from an EU Law Perspective: Article 351 TFEU Revisited
Authors: von Papp Konstanze 
Published: March 2022

This article is meant to contribute to the discussion of the relationship between European Union (EU) and international law. It focuses on bilateral investment agreements between EU Member States (intra-EU BITs), the majority of which will continue to have practical relevance. So how should one deal with a scenario in which the compliance with EU law (e.g., state aid law) means that a Member State must breach its obligation under an intra-EU BIT (e.g., by cutting returns on income from an investment protected thereunder)? The article answers this question by critically analysing the protection granted to pre-existing international obligations of the EU Member States under so-called anterior treaties. It criticizes established case law under Article 351 TFEU as having emphasized the wrong issues, and suggests to turn the discussion back to the real questions: precisely when is there a conflict, and how far do a Member State’s duties under Article 351(2)TFEU reach? It is argued that reconsidering Article 351 TFEU will foster doctrinal clarity and flexibility in dealing with the ‘obligations’, and also the ‘rights’ of the EU Member States under anterior treaties. Doctrinal clarity and flexibility will then benefit the relationship between EU and international law more generally.
Of Binding Provisions and Trust Marks; Roadmap to a Global Legal Framework for the Digital Economy
Authors: Kamau Maryanne , Willems Arnoud 
Published: March 2022

The digital economy is dynamic, fast expanding, and truly global. The legal framework that currently applies to the digital economy is either divided, fragmented, ad hoc, out of date, or nonexistent. Some legal initiatives quixotically aim at stopping cross-border data flows, reflecting consumer fears regarding privacy and security or government fears about losing tax revenue. The fragmented regulatory environment does not help companies ‘scale up’ digital technologies; in turn, this hampers innovation and global economic growth. In addition, some less digitally developed actors complain that current rules allow or even foster unfair competition. This article proposes a new and global legal framework for the digital economy: structured cooperation between states and companies under the administration of an autonomous body. States may resist giving up sovereignty, and citizens may fear erosion of their legal rights. However, uniform, consistent, and enforceable rules would benefit both states and citizens. Tax revenue could be fairly assessed and distributed, for example, and citizens and businesses would no longer face divergent privacy and security rules. Regulation would become more legitimate because both public and private stakeholders would participate in rulemaking, including smaller players and digital latecomers. Companies that subscribe to the framework would receive a global ‘trust mark’ that would boost consumer confidence. In sum, a global legal framework, as contemplated, would match the global character of activities in the digital economy
The Reform of the European Stability Mechanism: Process, Substance, and the Pandemic
Authors: Markakis Menelaos 
Published: March 2022

The European Stability Mechanism (ESM) has been instrumental in safeguarding the financial stability of the Euro area and of its Member States. This article looks at the tumultuous process of reforming the ESM. It analyses the main changes that would be brought about by the draft revised ESM Treaty, whose text was agreed upon in June 2019 and finalized in December 2020. These concern the ESM’s purposes and operations; the procedure for granting stability support to a Euro area Member State; precautionary financial assistance instruments; single-limb collective action clauses; and the common backstop to the Single Resolution Fund. The focus then shifts to the changes agreed upon in response to the COVID-19 crisis. A new credit line has been introduced, the Pandemic Crisis Support, which builds on an existing instrument. It is argued that the reforms posited in the draft revised ESM Treaty would plug important gaps in the framework of the Economic and Monetary Union. Nevertheless, some of the ESM’s underlying vulnerabilities would remain, notably as regards its governance, the status of non-Euro area Member States, and the framework for its transparency and accountability. A more comprehensive reform could have taken place, which would have improved upon the overall structure of the Euro area.
European Stability Mechanism, ESM Treaty, ESM reform, Pandemic Crisis Support, European Monetary Fund, economic governance, accountability
Burden and standard of proof in international arbitration: proposed guidelines for promoting predictability
Authors: Carreteiro Mateus Aimoré 
Published: March 2022

RESUMO: Ônus e medida da prova são dois importantes assuntos que não têm recebido a devida atenção no contexto de arbitragens internacionais. Este artigo sustenta que ônus e medida da prova são institutos probatórios – cada qual com sua própria função – disponíveis aos julgadores no processo de decisão. Árbitros não estão, em princípio, vinculados a aplicar regras probatórias da mesma forma aplicada pelas cortes nacionais. No entanto, quando ônus e medida da prova são regulados de forma específica pelas partes ou pela lei aplicável, os árbitros devem respeitar tais normais. Ao final, este artigo fornece algumas diretrizes sobre o tratamento dos assuntos e sugere como os regulamentos arbitrais podem desenvolvê-los. ABSTRACT: Burden and standard of proof are two important issues that have not received enough attention in the context of international arbitration. This paper argues that burden and standard of proof are evidentiary mechanisms – each one with its own function – available to adjudicators in the decision-making process. Arbitrators are not in principle bound to apply these evidentiary rules as applied by national courts. But when burden and standard of proof are clearly regulated in a specific way by the parties or by the applicable law, arbitrators must observe such specific rules. Eventually this paper provides some guidelines to address these issues and to furnish future developments of arbitration rules.
An Answer to Criticisms Against the Lack of Efficiency in Arbitration: Measures to Reduce Time and Costs
Authors: da Silva João Marçal Rodrigues Martins 
Published: March 2022

RESUMO: Custo, tempo e eficiência são tidos atualmente como as principais preocupações em relação ao procedimento arbitral. Nesse passo, é importante reconhecer as críticas e tomar medidas efetivas e razoáveis para resolver os problemas existentes. Para tanto, soluções são apresentadas e divididas pelos seguintes tópicos: disponibilidade dos árbitros, responsabilidade (accountability) dos honorários, e longa produção de provas; considerando quem deve promovê-las – câmaras arbitrais, árbitros ou advogados. O objetivo deste artigo, portanto, é ajudar a desenvolver a arbitragem e propiciar que seus usuários tirem proveito de suas vantagens. Caso contrário, ignorar as críticas permitirá que a ampla aceitação da arbitragem fique em risco. ABSTRACT: Cost, time and efficiency are perceived as the major concerns of the arbitration procedure to date. As such, it is important to face up to the critiques and take effective and reasonable steps to fix the existing problems. To this extent, solutions are presented and divided by the following topics: availability of arbitrators, fees accountability, and lengthy production of evidence; considering who should promote them – arbitral chambers, arbitrators or lawyers. The goal of this paper, therefore, is to help improve arbitration and enable its users to enjoy its advantages. Otherwise, turning a blind eye to the critiques may place the established acceptability of arbitration at stake.