This paper seeks to shed some light on the meaning and scope of the National Treatment Obligation ‘like circumstances’ concept under the NAFTA jurisprudence. It acknowledges without argument that the term ‘like circumstances’ admits to a variety of interpretations in literal terms, but argues by jurisprudential analysis that some factors ought to be taken into considerations in determining whether two investors or investments are in ‘like circumstance’ in the NAFTA context. One has to consider whether there is a competitive relationship between the foreign investor and its chosen domestic comparator; whether the two investments or investors are bound by the same legal regimes given the peculiarity of their business objectives, including but not limited to their product or service line; and the legitimacy of the measure in issue to determine when two investments are in like circumstances. This analysis should begin with the presence of a competitive relationship between the foreign investment and its domestic comparator. Only then would a further inquiry be made as to the legitimacy of the measure in issue. This is achieved by considering the connection between the measure in issue and an existing State regulation which is not being challenged by the foreign investor. To develop the thesis of this research, this paper is divided into three parts. Part I contains a brief introduction on the nature of national treatment, and then proceeds to highlight the centrality of ‘like circumstances’ in a breach of national treatment claim. Part II analyzes NAFTA case law on like circumstances, with a view to elaborating the various tests adopted by tribunals in deciding whether a foreign investor is in like circumstances with its identified domestic comparators. My analysis of the essential factors to be taken into consideration in the evaluation of ‘like circumstances’ is also contained in Part II. The final part includes the author’s conclusion and recommendations.
{"title":"Legal Analysis of the Scope of ‘Like Circumstances’ Concept under NAFTA National Treatment of Investments Obligation","authors":"N. Anozie","doi":"10.2139/ssrn.2996863","DOIUrl":"https://doi.org/10.2139/ssrn.2996863","url":null,"abstract":"This paper seeks to shed some light on the meaning and scope of the National Treatment Obligation ‘like circumstances’ concept under the NAFTA jurisprudence. It acknowledges without argument that the term ‘like circumstances’ admits to a variety of interpretations in literal terms, but argues by jurisprudential analysis that some factors ought to be taken into considerations in determining whether two investors or investments are in ‘like circumstance’ in the NAFTA context. One has to consider whether there is a competitive relationship between the foreign investor and its chosen domestic comparator; whether the two investments or investors are bound by the same legal regimes given the peculiarity of their business objectives, including but not limited to their product or service line; and the legitimacy of the measure in issue to determine when two investments are in like circumstances. This analysis should begin with the presence of a competitive relationship between the foreign investment and its domestic comparator. Only then would a further inquiry be made as to the legitimacy of the measure in issue. This is achieved by considering the connection between the measure in issue and an existing State regulation which is not being challenged by the foreign investor. To develop the thesis of this research, this paper is divided into three parts. Part I contains a brief introduction on the nature of national treatment, and then proceeds to highlight the centrality of ‘like circumstances’ in a breach of national treatment claim. Part II analyzes NAFTA case law on like circumstances, with a view to elaborating the various tests adopted by tribunals in deciding whether a foreign investor is in like circumstances with its identified domestic comparators. My analysis of the essential factors to be taken into consideration in the evaluation of ‘like circumstances’ is also contained in Part II. The final part includes the author’s conclusion and recommendations.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126774853","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2017-06-01DOI: 10.4337/9781783474493.00010
F. Bohnenberger, C. Joerges
This paper discusses the fundamental tensions between economic globalisation and democratic politics in the field of international trade. New bilateral and regional trade agreements increasingly incorporate other “trade-related” policy areas and threaten to constrain state action and democratic politics. The move towards deeper and more comprehensive trade deals has greatly accentuated grievances and is of exemplary importance in the realms of transnational governance. This article examines the decoupling of these agreements from national and democratic control and the resulting legitimacy impasses of transnational governance based upon the theoretical frameworks of Karl Polanyi and Dani Rodrik. Arguing that politics is not a mistake that gets in the way of markets, we submit our own conceptualisation of transnational legitimacy. In doing so, we suggest a new type of conflicts law which does not seek to overcome socio-economic and political diversity by some substantive transnational regime, but responds to diversity with procedural safeguards, thus ensuring space for co-operative problem-solving and the search for fair compromises.
{"title":"A Conflicts-Law Response to the Precarious Legitimacy of Transnational Trade Governance","authors":"F. Bohnenberger, C. Joerges","doi":"10.4337/9781783474493.00010","DOIUrl":"https://doi.org/10.4337/9781783474493.00010","url":null,"abstract":"This paper discusses the fundamental tensions between economic globalisation and democratic politics in the field of international trade. New bilateral and regional trade agreements increasingly incorporate other “trade-related” policy areas and threaten to constrain state action and democratic politics. The move towards deeper and more comprehensive trade deals has greatly accentuated grievances and is of exemplary importance in the realms of transnational governance. This article examines the decoupling of these agreements from national and democratic control and the resulting legitimacy impasses of transnational governance based upon the theoretical frameworks of Karl Polanyi and Dani Rodrik. Arguing that politics is not a mistake that gets in the way of markets, we submit our own conceptualisation of transnational legitimacy. In doing so, we suggest a new type of conflicts law which does not seek to overcome socio-economic and political diversity by some substantive transnational regime, but responds to diversity with procedural safeguards, thus ensuring space for co-operative problem-solving and the search for fair compromises.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133539118","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The people have spoken and Brexit appears unstoppable. But, we are still faced with an intractable problem: can political sovereignty ever be reconciled with global trade? This paper investigates the impetus for Brexit with an eye to the underlying problem of economic self-determination. It asks the simple question of whether political control can be established within a global economy and hints at the costs of failing to do so.
{"title":"Ordo-Liberal Scape from Societas Economicus: Re-Establishing the Normative","authors":"Michelle Everson","doi":"10.2139/SSRN.2907715","DOIUrl":"https://doi.org/10.2139/SSRN.2907715","url":null,"abstract":"The people have spoken and Brexit appears unstoppable. But, we are still faced with an intractable problem: can political sovereignty ever be reconciled with global trade? This paper investigates the impetus for Brexit with an eye to the underlying problem of economic self-determination. It asks the simple question of whether political control can be established within a global economy and hints at the costs of failing to do so.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"5 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123137836","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The depth and breadth of this mega-regional agreement as well as the diversity of its twelve Parties pose a challenge to not only trade policies in the conventional sense but also many other cross-cutting issues. With the innovative institutional designs of the TPP, food safety governance is destined to be configured and reconfigured not only by the SPS Chapter alone, but also by other horizontal rules. For example, while harmonization with international standards, scientific principle, risk analysis, and transparency still serve as the fundamental rubrics of SPS (and SPS-Plus) cooperation among TPP members, cross-cutting regulatory coherence rules — such as notice-and-comment requirement, cost-benefit analysis, and regulatory impact assessment — will come into play with significant relevance and importance. What are the SPS-Plus rights and obligations in the TPP? Will such SPS-Plus provisions pose pro-trade or pro-health ramifications to countries within and beyond the scope of the TPP? How will the rules under the SPS Chapter and the Regulatory Coherence Chapter interact and work together for an optimal institutional design that can strengthen trade liberalization and ensure adequate food safety protection at the same time? What will the diversity of the TPP Parties in terms of legal systems and stages of development bear on the implementation of relevant rules? Last but not least, will the TPP platform for SPS cooperation produce constructive or destructive effects on the WTO multilateral trading system? For their theoretical and practical importance, this paper endeavors to explore questions as such by taking a close look at the TPP Chapters on SPS Measures (and Regulatory Coherence). Part II briefly reviews the negotiation history of the SPS Chapter, sorting out the development of some contentious issues, which then serves as a vintage point to analyze the main provisions of the final text. Part III identifies the SPS-Plus provisions incorporated in the TPP by referencing to the WTO SPS Agreement, and characterizes them along the pro-trade versus pro-health continuum. It moves on to examine the implications of the TPP for global food safety governance, offering some preliminary observations for future discussions in comparable settings. Part IV concludes.
{"title":"Implications of the Trans-Pacific Partnership for Food Safety Governance","authors":"Ching-Fu Lin","doi":"10.2139/SSRN.2872708","DOIUrl":"https://doi.org/10.2139/SSRN.2872708","url":null,"abstract":"The depth and breadth of this mega-regional agreement as well as the diversity of its twelve Parties pose a challenge to not only trade policies in the conventional sense but also many other cross-cutting issues. With the innovative institutional designs of the TPP, food safety governance is destined to be configured and reconfigured not only by the SPS Chapter alone, but also by other horizontal rules. For example, while harmonization with international standards, scientific principle, risk analysis, and transparency still serve as the fundamental rubrics of SPS (and SPS-Plus) cooperation among TPP members, cross-cutting regulatory coherence rules — such as notice-and-comment requirement, cost-benefit analysis, and regulatory impact assessment — will come into play with significant relevance and importance. What are the SPS-Plus rights and obligations in the TPP? Will such SPS-Plus provisions pose pro-trade or pro-health ramifications to countries within and beyond the scope of the TPP? How will the rules under the SPS Chapter and the Regulatory Coherence Chapter interact and work together for an optimal institutional design that can strengthen trade liberalization and ensure adequate food safety protection at the same time? What will the diversity of the TPP Parties in terms of legal systems and stages of development bear on the implementation of relevant rules? Last but not least, will the TPP platform for SPS cooperation produce constructive or destructive effects on the WTO multilateral trading system? \u0000For their theoretical and practical importance, this paper endeavors to explore questions as such by taking a close look at the TPP Chapters on SPS Measures (and Regulatory Coherence). Part II briefly reviews the negotiation history of the SPS Chapter, sorting out the development of some contentious issues, which then serves as a vintage point to analyze the main provisions of the final text. Part III identifies the SPS-Plus provisions incorporated in the TPP by referencing to the WTO SPS Agreement, and characterizes them along the pro-trade versus pro-health continuum. It moves on to examine the implications of the TPP for global food safety governance, offering some preliminary observations for future discussions in comparable settings. Part IV concludes.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"120 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-11-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128031521","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
One of the basic rules in trade law is the freedom of trade. However, such rule encounters some limitations when the object of trade is constituted by strategic items, such as dual-use items, which may have peaceful (civilian/commercial) or non peaceful/military applications. Trade of these categories of goods needs to be controlled, as they can provoke security concerns. Such control is pursued through control lists, licenses, authorizations to stakeholders of the supply chain, information-sharing and cooperation mechanisms, reports, records, declarations, screenings and sanctions as well. The paper aims at focusing on the issue of sanctions, in particular the ones established at the international level: these measures are provided for the violation of trade rules in reference to dual-use items, and/or sanctions have as an object this type of goods. The legal provisions established by the World Trade Organization (WTO) and at the United Nations level are analysed thereafter. Brief observations are offered as regards the EU framework of restrictive measures too.
{"title":"Trade Sanctions and Dual-Use Technologies","authors":"I. Colussi","doi":"10.2139/ssrn.2903662","DOIUrl":"https://doi.org/10.2139/ssrn.2903662","url":null,"abstract":"One of the basic rules in trade law is the freedom of trade. However, such rule encounters some limitations when the object of trade is constituted by strategic items, such as dual-use items, which may have peaceful (civilian/commercial) or non peaceful/military applications. Trade of these categories of goods needs to be controlled, as they can provoke security concerns. Such control is pursued through control lists, licenses, authorizations to stakeholders of the supply chain, information-sharing and cooperation mechanisms, reports, records, declarations, screenings and sanctions as well. The paper aims at focusing on the issue of sanctions, in particular the ones established at the international level: these measures are provided for the violation of trade rules in reference to dual-use items, and/or sanctions have as an object this type of goods. The legal provisions established by the World Trade Organization (WTO) and at the United Nations level are analysed thereafter. Brief observations are offered as regards the EU framework of restrictive measures too.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"43 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134261870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Governments impose prudential regulations to ensure the stability of the financial sector and protect depositors and investors. However, these regulations may also restrict trade in financial services. The Annex on Financial Services of the World Trade Organization (WTO)’s General Agreement on Trade in Services (GATS) contains an exception allowing countries to take measures for ‘prudential reasons’ to protect the ‘integrity and stability of the financial system’ or to ‘protect investors, depositors, policy holders or persons to whom a fiduciary duty is owed by financial service suppliers’. Corresponding provisions appear in numerous other trade and investment agreements. The WTO has now issued its first ruling on the prudential exception in Argentina – Financial Services. The ruling of the Panel recognizes the policy space necessary for countries to determine their own prudential reasons for taking measures. As disputes regarding prudential exceptions are likely to increase in the coming years, two key challenges remain in applying such exceptions: adopting an integrated international approach to prudential regulation, given the diverse views held amongst countries; and identifying effective measures in preventing risks to the financial sector.
{"title":"Dear Prudence: Allowances Under International Trade and Investment Law for Prudential Regulation in the Financial Services Sector","authors":"A. Mitchell, Jennifer K. Hawkins, N. Mishra","doi":"10.1093/JIEL/JGW069","DOIUrl":"https://doi.org/10.1093/JIEL/JGW069","url":null,"abstract":"Governments impose prudential regulations to ensure the stability of the financial sector and protect depositors and investors. However, these regulations may also restrict trade in financial services. The Annex on Financial Services of the World Trade Organization (WTO)’s General Agreement on Trade in Services (GATS) contains an exception allowing countries to take measures for ‘prudential reasons’ to protect the ‘integrity and stability of the financial system’ or to ‘protect investors, depositors, policy holders or persons to whom a fiduciary duty is owed by financial service suppliers’. Corresponding provisions appear in numerous other trade and investment agreements. The WTO has now issued its first ruling on the prudential exception in Argentina – Financial Services. The ruling of the Panel recognizes the policy space necessary for countries to determine their own prudential reasons for taking measures. As disputes regarding prudential exceptions are likely to increase in the coming years, two key challenges remain in applying such exceptions: adopting an integrated international approach to prudential regulation, given the diverse views held amongst countries; and identifying effective measures in preventing risks to the financial sector.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-10-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121800592","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is well established in theory that trade liberalization impacts on productivity through the reallocation of market share to more productive firms. Since more productive firms tend to pay higher wages, the market reallocation effect also increases average wages. In addition to these intra-sectoral effects, changes in the composition of output at the economy-wide level result in reallocation of factors of production to higher-productivity sectors. At the same time, the positive demand shock from trade liberalization typically generates increased returns to factors, and thus results in higher real wages for labour. For these various reasons, we anticipate a positive relationship between changes in productivity and changes in real wages in response to trade liberalization. This is consistent with the observed long-run relationship across countries and over time between wages and productivity and is also consistent with the theoretical expectation that labour is paid its marginal product. In a computable general equilibrium modelling environment, various methods have been developed to build in productivity effects from trade liberalization. There is little guidance however as to how strong these effects should be. We propose an elegant solution to the calibration problem by imposing a unitary elasticity of the supply of labour input to the wage rate. This generates an endowment effect, interpreted as labour productivity rather than jobs, that rises proportionately with wages. This approach to endogenization of productivity in a CGE environment thus uses the model-generated contribution of factor inputs to production and the stylized facts about the relationship between wage and productivity growth to calibrate the productivity impact of trade liberalization.
{"title":"Calibrating Wage-Productivity Responses in CGE Model Simulations of Trade Policy Impacts","authors":"Dan Ciuriak, Jingliang Xiao","doi":"10.2139/ssrn.2839624","DOIUrl":"https://doi.org/10.2139/ssrn.2839624","url":null,"abstract":"It is well established in theory that trade liberalization impacts on productivity through the reallocation of market share to more productive firms. Since more productive firms tend to pay higher wages, the market reallocation effect also increases average wages. In addition to these intra-sectoral effects, changes in the composition of output at the economy-wide level result in reallocation of factors of production to higher-productivity sectors. At the same time, the positive demand shock from trade liberalization typically generates increased returns to factors, and thus results in higher real wages for labour. For these various reasons, we anticipate a positive relationship between changes in productivity and changes in real wages in response to trade liberalization. This is consistent with the observed long-run relationship across countries and over time between wages and productivity and is also consistent with the theoretical expectation that labour is paid its marginal product. In a computable general equilibrium modelling environment, various methods have been developed to build in productivity effects from trade liberalization. There is little guidance however as to how strong these effects should be. We propose an elegant solution to the calibration problem by imposing a unitary elasticity of the supply of labour input to the wage rate. This generates an endowment effect, interpreted as labour productivity rather than jobs, that rises proportionately with wages. This approach to endogenization of productivity in a CGE environment thus uses the model-generated contribution of factor inputs to production and the stylized facts about the relationship between wage and productivity growth to calibrate the productivity impact of trade liberalization.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133278431","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Trade policy is formulated through a rather complex decision-making process that involves two-way interactions between actors in public and private sectors. Such interactions are of particular importance in resolving trade controversies in the information and communication technology (ICT) sector. Focusing on the conflicts between the EU and its trading partners in the Greater China Area regarding certain innovation policies in this high-tech industry, this Article underscores how catch-up strategies adopted by latecomer economies in East Asia may implicate the world trade order in recent years. Loosely built upon the insights of public-private network theory, this Article identifies key variables—economic, legal, and political considerations—most pertinent to the EU s strategies to manage these claims. By unpacking these underlying factors that turn on truces or peace in trade conflicts, this Article contributes to the scholarly debate by indicating possible direction in which the stream will flow inside the trade policymaking process.
{"title":"Managing Trade Conflicts in the ICT Industry: A Case Study of EU-Greater China Area","authors":"Han-Wei Liu, Shin-yi Peng","doi":"10.1093/JIEL/JGW058","DOIUrl":"https://doi.org/10.1093/JIEL/JGW058","url":null,"abstract":"Trade policy is formulated through a rather complex decision-making process that involves two-way interactions between actors in public and private sectors. Such interactions are of particular importance in resolving trade controversies in the information and communication technology (ICT) sector. Focusing on the conflicts between the EU and its trading partners in the Greater China Area regarding certain innovation policies in this high-tech industry, this Article underscores how catch-up strategies adopted by latecomer economies in East Asia may implicate the world trade order in recent years. Loosely built upon the insights of public-private network theory, this Article identifies key variables—economic, legal, and political considerations—most pertinent to the EU s strategies to manage these claims. By unpacking these underlying factors that turn on truces or peace in trade conflicts, this Article contributes to the scholarly debate by indicating possible direction in which the stream will flow inside the trade policymaking process.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128650207","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2016-08-17DOI: 10.1093/CHINESEJIL/JMW036
Ming Du
The necessity test in the GATT/WTO legal system has long been attacked on two grounds. First, the legal test formulated by the WTO Appellate Body to assess necessity has been described as ambiguous, illogical and arbitrary. Second, the WTO Appellate Body’s stringent interpretation of the necessity requirement has interfered with WTO Members’ domestic choices about policy objectives. This article revisits these conventional criticisms in the light of the recent WTO case law and attempts to make three claims in relation to the necessity test in WTO law. First, we now have a much clearer understanding of the role each element of the necessity test plays, how different elements interact and how to draw a conclusion after weighing and balancing these elements. Second, the WTO Appellate Body has gradually and substantially relaxed the necessity test over the past decade. It is no longer justifiable to depict the necessity test as a straightjacket. Third, the WTO Appellate Body has successfully pushed for a broad convergence in necessity tests across various WTO Agreements, despite their textual and structural differences.
{"title":"The Necessity Test in World Trade Law: What Now?","authors":"Ming Du","doi":"10.1093/CHINESEJIL/JMW036","DOIUrl":"https://doi.org/10.1093/CHINESEJIL/JMW036","url":null,"abstract":"The necessity test in the GATT/WTO legal system has long been attacked on two grounds. First, the legal test formulated by the WTO Appellate Body to assess necessity has been described as ambiguous, illogical and arbitrary. Second, the WTO Appellate Body’s stringent interpretation of the necessity requirement has interfered with WTO Members’ domestic choices about policy objectives. This article revisits these conventional criticisms in the light of the recent WTO case law and attempts to make three claims in relation to the necessity test in WTO law. First, we now have a much clearer understanding of the role each element of the necessity test plays, how different elements interact and how to draw a conclusion after weighing and balancing these elements. Second, the WTO Appellate Body has gradually and substantially relaxed the necessity test over the past decade. It is no longer justifiable to depict the necessity test as a straightjacket. Third, the WTO Appellate Body has successfully pushed for a broad convergence in necessity tests across various WTO Agreements, despite their textual and structural differences.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"63 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-08-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127274107","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Glamis Gold award (2009) is one of the recent investment awards touching upon indigenous rights and has been termed a symbolic example of the clash between investors’ rights and cultural heritage protection. Among the variety of conflicts which can arise in this regard, the award is particularly concerned with the question how regulatory measures aimed at the protection of cultural indigenous sites can be classified from an investor-perspective, and whether such measures amount to a breach of standards of treatment enshrined in the North American Free Trade Agreement (NAFTA). The case study - drafted for the 2016 ILA Committee meeting - looks at how the interests of indigenous peoples were handled by the investment tribunal and how investment arbitration can contribute to the protection of indigenous rights.
{"title":"Case Study: Glamis Gold Ltd. (Claimant) v United States of America (Respondent), NAFTA/UNCITRAL Award, 8 June 2009","authors":"C. Binder, Jane A. Hofbauer","doi":"10.2139/SSRN.2810078","DOIUrl":"https://doi.org/10.2139/SSRN.2810078","url":null,"abstract":"The Glamis Gold award (2009) is one of the recent investment awards touching upon indigenous rights and has been termed a symbolic example of the clash between investors’ rights and cultural heritage protection. Among the variety of conflicts which can arise in this regard, the award is particularly concerned with the question how regulatory measures aimed at the protection of cultural indigenous sites can be classified from an investor-perspective, and whether such measures amount to a breach of standards of treatment enshrined in the North American Free Trade Agreement (NAFTA). The case study - drafted for the 2016 ILA Committee meeting - looks at how the interests of indigenous peoples were handled by the investment tribunal and how investment arbitration can contribute to the protection of indigenous rights.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"222 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-07-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116368464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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