Regulation of use is an essential component for sustainability in use. Prevailing regulatory structures consist largely of a proscriptive and legislative nature imposed by the centre on the periphery, and they have failed to stop negative trends. The profile of the incentive package for regulatory compliance is too often wrong. Incentive is the fulcrum of regulation. Regulation usually requires an element of negative incentive proscriptions backed by powers to enforce them. But any regulatory system which relies primarily on negative incentives is, in the long term, in trouble. Enforcement costs are high and the legitimacy of the system in the eyes of the enforced is called into question. History shows that such systems are unstable and that sustainable systems of regulation are those that rely primarily on positive incentives – economic, cultural and institutional – and which are affordable. Hardin's (1985) comment is relevant here: ‘We must recognize that all control operations incur costs; excessive controls generate their own kind of poverty.
{"title":"Ban on the Import of Elephant Trophies into the USA from Tanzania and Zimbabwe Comment on the Framework for the Decision","authors":"Rowan B. Martin","doi":"10.2139/ssrn.2840615","DOIUrl":"https://doi.org/10.2139/ssrn.2840615","url":null,"abstract":"Regulation of use is an essential component for sustainability in use. Prevailing regulatory structures consist largely of a proscriptive and legislative nature imposed by the centre on the periphery, and they have failed to stop negative trends. The profile of the incentive package for regulatory compliance is too often wrong. Incentive is the fulcrum of regulation. Regulation usually requires an element of negative incentive proscriptions backed by powers to enforce them. But any regulatory system which relies primarily on negative incentives is, in the long term, in trouble. Enforcement costs are high and the legitimacy of the system in the eyes of the enforced is called into question. History shows that such systems are unstable and that sustainable systems of regulation are those that rely primarily on positive incentives – economic, cultural and institutional – and which are affordable. Hardin's (1985) comment is relevant here: ‘We must recognize that all control operations incur costs; excessive controls generate their own kind of poverty.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128212493","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 present study is concerned with the evolution of investment chapters of Free Trade Agreements (FTAs). Our purpose is to observe the structure and recurrent patterns of the normative content of these chapters in order to ascertain and analyse certain trends. The sample of agreements reviewed is limited to the investment agreements concluded (or about to be concluded, when there is sufficient information) by the two major importers and exporters of Foreign Direct Investment (FDI) — the United States and the European Union.After an overview illustrating the history and layout of the EU and U.S. systems of investment protection (Part I), we provide a breakdown of the provisions that create a gulf between the two models (Part II). In Part III, we describe and analyse the current impasse in the European Union’s newly centralised management of investment policies. Our central claim is then illustrated in Part IV, where we argue that the U.S. (NAFTA-like) template is likely to prevail over the European one, in the long run, because it fills the gaps in incomplete treaty regimes like those recurrent in European Bilateral Investment Treaties (BITs). The Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union seems to confirm this trend. In light of these remarks, we conclude that, in the future, pluri- and multilateral negotiations will increasingly lean towards the NAFTA model and gradually distance themselves from the European BIT standard.
{"title":"Article: Converging Towards NAFTA: An Analysis of FTA Investment Chapters in the European Union and the United States","authors":"F. Fontanelli, G. Bianco","doi":"10.2139/SSRN.2507187","DOIUrl":"https://doi.org/10.2139/SSRN.2507187","url":null,"abstract":"The present study is concerned with the evolution of investment chapters of Free Trade Agreements (FTAs). Our purpose is to observe the structure and recurrent patterns of the normative content of these chapters in order to ascertain and analyse certain trends. The sample of agreements reviewed is limited to the investment agreements concluded (or about to be concluded, when there is sufficient information) by the two major importers and exporters of Foreign Direct Investment (FDI) — the United States and the European Union.After an overview illustrating the history and layout of the EU and U.S. systems of investment protection (Part I), we provide a breakdown of the provisions that create a gulf between the two models (Part II). In Part III, we describe and analyse the current impasse in the European Union’s newly centralised management of investment policies. Our central claim is then illustrated in Part IV, where we argue that the U.S. (NAFTA-like) template is likely to prevail over the European one, in the long run, because it fills the gaps in incomplete treaty regimes like those recurrent in European Bilateral Investment Treaties (BITs). The Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union seems to confirm this trend. In light of these remarks, we conclude that, in the future, pluri- and multilateral negotiations will increasingly lean towards the NAFTA model and gradually distance themselves from the European BIT standard.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131370010","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}
This paper addresses the paradox of trade dispute settlement in which countries allocate resources to the creation of dispute settlement mechanisms in regional trade agreements even as the WTO's system has become the primary forum for the arbitration of state-to-state disputes. I argue that while the WTO remains the primary insurance against the breakdown of trading relations, these new instruments play a political role in securing the gains of regional and multilateral liberalization (real and potential) against the possibility of multilateral failure. The paper reviews literature on the institutional and conceptual developments in the study of regional dispute processes, develops an empirical study of the rise of regional DSMs over time, and then links this evidence to changing ways of conceptualizing the costs and benefits of trade regionalization. A reinsurance hypothesis goes a ways towards explaining why countries negotiate DSMs that for the most part, they do not use.
{"title":"Regional Trade Agreements and the Paradox of Dispute Settlement","authors":"Marc D. Froese","doi":"10.2139/ssrn.2419153","DOIUrl":"https://doi.org/10.2139/ssrn.2419153","url":null,"abstract":"This paper addresses the paradox of trade dispute settlement in which countries allocate resources to the creation of dispute settlement mechanisms in regional trade agreements even as the WTO's system has become the primary forum for the arbitration of state-to-state disputes. I argue that while the WTO remains the primary insurance against the breakdown of trading relations, these new instruments play a political role in securing the gains of regional and multilateral liberalization (real and potential) against the possibility of multilateral failure. The paper reviews literature on the institutional and conceptual developments in the study of regional dispute processes, develops an empirical study of the rise of regional DSMs over time, and then links this evidence to changing ways of conceptualizing the costs and benefits of trade regionalization. A reinsurance hypothesis goes a ways towards explaining why countries negotiate DSMs that for the most part, they do not use.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"7 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126654482","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}
Before US-TUNA, determining what constituted a technical regulation was less confusing. Developing countries could rely on the training provided by both the UNCTAD and the WTO and the Panel could rely on the Appellate Body’s definition of technical regulation in EC-Asbestos. This paper shows how the AB’s definition of technical regulation in US-TUNA will affect future cases and the impact that it will have on developing countries understanding of Annex 1.1 of the TBT Agreement.
{"title":"US-TUNA: Implication for the Definition of Technical Regulation and for Developing Countries","authors":"H. Nkuepo","doi":"10.2139/SSRN.2342635","DOIUrl":"https://doi.org/10.2139/SSRN.2342635","url":null,"abstract":"Before US-TUNA, determining what constituted a technical regulation was less confusing. Developing countries could rely on the training provided by both the UNCTAD and the WTO and the Panel could rely on the Appellate Body’s definition of technical regulation in EC-Asbestos. This paper shows how the AB’s definition of technical regulation in US-TUNA will affect future cases and the impact that it will have on developing countries understanding of Annex 1.1 of the TBT Agreement.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-03-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123631404","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}
DTO, uluslararasi ticareti maksimum seviyede liberallestirerek, serbest ve seffaf rekabet sartlari altinda dunya refah seviyesinin artirilmasini amaclamaktadir Bu calisma, cagdas dunyada kendi yerini en iyi sekilde almaya hazirlanan Azerbaycan Cumhuriyeti’nin 23 Haziran 1997 tarihinden beri DTO’ne uye olma calismalarini ve uyelik durumunu ele almaktadir . Gerek uye olma yolunda yapilan calismalar, gerekse bu calismalarin sonucunda uyeligin kesinlesmesi Azerbaycan acisindan bazi kazanc ve kayiplara sebep olacaktir. Calismada, sozu edilen kazanc ve kayiplar belirlenerek yapilmasi gerekenler kisaca ele alinmistir. The goal of WTO is to increase world welfare under a competitive and transparent environment by fully completing the liberalization of international trade. This work analyzes the progress of Azerbaijan Republic’s WTO accession talks and the status of its membership position since June 23rd, 1997. Accession commitments and completion of the membership process will result in several benefits and losses to Azerbaijan. This paper determines the benefits and losses and describes the further steps that need to be taken.
{"title":"Azerbaycan Dünya Ticaret Örgütü Üyeliğinin Değerlendirilmesi (The Evaluation of Azerbaijans' WTO Accession)","authors":"Cihan Bulut","doi":"10.2139/SSRN.2226289","DOIUrl":"https://doi.org/10.2139/SSRN.2226289","url":null,"abstract":"DTO, uluslararasi ticareti maksimum seviyede liberallestirerek, serbest ve seffaf rekabet sartlari altinda dunya refah seviyesinin artirilmasini amaclamaktadir Bu calisma, cagdas dunyada kendi yerini en iyi sekilde almaya hazirlanan Azerbaycan Cumhuriyeti’nin 23 Haziran 1997 tarihinden beri DTO’ne uye olma calismalarini ve uyelik durumunu ele almaktadir . Gerek uye olma yolunda yapilan calismalar, gerekse bu calismalarin sonucunda uyeligin kesinlesmesi Azerbaycan acisindan bazi kazanc ve kayiplara sebep olacaktir. Calismada, sozu edilen kazanc ve kayiplar belirlenerek yapilmasi gerekenler kisaca ele alinmistir. The goal of WTO is to increase world welfare under a competitive and transparent environment by fully completing the liberalization of international trade. This work analyzes the progress of Azerbaijan Republic’s WTO accession talks and the status of its membership position since June 23rd, 1997. Accession commitments and completion of the membership process will result in several benefits and losses to Azerbaijan. This paper determines the benefits and losses and describes the further steps that need to be taken.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122883940","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}
A competitive domestic economy, as enhanced by appropriate competition policies, can be a good defense against protectionist sentiments. Seth Sacher (FTC)
{"title":"Trade is Good for Competition, but Competition is Great for Trade","authors":"Seth B. Sacher","doi":"10.2139/ssrn.2220726","DOIUrl":"https://doi.org/10.2139/ssrn.2220726","url":null,"abstract":"A competitive domestic economy, as enhanced by appropriate competition policies, can be a good defense against protectionist sentiments. Seth Sacher (FTC)","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127011655","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 European Union (EU) has had competence over trade in goods since its inception in 1957. The EU has exercised this external competence through its Common Commercial Policy (CCP). As one of the most dynamic fields of EU external relations, the scope and the nature of the CCP has evolved through decisions of the European Court of Justice (ECJ) and treaty revisions.This Report surveys how EU competence in areas of trade and investment has developed over time, with particular reference to the most important substantive and institutional changes introduced by the Treaty of Lisbon. It sheds light on the issues with respect to which the division of competences between the EU and the Member States is most contested. This is a vast and complex area of law. The further reading list at the end of this text provides more detail.
{"title":"Competence Review: Trade and Investment","authors":"M. Waibel","doi":"10.2139/SSRN.2507138","DOIUrl":"https://doi.org/10.2139/SSRN.2507138","url":null,"abstract":"The European Union (EU) has had competence over trade in goods since its inception in 1957. The EU has exercised this external competence through its Common Commercial Policy (CCP). As one of the most dynamic fields of EU external relations, the scope and the nature of the CCP has evolved through decisions of the European Court of Justice (ECJ) and treaty revisions.This Report surveys how EU competence in areas of trade and investment has developed over time, with particular reference to the most important substantive and institutional changes introduced by the Treaty of Lisbon. It sheds light on the issues with respect to which the division of competences between the EU and the Member States is most contested. This is a vast and complex area of law. The further reading list at the end of this text provides more detail.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-02-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130000942","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}
A country whose major source of revenue is an object of free trade zone program raises interest. The concept of Free Trade Zones in Nigeria was embraced as far back as 1992 with the purpose of providing an atmosphere that encourages both local and foreign investments. This paper seeks to examine the available legal regime in place with regards to the oil and gas free trade zone in Nigeria. It also seeks to give answers to the questions as to the efficiency and effectiveness of the regime, in light of the ever changing and developing free trade zone policies in the world-over. The paper finds that despite the innovative and laudable move by the Nigerian government in creating the first ever oil and gas free trade zone in the world, there is still the need for two vital tools: first, an effective and transparent legal and regulatory framework that will help codify the zone strategy and establish the rules of the game for all the stakeholders involved in the process, in order to address the often-difficult land issues, facilitate the provision of the required infrastructure, and ensure compliance with labour and environmental standards. Second, an established authority that would not exist in name only but have both the capacity and the resources to carry out its mandate
{"title":"Legal Regime for Oil and Gas Free Trade Zone","authors":"Nkiruka Chidia Maduekwe","doi":"10.2139/SSRN.2813011","DOIUrl":"https://doi.org/10.2139/SSRN.2813011","url":null,"abstract":"A country whose major source of revenue is an object of free trade zone program raises interest. The concept of Free Trade Zones in Nigeria was embraced as far back as 1992 with the purpose of providing an atmosphere that encourages both local and foreign investments. This paper seeks to examine the available legal regime in place with regards to the oil and gas free trade zone in Nigeria. It also seeks to give answers to the questions as to the efficiency and effectiveness of the regime, in light of the ever changing and developing free trade zone policies in the world-over. The paper finds that despite the innovative and laudable move by the Nigerian government in creating the first ever oil and gas free trade zone in the world, there is still the need for two vital tools: first, an effective and transparent legal and regulatory framework that will help codify the zone strategy and establish the rules of the game for all the stakeholders involved in the process, in order to address the often-difficult land issues, facilitate the provision of the required infrastructure, and ensure compliance with labour and environmental standards. Second, an established authority that would not exist in name only but have both the capacity and the resources to carry out its mandate","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115863123","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}
Russian Abstract: Монография посвящена особенностям государственно-правового регулирования внешней торговли Российской империи в 18-19 веках. Особое внимание уделено вопросам государственного регулирования внешнеторговых связей России с сопредельными странами Европы и Азии, а также изменениям в государственных подходах к организации внешнеторговых отношений с зарубежными странами с учетом внешнеполитических ситуаций, модернизационных процессов в российской экономике и другими факторами.English Abstract: The monograph is devoted to the state-legal regulation of foreign trade of the Russian empire in the18-19 centuries. The specific attention is paid to governmental regulation and foreign trade relations of Russia with some European and Asian countries as well as changes in the approach to organizing trade relations with them considering foreign policy, processes of modernization in the Russian economy and other factors.
{"title":"Государственно-правовое регулирование внешней торговли Российской империи в 18-19 веках (State Legal Regulation of Foreign Trade the Russian Empire in the 18-19th Centuries)","authors":"V. Shkunov","doi":"10.2139/SSRN.2587689","DOIUrl":"https://doi.org/10.2139/SSRN.2587689","url":null,"abstract":"Russian Abstract: Монография посвящена особенностям государственно-правового регулирования внешней торговли Российской империи в 18-19 веках. Особое внимание уделено вопросам государственного регулирования внешнеторговых связей России с сопредельными странами Европы и Азии, а также изменениям в государственных подходах к организации внешнеторговых отношений с зарубежными странами с учетом внешнеполитических ситуаций, модернизационных процессов в российской экономике и другими факторами.English Abstract: The monograph is devoted to the state-legal regulation of foreign trade of the Russian empire in the18-19 centuries. The specific attention is paid to governmental regulation and foreign trade relations of Russia with some European and Asian countries as well as changes in the approach to organizing trade relations with them considering foreign policy, processes of modernization in the Russian economy and other factors.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-11-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125546317","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 Appellate Body's interpretation in China -- Raw Materials regarding the applicability of General Agreement on Tariffs and Trade (GATT) Article XX to China's Accession Protocol is highly controversial and stimulates wide debates in academia. The controversy is rooted in the absence of an explicit mention of 'consistency with the GATT 1994' in Paragraph 11.3 of China's Accession Protocol. That absence constrains China's defense in instances when it must violate its export duty elimination commitments under the Accession Protocol by resorting to GATT Article XX. This article disagrees with the Appellate Body's legal interpretation in China -- Raw Materials and provides a critical review of the Appellate Body's logical principle that 'absence equates to waiver'. The Appellate Body's interpretation on the relationship between GATT Article XX and China's Accession Protocol contradicted former Dispute Settlement Body (DSB) practices, demonstrated a failure to interpret the WTO Agreement in a systemic manner, and unfortunately resulted in inappropriateness in treaty interpretation. The Author 2012. Published by Oxford University Press. All rights reserved., Oxford University Press.
{"title":"Applicability of GATT Article XX in China – Raw Materials: A Clash within the WTO Agreement","authors":"B. Gu","doi":"10.1093/JIEL/JGS039","DOIUrl":"https://doi.org/10.1093/JIEL/JGS039","url":null,"abstract":"The Appellate Body's interpretation in China -- Raw Materials regarding the applicability of General Agreement on Tariffs and Trade (GATT) Article XX to China's Accession Protocol is highly controversial and stimulates wide debates in academia. The controversy is rooted in the absence of an explicit mention of 'consistency with the GATT 1994' in Paragraph 11.3 of China's Accession Protocol. That absence constrains China's defense in instances when it must violate its export duty elimination commitments under the Accession Protocol by resorting to GATT Article XX. This article disagrees with the Appellate Body's legal interpretation in China -- Raw Materials and provides a critical review of the Appellate Body's logical principle that 'absence equates to waiver'. The Appellate Body's interpretation on the relationship between GATT Article XX and China's Accession Protocol contradicted former Dispute Settlement Body (DSB) practices, demonstrated a failure to interpret the WTO Agreement in a systemic manner, and unfortunately resulted in inappropriateness in treaty interpretation. The Author 2012. Published by Oxford University Press. All rights reserved., Oxford University Press.","PeriodicalId":103245,"journal":{"name":"LSN: Trade Law (Topic)","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-10-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120936798","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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