{"title":"International Economic Law and the Securitization of Policy Objectives: Risks of a Schmittean Exception","authors":"G. Vidigal, S. Schill","doi":"10.54648/leie2021007","DOIUrl":"https://doi.org/10.54648/leie2021007","url":null,"abstract":"","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78860166","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 article explores the concept of national security in China’s legal system and the potential impact for the future of international economic law. By mapping the legal evolution of the concept, this article argues that its expansion reflects China’s changing role in global politics and the global economy. When ‘national security with Chinese characteristics’ is unpacked, we can find multidimensional concerns about a stable and prosperous China. While China displays no intention to challenge the current international economic legal order, this article argues that China has created the foundation to develop a mechanism to project its concept of national security through the Belt and Road Initiative. In this alternative order parallel to the current one established with the US dominance, economic development is considered as an integral part of peace and security. national security, China, investment screening, new international economic order, geoeconomics
{"title":"China’s Take on National Security and Its Implications for the Evolution of International Economic Law","authors":"Chieh Huang","doi":"10.54648/leie2021008","DOIUrl":"https://doi.org/10.54648/leie2021008","url":null,"abstract":"This article explores the concept of national security in China’s legal system and the potential impact for the future of international economic law. By mapping the legal evolution of the concept, this article argues that its expansion reflects China’s changing role in global politics and the global economy. When ‘national security with Chinese characteristics’ is unpacked, we can find multidimensional concerns about a stable and prosperous China. While China displays no intention to challenge the current international economic legal order, this article argues that China has created the foundation to develop a mechanism to project its concept of national security through the Belt and Road Initiative. In this alternative order parallel to the current one established with the US dominance, economic development is considered as an integral part of peace and security.\u0000national security, China, investment screening, new international economic order, geoeconomics","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80845486","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}
‘Energy security’ is a crucial concept in international relations, as well as in international (economic) law. Although no international legal definition of this multi-layered notion exists, and the concept has been recognized as ‘vague’ in international relations literature, it remains a term that is used time and again by states when referring to measures taken in connection with safeguarding their national energy supply. This contribution identifies the various dimensions of the concept of energy security, after which it studies its role in international (economic) law and zooms in on the World Trade Organization (WTO). It critically assesses how the panel and Appellate Body (AB) have dealt with WTO Members’ arguments connected to energy security in two recent WTO disputes, India – Solar Cells and EU – Energy Package. The article demonstrates that while energy security concerns may be a valid basis for defending a Member’s measure, they will not hold if that measure is applied in a discriminatory manner. This may be problematic, as energy security concerns are frequently geo-political in nature and may be inherently discriminatory. The contribution also explains why ‘long-term energy security’ defenses are more likely to meet the threshold of the Article XIV(a) General Agreement on Trade in Services (GATS) public policy exception, rather than the ‘products in local short supply’ exception of Article XX(j) GATT. Energy Security, ECT, IEA, OPEC, PTAs, WTO, dispute settlement, public policy exception, local short supply
{"title":"Unpacking the Concept of ‘Energy Security’: Lessons from Recent WTO Case Law","authors":"Anna Marhold","doi":"10.54648/leie2021009","DOIUrl":"https://doi.org/10.54648/leie2021009","url":null,"abstract":"‘Energy security’ is a crucial concept in international relations, as well as in international (economic) law. Although no international legal definition of this multi-layered notion exists, and the concept has been recognized as ‘vague’ in international relations literature, it remains a term that is used time and again by states when referring to measures taken in connection with safeguarding their national energy supply. This contribution identifies the various dimensions of the concept of energy security, after which it studies its role in international (economic) law and zooms in on the World Trade Organization (WTO). It critically assesses how the panel and Appellate Body (AB) have dealt with WTO Members’ arguments connected to energy security in two recent WTO disputes, India – Solar Cells and EU – Energy Package. The article demonstrates that while energy security concerns may be a valid basis for defending a Member’s measure, they will not hold if that measure is applied in a discriminatory manner. This may be problematic, as energy security concerns are frequently geo-political in nature and may be inherently discriminatory. The contribution also explains why ‘long-term energy security’ defenses are more likely to meet the threshold of the Article XIV(a) General Agreement on Trade in Services (GATS) public policy exception, rather than the ‘products in local short supply’ exception of Article XX(j) GATT.\u0000Energy Security, ECT, IEA, OPEC, PTAs, WTO, dispute settlement, public policy exception, local short supply","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79200843","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}
{"title":"From the Board Under the WTO Radar: ‘Partial’ and ‘Phase One’ Trade Agreements","authors":"","doi":"10.54648/leie2021001","DOIUrl":"https://doi.org/10.54648/leie2021001","url":null,"abstract":"","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75370563","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}
Despite imperfections, the Dutch framework for investment screening could function as a model for more proportionate and clearer investment screening rules. From a procedural perspective, the Dutch framework illustrates that it is possible to establish objective thresholds in order to more specifically target certain companies or categories of companies. Substantively, the Dutch framework shows that the general test of ‘security’ can be narrowed down to more specific substantive criteria. Providing clearer procedural thresholds and substantive tests under investment screening regulations, both in the Netherlands and elsewhere, will help ensure that investments are only restricted or prohibited where genuinely necessary and proportionate in order to safeguard national security interests. The Commission and national authorities throughout the Union should therefore endeavour to establish clearer procedural thresholds and frameworks of assessment to ensure that only transactions that can reasonably pose a threat to security or public order are made subject to filing obligations and are assessed on the basis of more clearly defined substantive criteria. investment screening, FDI screening, security screening, investment law, national security, proportionality, Chinese investments, Regulation 2019/452, investeringstoets, veiligheidstoets, ongewenste zeggenschap
{"title":"Investment Screening in the Netherlands","authors":"Jochem de Kok","doi":"10.54648/leie2021004","DOIUrl":"https://doi.org/10.54648/leie2021004","url":null,"abstract":"Despite imperfections, the Dutch framework for investment screening could function as a model for more proportionate and clearer investment screening rules. From a procedural perspective, the Dutch framework illustrates that it is possible to establish objective thresholds in order to more specifically target certain companies or categories of companies. Substantively, the Dutch framework shows that the general test of ‘security’ can be narrowed down to more specific substantive criteria. Providing clearer procedural thresholds and substantive tests under investment screening regulations, both in the Netherlands and elsewhere, will help ensure that investments are only restricted or prohibited where genuinely necessary and proportionate in order to safeguard national security interests. The Commission and national authorities throughout the Union should therefore endeavour to establish clearer procedural thresholds and frameworks of assessment to ensure that only transactions that can reasonably pose a threat to security or public order are made subject to filing obligations and are assessed on the basis of more clearly defined substantive criteria.\u0000investment screening, FDI screening, security screening, investment law, national security, proportionality, Chinese investments, Regulation 2019/452, investeringstoets, veiligheidstoets, ongewenste zeggenschap","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77741549","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 article explores the immediate reaction of the EU and its Member States to the Coronavirus disease 2019 (COVID-19) outbreak in Europe in terms of trade restrictions. Almost all Member States adopted export control measures on personal protective equipment (PPE) essential to combat the pandemic in order to preserve it for the domestic market. The trade barriers affected the intra-EU trade as well as the external trade with third countries. The article explores whether and to what extent these restrictive measures on exports within the internal market may be justified on grounds of the protection of health and life of humans, as allowed by Article 36 Treaty on the Functioning of the European Union (TFEU). It will be argued that the consolidated case law justifying a Member State facing health emergencies to adopt restrictive measures to protect the population on its territory is not suitable in case of pandemics. The degree of market integration and the rising concept of health solidarity as an EU objective allow a different interpretation of the health exception assuming as term of reference the whole EU population. The article further analyses the export authorization scheme adopted by the Commission to allow restrictions on exports of PPE to third countries in case of shortages in essential goods in the Union. The article concludes by suggesting a preventive EU mechanism of control of intra-EU export restrictions in case of serious cross-border threats to health, similar to the export authorization scheme for extra EU exports, in order to avoid unilateral and disjointed responses by Member States in the future. COVID-19 crisis, European Union response, Export control measures, Public health exception to free movement of goods, Member States general interest, Health solidarity in the EU, External trade restrictions, Export authorization schemes.
{"title":"The EU Market in Times of a Global State of Emergency: Internal and External Trade Barriers in the Age of Pandemics","authors":"P. Mariani","doi":"10.54648/leie2021002","DOIUrl":"https://doi.org/10.54648/leie2021002","url":null,"abstract":"This article explores the immediate reaction of the EU and its Member States to the Coronavirus disease 2019 (COVID-19) outbreak in Europe in terms of trade restrictions. Almost all Member States adopted export control measures on personal protective equipment (PPE) essential to combat the pandemic in order to preserve it for the domestic market. The trade barriers affected the intra-EU trade as well as the external trade with third countries. The article explores whether and to what extent these restrictive measures on exports within the internal market may be justified on grounds of the protection of health and life of humans, as allowed by Article 36 Treaty on the Functioning of the European Union (TFEU). It will be argued that the consolidated case law justifying a Member State facing health emergencies to adopt restrictive measures to protect the population on its territory is not suitable in case of pandemics. The degree of market integration and the rising concept of health solidarity as an EU objective allow a different interpretation of the health exception assuming as term of reference the whole EU population. The article further analyses the export authorization scheme adopted by the Commission to allow restrictions on exports of PPE to third countries in case of shortages in essential goods in the Union. The article concludes by suggesting a preventive EU mechanism of control of intra-EU export restrictions in case of serious cross-border threats to health, similar to the export authorization scheme for extra EU exports, in order to avoid unilateral and disjointed responses by Member States in the future.\u0000COVID-19 crisis, European Union response, Export control measures, Public health exception to free movement of goods, Member States general interest, Health solidarity in the EU, External trade restrictions, Export authorization schemes.","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79484948","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 EU FDI Screening Regulation (the Regulation) is an interesting application of the ‘integration by stealth’ theory to the sphere of investment screening. The Regulation leads to integration in the sense that, for the first time, the Commission is granted a role in the process of investment screening within the EU. However, Commission involvement comes at the cost of simultaneously strengthening the hands of the Member State screening authorities, leading to a suboptimal policy outcome whereby neither the Commission nor the Member States may have at their disposal the necessary tools to screen investments quickly and thoroughly, as is required to maintain an open investment environment. The shortcomings of the Regulation are likely to trigger calls for further reform. To develop this argument, this article (1) legally examines the main features of the Regulation and (2) explores the interplay of the Regulation with EU free movement rules. The article explains how the Regulation is likely to contribute to an uptake in national screening decisions, but not to a concomitant increase in enforcement opportunities for the Commission or the Court of Justice of the EU. This creates an enforcement gap, which may put pressure on the existing free movement framework and may risk encouraging Member States to develop a national as opposed to a common EU conception of public security and order. European Union law, European integration, foreign direct investment screening, free movement of capital, freedom of establishment, investment liberalization, functionalism, neo-functionalism, Court of Justice of the European Union, common commercial policy, rule of law, judicial protection, enforcement
{"title":"When Integration by Stealth Meets Public Security: The EU Foreign Direct Investment Screening Regulation","authors":"T. Verellen","doi":"10.54648/leie2021003","DOIUrl":"https://doi.org/10.54648/leie2021003","url":null,"abstract":"The EU FDI Screening Regulation (the Regulation) is an interesting application of the ‘integration by stealth’ theory to the sphere of investment screening. The Regulation leads to integration in the sense that, for the first time, the Commission is granted a role in the process of investment screening within the EU. However, Commission involvement comes at the cost of simultaneously strengthening the hands of the Member State screening authorities, leading to a suboptimal policy outcome whereby neither the Commission nor the Member States may have at their disposal the necessary tools to screen investments quickly and thoroughly, as is required to maintain an open investment environment. The shortcomings of the Regulation are likely to trigger calls for further reform. To develop this argument, this article (1) legally examines the main features of the Regulation and (2) explores the interplay of the Regulation with EU free movement rules. The article explains how the Regulation is likely to contribute to an uptake in national screening decisions, but not to a concomitant increase in enforcement opportunities for the Commission or the Court of Justice of the EU. This creates an enforcement gap, which may put pressure on the existing free movement framework and may risk encouraging Member States to develop a national as opposed to a common EU conception of public security and order.\u0000European Union law, European integration, foreign direct investment screening, free movement of capital, freedom of establishment, investment liberalization, functionalism, neo-functionalism, Court of Justice of the European Union, common commercial policy, rule of law, judicial protection, enforcement","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76392093","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}
{"title":"Report of Arbitration Panel in Restrictions Applied by Ukraine on Exports of Certain Wood Products to the European Union","authors":"Iryna Polovets","doi":"10.54648/leie2021006","DOIUrl":"https://doi.org/10.54648/leie2021006","url":null,"abstract":"","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2021-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90346079","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}
V. Ruiz Almendral, Marco Lamandini, David Ramos Muñoz
‘Finance’ has become the most salient part of the European project. For better or worse, it has been the EU’s major field of experimentation for institutional innovations, and also the protagonist of its major tensions. Such tensions pervade the Monetary Union, the Banking Union, and the framework for fiscal stability and budgetary coordination, and, in important occasions or respects, have ignited inter-court conflicts, exposed some accountability gaps, and made more difficult than desirable cooperation towards a common policy and mutual understanding, albeit in the diversity, at the inter-governmental level. It need not be like this. All those shortcomings can be overcome without major statutory reform, with a more imaginative use of the tools already in place, and (crucially) a change in the practice of dialogue between institutions and bodies, both from a vertical perspective (notably, courts, but also parliaments and governments) and a horizontal one (between political, administrative and judicial levels of accountability). European Monetary Union, EMU, banking union, fiscal coordination, judicial review, accountability, dialogue
{"title":"The EMU and Its Multi-Level Constitutional Structure: The Need for More Imaginative ‘Dialogue’ Among and Across EU and National Institutions","authors":"V. Ruiz Almendral, Marco Lamandini, David Ramos Muñoz","doi":"10.54648/leie2020019","DOIUrl":"https://doi.org/10.54648/leie2020019","url":null,"abstract":"‘Finance’ has become the most salient part of the European project. For better or worse, it has been the EU’s major field of experimentation for institutional innovations, and also the protagonist of its major tensions. Such tensions pervade the Monetary Union, the Banking Union, and the framework for fiscal stability and budgetary coordination, and, in important occasions or respects, have ignited inter-court conflicts, exposed some accountability gaps, and made more difficult than desirable cooperation towards a common policy and mutual understanding, albeit in the diversity, at the inter-governmental level. It need not be like this. All those shortcomings can be overcome without major statutory reform, with a more imaginative use of the tools already in place, and (crucially) a change in the practice of dialogue between institutions and bodies, both from a vertical perspective (notably, courts, but also parliaments and governments) and a horizontal one (between political, administrative and judicial levels of accountability).\u0000European Monetary Union, EMU, banking union, fiscal coordination, judicial review, accountability, dialogue","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84501936","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 article offers a first analysis of the EU’s fiscal response to the COVID-19 crisis. Beyond an account of the main initiatives of which it is comprised (the suspension of the Stability and Growth Pact, the Support to mitigate Unemployment Risks in an Emergency (SURE) instrument and the recovery plan), it provides an assessment of this response’s position in, and likely influence on, the long-term trajectory of economic and fiscal integration in Europe. Analysing its main features and the core issues and challenges it raises, it identifies the elements of continuity and rupture which characterize this response, the legacies on which it builds, and the shifts and changes that it embodies. The article shows that, as a policy initiative which in many regards breaks away from past practices and orientations, the EU’s fiscal response to COVID-19 presents novel, disruptive features, which raise new legal questions, and open new avenues for exploration. It also reveals that next to clear elements of rupture, this response is also largely embedded into the wider, pre-existing policy framework of EU economic governance which we inherited from the Eurozone crisis. In many regards, it continues the institutional philosophy of that system, and perpetuates the main constitutional challenges that it raises. European Union, COVID-19, fiscal response, recovery plan, transformations, legacies
{"title":"The EU’s Response to the COVID-19 Crisis and the Trajectory of Fiscal Integration in Europe: Between Continuity and Rupture","authors":"P. Dermine","doi":"10.54648/leie2020020","DOIUrl":"https://doi.org/10.54648/leie2020020","url":null,"abstract":"This article offers a first analysis of the EU’s fiscal response to the COVID-19 crisis. Beyond an account of the main initiatives of which it is comprised (the suspension of the Stability and Growth Pact, the Support to mitigate Unemployment Risks in an Emergency (SURE) instrument and the recovery plan), it provides an assessment of this response’s position in, and likely influence on, the long-term trajectory of economic and fiscal integration in Europe. Analysing its main features and the core issues and challenges it raises, it identifies the elements of continuity and rupture which characterize this response, the legacies on which it builds, and the shifts and changes that it embodies. The article shows that, as a policy initiative which in many regards breaks away from past practices and orientations, the EU’s fiscal response to COVID-19 presents novel, disruptive features, which raise new legal questions, and open new avenues for exploration. It also reveals that next to clear elements of rupture, this response is also largely embedded into the wider, pre-existing policy framework of EU economic governance which we inherited from the Eurozone crisis. In many regards, it continues the institutional philosophy of that system, and perpetuates the main constitutional challenges that it raises.\u0000European Union, COVID-19, fiscal response, recovery plan, transformations, legacies","PeriodicalId":42718,"journal":{"name":"Legal Issues of Economic Integration","volume":null,"pages":null},"PeriodicalIF":0.6,"publicationDate":"2020-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77300441","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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