Pub Date : 2021-12-17DOI: 10.1108/jitlp-10-2021-0054
Ramadhan Bismono, J. Priyono, Nanik Trihastuti
Purpose This paper aims to further study the panel report in Russia – Traffic in Transit regarding the interpretation and application of 1994 general agreements on tariffs and trade (GATT) Article XXI(b). It analyses the threshold applied by the panel in applying Article XXI(b)(iii) and further discusses the potential problem that may arise in the future dispute. This study also investigates the notion of emergency and security interest and its development in international law. Design/methodology/approach This normative research uses a qualitative legal methodology. This study conducts desk analysis of primary legal materials and existing literature to assess the concept of security interest within the World Trade Organization (WTO) framework. Findings This paper finds that the panel in Russia – Traffic in Transit applied subjective and objective test in reviewing Russia’s invocation of GATT Article XXI(b)(iii). Despite the adjectival self-judging clause and the political tension of the dispute, the panel is capable to review its application. This study further finds that the term security interest and emergency in international relations still leaves the possibility of open interpretation. Research limitations/implications Because of the normative research approach, the research results lack empirical data and implications. Therefore, future research is encouraged to inquire on the empirical research. Originality/value This paper fulfils the need to study and explore security exception clause within the WTO framework as a normative rule of law and in the wider conceptual notion of security and emergency in international law.
{"title":"The problems of interpreting GATT Article XXI(b)(iii) in Russia – Traffic in Transit","authors":"Ramadhan Bismono, J. Priyono, Nanik Trihastuti","doi":"10.1108/jitlp-10-2021-0054","DOIUrl":"https://doi.org/10.1108/jitlp-10-2021-0054","url":null,"abstract":"\u0000Purpose\u0000This paper aims to further study the panel report in Russia – Traffic in Transit regarding the interpretation and application of 1994 general agreements on tariffs and trade (GATT) Article XXI(b). It analyses the threshold applied by the panel in applying Article XXI(b)(iii) and further discusses the potential problem that may arise in the future dispute. This study also investigates the notion of emergency and security interest and its development in international law.\u0000\u0000\u0000Design/methodology/approach\u0000This normative research uses a qualitative legal methodology. This study conducts desk analysis of primary legal materials and existing literature to assess the concept of security interest within the World Trade Organization (WTO) framework.\u0000\u0000\u0000Findings\u0000This paper finds that the panel in Russia – Traffic in Transit applied subjective and objective test in reviewing Russia’s invocation of GATT Article XXI(b)(iii). Despite the adjectival self-judging clause and the political tension of the dispute, the panel is capable to review its application. This study further finds that the term security interest and emergency in international relations still leaves the possibility of open interpretation.\u0000\u0000\u0000Research limitations/implications\u0000Because of the normative research approach, the research results lack empirical data and implications. Therefore, future research is encouraged to inquire on the empirical research.\u0000\u0000\u0000Originality/value\u0000This paper fulfils the need to study and explore security exception clause within the WTO framework as a normative rule of law and in the wider conceptual notion of security and emergency in international law.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42391168","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 : 2021-10-11DOI: 10.1108/jitlp-01-2021-0003
Mohamad Ali Helalat
Purpose This paper aims to indicate that the foreign investment system in Jordan includes many provisions that create an appropriate environment for encouraging foreign investments and grant a distinctive treatment for the foreign investor that allows them the status equal to the national investor. Design/methodology/approach This study deals with the protection provided by the Jordan Government for foreign investments to attract foreign investment by studying the guarantees given by Jordan including many legal principles that encourage investment. The legal guarantees for the foreign investor enhance the confidence of the foreign investor in the host country. Findings The system provides a lot of guarantees with respect to non-commercial risks to which the foreign investor may be exposed. Originality/value The paper also clarifies that the role played by bilateral agreements in the field of investments, as these agreements give foreign investments a measure of protection through the guarantees and they are considered as incentives for the investor.
{"title":"The legal guarantees to protect foreign investment in Jordan","authors":"Mohamad Ali Helalat","doi":"10.1108/jitlp-01-2021-0003","DOIUrl":"https://doi.org/10.1108/jitlp-01-2021-0003","url":null,"abstract":"\u0000Purpose\u0000This paper aims to indicate that the foreign investment system in Jordan includes many provisions that create an appropriate environment for encouraging foreign investments and grant a distinctive treatment for the foreign investor that allows them the status equal to the national investor.\u0000\u0000\u0000Design/methodology/approach\u0000This study deals with the protection provided by the Jordan Government for foreign investments to attract foreign investment by studying the guarantees given by Jordan including many legal principles that encourage investment. The legal guarantees for the foreign investor enhance the confidence of the foreign investor in the host country.\u0000\u0000\u0000Findings\u0000The system provides a lot of guarantees with respect to non-commercial risks to which the foreign investor may be exposed.\u0000\u0000\u0000Originality/value\u0000The paper also clarifies that the role played by bilateral agreements in the field of investments, as these agreements give foreign investments a measure of protection through the guarantees and they are considered as incentives for the investor.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42645709","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 : 2021-10-11DOI: 10.1108/jitlp-01-2021-0004
Bijoy Rakshit
Purpose This paper aims to examine the dynamics between trade openness, foreign direct investment (FDI) and economic growth in India over the period 1979 to 2017. This study further considers the role of pre and post-economic reforms in the analysis of these dynamics. Design/methodology/approach The authors apply the autoregressive distributed lag model to investigate the possible long-run associations among the variables. Zivot-Andrew unit root test was applied to detect the structural breaks present in the data series. Toda-Yamamoto causality approach has been applied to examine the direction of causality among the variables. Findings Findings show that trade openness exerts a negative impact on economic growth in the long-run. Although FDI inflow promotes economic growth in the long-run, FDI inflow does not seem to affect growth in the short-run. As far as causality analysis is concerned, findings confirm a unidirectional causality is flowing from FDI inflow and labour force to per capita gross domestic product growth in India. Practical implications The negative impact of trade openness on growth suggests that policymakers should implement more export-oriented policies to boost economic growth in the long-run. The ratio of exports to the total volume of trade has not increased satisfactorily over the years. Additionally, appropriate policies should aim at extracting the benefits of FDI inflow in the long-run. Originality/value Although several theoretical and empirical literature has investigated the nexus between FDI (or trade) and growth, this study, as a fresh attempt, investigates the long-run dynamics between trade openness, FDI, capital formation, labour force and economic growth in India.
{"title":"Dynamics between trade openness, FDI and economic growth: evidence from an emerging economy","authors":"Bijoy Rakshit","doi":"10.1108/jitlp-01-2021-0004","DOIUrl":"https://doi.org/10.1108/jitlp-01-2021-0004","url":null,"abstract":"\u0000Purpose\u0000This paper aims to examine the dynamics between trade openness, foreign direct investment (FDI) and economic growth in India over the period 1979 to 2017. This study further considers the role of pre and post-economic reforms in the analysis of these dynamics.\u0000\u0000\u0000Design/methodology/approach\u0000The authors apply the autoregressive distributed lag model to investigate the possible long-run associations among the variables. Zivot-Andrew unit root test was applied to detect the structural breaks present in the data series. Toda-Yamamoto causality approach has been applied to examine the direction of causality among the variables.\u0000\u0000\u0000Findings\u0000Findings show that trade openness exerts a negative impact on economic growth in the long-run. Although FDI inflow promotes economic growth in the long-run, FDI inflow does not seem to affect growth in the short-run. As far as causality analysis is concerned, findings confirm a unidirectional causality is flowing from FDI inflow and labour force to per capita gross domestic product growth in India.\u0000\u0000\u0000Practical implications\u0000The negative impact of trade openness on growth suggests that policymakers should implement more export-oriented policies to boost economic growth in the long-run. The ratio of exports to the total volume of trade has not increased satisfactorily over the years. Additionally, appropriate policies should aim at extracting the benefits of FDI inflow in the long-run.\u0000\u0000\u0000Originality/value\u0000Although several theoretical and empirical literature has investigated the nexus between FDI (or trade) and growth, this study, as a fresh attempt, investigates the long-run dynamics between trade openness, FDI, capital formation, labour force and economic growth in India.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47431683","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 : 2021-09-27DOI: 10.1108/JITLP-03-2021-0012
Boniface Chimpango
Purpose The purpose of this study is to contribute towards the debate about global access to COVID-19 vaccines, therapeutics and diagnostics. Design/methodology/approach The global scramble for COVID-19 vaccine and other related pharmaceutical products have once again exposed the limitations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). High-income countries are claiming a lion’s share of the first available batches of the COVID-19 vaccine in total disregard of the consequences such approach would have on the low-income countries that lack both the manufacturing wherewithal and the financial resources to purchase the vaccine and other products needed to combat the pandemic. This paper reviews the existing TRIPS Flexibilities and analyses their limitations with respect to equitable access of pharmaceutical products in times of health emergencies. This paper then considers the unique challenges that have been brought to the fore by the COVID-19 pandemic. Finally, this paper analytically explores some options that have been proposed so far that the World Trade Organization (WTO) or governments can take in the immediate to near term to facilitate equitable access to COVID-19 pharmaceutical products and technologies. This research is non-empirical, desk-based research. It is, therefore, based on the literature review of existing body of work that is relevant to the topic under discussion. Mindful of the epistemological challenges that are always associated with desk-based research, part of the methodology of this work is to seek support from related empirical studies based on different philosophical underpinnings but that confirm the working hypothesis of this research. Findings This paper finds that there is still a need for a comprehensive reform of TRIPS Agreement to streamline the voluntary licencing system which is an important tool for low-income countries’ access to affordable pharmaceuticals. However, for purposes of dealing with COVID-19, WTO members should consider establishing pooled Licencing Facilities and procurement strategies via already existing political, economic or regional trade groupings. Originality/value This research is original. All sources have been acknowledged. This research synthesises different research papers and applies different viewpoints to the debate on the impact of the TRIPS Agreement on equitable access to COVID-19 vaccines, therapeutics and diagnostics.
{"title":"Vaccine nationalism and equitable access to COVID-19 pharmaceuticals: TRIPS Agreement under trial (again)","authors":"Boniface Chimpango","doi":"10.1108/JITLP-03-2021-0012","DOIUrl":"https://doi.org/10.1108/JITLP-03-2021-0012","url":null,"abstract":"\u0000Purpose\u0000The purpose of this study is to contribute towards the debate about global access to COVID-19 vaccines, therapeutics and diagnostics.\u0000\u0000\u0000Design/methodology/approach\u0000The global scramble for COVID-19 vaccine and other related pharmaceutical products have once again exposed the limitations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). High-income countries are claiming a lion’s share of the first available batches of the COVID-19 vaccine in total disregard of the consequences such approach would have on the low-income countries that lack both the manufacturing wherewithal and the financial resources to purchase the vaccine and other products needed to combat the pandemic. This paper reviews the existing TRIPS Flexibilities and analyses their limitations with respect to equitable access of pharmaceutical products in times of health emergencies. This paper then considers the unique challenges that have been brought to the fore by the COVID-19 pandemic. Finally, this paper analytically explores some options that have been proposed so far that the World Trade Organization (WTO) or governments can take in the immediate to near term to facilitate equitable access to COVID-19 pharmaceutical products and technologies. This research is non-empirical, desk-based research. It is, therefore, based on the literature review of existing body of work that is relevant to the topic under discussion. Mindful of the epistemological challenges that are always associated with desk-based research, part of the methodology of this work is to seek support from related empirical studies based on different philosophical underpinnings but that confirm the working hypothesis of this research.\u0000\u0000\u0000Findings\u0000This paper finds that there is still a need for a comprehensive reform of TRIPS Agreement to streamline the voluntary licencing system which is an important tool for low-income countries’ access to affordable pharmaceuticals. However, for purposes of dealing with COVID-19, WTO members should consider establishing pooled Licencing Facilities and procurement strategies via already existing political, economic or regional trade groupings.\u0000\u0000\u0000Originality/value\u0000This research is original. All sources have been acknowledged. This research synthesises different research papers and applies different viewpoints to the debate on the impact of the TRIPS Agreement on equitable access to COVID-19 vaccines, therapeutics and diagnostics.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-09-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43400077","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 : 2021-08-11DOI: 10.1108/jitlp-04-2021-0023
M. Lucey
Purpose This paper aims to draw attention to a broad range of experimental institutional initiatives which operate in the absence of a global antitrust regime. The purpose of this paper is to offer food for thought to scholars in other fields of international trade law facing challenges from divergent national regimes. Design/methodology/approach Taking inspiration from political science literature on institutions, this paper crafts a broad analytical lens which captures various organisational forms (including networks), codes (including soft law) and culture (including epistemic communities). The strength and shortcomings of traditional “bricks and mortar” institutions such as the European Union (EU) and General Agreement Tariffs and Trade/World Trade Organisation are first examined. Then, the innovative global network of International Competition Network (ICN) is analysed. Findings It highlights the value of the global antitrust epistemic community in providing a conducive environment for extensive recourse to “soft law”. Examples from the EU and the ICN include measures which find expression in enforcement tools and networks. These initiatives can be seen as experimental responses to the challenges of divergent national antitrust regimes. Research limitations/implications It is desktop research rather than empirical field work. Practical implications To raise awareness outside the antitrust scholarly community of the variety of experimental institutional initiatives which have evolved, often on a soft law basis, in response to the challenges experienced by national enforcement agencies and businesses operating in the absence of a global antitrust regime. Originality/value It offers some personal reflections on the ICN from the author’s experience as a non-governmental advisor. It draws attention to the ICN’s underappreciated range of educational materials which are freely available on its website to everyone. It submits that the ICN template offers interesting ideas for other fields of international trade law where a global regime is unrealisable. The ICN is a voluntary virtual network of agencies collaborating to agree ways to reduce clashes among national regimes. Its goal of voluntary convergence is portrayed as standardisation rather than as absolute congruence. Even if standardisation of norms/processes is too ambitious a goal in other fields of international trade law, the ICN model still offers inspiration as an epistemic community within an inclusive and dynamic forum for encouraging debate and creating a culture of learning opportunities where familiarity and trust is fostered.
{"title":"In the absence of global antitrust law: looking to “bricks and mortar” institutions and agency networks","authors":"M. Lucey","doi":"10.1108/jitlp-04-2021-0023","DOIUrl":"https://doi.org/10.1108/jitlp-04-2021-0023","url":null,"abstract":"\u0000Purpose\u0000This paper aims to draw attention to a broad range of experimental institutional initiatives which operate in the absence of a global antitrust regime. The purpose of this paper is to offer food for thought to scholars in other fields of international trade law facing challenges from divergent national regimes.\u0000\u0000\u0000Design/methodology/approach\u0000Taking inspiration from political science literature on institutions, this paper crafts a broad analytical lens which captures various organisational forms (including networks), codes (including soft law) and culture (including epistemic communities). The strength and shortcomings of traditional “bricks and mortar” institutions such as the European Union (EU) and General Agreement Tariffs and Trade/World Trade Organisation are first examined. Then, the innovative global network of International Competition Network (ICN) is analysed.\u0000\u0000\u0000Findings\u0000It highlights the value of the global antitrust epistemic community in providing a conducive environment for extensive recourse to “soft law”. Examples from the EU and the ICN include measures which find expression in enforcement tools and networks. These initiatives can be seen as experimental responses to the challenges of divergent national antitrust regimes.\u0000\u0000\u0000Research limitations/implications\u0000It is desktop research rather than empirical field work.\u0000\u0000\u0000Practical implications\u0000To raise awareness outside the antitrust scholarly community of the variety of experimental institutional initiatives which have evolved, often on a soft law basis, in response to the challenges experienced by national enforcement agencies and businesses operating in the absence of a global antitrust regime.\u0000\u0000\u0000Originality/value\u0000It offers some personal reflections on the ICN from the author’s experience as a non-governmental advisor. It draws attention to the ICN’s underappreciated range of educational materials which are freely available on its website to everyone. It submits that the ICN template offers interesting ideas for other fields of international trade law where a global regime is unrealisable. The ICN is a voluntary virtual network of agencies collaborating to agree ways to reduce clashes among national regimes. Its goal of voluntary convergence is portrayed as standardisation rather than as absolute congruence. Even if standardisation of norms/processes is too ambitious a goal in other fields of international trade law, the ICN model still offers inspiration as an epistemic community within an inclusive and dynamic forum for encouraging debate and creating a culture of learning opportunities where familiarity and trust is fostered.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-08-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46133372","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 : 2021-06-03DOI: 10.1108/JITLP-11-2020-0061
M. Cameron, L. Cuyvers, Dahai Fu, W. Viviers
Purpose This paper aims to identify China’s realistic export opportunities (REOs) among the “Belt and Road Initiative” (BRI) group of countries. Design/methodology/approach The methodology used is a decision support model (DSM) that filters data based on country risk; macro-economic country performance; market potential in terms of import growth and import market size; and market access conditions. The high-potential REOs are revealed. Findings Out of the 84 BRI countries, 79 countries represent 42.5% of China’s REOs globally and 26.9% of China’s globally untapped potential value. Interestingly, 17.9% of this untapped potential is in the BRI countries Poland, Austria and the Czech Republic, thus providing a potentially important route into the European Union. Research limitations/implications If China wants to develop additional or new markets, focus should be put on the BRI markets outside of the top 20. China should also invest in the development of most BRI economies, to ensure their future growth and increased demand for import of products and services from China. Practical implications The shortlist of China’s REOs in the individual BRI countries makes for more efficient planning and prioritising of export development activities. It also highlights the need for policymakers to look beyond international trade and focus on how to also improve the domestic economies of the BRI partners. Originality/value To the best of authors’ knowledge, this paper is the first to use the DSM to identify China’s REOs at HS6-digit level within the BRI group. The findings have important implications for China’s export promotion agencies, industry associations and individual companies.
{"title":"Identifying export opportunities for China in the ‘Belt and Road Initiative’ group of countries: a decision support model approach","authors":"M. Cameron, L. Cuyvers, Dahai Fu, W. Viviers","doi":"10.1108/JITLP-11-2020-0061","DOIUrl":"https://doi.org/10.1108/JITLP-11-2020-0061","url":null,"abstract":"\u0000Purpose\u0000This paper aims to identify China’s realistic export opportunities (REOs) among the “Belt and Road Initiative” (BRI) group of countries.\u0000\u0000\u0000Design/methodology/approach\u0000The methodology used is a decision support model (DSM) that filters data based on country risk; macro-economic country performance; market potential in terms of import growth and import market size; and market access conditions. The high-potential REOs are revealed.\u0000\u0000\u0000Findings\u0000Out of the 84 BRI countries, 79 countries represent 42.5% of China’s REOs globally and 26.9% of China’s globally untapped potential value. Interestingly, 17.9% of this untapped potential is in the BRI countries Poland, Austria and the Czech Republic, thus providing a potentially important route into the European Union.\u0000\u0000\u0000Research limitations/implications\u0000If China wants to develop additional or new markets, focus should be put on the BRI markets outside of the top 20. China should also invest in the development of most BRI economies, to ensure their future growth and increased demand for import of products and services from China.\u0000\u0000\u0000Practical implications\u0000The shortlist of China’s REOs in the individual BRI countries makes for more efficient planning and prioritising of export development activities. It also highlights the need for policymakers to look beyond international trade and focus on how to also improve the domestic economies of the BRI partners.\u0000\u0000\u0000Originality/value\u0000To the best of authors’ knowledge, this paper is the first to use the DSM to identify China’s REOs at HS6-digit level within the BRI group. The findings have important implications for China’s export promotion agencies, industry associations and individual companies.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49449000","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 : 2021-05-27DOI: 10.1108/JITLP-01-2021-0001
M. Karas, K. Brockova
Purpose The purpose of this paper is twofold. First, it identifies the latest trends in investment treaty making and determines the degree to which these trends affect the regulatory space of nation states. Second, it situates the conflict between investment protection and national sovereignty on the level of investment treaties within the wider theoretical framework of the debate between neoliberalism and neorealism in the field of international relations. Design/methodology/approach This research paper uses qualitative content analysis of international investment treaties with the aim of comparing a sample of new investment treaties with a sample of treaties from a previous generation. Findings The findings of the paper indicate that the language of investment treaties signed recently tends to promote greater regulatory space for the nation states compared to previous generation of treaties. However, the analysis also suggests that the changes still offer significant leeway to investment tribunals in interpreting the new treaty language, which could mean that the move towards greater national sovereignty in international investment law will not be as significant as many suggest. Originality/value Originality of the paper consists mainly in explicit connection it makes between international investment law and the debate between neorealism and neoliberalism in international relations theory.
{"title":"Investment treaties and national sovereignty: latest developments","authors":"M. Karas, K. Brockova","doi":"10.1108/JITLP-01-2021-0001","DOIUrl":"https://doi.org/10.1108/JITLP-01-2021-0001","url":null,"abstract":"\u0000Purpose\u0000The purpose of this paper is twofold. First, it identifies the latest trends in investment treaty making and determines the degree to which these trends affect the regulatory space of nation states. Second, it situates the conflict between investment protection and national sovereignty on the level of investment treaties within the wider theoretical framework of the debate between neoliberalism and neorealism in the field of international relations.\u0000\u0000\u0000Design/methodology/approach\u0000This research paper uses qualitative content analysis of international investment treaties with the aim of comparing a sample of new investment treaties with a sample of treaties from a previous generation.\u0000\u0000\u0000Findings\u0000The findings of the paper indicate that the language of investment treaties signed recently tends to promote greater regulatory space for the nation states compared to previous generation of treaties. However, the analysis also suggests that the changes still offer significant leeway to investment tribunals in interpreting the new treaty language, which could mean that the move towards greater national sovereignty in international investment law will not be as significant as many suggest.\u0000\u0000\u0000Originality/value\u0000Originality of the paper consists mainly in explicit connection it makes between international investment law and the debate between neorealism and neoliberalism in international relations theory.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-05-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48858748","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 : 2021-05-26DOI: 10.1108/JITLP-08-2020-0052
A. Ukpe, S. Khorana
Purpose Special and differential treatment (SDT) in the World Trade Organisation (WTO) has failed to integrate developing countries into the international trading system, as contemplated by the WTO Agreement, itself. This paper aims to interrogate the current application of SDT by WTO members as the possible undermining factor for SDT not delivering on its objective. Design/methodology/approach The research uses a qualitative legal methodology. This study conducts desk analysis of primary legal materials and existing literature to assess current reflections of SDT and draw lessons for reforms in the WTO. Findings From interrogating current SDT practice in the WTO and a comparative analysis with a similar differential treatment under the Montreal Protocol, this paper finds that indeed, the problem lies in the current approach to SDT application in the WTO. This study finds that the existing absence of eligibility criteria for determining access to SDT by countries is the core reason for the abuse and sub-optimal outcome from its application. Originality/value While making a case for a rules-based approach to differentiation in the WTO, this paper proposes a unique methodology for differentiating between developing countries for SDT, including the use of a composite indicator to ensure that indicators that are used sufficiently reflect their heterogeneous needs. Drawing inspiration from Gonzalez et al. (2011a), this study introduces an adaptation for selecting a threshold for graduation. Specifically, the proposal on the value of the standard deviation of countries from the weighted mean of the composite indicator as the threshold for graduating countries from SDT is novel.
{"title":"Special and differential treatment in the WTO: framing differential treatment to achieve (real) development","authors":"A. Ukpe, S. Khorana","doi":"10.1108/JITLP-08-2020-0052","DOIUrl":"https://doi.org/10.1108/JITLP-08-2020-0052","url":null,"abstract":"\u0000Purpose\u0000Special and differential treatment (SDT) in the World Trade Organisation (WTO) has failed to integrate developing countries into the international trading system, as contemplated by the WTO Agreement, itself. This paper aims to interrogate the current application of SDT by WTO members as the possible undermining factor for SDT not delivering on its objective.\u0000\u0000\u0000Design/methodology/approach\u0000The research uses a qualitative legal methodology. This study conducts desk analysis of primary legal materials and existing literature to assess current reflections of SDT and draw lessons for reforms in the WTO.\u0000\u0000\u0000Findings\u0000From interrogating current SDT practice in the WTO and a comparative analysis with a similar differential treatment under the Montreal Protocol, this paper finds that indeed, the problem lies in the current approach to SDT application in the WTO. This study finds that the existing absence of eligibility criteria for determining access to SDT by countries is the core reason for the abuse and sub-optimal outcome from its application.\u0000\u0000\u0000Originality/value\u0000While making a case for a rules-based approach to differentiation in the WTO, this paper proposes a unique methodology for differentiating between developing countries for SDT, including the use of a composite indicator to ensure that indicators that are used sufficiently reflect their heterogeneous needs. Drawing inspiration from Gonzalez et al. (2011a), this study introduces an adaptation for selecting a threshold for graduation. Specifically, the proposal on the value of the standard deviation of countries from the weighted mean of the composite indicator as the threshold for graduating countries from SDT is novel.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-05-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46920672","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 : 2021-05-07DOI: 10.1108/JITLP-10-2020-0056
H. Williams, M. Lilly
Purpose Lack of progress advancing labour provisions in multilateral trade instruments has led some countries to develop their own labour chapters in bilateral and plurilateral trade agreements. This study aims to track the evolution of 25 years of labour chapters in Canadian trade agreements. Design/methodology/approach Modelled on Hoekman (1995), the authors present a novel index using the International Labour Organization’s (ILO) core labour standards to compare and evaluate ambition and enforcement in Canada’s labour chapters. Findings The quality of Canada’s labour chapters has steadily improved from 1994 to 2020, with scores rising from 46 to 91 out of 100. In addition, Canada has used its negotiating leverage to encourage partners with weak labour regimes to make improvements. Yet, the highest quality chapters were achieved with trade partners similar to Canada, and those chapters have not pushed either party to improve their own domestic labour regimes. The authors discuss the limits of the ILO standards for addressing contemporary debates about labour and trade. Originality/value The authors’ assessment provides the first empirical evidence to demonstrate that Canada’s labour chapters have evolved over time, and that the origins of this evolution predate the Liberal government’s progressive trade agenda by several decades. The authors also suggest that Canada’s “middle road” compromise on ambition versus enforceability may increase the relevance of the index for research on other middle powers and potentially countries in the global south.
{"title":"Developing a novel index to evaluate labour chapters in trade agreements: Canada’s ambition–enforceability compromise","authors":"H. Williams, M. Lilly","doi":"10.1108/JITLP-10-2020-0056","DOIUrl":"https://doi.org/10.1108/JITLP-10-2020-0056","url":null,"abstract":"\u0000Purpose\u0000Lack of progress advancing labour provisions in multilateral trade instruments has led some countries to develop their own labour chapters in bilateral and plurilateral trade agreements. This study aims to track the evolution of 25 years of labour chapters in Canadian trade agreements.\u0000\u0000\u0000Design/methodology/approach\u0000Modelled on Hoekman (1995), the authors present a novel index using the International Labour Organization’s (ILO) core labour standards to compare and evaluate ambition and enforcement in Canada’s labour chapters.\u0000\u0000\u0000Findings\u0000The quality of Canada’s labour chapters has steadily improved from 1994 to 2020, with scores rising from 46 to 91 out of 100. In addition, Canada has used its negotiating leverage to encourage partners with weak labour regimes to make improvements. Yet, the highest quality chapters were achieved with trade partners similar to Canada, and those chapters have not pushed either party to improve their own domestic labour regimes. The authors discuss the limits of the ILO standards for addressing contemporary debates about labour and trade.\u0000\u0000\u0000Originality/value\u0000The authors’ assessment provides the first empirical evidence to demonstrate that Canada’s labour chapters have evolved over time, and that the origins of this evolution predate the Liberal government’s progressive trade agenda by several decades. The authors also suggest that Canada’s “middle road” compromise on ambition versus enforceability may increase the relevance of the index for research on other middle powers and potentially countries in the global south.\u0000","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41490925","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 : 2021-03-10DOI: 10.1108/JITLP-06-2020-0039
E. Laryea, Oladapo O. Fabusuyi
Purpose The purpose of this study is to critically examine the move to Africanise international investment law (IIL) aimed at promoting sustainable development on the continent. Design/methodology/approach The study analyses the move by African countries to “Africanise” IIL by incorporating specific and innovative provisions and features in their international investment agreements (IIAs) for the benefit of African economies. This is evidenced by provisions in African regional investment instruments such as the 2007 Common Market of Eastern and Southern Africa Investment Agreement and the 2008 Economic Community of West African States Supplementary Act on Investments produced by the different African regional economic communities (RECs), new-generation IIAs such as the 2016 Nigeria-Morocco IIA and the China-Tanzania IIA and the African Union’s Pan-African Investment Code 2016. The common features of these instruments include linking the objective of investment promotion and protection to sustainable development; excluding portfolio investments; including provisions on investor-obligations; and reserving wide scope of regulatory space for host-states, including the ability to take emergency measures without incurring liability to investors. Some of these provisions are rare in IIAs. Findings The study finds that, while the efforts are commendable, there are real challenges. Firstly, there are inconsistencies in the regimes existing on the continent due to differences in the contents of the international investment instruments promulgated by the different RECs, and also differences in the content of IIAs signed by some member-states of the RECs with countries external to the RECs. Secondly, there are governance gaps and a lack of enforcement in practice, which would undermine the effectiveness of the laws being forged. Thirdly, the Africanised IIL alone would not attract investment if other important determinants, such as critical infrastructure, remain lacking. Fourthly, there is under-representation of Africa in the arbitral institutions that develop and enrich the laws, which, if it continues, would undermine the effectiveness of the Africanisation provisions being included in IIAs. Research limitations/implications While the research discusses both law and policy, more is discussed of the law, owing to space limitation. Practical implications It is anticipated that this research will impact the content of the investment protocol under the African continental free trade area and beyond and will prompt review of existing and future IIAs by member states of the various RECs to align them for consistency. It is also hoped that this research will impact the review of various investment instruments of the RECs with the aim of harmonising them. It is further hoped that this research would contribute to addressing the challenges that militate against the achievement of the goals of Africanising ILL for sustainable development. Originality/va
{"title":"Africanisation of international investment law for sustainable development: challenges","authors":"E. Laryea, Oladapo O. Fabusuyi","doi":"10.1108/JITLP-06-2020-0039","DOIUrl":"https://doi.org/10.1108/JITLP-06-2020-0039","url":null,"abstract":"\u0000Purpose\u0000The purpose of this study is to critically examine the move to Africanise international investment law (IIL) aimed at promoting sustainable development on the continent.\u0000\u0000\u0000Design/methodology/approach\u0000The study analyses the move by African countries to “Africanise” IIL by incorporating specific and innovative provisions and features in their international investment agreements (IIAs) for the benefit of African economies. This is evidenced by provisions in African regional investment instruments such as the 2007 Common Market of Eastern and Southern Africa Investment Agreement and the 2008 Economic Community of West African States Supplementary Act on Investments produced by the different African regional economic communities (RECs), new-generation IIAs such as the 2016 Nigeria-Morocco IIA and the China-Tanzania IIA and the African Union’s Pan-African Investment Code 2016. The common features of these instruments include linking the objective of investment promotion and protection to sustainable development; excluding portfolio investments; including provisions on investor-obligations; and reserving wide scope of regulatory space for host-states, including the ability to take emergency measures without incurring liability to investors. Some of these provisions are rare in IIAs.\u0000\u0000\u0000Findings\u0000The study finds that, while the efforts are commendable, there are real challenges. Firstly, there are inconsistencies in the regimes existing on the continent due to differences in the contents of the international investment instruments promulgated by the different RECs, and also differences in the content of IIAs signed by some member-states of the RECs with countries external to the RECs. Secondly, there are governance gaps and a lack of enforcement in practice, which would undermine the effectiveness of the laws being forged. Thirdly, the Africanised IIL alone would not attract investment if other important determinants, such as critical infrastructure, remain lacking. Fourthly, there is under-representation of Africa in the arbitral institutions that develop and enrich the laws, which, if it continues, would undermine the effectiveness of the Africanisation provisions being included in IIAs.\u0000\u0000\u0000Research limitations/implications\u0000While the research discusses both law and policy, more is discussed of the law, owing to space limitation.\u0000\u0000\u0000Practical implications\u0000It is anticipated that this research will impact the content of the investment protocol under the African continental free trade area and beyond and will prompt review of existing and future IIAs by member states of the various RECs to align them for consistency. It is also hoped that this research will impact the review of various investment instruments of the RECs with the aim of harmonising them. It is further hoped that this research would contribute to addressing the challenges that militate against the achievement of the goals of Africanising ILL for sustainable development.\u0000\u0000\u0000Originality/va","PeriodicalId":42719,"journal":{"name":"Journal of International Trade Law and Policy","volume":null,"pages":null},"PeriodicalIF":0.9,"publicationDate":"2021-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49421800","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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