{"title":"Economic progress versus cultural preservation: insights from ‘cultural heritage in international economic law’","authors":"Emily Behzadi Cárdenas","doi":"10.1093/jiel/jgae019","DOIUrl":"https://doi.org/10.1093/jiel/jgae019","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141111644","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article focuses on the neglected relationship between market valuation and international economic law by comparing valuation practices in four subfields: international investment law, the law of the European Convention of Human Rights, international tax law, and World Trade Organization law. The operation of each of these hinges, in some crucial respect, on how the worth of a certain thing is determined by the market (calculating damages awarded to investors, identifying a breach of the right to property due to insufficient compensation, allocating taxable income among sovereigns under transfer pricing rules, and identifying the existence and extent of an actionable subsidy). Because the market is often either nonexistent or unreliable, the law must imagine how the market would have valued it. This operation is not mere fact-finding or a technical appendix but rather deeply entangled in the construction and operation of the legal regime. The article ultimately shows that the relationship between valuation and international economic law is highly complex, mutually transformative, and productive of multiple possible arrangements.
{"title":"Conjuring markets: valuation in comparative international economic law","authors":"Toni Marzal","doi":"10.1093/jiel/jgae021","DOIUrl":"https://doi.org/10.1093/jiel/jgae021","url":null,"abstract":"\u0000 This article focuses on the neglected relationship between market valuation and international economic law by comparing valuation practices in four subfields: international investment law, the law of the European Convention of Human Rights, international tax law, and World Trade Organization law. The operation of each of these hinges, in some crucial respect, on how the worth of a certain thing is determined by the market (calculating damages awarded to investors, identifying a breach of the right to property due to insufficient compensation, allocating taxable income among sovereigns under transfer pricing rules, and identifying the existence and extent of an actionable subsidy). Because the market is often either nonexistent or unreliable, the law must imagine how the market would have valued it. This operation is not mere fact-finding or a technical appendix but rather deeply entangled in the construction and operation of the legal regime. The article ultimately shows that the relationship between valuation and international economic law is highly complex, mutually transformative, and productive of multiple possible arrangements.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141108452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
J. Marcoux, Andrea K Bjorklund, Elizabeth A Whitsitt, Lukas Vanhonnaeker
The reform of investor-state dispute settlement (ISDS) has been tackled by the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) Working Group (WG) III. Despite different objectives, both processes have relied on written submissions from various stakeholders. What are the structures and the narratives underlying the discourses of ISDS reform in these organizations? This article explores the content of 172 submissions by using mixed methods. It demonstrates that UNCITRAL WG III has involved less structured submissions whose content has expanded the initial mandate, with narratives encapsulating deeper disagreement among participants. By contrast, ICSID operated through a common pattern across submissions and a stronger focus on procedural issues, with less disagreement revealed in its narratives. The article proceeds in three steps. First, it compares the structure of discourses for each reform process by aggregating the content of submissions through computational analysis. Second, it relies on critical discourse analysis to reveal narratives that have emerged in each process. Lastly, the article explores submissions from actors who have participated in both processes to illustrate how they have navigated the tension between structures and narratives when reforming international investment arbitration.
{"title":"Discourses of ISDS reform: a comparison of UNCITRAL Working Group III and ICSID processes","authors":"J. Marcoux, Andrea K Bjorklund, Elizabeth A Whitsitt, Lukas Vanhonnaeker","doi":"10.1093/jiel/jgae017","DOIUrl":"https://doi.org/10.1093/jiel/jgae017","url":null,"abstract":"\u0000 The reform of investor-state dispute settlement (ISDS) has been tackled by the International Centre for Settlement of Investment Disputes (ICSID) and United Nations Commission on International Trade Law (UNCITRAL) Working Group (WG) III. Despite different objectives, both processes have relied on written submissions from various stakeholders. What are the structures and the narratives underlying the discourses of ISDS reform in these organizations? This article explores the content of 172 submissions by using mixed methods. It demonstrates that UNCITRAL WG III has involved less structured submissions whose content has expanded the initial mandate, with narratives encapsulating deeper disagreement among participants. By contrast, ICSID operated through a common pattern across submissions and a stronger focus on procedural issues, with less disagreement revealed in its narratives. The article proceeds in three steps. First, it compares the structure of discourses for each reform process by aggregating the content of submissions through computational analysis. Second, it relies on critical discourse analysis to reveal narratives that have emerged in each process. Lastly, the article explores submissions from actors who have participated in both processes to illustrate how they have navigated the tension between structures and narratives when reforming international investment arbitration.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141126813","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"How to safeguard social objectives of intellectual property rights in the context of investment arbitration","authors":"Gabriel M. Lentner","doi":"10.1093/jiel/jgae016","DOIUrl":"https://doi.org/10.1093/jiel/jgae016","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141003074","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Technological Competence of Arbitrators. Katia Fach Gómez","authors":"Damien Charlotin","doi":"10.1093/jiel/jgae015","DOIUrl":"https://doi.org/10.1093/jiel/jgae015","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"141004085","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Countries increasingly adopt measures to make their economy more sustainable. These measures range from pricing carbon and protecting forests to promoting renewable energy and banning forced labour. This article examines how countries can effectively enforce such sustainability requirements on imports. Based on two case studies—the EU Carbon Border Adjustment Mechanism (CBAM) and the EU Deforestation Regulation (EUDR)—and other developments in EU customs law and practice, this article shows that customs inspection of elements that cannot be physically detected in the imported product as such is neither unique nor new. Similar challenges arise when dealing with massive inflows of small e-commerce consignments or having to check the origin or value of products. Indeed, for customs enforcement more generally, the trend is one away from physical inspection of products on a transaction basis at the point of entry, toward verification and control of firms before and especially after release of the goods. To implement this ‘product-to-firm’ shift, four back-up features are, however, crucial, focusing on data, penalties/circumvention, cooperation, and resources.
{"title":"Twenty-first century customs fraud: how to effectively enforce EU sustainability requirements on imports","authors":"Joost Pauwelyn","doi":"10.1093/jiel/jgae013","DOIUrl":"https://doi.org/10.1093/jiel/jgae013","url":null,"abstract":"Countries increasingly adopt measures to make their economy more sustainable. These measures range from pricing carbon and protecting forests to promoting renewable energy and banning forced labour. This article examines how countries can effectively enforce such sustainability requirements on imports. Based on two case studies—the EU Carbon Border Adjustment Mechanism (CBAM) and the EU Deforestation Regulation (EUDR)—and other developments in EU customs law and practice, this article shows that customs inspection of elements that cannot be physically detected in the imported product as such is neither unique nor new. Similar challenges arise when dealing with massive inflows of small e-commerce consignments or having to check the origin or value of products. Indeed, for customs enforcement more generally, the trend is one away from physical inspection of products on a transaction basis at the point of entry, toward verification and control of firms before and especially after release of the goods. To implement this ‘product-to-firm’ shift, four back-up features are, however, crucial, focusing on data, penalties/circumvention, cooperation, and resources.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-05-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140930549","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"International Adjudication and the Development of Regulatory Standards","authors":"Joshua Paine","doi":"10.1093/jiel/jgae012","DOIUrl":"https://doi.org/10.1093/jiel/jgae012","url":null,"abstract":"","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140377051","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The global economy is increasingly being weaponized. Citing security concerns from traditional defence to economic competitiveness, health emergency, and climate crisis, states are turning to sanctions, tariffs, export controls, investment screening, and subsidies. But while economic statecraft is becoming common, rules remain scarce. Questions about notice, duration, proportionality, harm minimization, compensation, retaliation, and/or rebalancing lack clear answers and seem almost theoretical. Once, we might have hoped the World Trade Organization (WTO) would play a role in developing such rules. But in the absence of an Appellate Body and in the face of state rejections of review, WTO’s deliberative processes have ground to a halt. This essay argues for a new approach, focused less on adjudicating security disputes than on developing best practices for invoking and using trade security measures. It explains why a new approach is necessary, detailing both how the WTO’s deliberative engine broke down and why dispute settlement is ill-suited to develop guidance now needed. It suggests where and how best practices might be developed, before considering an agenda for such a best practice process. In the end, the hope is a process that can develop expectations—expectations that might make a world of economic statecraft a bit less dangerous.
{"title":"Toward best practices for trade-security measures","authors":"Harlan Grant Cohen","doi":"10.1093/jiel/jgad046","DOIUrl":"https://doi.org/10.1093/jiel/jgad046","url":null,"abstract":"The global economy is increasingly being weaponized. Citing security concerns from traditional defence to economic competitiveness, health emergency, and climate crisis, states are turning to sanctions, tariffs, export controls, investment screening, and subsidies. But while economic statecraft is becoming common, rules remain scarce. Questions about notice, duration, proportionality, harm minimization, compensation, retaliation, and/or rebalancing lack clear answers and seem almost theoretical. Once, we might have hoped the World Trade Organization (WTO) would play a role in developing such rules. But in the absence of an Appellate Body and in the face of state rejections of review, WTO’s deliberative processes have ground to a halt. This essay argues for a new approach, focused less on adjudicating security disputes than on developing best practices for invoking and using trade security measures. It explains why a new approach is necessary, detailing both how the WTO’s deliberative engine broke down and why dispute settlement is ill-suited to develop guidance now needed. It suggests where and how best practices might be developed, before considering an agenda for such a best practice process. In the end, the hope is a process that can develop expectations—expectations that might make a world of economic statecraft a bit less dangerous.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140152462","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Unlike the WTO agreements, most investment treaties’ security exceptions do not further define the concept of ‘essential security interests’, creating significant uncertainty. Securitization theory illuminates conceptual problems associated with an expansive approach to security, security’s role in justifying extraordinary deontic powers, and securitization’s contingency on intersubjective agreement. As securitizing actors, states have put forward four paradigms of security, each significantly expanding the concept beyond its traditional contours. Investors have resisted with two counter-securitizing moves, each involving several tactics. Reacting to these moves and countermoves, tribunals have functioned as either empowering audiences or as nullifying audiences. The ambiguity of essentiality has also generated incongruent interpretations. States’, investors’, and tribunals’ approaches operate on three different planes, each with potential to significantly constrain security’s scope or even negate a successful securitization. Expansive and restrictive interpretations of security present competing implications that make defining it an invidious task, but some interpretations of essentiality are more tenable than others. Overall, tribunals’ narrow interpretations of the concept have operated to considerably limit states’ securitization attempts. While investors should keep a close eye on pending cases involving potentially self-judging security exceptions, they need not be overly concerned that security exceptions pose a significant threat to their interests.
{"title":"Whither security? The concept of ‘essential security interests’ in investment treaties’ security exceptions","authors":"Caroline Henckels","doi":"10.1093/jiel/jgae011","DOIUrl":"https://doi.org/10.1093/jiel/jgae011","url":null,"abstract":"Unlike the WTO agreements, most investment treaties’ security exceptions do not further define the concept of ‘essential security interests’, creating significant uncertainty. Securitization theory illuminates conceptual problems associated with an expansive approach to security, security’s role in justifying extraordinary deontic powers, and securitization’s contingency on intersubjective agreement. As securitizing actors, states have put forward four paradigms of security, each significantly expanding the concept beyond its traditional contours. Investors have resisted with two counter-securitizing moves, each involving several tactics. Reacting to these moves and countermoves, tribunals have functioned as either empowering audiences or as nullifying audiences. The ambiguity of essentiality has also generated incongruent interpretations. States’, investors’, and tribunals’ approaches operate on three different planes, each with potential to significantly constrain security’s scope or even negate a successful securitization. Expansive and restrictive interpretations of security present competing implications that make defining it an invidious task, but some interpretations of essentiality are more tenable than others. Overall, tribunals’ narrow interpretations of the concept have operated to considerably limit states’ securitization attempts. While investors should keep a close eye on pending cases involving potentially self-judging security exceptions, they need not be overly concerned that security exceptions pose a significant threat to their interests.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140035490","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
After the 2008 Global Financial Crisis, the politics of money and central banking came to the forefront. Calls for repoliticizing central banking towards social goals such as inequality, poverty, and climate change have gathered much traction. Economists and political scientists have called for revisiting the long-lost developmental mandates of central banks and for understanding them as social institutions and as terrains of overlapping contestations. Yet, the role of law in framing the discourse on money and monetary policy has been less explored. In this paper, I argue that international law, especially the International Monetary Fund (IMF/Fund), played a crucial role in the depoliticization of money in the 1970s and 1980s. Legal instruments of the Fund, including conditionality and surveillance, were operationalized to transpose ‘price stability’ and ‘central bank independence’ into the legal mandate of central banks worldwide. From a distinctly political enterprise, central banking became ‘technocratic’ endeavour operating strictly under the paradigm of rationality and neutrality. If, as this paper shows, the law has played a crucial role in depoliticizing money, the law can also be a tool in reorienting central banking towards progressive ends such as tackling poverty or inequality. This would require a careful re-evaluation of the legal institutions of global money, beginning with the Fund itself.
{"title":"Depoliticizing money: how the International Monetary Fund transformed central banking","authors":"Kanad Bagchi","doi":"10.1093/jiel/jgae009","DOIUrl":"https://doi.org/10.1093/jiel/jgae009","url":null,"abstract":"After the 2008 Global Financial Crisis, the politics of money and central banking came to the forefront. Calls for repoliticizing central banking towards social goals such as inequality, poverty, and climate change have gathered much traction. Economists and political scientists have called for revisiting the long-lost developmental mandates of central banks and for understanding them as social institutions and as terrains of overlapping contestations. Yet, the role of law in framing the discourse on money and monetary policy has been less explored. In this paper, I argue that international law, especially the International Monetary Fund (IMF/Fund), played a crucial role in the depoliticization of money in the 1970s and 1980s. Legal instruments of the Fund, including conditionality and surveillance, were operationalized to transpose ‘price stability’ and ‘central bank independence’ into the legal mandate of central banks worldwide. From a distinctly political enterprise, central banking became ‘technocratic’ endeavour operating strictly under the paradigm of rationality and neutrality. If, as this paper shows, the law has played a crucial role in depoliticizing money, the law can also be a tool in reorienting central banking towards progressive ends such as tackling poverty or inequality. This would require a careful re-evaluation of the legal institutions of global money, beginning with the Fund itself.","PeriodicalId":46864,"journal":{"name":"Journal of International Economic Law","volume":null,"pages":null},"PeriodicalIF":3.1,"publicationDate":"2024-02-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"140035497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":1,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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