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New (Paradigms In) International Economic Law 国际经济法的新范式
IF 3.1 1区 社会学 Q1 LAW Pub Date : 2023-01-18 DOI: 10.1093/jiel/jgac062
A. Bjorklund, G. Marceau
Since the birth of the Journal of International Economic Law (JIEL) in 1998, the foundations of international economic law have undergone multidimensional changes. Emerging political and economic challenges have shaped international economic law into becoming inherently dynamic; not only have new frameworks developed for analyses of international economic relations, but novel social and environmental aspects of government policy now also fall within the field’s ambit. These challenges have shaken the normative foundations of international economic law and new paradigms in this field of law have emerged. Recent developments addressing matters ranging from the climate crisis to the coronavirus disease 2019 pandemic signify a turn in the WTO from negotiating trade rules to addressing pressing concerns facing humankind. When JIEL was first established, civil society renewed its calls for the inclusion of social and environmental concerns in so-called ‘trade and …’ policies. Today, the interlinkages between trade and other issues form an integral part of the international trading system. These new challenges and shifts in economic policy bring (some) traditional understandings of international economic law into question, and challenge the various normative underpinnings of international economic law in three ways: first, in the rise of novel approaches to international economic norm creation; second, in the expansion of subject areas covered by international economic rules; and third, in the steady disintegration of the traditional binaries, such as those between hard and soft law, between public and private actors, and between human rights and investment. These three changes have further provoked the development of analytical frameworks to study these norms. The eclectic and wide-ranging contributions in this special issue offer insightful critiques and provocative challenges to the community of international economic law actors facing unprecedented problems as the Journal celebrates its twenty-fifth anniversary.
自1998年《国际经济法杂志》诞生以来,国际经济法的基础发生了多方面的变化。新出现的政治和经济挑战使国际经济法具有内在的活力;不仅为分析国际经济关系开发了新的框架,而且政府政策的新的社会和环境方面现在也属于该领域的范围。这些挑战动摇了国际经济法的规范基础,这一法律领域出现了新的范式。从气候危机到2019冠状病毒病疫情等问题的最新进展标志着世贸组织从谈判贸易规则转向解决人类面临的紧迫问题。JIEL刚成立时,民间社会再次呼吁将社会和环境问题纳入所谓的“贸易和……”政策。今天,贸易和其他问题之间的相互联系构成了国际贸易体系的一个组成部分。经济政策的这些新挑战和转变使(一些)对国际经济法的传统理解受到质疑,并在三个方面挑战了国际经济法各种规范基础:第一,国际经济规范制定的新方法的兴起;二是扩大国际经济规则所涵盖的主题领域;第三,传统的二元对立不断瓦解,例如硬法律和软法律之间、公共和私人行为者之间以及人权和投资之间的对立。这三个变化进一步推动了研究这些规范的分析框架的发展。在《华尔街日报》创刊二十五周年之际,本期特刊中兼收并蓄、内容广泛的文章为面临前所未有问题的国际经济法行为者群体提出了深刻的批评和挑衅性的挑战。
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引用次数: 0
State Capitalism in the GATT/WTO Legal Order 关贸总协定/WTO法律秩序中的国家资本主义
IF 3.1 1区 社会学 Q1 LAW Pub Date : 2023-01-13 DOI: 10.1093/jiel/jgad001
P. Mavroidis, A. Sapir
Originally, the multilateral trading regime did not address state capitalism in a comprehensive manner, since none of the General Agreement on Tariffs and Trade founders had espoused this form of economic governance. The General Agreement on Tariffs and Trade did contain specific provisions dealing with state trading and with subsidies, but nothing more. This situation has remained unchanged over the years, except for tightening the screws in areas already regulated (like subsidies), even though the General Agreement on Tariffs and Trade/World Trade Organization membership has become more and more heterogenous, with some members being overtly state capitalists. This was the case because these new members were either too small to really matter (e.g. Hungary) or because it was hoped that bigger players would transform into market economies (e.g. China). In hindsight, this has proved to be a grave error, since many of the difficulties that the world trading system currently faces originate in the unsatisfactory disciplining of state intervention in the workings of the economy of World Trade Organization members.
最初,多边贸易体制并没有全面解决国家资本主义问题,因为《关税及贸易总协定》的缔造者都没有支持这种形式的经济治理。《关税及贸易总协定》确实包含了关于国家贸易和补贴的具体条款,但仅此而已。多年来,这种情况一直没有改变,只是在已经受到监管的领域(如补贴)拧紧了螺丝,尽管关税及贸易总协定/世界贸易组织的成员越来越多样化,一些成员公然是国家资本家。之所以会出现这种情况,是因为这些新成员要么太小而不重要(例如匈牙利),要么是因为希望更大的参与者转变为市场经济体(例如中国)。事后看来,这已被证明是一个严重的错误,因为世界贸易体系目前面临的许多困难源于国家干预世界贸易组织成员国经济运作的不令人满意的纪律。
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引用次数: 0
International Taxation, Globalization, and the Economic Digital Divide 国际税收、全球化和经济数字鸿沟
1区 社会学 Q1 LAW Pub Date : 2023-01-13 DOI: 10.1093/jiel/jgac068
Reuven Avi-Yonah
ABSTRACT The past decade has witnessed the creation of a new international tax regime. The original international tax regime was created a century ago by the League of Nations. Until the 1980s, it functioned reasonably well and prevented most instances of double taxation and double non-taxation by allocating cross-border income between home and host jurisdictions based on a compromise reached in 1923. However, since the advent of globalization in the 1980s and digitalization in the 1990s, the original international tax regime ceased to function as intended. The main problems were the increased mobility of capital related to increased intangibility and digitalization, together with a relaxation of capital controls and increased tax competition. These developments posed a problem for countries that wished to leave their borders open to reap the benefits of globalization and to engage in tax competition to attract investment. The outcome was a significant fall in tax revenues that threatened the social safety net of the modern welfare state. The trilemma of open borders, tax competition, and satisfying voters’ demand for social insurance culminated in the financial crisis of 2008–09, where many countries were forced to implement austerity measures at the same time that parliamentary hearings, leaks, and media reports revealed that rich individuals and large corporations were paying very little tax on cross-border income. The results over the past decade have been the creation of a new international tax regime designed to curb both tax evasion by the rich and tax competition among countries seeking to attract business activity within their borders by granting various preferential tax provisions to multinational enterprises. The key question going forward is how the new international tax regime will deal with international (in)equity, i.e. the economic digital divide. In what follows, I will first discuss the decline of the original international tax regime from 1980 to 2009, then the creation of the new international tax regime from 2010 on, and finally the implications of the new international tax regime for the economic digital divide.
过去的十年见证了新的国际税收制度的诞生。最初的国际税收制度是一个世纪前由国际联盟(League of Nations)创立的。直到20世纪80年代,它还运行得相当好,并根据1923年达成的妥协,通过在母国和东道国司法管辖区之间分配跨境收入,防止了大多数双重征税和双重不征税的情况。然而,自20世纪80年代全球化和90年代数字化出现以来,最初的国际税收制度不再像预期的那样发挥作用。主要问题是与无形性和数字化增加相关的资本流动性增加,以及资本管制的放松和税收竞争的加剧。这些事态发展给那些希望开放边界以从全球化中获益并参与税收竞争以吸引投资的国家带来了问题。其结果是税收收入大幅下降,威胁到现代福利国家的社会安全网。开放边界、税收竞争和满足选民对社会保险需求的三难困境在2008-09年的金融危机中达到顶峰,许多国家被迫实施紧缩措施,与此同时,议会听证会、泄密和媒体报道显示,富裕的个人和大公司对跨境收入只缴纳了很少的税。过去十年的结果是建立了一种新的国际税收制度,旨在遏制富人的逃税行为和各国之间的税收竞争,这些国家试图通过给予跨国企业各种优惠税收规定来吸引其境内的商业活动。未来的关键问题是新的国际税收制度将如何处理国际(不)公平,即经济数字鸿沟。在接下来的内容中,我将首先讨论1980年至2009年原有国际税收制度的衰落,然后讨论2010年以来新国际税收制度的建立,最后讨论新国际税收制度对经济数字鸿沟的影响。
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引用次数: 1
The Role of ICSID in International Economic Law ICSID在国际经济法中的作用
1区 社会学 Q1 LAW Pub Date : 2023-01-12 DOI: 10.1093/jiel/jgac059
Meg Kinnear
ABSTRACT The International Centre for Settlement of Investment Disputes was established in 1966 as a facility for the resolution of international investment disputes. Today, it has 158 member states and has administered roughly 70% of all known investor-state cases. International Centre for Settlement of Investment Disputes has taken a leadership role in modernizing the procedures for investor-state dispute resolution, especially in the 2006 and 2022 amendments to those rules.
国际投资争端解决中心成立于1966年,是解决国际投资争端的机构。如今,它拥有158个成员国,管理着大约70%的已知投资者与国家之间的案件。国际投资争端解决中心在投资者-国家争端解决程序现代化方面发挥了领导作用,特别是在2006年和2022年对这些规则的修订中。
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引用次数: 1
Platforms and Global Governance: Globalization on Steroids 平台与全球治理:类固醇的全球化
IF 3.1 1区 社会学 Q1 LAW Pub Date : 2023-01-12 DOI: 10.1093/jiel/jgac063
J. Trachtman
Platforms constitute a novel context for social interaction. Physical distance makes little to no difference to interaction, and so the frequency and intensity of cross-territorial border interaction grow dramatically. This growth in interaction will be globalization on steroids. Platforms increase both collision among national rules (jurisdictional collision) and collision at the international level among functional rules (fragmentation). Revised normative and organizational tools will be needed to manage the increased globalization and fragmentation resulting from the rise of platform commerce. These tools may include modifications and extensions of existing rules of trade law, but they will embrace other areas of regulation in a much more nuanced manner than has been necessary until now. The existing fragmentation or ‘siloed’ nature of our international trade and regulatory systems will need to be modified—lateralized—to allow a more coherent approach.
平台构成了一个新颖的社交环境。物理距离对相互作用几乎没有影响,因此跨国界相互作用的频率和强度急剧增加。这种互动的增长将是类固醇的全球化。平台增加了国家规则之间的冲突(管辖权冲突)和国际层面功能规则之间的碰撞(碎片化)。需要修订规范和组织工具,以管理平台商务兴起所造成的日益全球化和碎片化。这些工具可能包括对现有贸易法规则的修改和扩展,但它们将以比目前所需的更微妙的方式涵盖其他监管领域。我们的国际贸易和监管体系现有的碎片化或“孤立”性质需要进行修改——横向化——以允许采取更连贯的方法。
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引用次数: 0
Maintaining Relevance in a Much-Changed World: Reforming WTO Dispute Settlement 在变化很大的世界中保持相关性:改革WTO争端解决机制
IF 3.1 1区 社会学 Q1 LAW Pub Date : 2023-01-11 DOI: 10.1093/jiel/jgac065
Valerie Hughes
The World Trade Organization (WTO) and its dispute settlement mechanism were established in 1995 to great acclaim. Both have seen much success: WTO membership expanded apace, and the WTO dispute settlement mechanism proved to be the most active state-to-state dispute settlement mechanism in history. However, in recent years, the WTO has come under increasing criticism as negotiations to expand and modernize WTO disciplines have produced limited results and dissatisfaction with the dispute settlement system on the part of the system’s most active user led to the paralysis of appellate review. Calls for WTO reform have become widespread. At the June 2022 Ministerial Conference, WTO members committed to work toward necessary reform, including by conducting discussions with a view to having a fully and well-functioning dispute settlement system in place by 2024. This is a tall order, given that long-standing efforts to agree on amendments to the dispute settlement system not only failed but also highlighted significant differences in members’ preferred approaches for resolving disputes. In addition, the legal processes required to implement the major change could take years. This paper identifies adjustments to the dispute settlement system that could lead to important efficiencies and that can be effected before the 2024 deadline arrives.
世界贸易组织(世贸组织)及其争端解决机制于1995年成立,广受好评。两者都取得了很大成功:世贸组织成员迅速扩大,世贸组织争端解决机制被证明是历史上最活跃的国家间争端解决机制。然而,近年来,世贸组织受到越来越多的批评,因为扩大世贸组织纪律并使其现代化的谈判成果有限,而该系统最活跃的用户对争端解决系统的不满导致上诉审查瘫痪。要求世贸组织进行改革的呼声越来越普遍。在2022年6月的部长级会议上,世贸组织成员承诺致力于进行必要的改革,包括进行讨论,以期在2024年前建立一个全面、运行良好的争端解决体系。这是一项艰巨的任务,因为就争端解决制度修正案达成一致的长期努力不仅失败了,而且突显了成员国解决争端的首选方法存在重大差异。此外,实施重大变革所需的法律程序可能需要数年时间。本文确定了对争端解决系统的调整,这些调整可能会带来重要的效率,并且可以在2024年最后期限到来之前生效。
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引用次数: 0
Taking Stakeholder Engagement in International Policy-Making Seriously: Is the WTO Finally Opening Up? 认真对待利益相关者参与国际决策:WTO最终开放了吗?
1区 社会学 Q1 LAW Pub Date : 2023-01-11 DOI: 10.1093/jiel/jgac061
Joost Pauwelyn
ABSTRACT In the face of multiple global challenges, major policy-making initiatives are under way at various international fora. In many of these talks and discussions, a central question is how to fairly and effectively engage external stakeholders. While lagging behind for decades, the World Trade Organization has woken up to the potential of more actively engaging stakeholders in international trade policy-making, both to make better policies and mitigate implementation challenges. This contribution describes the groundbreaking steps taken in a number of Member-led informal discussions and dialogues: the Trade and Environmental Sustainability Structured Discussions and the Informal Dialogue on Plastics Pollution and Environmentally Sustainable Plastics Trade. The objective of this contribution is to describe and applaud recent developments and initiate a discussion on how the process can be made more inclusive and robust and, potentially, also be extended to formal World Trade Organization activities. In this context, the World Health Organization’s ongoing negotiations on a new pandemic treaty are used to offer an interesting point of comparison.
面对多重全球性挑战,各国际论坛正在制定重大的政策举措。在许多这样的会谈和讨论中,一个核心问题是如何公平有效地与外部利益相关者接触。虽然落后了几十年,但世界贸易组织已经意识到更积极地让利益攸关方参与国际贸易决策的潜力,既可以制定更好的政策,也可以减轻实施方面的挑战。这一贡献描述了在一些成员主导的非正式讨论和对话中采取的开创性步骤:贸易和环境可持续性结构化讨论以及塑料污染和环境可持续塑料贸易非正式对话。这篇文章的目的是描述和赞扬最近的发展,并就如何使这一进程更具包容性和活力,并有可能将其扩展到世界贸易组织的正式活动中展开讨论。在这方面,世界卫生组织正在就一项新的大流行病条约进行的谈判被用来提供一个有趣的比较点。
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引用次数: 0
Corporate Power and Accountability in International Economic Law 国际经济法中的公司权力与责任
IF 3.1 1区 社会学 Q1 LAW Pub Date : 2023-01-11 DOI: 10.1093/jiel/jgac060
Lucinda A. Low
Over the past twenty-five years, States, international institutions, and private entities have attempted to rein in corruption and promote corporate social responsibility. Such efforts have produced mixed results but have led to greater international cooperation and the establishment of clear norms. Increasing the accountability of multinational corporate actors remains a challenge but depends upon cooperation among boards of directors, national governments, nongovernmental organizations, and international institutions. This paper analyzes the relationship among municipal statutes, nonbinding ‘soft law’, and private standards. None on their own can effectively solve the problem of irresponsible corporate behavior but together have made meaningful steps in creating a more fair and accountable business environment.
在过去25年里,各国、国际机构和私营实体一直在努力遏制腐败,促进企业的社会责任。这种努力产生了好坏参半的结果,但却导致了更大的国际合作和明确规范的确立。加强跨国公司行为者的问责制仍然是一项挑战,但这取决于董事会、各国政府、非政府组织和国际机构之间的合作。本文分析了市政法规、非约束性“软法”和民间标准之间的关系。单凭一己之力无法有效解决不负责任的企业行为问题,但它们共同在创造更公平、更负责任的商业环境方面迈出了有意义的一步。
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引用次数: 0
Supporting the Transition to Climate-Neutral Production: An Evaluation Under the Agreement on Subsidies and Countervailing Measures 支持向气候中和生产过渡:补贴与反补贴措施协定下的评估
1区 社会学 Q1 LAW Pub Date : 2023-01-09 DOI: 10.1093/jiel/jgac058
Roland Ismer, Harro van Asselt, Jennifer Haverkamp, Michael Mehling, Karsten Neuhoff, Alice Pirlot
ABSTRACT To reach climate neutrality, carbon emissions from the production of basic materials need to be curtailed. When governments encourage this transition by adopting support measures, the measures must comply with the Agreement on Subsidies and Countervailing Measures. This article analyzes three selected support schemes under the Agreement on Subsidies and Countervailing Measures: (i) free allocation under emissions trading systems to operators of installations at risk of carbon leakage; (ii) the combination of a charge on carbon-intensive materials with free allocation; and (iii) carbon contracts for difference, under which governments cover the incremental costs of climate-neutral production processes relative to conventional processes. The analysis reveals that the current regime of free allocation is vulnerable to challenges under the Agreement on Subsidies and Countervailing Measures. By contrast, the combination of free allocation and a charge on carbon-intensive materials would ensure consistent carbon pricing and thus would not amount to a subsidy under the Agreement on Subsidies and Countervailing Measures. In a similar vein, the carbon contracts for difference could be designed so that they would not confer a benefit and hence not constitute a subsidy.
为了达到气候中和,需要减少基本材料生产中的碳排放。当政府通过采取支持措施鼓励这种转变时,这些措施必须符合《补贴与反补贴措施协定》。本文分析了《补贴与反补贴措施协定》下选定的三种支持方案:(1)排放交易制度下对有碳泄漏风险的设施运营商的免费分配;(ii)将对碳密集型材料收费与免费分配相结合;(三)碳差异合同,政府承担相对于传统生产过程的气候中性生产过程的增量成本。分析表明,现行的自由分配制度容易受到《补贴与反补贴措施协定》的挑战。相比之下,免费分配和对碳密集型材料收费的结合将确保一致的碳定价,因此不会构成《补贴与反补贴措施协定》下的补贴。同样,碳排放合同的设计也可以使之不产生利益,从而不构成补贴。
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引用次数: 1
Trade Agreements and Sustainability: Exploring the Potential of Global Value Chain (GVC) Obligations 贸易协定与可持续性:探索全球价值链义务的潜力
IF 3.1 1区 社会学 Q1 LAW Pub Date : 2023-01-07 DOI: 10.1093/jiel/jgac057
J. Harrison
This article investigates the potential of global value chain (GVC)-orientated sustainability provisions in regional and bilateral trade agreements (FTAs). Such provisions impose social and environmental obligations directly onto GVCs, as opposed to creating obligations for governments. The theoretical potential of GVC provisions is examined, and the concepts of effectiveness and legitimacy are introduced as values by which to assess them. Four recent sets of provisions are then scrutinized. These are (i) palm oil sustainability standards from the Indonesia–European Free Trade Association (EFTA) Comprehensive Economic Partnerhsip Agreement (CEPA) FTA, (ii) hen welfare standards in the European Union–Mercosur Association Agreement, (iii) a stipulation of a minimum average wage for the automobile industry in the US–Mexico–Canada Agreement (USMCA), and (iv) enforcement of collective bargaining and freedom of association directly against factories, also in the USMCA. All of these provisions are found to have significant deficiencies. At the same time, it is argued that three different governance models underpin them, namely (i) third-party certification schemes, (ii) domestic regulations of one of the parties, and (iii) bespoke arrangements created for the FTA in question. The article therefore considers the potential and drawbacks of each governance model in terms of their effectiveness and legitimacy, as well as alternative and complementary commitments including unilateral measures and subject-specific trade agreements.
本文研究了区域和双边贸易协定中以全球价值链(GVC)为导向的可持续性条款的潜力。这些条款将社会和环境义务直接强加给全球价值链,而不是为政府创造义务。研究了全球价值链条款的理论潜力,并引入了有效性和合法性的概念,作为评估它们的价值。然后仔细审查了最近出台的四套规定。这些是(i)印尼-欧洲自由贸易联盟(EFTA)全面经济伙伴关系协定(CEPA)自由贸易协定中的棕榈油可持续性标准,(ii)欧盟-南方共同市场联盟协定中的福利标准,(iii)美国-墨西哥-加拿大协定(USMCA)中汽车行业最低平均工资的规定,以及(iv)直接针对工厂的集体谈判和自由的执行,也是在USMCA中。所有这些规定都发现有重大缺陷。与此同时,有三种不同的治理模式支撑着它们,即(i)第三方认证机制,(ii)其中一方的国内法规,以及(iii)为有关自由贸易协定制定的定制安排。因此,本文考虑了每种治理模式在有效性和合法性方面的潜力和缺点,以及包括单边措施和特定主体贸易协定在内的替代和补充承诺。
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引用次数: 1
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Journal of International Economic Law
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