1 Adjudicating Disputes Along China's New Silk Road: Towards Unity, Diversity or Fragmentation of International Law?

This article analyses dispute resolution in China's Belt and Road Initiative (BRI) from the perspective of the debate on unity, diversity and fragmentation of international law. This article presents a critical perspective that although the BRI preaches unity through greater economic (and social) integration, it currently increases fragmentation by failing to offer a unified dispute resolution mechanism. The analysis considers how some of the major procedural issues perceived in the BRI-at the time of transnational dispute management-are being addressed. Approaching this from the perspective of diversity in international law provides a novel method to consider BRI adjudication, and (potentially) a concrete target (of unity) to aim towards for strengthening the BRI as a genuine transnational law-making process. However, the consequences of increased fragmentation in BRI dispute resolution are many, including multiplications of disputes in different forums (with different procedures, case law and legal remedies) which, in the long term, will bring deep fragmentation among BRI countries and become an impediment to the BRI's success. Finally, this article asks whether unity in BRI dispute resolution is a realistic target, considering the Chinese State's (perceived) preference for maintaining flexibility in relation to the initiative, and highlights the long-term consequences for international lawyers of the fragmentation in BRI dispute resolution.

作者:Chaisse, Julien; Kirkwood, Jamieson
出版月(日)年:Aug., 2021
2 A Lauterpachtian Affair: Security Exceptions as 'Self-Judging Obligations' in the Case Law of the International Court of Justice and Beyond

Although Sir Hersch Lauterpacht never dealt with security exceptions during his time at the International Court of Justice (ICJ), his entire body of work formed the intellectual premise for the approach of the Court towards security exceptions and the way in which the ICJ manoeuvers in the larger debate on the relationship between law, politics and the proper discharge of the judicial function. The Lauterpachtian approach is understood as a particular attitude towards the judicial function in which the Court serves as an instrument for the protection of peace, as a guardian of the coherence and unity of the international legal system and as a driving force for the development of international law. However, in some other important elements of its reasoning, the Court seems to remain more Lauterpachtian in spirit than in letter. Despite these inconsistencies, the Court arguably exerted significant (albeit somehow uneven) influence over World Trade Organization panels and investment tribunals.

作者:Milanov, Momchil
出版月(日)年:Aug., 2021
卷(期),頁碼:22(4), 509-560
3 Do Beijing's Capital Controls Bind Hong Kong? Reality or Illusion

The ongoing impact of COVID-19 on global economic growth is likely to result in a retreat from financial globalization, including restrictions on capital movements. This concern arises from the experience of short-term capital control policies being implemented by countries in past financial crisis. This trend, together with China's long history of using capital controls, has further sparked fears in Hong Kong regarding the extent to which the capital control restrictions from Beijing could impact Hong Kong's open financial policy on capital transfers. With this context, this article evaluates situations where concerns have been raised and seeks to ascertain whether Hong Kong could be legally liable for the implementation of capital controls in Beijing.

作者:Fu, Jiangyuan; Mercurio, Bryan
出版月(日)年:Jun., 2021
卷(期),頁碼:9(1), 109-122
4 Interpreting the "Same Level of Public Health Protection" in Produce Safety Rule Variances

As the Food Safety Modernization Act Produce Safety Rule (FSMA PSR) enters implementation, regulators and stakeholders are examining their options in case some provisions do not suit their jurisdiction's circumstances. Under Subpart P, food safety agencies may apply for PSR variances if the agency proposes substitute measures that provide the "same level of public health protection." Through variances, the Food and Drug Administration (FDA) could regionalize PSR requirements and account for geographic variation in environmental conditions, agricultural practices, and industry technologies. Theoretically, variances can be as simple as an exception from one PSR provision for a single commodity or as complex as a waiver of all PSR requirements for all producers in a foreign country. Draft guidance began illuminating the same level of public health protection standard, but many questions remain unanswered. This Article examines analogous United States Department of Agriculture (USDA) and FDA programs, as well as international trade law, to discern how petitioners can show that substitute measures meet the same level of public health protection standard and how the variance process may differ based on the complexity of the request. After discussing the basic structure of the variance process and the only variance petition submitted to date, this Article examines legal precedent for analogous regulatory evaluation processes. Legal precedent examined includes FDA's Manufactured Food Regulatory Program Standards, USDA's Meat & Poultry Inspection equivalence program, and FDA's foreign systems recognition and foreign equivalence processes. Due to their influence on U.S. import regulation, this Article also examines U.S. obligations under the World Trade Organization Agreement on the Application of Sanitary and Phytosanitary Measures (WTO SPS Agreement) to determine whether the PSR is open to challenge as a violation of international trade commitments. FDA should rely upon these analogous processes to inform its evaluation of PSR variance petitions. Doing so will clarify petition requirements, improve procedural efficiency, and help ensure FDA's consistency when reviewing similar variance requests.

作者:Wustenberg, Lauren R.
卷(期),頁碼:76(1), 141-176
5 Energy and the TRIMs and GATS agreements

The international energy sector has always involved a wide range of activities, with energy mineral extraction residing at its core. Technological advancements and job specialisation have resulted in segmentation within the industry as traditionally conceived. With sensitivity to the relationship between energy use and climate change, the growth of interest in renewable energy sources have further contributed to segmentation within the industry. Thus, when writ large, the international energy sector has become increasingly subject to certain WTO rules governing trade-related investment measures and generally agreed rules governing trade in services, Central obligations found in these rules are examined in this commentary and analysed in the context of three hypothetical situations, all with an eye towards an increasing understanding of what relevant countries hosting efforts by the international energy sector may and may not do to affect the sector.

作者:Zedalis, Rex J.
出版月(日)年:Jun., 2021
卷(期),頁碼:14(3), 147-162
6 What's yours is ours: waiving intellectual property protections for COVID-19 vaccines

This paper gives an ethical argument for temporarily waiving intellectual property (IP) protections for COVID-19 vaccines. It examines two proposals under discussion at the World Trade Organization (WTO): the India/South Africa proposal and the WTO Director General proposal. Section I explains the background leading up to the WTO debate. Section II rebuts ethical arguments for retaining current IP protections, which appeal to benefiting society by spurring innovation and protecting rightful ownership. It sets forth positive ethical arguments for a temporary waiver that appeal to standing in solidarity and holding companies accountable. After examining built-in exceptions to existing agreements and finding them inadequate, the paper replies to objections to a temporary waiver and concludes, in section III, that the ethical argument for temporarily waiving IP protection for COVID-19 vaccines is strong.

作者:Jecker, Nancy S.; Atuire, Caesar A.
出版月(日)年:Sep., 2021
卷(期),頁碼:47(9), 595-598
7 The CJEU in Commission v Hungary Higher Education Defends Academic Freedom Through WTO Provisions

The Court of Justice of the European Union (CJEU) in Commission v Hungary Higher Education ruled that the legal conditions introduced to enable foreign higher education institutions to carry out their activities in Hungary are incompatible with EU law. The Commission referred Hungary to the CJEU, claiming that the amendments to the Higher Education Act of 2011 are incompatible with Hungary's commitments as a member of the EU within the following frameworks: the General Agreement on Trade in Services (GATS); the freedom of establishment; the free movement of services; the provisions of the EU Charter of Fundamental Rights relating to academic freedom; the freedom to found higher education institutions; and the freedom to conduct a business. This note explains that Commission v Hungary Higher Education is the latest example of the ongoing efforts in Hungary to undermine the rule of law and threaten academic freedom in the EU

作者:Hoxhaj, Andi
出版月(日)年:Sep., 2021
8 Missing in Action: The Global Strategy to Reduce the Harmful Use of Alcohol and the WTO

This article addresses the question of how the World Health Organization (WHO) Global Strategy to Reduce the Harmful Use of Alcohol (Global Strategy) and its Framework Convention on Tobacco Control (FCTC) have been used in the context of discussions about alcohol and tobacco measures, respectively, in the World Trade Organization (WTO) Committee on Technical Barriers to Trade. The article finds considerable differences not only in the extent to which the FCTC is used compared to the Global Strategy, but also in the ways in which the two global health instruments have been used in the WTO context. The article proffers three key reasons for these differences: the legal status of the instrument; the content of the instrument in terms of whether it contains guidance as to the use of detailed, evidence-based measures; and the role and legitimacy that the instrument accords to the relevant industry interests. The article considers how the insights from the research can inform the developments in global governance of alcohol that are underway in WHO policy. It also positions its findings in terms of the wider international law debates about hard law versus soft law, and whether different types of international regulatory instruments and the legal status of these instruments impact their effectiveness in supporting domestic public health measures.

作者:O'brien, Paula
出版月(日)年:Jun., 2021
卷(期),頁碼:12(2), 477-498
9 Role of trade openness, export diversification, and renewable electricity output in realizing carbon neutrality dream of China

Since climate change mitigation is the central debate of modern literature, the realization of carbon neutrality in response to diversified macroeconomic variables is the most crucial concern of international economies. However, the critical role of trade and renewable electricity output in export diversification-environmental nexus is missing. Therefore, this study investigates the combined influence of trade openness, exports diversification, and renewable electricity output on carbon dioxide emissions (CO2) in China from 1989 through 2019. Applying novel time series econometric techniques robust to structural breaks, following new outcomes are obtained. Firstly, long-run equilibrium cointegration existed among the under-analysis variables. Secondly, export diversification and renewable electricity output are predicted to decelerate CO2, supporting carbon neutrality in the long run. Thirdly, trade openness and gross domestic product accelerated the CO2, delaying carbon neutrality accomplishment. Most importantly, significant structural break dummy interacting with trade openness implicated that during the post-2001 era, China's trade openness extensively deteriorated the environmental quality in the face of trade liberalization obtained after joining the World Trade Organization (WTO). Based on empirical results, export diversification and renewable electricity production policies should be mutually non-exclusive and closely coordinated. Further, to counter the carbon emission acceleration impact of trade openness, increasing the share of green tradable products is suggested. Finally, bilateral trade restructuring is recommended to realize the long-term dream of economic sustainability and carbon neutrality.

作者:Li, Menghan; Ahmad, Munir; Fareed, Zeeshan; Hassan, Taimoor; Kirikkaleli, Dervis
出版月(日)年:Nov(1)., 2021
10 Standards of Review for the Non-Precluded Measures Clause in Investment Treaties: Different Wording, Different Levels of Scrutiny

The non-precluded measures ('NPM') clause allows a state to restrict the exercise of the investor's rights and protections provided for in international investment agreements ('IIAs') during emergencies. In light of the increase in investor-state disputes brought by foreign investors under investment treaties, treaty negotiators have included such a clause in recent IIAs to support the state's position and mitigate the impact of these treaties on their regulatory powers. The nexus requirement is a key element to successfully invoke this clause in investment arbitrations and requests tribunals to adopt a standard of review. States determine the level of scrutiny and deference of the tribunal by employing different wording for this requirement, and consequently the tribunal must adopt an appropriate standard of review in each case. This article will discuss these different layers of the nexus requirement and their relevant standards of review. First, the authors describe the structure of the clause and aspects to be considered in the process of adopting an appropriate standard of review in investment arbitrations. They then analyze the standard of review for each category of the nexus requirement. The authors consider good faith, reasonableness and an abbreviated form of the proportionality test developed within WTO law as possible models for investment arbitration tribunals.

作者:Kalkhoran, Mir-Hossein Abedian; Sabzevari, Habib
出版月(日)年:Aug., 2021