Nondiscrimination as Discrimination: The MFN Obligation and International Trade Law

This chapter discusses the ILA Resolution on International Trade Law and Human Rights as submitted by ILA's International Trade Law Committee (ITLC) to the 73rd ILA Conference at Rio de Janeiro and approved, in a duly revised and shortened text, by ILA in August 2008. As international trade and trade law are mere instruments for enabling citizens to satisfy human demand for scarce goods and services through mutually beneficial cooperation among citizens across frontiers, promoting mutual consistency of international trade law and human rights is important also for poverty reduction and for strengthening the moral and democratic legitimacy of international law. The ITLC proposals for elaborating an ILA Resolution on International Trade Law and Human Rights focused on legal and judicial remedies in the field of international trade, with due respect for diverse constitutional traditions regarding regulation of human rights and economic freedom in national and international trade law. Keywords: human rights; international law; International Law Association (ILA); international trade law; International Trade Law Committee (ITLC); Rio de Janeiro Declaration

Regulatory Space in International Investment Law and International Trade Law

Numerous commentators have lauded international trade law, and the WTO dispute resolution mechanism in particular, as vehicles for change in international law more generally. In the sense that new rules of international trade law enhance international law, by creating new rights and obligations for the States parties to trade agreements, it is true that international trade law develops international law generally. In preparing the Articles on Responsibility of States for Internationally Wrongful Acts for example, the International Law Commission (ILC) had frequent regard to international trade law and the WTO. However, the influence of international trade law remains curtailed within the wider field of international law, outside the realm of WTO adjudication. Such influence in non-trade areas has been restricted for reasons such as its jurisdictional separateness, its limited relevance as part of the applicable law or even source of interpretation (due to the distinct or ‘sui generis’ character of trade law) and the informal hierarchy of international norms. But, there is room for non-trade-related areas of international law, and associated dispute resolution institutions, to learn from international trade law and in particular from the WTO as an institution.

Numerous commentators have lauded international trade law, and the WTO dispute resolution mechanism in particular, as vehicles for change in international law more generally. In the sense that new rules of international trade law enhance international law, by creating new rights and obligations for the States parties to trade agreements, it is true that international trade law develops international law generally. In preparing the Articles on Responsibility of States for Internationally Wrongful Acts for example, the International Law Commission (ILC) had frequent regard to international trade law and the WTO. However, the influence of international trade law remains curtailed within the wider field of international law, outside the realm of WTO adjudication. Such influence in non-trade areas has been restricted for reasons such as its jurisdictional separateness, its limited relevance as part of the applicable law or even source of interpretation (due to the distinct or ‘sui generis’ character of trade law) and the informal hierarchy of international norms. But, there is room for non-trade-related areas of international law, and associated dispute resolution institutions, to learn from international trade law and in particular from the WTO as an institution.

This open access book examines how international trade agreements apply to domestic regulations on cross-border data flows and then proposes a multilayered framework to align international trade law with evolving norms and practices in global data governance. Digital trade and global data governance are at a unique crossroads, raising significant policy challenges. The book focuses on five policy areas at the interface of digital trade and global data governance: privacy, cybersecurity, governmental access to data, data divide, and competition. In five separate chapters, the book analyses how different types of domestic laws in each of these policy areas interface with existing provisions in international trade law. Thereafter, each of these chapters explores the challenges and possibilities for aligning international trade law with evolving norms, standards and best practices in that specific area of data regulation, both at the domestic and transnational level. Drawing upon these findings, the final chapter proposes a multilayered framework for aligning international trade law with evolving norms and practices in global data governance. The key message of the book is that international trade law can and should meaningfully align with and contribute to the development of transnational data governance norms and practices. It can also foster robust regulatory cooperation among various stakeholders of the digital economy. As the book offers a broad perspective on the significance of digital trade rules in a datafied world, it will benefit scholars, practitioners and policymakers working on digital trade and data regulation, helping its readers explore fresh avenues in the future development of digital trade rules. Studies in International Trade and Investment Law: Volume 31

International Trade and Investment Law and Carbon Management Technologies

The lack of a consolidated set of norms, principles, and procedures in international health law reflect the haphazard manner in which the protection of human health has been addressed at the international level. But this does not mean that public international law does not play a role in promoting the improvement of human health. Rather, international health law can also contribute to shaping claims in other legal regimes. This can be ascertained by looking into developments in fields, such as international economic law, where human health has been directly at stake. On that account, this contribution lists some of the legal instruments that constitute norms of public international law with the core objective of the protection of human health. Then, a brief review of recent rulings from adjudicators in international investment and trade law is undertaken for assessing the way in which this crosscutting interpretation has taken place. Furthermore, the proliferation of non-binding documents dealing with issues of human health requires a broader approach than source-based legal positivism. Thus, the usefulness of the concept of governance for tackling the limited and fragmented array of binding instruments of international health law, as well as the challenges the concept poses for legal doctrine, are discussed. Keywords: International Health Law, International Investment Law, International Trade Law, Fragmentation of International Law, Tobacco Regulation

The research paper under review discusses the issues on international trade, investments, labour standards and environmental implications of economies in the context of the present global economic scenario, where World Trade Organization (WTO) is considered to be the international organization dealing with the dispute settlement mechanisms of various economies of the world, particularly, issues concerning international trade treaties, international trade investments, labour standards and environmental impact assessment issues of various countries in the globe. These issues are discussed at length. The paper also goes on to discuss and deliberate on issues pertaining to and linkages existing between various economies on free trade agreements (FTAs), bilateral and multilateral trade negotiations. It is observed that signing of various international trade treaties among various economies, particularly between developing and developed countries would lead to serious economic repercussions both at the international/global and national/regional levels of these economies. The paper also studies the issue of WTO dispute settlement mechanism by taking the samples and sub-samples of various countries in this regard. It is seen that the developing countries are the worst affected so far as international trade agreements are concerned leading to jeopardise the economies of these countries. Therefore, these economies approach the WTO disputes settlement body for redressal of their grievances. The paper also highlights the linkages between trade and environment, trade and labour standards, international trade laws & extraterritorial applications of international trade laws. The international agreements on hazardous waste have also been discussed at length. Restricting exports of electronic waste (e-waste) is a major area of concern of this research paper. Data relating to the number of disputes settled by the WTO both benefiting the importing (developing) and exporting (developed) countries have also been reflected in the research paper. The paper makes out the fact that the Emerging Market Economies (EMEs) and the undeveloped countries do not have proper international trade, labour & environmental laws. As a result, they are always outcompeted by the developed nations who have organised international trade, labour & environmental laws. It is seen that the United States is the developed country, transmitting maximum e-hazardous wastes to various developing countries, thereby, creating serious environmental hazards for the developing countries particularly Asian & African countries. Though the Basel Convention and Article XX of General Agreement on Tariffs and Trade (GATT)/WTO has provision for protecting the developing and the underdeveloped countries through its extraterritorial coverage, but the United States is not a member of the Basel Convention. Moreover, the international agreements cover the broader issue of hazardous waste, and not particularly the e-waste discussed in this research paper. Thus, it can be safely concluded that developed countries like the United States and the Organization for Economic Cooperation and Development should becovered/included in the Basel Convention and the Article XX on extraterritorial/trans boundaries should be implemented by WTO, the international dispute settlement organisation, to provide relief to the underdeveloped and developing countries on the above issues/areas. This would definitely go a long way in increasing world trade, Gross Domestic Product, employment, implementing better labour laws/standards cleaner/greener environment in the underdeveloped and the EMEs, particularly the Asian economies.

Research is devoted to the study of the process of formation and development of norms and institutions of international trade law in Ukraine in the IX – first half of the XVII centuries. International trade law in modern Ukraine began to take shape on the basis of customs as international trade could not develop spontaneously. The study found that during the formation of Kievan Rus as a powerful state the international treaty is gradually becoming the main source of international law. The process of concluding international agreements in the early tenth century divided into stages, which included: preparation and acceptance of the terms of the agreement, consent to its binding force, signing and guaranteeing the implementation of the international agreement. The analysis of Rus- Byzantium treaties gives the grounds to claim that they were all concluded in the form of international treaties contained the rules of international trade law and were public law. The paper emphasizes that in the field of international law the principles and norms of law of international treaties (pacta sunt servanda), international trade and maritime law as well as diplomatic (ambassadorial) law are beginning to take shape. Among the principles of international trade law the principle of mutual interest and respect is important which was mostly reflected in the then international treaties and became the basis for the future formation of a broader principle – the principle of reciprocity. The process of evolution of norms and institutions of international trade law in the second half of the fourteenth – first half of the seventeenth centuries was influenced by a certain economic decline of Ukrainian lands due to the Mongol-Tatar invasion. However the expansion of commodity production as well as the further development of international, political, economic and social relations contributed to the further genesis of international trade law. The main sources of international trade law were international trade custom, international legal treaty, the rules of Magdeburg law. The norms of customary commercial law regulated first of all the legal relations between members of trade corporate guilds. The purpose of an international legal agreement was to establish, change or terminate rights and responsibilities in various interstate relations. The nature of international treaties was political but their content and the principles of compliance by the parties directly affected trade relations between states and other subjects of international trade law. In terms of the number of contracting parties the agreements were usually bilateral. The development of norms and institutions of international trade law in the second half of the fourteenth – first half of the seventeenth centuries was characterized primarily by the spread of Magdeburg law which led to the inclusion of international trade law in the system of municipal (city) law. The norms of Magdeburg law established the procedure for electing the city authorities and its functions determined the activities of merchants’ associations, the procedure for trade, etc. In the cities according to the norms of Magdeburg law there was a well-established legal terminology which simplified the conclusion of commercial agreements between local and foreign merchants.

Can trade liberalization serve the cause of political liberalization in authoritarian states? In this short essay, I suggest that trade law might bolster political freedoms by liberalizing Internet trade. Trade law puts pressure on state repression of information through two principal mechanisms. First, GATS transparency obligations require what is often absent in authoritarian states – a set of public rules that governs both citizens and governmental authorities. WTO member states must publish regulations governing services and establish inquiry points where foreign service providers can obtain information about such regulations. A publication requirement written for the benefit of foreigners may prove even more useful for local citizens, who will be given the opportunity to understand the rules that bind them – and the opportunity therefore to challenge those rules or their interpretation. Second, the market access and national treatment commitments provide opportunities for foreign information service providers to disseminate information that local information service providers might eschew. While censorship by itself may not necessarily constitute either a market access or a national treatment violation, it might do so if it is operationalized in ways that effectively discriminate against foreign service providers.

Don’t Blame It on WTO Law: An Analysis of the Alleged WTO Law Incompatibility of Destination-Based Taxes

The idea that corporations should be taxed in the jurisdiction where they make their sales or provide their services is getting more and more attention in the policy debate on international taxation. In 2016, U.S. House Speaker Paul Ryan proposed to introduce a destination-based cash flow tax (DBCFT) in order to reform the United States’ corporate income tax (CIT). Moreover, in the last few years, more and more countries have considered the adoption of new rules to tax the digital economy in the country where the users and/or the consumers are located.These proposals differ from traditional direct taxes imposed on corporations. They borrow from the tax design of indirect taxes, such as sales taxes or value added taxes. Consequently, it is difficult to predict whether these sui generis destination-basedtaxes will fit in with superior legal provisions, in particular international tax and trade law. One recurring legal argument against destination-based taxes is that they are likely to violate the law of the World Trade Organization (WTO).Using the DBCFT as a case study, this Article will assess the different conflicts that could arise between new types of destination-based taxes and international trade law. Based on a critical approach informed by the analysis of the history and case law surroundingdestination-based taxes, this Article concludes that the likelihood that a DBCFT would be found incompatible with international trade law is much lower than past legal scholars have concluded. WTO law does not in itself prevent countries from adopting such taxes. Since this conclusion could be extended by analogy to other, new types of destination-basedtaxes, this Article could have important implications for policymakers who are willing to move towards taxation in the country of destination.

This chapter reviews the interactions between international trade law and environmental protection. It begins by explaining how trade and environmental protection are physically interlinked, before offering an account of the evolution of the trade and environment debate. The chapter then examines the relationship between multilateral environmental agreements (MEAs) and trade, followed by an analysis of questions that have arisen in assessing the compatibility of environmental measures with trade law. International trade law may have a ‘chilling effect’ on the adoption or effective implementation of international environmental agreements. Conversely, environmental policies employing trade restrictions can become ‘green protectionism’ and even ‘eco-imperialism’. The chapter explores two emerging developments of relevance for the trade and environment debate, including the rise of regional trade agreements and the growing importance of climate change-related disputes. It concludes with a critical assessment of the prospects for strengthening coherence between international environmental and trade law.

For China's teaching methods in international trade and business law courses, the audience's professional knowledge system framework, China's teaching methods in international trade and business law courses in the heterogeneity of the application of the basis lies in the professional way of thinking differences. Since the reform and opening up, the domestic trade has been closely integrated with the development of China's economy and the need for foreign trade activities, China wants to develop trade and strengthen economic exchanges with countries around the world, should understand and comply with the international commercial law and international trade practices, prior to the negotiation of the contract should strive to be detailed and clear, specific and complete, and should be strictly abide by the terms and conditions of the process, and should not be all to our own, since a set of, and thus causing many problems and losses and affecting the credibility of the country. Many problems and losses and affect the credibility of the country. This is particularly important for students of international trade and business law, the importance of international trade and business law programme. As for the teaching methods in China, there are two kinds of teaching methods in international trade and business law: the heterogeneous application of direct teaching method is reflected in the differentiated explanation of the basic concepts and principles of international trade and business law, while the heterogeneous application of case teaching method is shown in the differentiation of the case selection and implementation process. For the above two methods, the author proposes other teaching methods for reference.

This chapter particularly concentrates on the international waste trade. It examines the normative matrix provided by three international legal regimes that converge on the particular global theme of international waste trading: international environmental law, international human rights law with references to international labour law, and international trade law. For this purpose, the most important elements for tackling the waste trade are assessed. After a brief overview on the regulatory frameworks' origins, the chapter addresses the fundamental pillars of the Basel Convention, the OECD Council Decision C(2001)107/FINAL and the European Regulation (EC) No 1013/2006 on Shipments of Waste. The chapter shows that the international waste trade can be addressed from different vantage points in international law, which has become subject to increased diversification and specialisation.Keywords: international environmental law; international human rights law; international trade law; international waste trade; OECD Council Decision; waste shipments