Domestic Regulatory Autonomy Research Articles

(Il)legitimacy of international intellectual property regime?

AbstractThe recent Covid-19 global health crisis not only brings into sharp relief the current problems afflicting the international intellectual property regime (IIPR) but also calls into question its legitimacy as an international authority. Against this backdrop, the article aims to launch an investigation into the legitimacy of the IIPR, as an international co-ordinative authority, designed to protect IP rights without prejudice to international trade norms. Drawing on Raz’s service conception of authority, it explores whether the IIPR lives up to its promises by enabling co-ordination between states over IP rights without undermining the initial balance on which it is founded, struck between developing and developed countries, as well as between international protection of IP- cum-trade rights and domestic regulatory autonomy. It does so by classifying the historical evolution of the IIPR under three different phases: (i) its foundation, (ii) before, and (iii) after the TRIPS-plus. Upon showing the legitimacy challenges inherent in its undemocratic foundation, the article points to the success of the regime in finding a balance between conflicting interests before the TRIPS-plus era. Later, it underlines the many challenges that come with linking the IIPR to the investment regime and argues that the FTAs and frequent regime-shifting activities put further pressure on the authority and legitimacy of the regime. Stressing the importance of democratic participation for the legitimacy of any co-ordinative authority, the article casts doubt on the IIPR’s legitimacy and concludes by raising some points to overcome the ongoing legitimacy challenges.

CONSTITUTIONAL TRADITIONS AS BOUNDARIES IN STANDARDISING ADMINISTRATIVE RULEMAKING THROUGH TRADE AGREEMENTS

AbstractPioneered by the US, recent mega-regional trade agreements such as the CPTPP have incorporated ‘regulatory coherence’ provisions—mirroring the US Administrative Procedural Act's core designs—to balance between domestic regulatory autonomy and international cooperation. Building upon existing literature that traces the trajectories of the diffusion of regulatory coherence across jurisdictions, this article analyses how Australia's constitutional tradition could effectively condition the development of regulatory coherence in a Westminster-based model of governance. It is argued that the global entrenchment of regulatory coherence is contingent upon the inherent boundary defined by the political dynamics and constitutional structures within a jurisdiction.

Intra-Executive Policy Laundering: A New Look at an Old Problem

This paper argues for the existence of a distinct sub-species of policy laundering, referred to here as “intra-executive policy laundering.” It argues that international regulatory coordination may be a vehicle through which one executive agency engages in bureaucratic infighting with another agency in order to push through its own substantive agenda, and to expand its own domestic regulatory autonomy. Consequently, executive agencies will compete to coordinate with counterpart agencies in other States, exacerbating the incidence of policy laundering by the executive as a whole. Intra-executive policy laundering also creates greater difficulties for legislatures and civil society in detecting and opposing policy laundering, as they face a multitude of opponents rather than a monolithic executive. Despite potential benefits in breaking regulatory deadlock and increasing international coordination, this paper argues that the lack of transparency and accountability that accompanies intra-executive policy laundering is more pernicious than that associated with policy laundering by a monolithic executive. Ultimately, however, the language of “policy laundering” is misplaced insofar as it emphasizes a substantive policy pursued by an executive entity, rather than the expansion of that entity’s sphere of autonomy.

Diminished Ambitions? Public International Legal Authority in the Transnational Economic Era

Ambition for employing public international legal authority as a means for the protection of human health and the environment appears to be diminishing in our transnationalist economic era. Practical and political challenges in defining the complex relationships between States and transnationally active commercial interests contribute to this. Emphasis on States’ domestic regulatory autonomy within contemporary international economic law is also a significant factor. This article canvasses three areas of international law and economic activity where the phenomenon of diminished ambition is manifest: responsibility, liability, and dispute settlement. Respectively, the article looks at developments in the three fields of law of the sea, international environmental law, and dispute settlement in the World Trade Organisation and through investment treaty arbitration. The article focuses on three specific topics within these three fields: the regulation of (i) deep seabed exploitation, (ii) possible risks associated with biotechnology, and (iii) tobacco regulation and public health. The article concludes that the result of our diminished ambition is to leave important areas of transnational economic activity unregulated, and encourages reflection on this phenomenon with a view to a strengthened approach in the areas where this will matter most.

A Map of the World Trade Organization Law of Domestic Regulation of Goods: The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Ta

The search for an appropriate balance between trade liberalization and regulatory autonomy lies at the heart of the WTO system. In this paper, the authors examine the relationship between three WTO Agreements regulating trade in goods - the GATT 1994, the SPS Agreement, and the TBT Agreement - and explore how these treaties, individually and together, define the sphere of domestic regulatory autonomy in the context of the multilateral trading system. Drawing on new Appellate Body jurisprudence, including the recent TBT 'trilogy', this article provides a 'map' of WTO regulation of trade in goods and sheds light on the types of rules and standards contained in each Agreement, their relationship to domestic regulation and the regulatory process, and the way they incorporate by reference norms outside of the WTO system. The article also discusses the bases for invoking each Agreement and evaluates the circumstances in which they may overlap.

The Scope of GATS and of Its Obligations

The GATS preamble already highlights the inevitable conflict between on the one hand achieving progressively higher levels of liberalization of trade in services in order to expand trade in services and promote growth, and on the other hand the right to introduce new regulation to meet national policy objectives. Hence, it was clear from the outset that the balance between trade liberalisation and domestic regulatory autonomy would be key in interpreting the constructively ambiguous GATS. The outcome of this exercise depends on three factors: the interpretation of (i) GATS’ overarching objectives, (ii) of the general scope of GATS and of the obligations arising from it (and the exceptions to them) and (iii) of the inherent individual flexibility of GATS. Whilst also touching on the first, this contribution mainly focuses on the second factor by addressing the scope of GATS, of its unconditional obligations, of obligations applying to sectors for which specific commitments have been scheduled and of obligations in GATS Annexes. Additionally, it provides an overview of the structure of GATS obligations. The third factor is mainly addressed throughout textboxes which provide an illustrative insight into how the European Union has used the inherent GATS flexibility to shape its obligations.

State Measures Protecting Against “Undesirable” Foreign Investment. Issues in EU and International Law

Recent cases and efforts by the EU and some of its Member States to introduce laws restricting the influx of foreign investments originating in non-EU states have highlighted the extent to which domestic regulatory autonomy is already limited by the strictures of EU and international law. This article aims to trace out areas of concern and relevant legal guidelines on the levels of EU and international economic law. It illustrates these concerns and pertinent legal standards by discussing recent examples such as the EU directives on the internal market in electricity and gas, and further national attempts to regulate incoming investment originating in third countries.

Adjudication, Arbitration and the Turn to Public Law 'Standards of Review': Putting the Precautionary Principle in the Crucible

There is a particular pressure for international judges and arbitrators to turn to public law ‘standards of review’ in health and environmental disputes, because they raise sensitive issues of domestic regulatory autonomy. Often, these cases may also involve scientific uncertainty as to the facts, further encouraging a turn to ‘standards of review’ which will excuse arbitrators and judges from having to ascertain both scientific fact and factual questions of the motives behind States’ regulatory measures. This article investigates the argument that arbitrators and judges might instead turn to public international law considerations, such as the precautionary principle. The article demonstrates how greater reference to the precautionary principle is an alternative to reliance on ‘standards of review’ in appropriate cases in investment treaty arbitration, WTO dispute settlement, the International Court of Justice and under the United Nations Convention on the Law of the Sea. Greater reliance on public international law considerations such as the precautionary principle will help to reinforce international law as a vehicle for controlling and influencing the State in relation to shared international problems, and help keep States on the pathway towards the realization of common ends through international law.

Domestic Regulatory Autonomy under the TBT Agreement: From Non-discrimination to Harmonization

AbstractCompared with other World Trade Organization (WTO) Agreements, the Technical Barriers to Trade (TBT) Agreement has received relatively little scholarly attention. This paper will illustrate that the TBT agreement has already exhibited potential to penetrate inappropriately into the domestic regulatory order and threaten domestic regulatory autonomy in unexpected ways, even if many important provisions are still to be elucidated in follow-up dispute settlement practice. This unwarranted intrusion into domestic regulatory autonomy is largely due to the reluctance of WTO panels and the AB to explore the telos of the TBT Agreement. Under the TBT Agreement, not only the conflict between trade liberalization and regulatory autonomy of WTO Members is intensified, but also the legitimacy of the WTO as a powerful regulator in the increasingly globalized world is itself being put to question.

Domestic regulation, international standards, and technical barriers to trade

There is growing concern over the use of domestic product regulations as technical barriers to trade on the one hand, and the WTO's incursion into domestic regulatory autonomy on the other. The TBTA seeks to balance competing interests – acknowledging but disciplining Members' regulatory control over traded goods. The effectiveness of these disciplines is limited by the exclusion of many modern domestic regulations from the scope of the TBTA; the surest way to prevent abuse of process-based product specifications is to subject them to the TBTA's disciplines. The WTO dispute settlement tribunals have affirmed the importance of the use or adoption of international standards. While Members are still entitled to introduce their own measures in some circumstances, the emphasis on international standards raises the status of standard-setting bodies. Despite their important new role, the composition, accountability, and decision-making procedures have so far escaped the kind of civil society scrutiny to which WTO deliberations are now subject. To achieve the TBTA's harmonization objectives, the development, and use of international standards and their legal recognition within the WTO regime should be revised to safeguard legitimate non-trade regulatory objectives.

The GATS and Regulatory Autonomy: A Case Study of Social Regulation of the Water Industry

In June 2002, the UN High Commissioner for Human Rights released a report entitled ‘Liberalization of trade in services and human rights’. In this article, the author examines one of the concerns voiced in that report, that the GATS potentially affects the ability of governments to regulate the water industry in the pursuit of social objectives. This claim has been disputed by a number of other commentators. Taking both the claim and its critics on their own terms, he applies GATS non-discrimination articles to typical water sector regulation, to determine whether, and in what circumstances, such regulation potentially violates those provisions. He argues that one should view with some skepticism strong claims that the GATS does not restrict social regulation of the water sector, as they are often based on unjustifiably robust interpretations of the protective provisions of the GATS. At the same time, he identifies a number of promising argumentative strategies of potential use for those interested in protecting domestic regulatory autonomy in the water sector.

National Treatment and WTO Dispute Settlement

The tension between the WTO and its constituent States and the conflicting impulses of trade liberalization and domestic regulatory autonomy is well documented. This phenomenon is brought into stark relief by the perceived interference from WTO dispute settlement panels into fiscal and regulatory policy-making within States. It is clear that the GATT and GATS agreements do in fact mandate a high degree of policing by WTO panels in areas that were traditionally seen as the exclusive sovereign preserve of States.

Lessons for GATS Article VI from the SPS, TBT and GATT Treatment of Domestic Regulation

One of the most important and difficult issues in international trade is the relationship between international trade liberalization and domestic regulatory autonomy. This issue has been addressed in a variety of ways in the goods sector, and is still being worked out according to a dynamic process of substantive and institutional change. While regulatory autonomy is needed to allow local regulation to respond to local conditions, there are times when regulatory autonomy is abused as concealed protectionism, or is not sufficiently motivated to provide efficient regulation. While transparency can help to reduce concealed protectionism, it cannot alone eliminate the more persistent and the more deeply embedded inefficiencies. In relation to this tension between trade liberalization and domestic regulatory autonomy, services trade is at least comparable to goods trade. Of course, there are significant differences between goods and services trade, and among services trade sectors, but there are sufficient similarities to make it worthwhile to study the approaches to domestic regulatory autonomy in goods in connection with discussions of intensified approaches to domestic regulatory autonomy in services. Under the SPS Agreement, the TBT Agreement, and the GATT, regulatory autonomy is constrained. This paper compares these three sources of WTO law relating to goods, and compares them to the GATS, with the purpose of advancing an array of options for services negotiators, and of suggesting how negotiators might discriminate among these options. There seem to be no general, or horizontal, reasons to treat services regulation, as a whole, differently from goods regulation. It may be that certain areas of services regulation merit special treatment of one kind or another. For example, the fact that much of financial regulation takes the form of institutional regulation accentuates the kind of jurisdictional problem associated with the product-process distinction in the goods field. That is, the institution offering cross-border banking services may be located (at least in formal terms) in Luxembourg, while it offers services in the United Kingdom. While trade may be facilitated by a regime of mutual recognition (which in fact exists in the European Communities), and while it may seem natural to allow a Luxembourg bank to be regulated by Luxembourg, there is the possibility for adverse externalization (e.g., BCCI). There are also possibilities for races to the bottom, accentuated by possibilities for externalization. Therefore, it seems worthwhile to evaluate the range of disciplines offered by the SPS Agreement, the TBT Agreement and the GATT, for horizontal adoption in the field of services. This can initially be accomplished in selective sectors, on a trial basis, as in the field of accountancy. Where standards like necessity or proportionality are to be used, it would be wise to use consistent language, unless a different meaning is desired. However, in this field, there seems little reason to use different formulations for the same concept in different sectors. This would appear to apply to areas like discrimination, necessity, proportionality, performance regulation rather than design regulation, requirements of recognition, reference to international standards and other more general disciplines. More specific rules, such as harmonization of regulation, either alone or as a prerequisite for specified types of recognition, obviously must be accomplished on a sectoral, or even an issue by issue, basis.