Exclusion Clauses Research Articles

RCEP rules on cross-border data flows: Asian characteristics and implications for developing countries

ABSTRACT Data, as an essential production factor and a fundamental strategic resource in the digital economy era, have profoundly transformed production methods, lifestyles, and social governance, becoming one of the critical factors influencing the global competitive landscape. The United States and the European Union are actively making comprehensive arrangements around data flow issues, integrating their interests and values into data governance rules to influence other countries. Against the backdrop of increasingly intense global rule-making competition in digital trade, the Regional Comprehensive Economic Partnership (RCEP), led by the Association of Southeast Asian Nations (ASEAN) and actively promoted by China, covering 15 countries in the Asia-Pacific region, is sending a strong and powerful Asian voice regarding cross-border data flow rules. This article attempts to highlight the Asian characteristics of the data cross-border flow rules within RCEP through a horizontal comparison of regional trade agreements. These characteristics primarily include the principle of free cross-border data flow; fully protecting the host country’s national security through exceptional clauses; relatively lenient regulation of personal information protection; and adhering to the principle of non-reciprocity to respect and embrace countries at different development levels. Consequently, it is concluded that RCEP has constructed an Asian paradigm for cross-border flow of data that matches the development status of the Asia-Pacific countries and is worthy of emulation by other developing nations.

Our Exploration of Countermeasures against the Abuse of Unilateral Sanctions by the United States

Currently, the international landscape is undergoing changes, with unilateralism on the rise. Of which, economic sanctions are the most common form. Due to the lack of effective specialized international rules in the current international rule system, unilateral sanctions are increasingly frequently used by individual countries. The abuse of unilateral sanctions has impacted the normal operation of international mechanisms. Unilateral sanctions were originally used in a country’s domestic law, but now some countries, such as the United States, expand their own laws’ extraterritorial application through the continuous expansion of connection points, thereby giving their sanctions against foreign entities a cloak of legitimacy, which goes against the principles of international law and the basic norms of international relations (Bai, 2018). From a legal perspective, the implementation of illegal unilateral sanctions is achieved through the improper interpretation and application of international treaty exception clauses. From international custom, unilateral sanctions beyond countermeasures refer to those imposed by states other than the injured state, who deliberately legalize countermeasures related to sanctions, which greatly contributes to the abuse of unilateral sanctions. In this context, China should accelerate the construction of its anti-sanctions legal system to effectively counter the threats and damages caused by unilateral sanctions and firmly safeguard its sovereignty, security, and development interests.

国际投资协定中安全例外条款的研究

The security exception clauses in international investment agreements, as a special expression of the exception rule in the treaty, are a necessary attribute of national sovereignty and have the dual significance of macro-flexibility and micro-balancing. In recent years, due to the particular importance attached by each country to its own national security and the increasing popularization of the concept of national security, security exception clauses have appeared in an increasing trend in international investment agreements and judicial cases. Nevertheless, such clauses are suspected of abuse both in stipulation and application. By summarizing the provisions of safety exception clauses in the texts of international investment agreements by China and other countries, it is believed that there is room for improvement in the setting, number, and content of the clause. Proposing targeted solutions will contribute to the sound development of the application of security exceptions in the field of international investment in China.

Regulatory autonomy in digital trade agreements

Abstract Digital trade agreements have become integral fora for regulating cross-border digital commercial transactions, including data flows. Deeper commitments in the area of digital trade have however raised serious concerns over the erosion of countries’ regulatory autonomy, prompting the inclusion of an array of safeguards within these treaties. This article undertakes a comprehensive examination of these safeguard mechanisms, which include carve-outs, transition periods, the right to regulate, and exception clauses. By shedding light on the nuances of these safeguard provisions, as well as their complex interplay with commitments made, the article provides a deeper understanding of the evolving dynamics of digital trade governance and its implications for national regulatory autonomy. Based on existing jurisprudence and legal doctrine, the article also tests the scope of the provided policy space, the trade-offs between flexibility and legal certainty, and examines how future-proof the bounds of regulatory autonomy are, considering the highly fluid technological environment.

Issues in China's Alignment with DEPA Data Cross-Border Regulation

In the global digital governance game, the Digital Economy Partnership Agreement (DEPA) features innovative designs for digital trade, aligning with China's goals of internal data sharing openness and external breaking of "rule locks". However, China currently exhibits significant legislative differences in the "Data Issues" section of DEPA's fourth module, adopting stricter regulatory measures for cross-border data flow and data localization. Addressing DEPA's "principle & exception" regulatory standards, this paper argues that legitimate public policy objectives can be aligned with DEPA through proportionality principles, WTO general exception clauses, etc. By innovating customs supervision methods and following the path of the Hainan Free Trade Port trial, connecting international trade new rules, orderly implementing law enforcement systems and supporting mechanisms to ensure data security and orderly flow, China can gradually align with DEPA.

The Scope and Future of National Security Exception Clauses inGATT 1994

The Scope and Future of National Security Exception Clauses inGATT 1994

Financial Crimes as ‘Serious Non-Political Crimes’: Consequences for the Concepts of Seriousness and Unworthiness in Exclusion Law

Abstract Financial crimes were recently recognized by the Conseil d’État, France’s supreme administrative court, as ‘serious non-political crimes’ for the purposes of exclusion under article 1F(b) of the Refugee Convention. Such an extension of the scope of article 1F(b) raises questions regarding the seriousness threshold of article 1F(b) and its link to bodily harm. A first approach would be to establish the indirect relationship between financial crimes and bodily harm. Another approach would be to discard the concept of bodily harm as being pivotal in understanding the scope of the exclusion clauses. This second solution would have crucial implications for the theoretical underpinnings of the exclusion clauses of article 1F of the Refugee Convention, namely on the concept of unworthiness. In this regard, the recognition of financial crimes as rendering an asylum seeker unworthy of protection highlights the link between exclusion and moral and societal concerns.

국제투자분쟁에서 조세조치의 실제 적용에 관한 소고

This thesis examines the intricate relationship between taxation measures and investment agreements, highlighting the jurisdictional issues arising from clauses that exempt taxation measures from these agreements. These exclusion clauses are designed to delineate the jurisdictional boundaries of arbitral tribunals, specifying that disputes arising from taxation measures falling within these exclusions may be beyond their jurisdiction. This becomes particularly relevant when assessing whether taxation measures, excluded from the scope of investment agreements, are bona fide taxes. If they are not, the exclusion may not apply, potentially bringing the dispute within the tribunal’s purview.
 Conversely, taxation measures enacted under a state’s sovereign authority, even in the absence of specific exclusion clauses, are generally unlikely to be deemed violations of investor protection obligations, such as against expropriation or breaches of fair and equitable treatment standards. The critical questions is whether the contested taxation measures are genuinely aimed at raising public revenue in a fair and equitable manner, or if they serve to discriminate against or penalize foreign investor unfairly in the guise of taxes.
 This distinction is important for two reasons. First, bona fide taxation measures supported by exclusion clauses do not give rise to jurisdictional authority for an arbitral tribunal. Second, the absence of such clauses does not necessarily imply a breach of the host country’s obligations, provided the taxation measures are legitimate exercises of its sovereign power.
 The thesis argues that the mere presence of exclusion clauses should not automatically legitimize all taxation actions by the host state, nor should the absence of such clauses deter the state from implementing necessary tax policies aimed at public purposes. In international investment disputes concerning taxation, the core issue is whether the taxation measures were unfairly aimed at discriminating or penalizing foreign investments, rather than achieving a legitimate public purpose or deviating from the measures promised at the time of investment attraction. Overreliance on exclusion clauses to apply clearly unreasonable measures in the guise of taxation measureless could grant jurisdiction to the arbitral tribunal. However, in the absence of such conditions, and regardless of the presence of exclusion clauses in the investment agreement, host countries should confidently implement necessary tax policies for public objectives.

The Determination of “Basic Security Interests” in the WTO Security Exception Clause

The WTO security exception clause is the product of balancing national security interests and economic and trade development. Because the terms of “basic security interests” are vague, there are some problems in the actual determination. By analyzing the problems in application, this paper concludes that the methodological path for determining basic security interests is subject to objective conditions and the principle of good faith, while taking into account the development of non-traditional security interests, under the prerequisite of safeguarding the right of members to self-determination. In today’s ever-changing political and economic situation, the game between development and security will be the background for a long time. How to promote members to reach a consensus on basic security interests within the WTO system is a new topic and challenge.

A Systematic Literature Review on the Transformation of Entrepreneurial Intention to Entrepreneurial Action

Abstract Transformation of entrepreneurial intention to action is a relatively new field of research that has attracted considerable interest from researchers over the past decade. This literature review has endeavoured to systematise and categorise the past studies to comprehend their actual research focus. The study has used 65 articles published between 1981 – 2020, divided into two categories, as articles published between 1981-2000 and 2001 – 2020. This study has used PRISMA framework, with well-defined exclusion and inclusion clauses, to identify relevant articles. The review found psychosocial influence to be the major focus of entrepreneurship research during year 1981-2000 period, while entrepreneurial mindset, entrepreneur’s family background, gender, behavioural control and entrepreneurial eco system, to be the major focus of the studies conducted between year 2001 and 2020. This review also found quantitative research methodology to be more popular among entrepreneurship researchers with regression analysis and structural equation modelling being most preferred for data analysis. This study has identified University students to be the most preferred unit of observation, while nascent entrepreneurs were found to be the least preferred. The study has also identified intention-action transformation to be a relatively new field of study with the field only gaining momentum over the past decade. This study adds value to the existing literature, through systemization and categorization, while supporting the administrators, policymakers, universities, and future researchers.

Definitions of and Evaluation Procedures for Emotional Disturbance: A Tale of 50 States

The Individuals with Disabilities Education Act allows states some autonomy in altering the disability category terminology and definitions, given that the changes do not exclude students eligible under the federal language. Several states have used this flexibility for the emotional disturbance category historically. This study provides a contemporary analysis of the interstate variation in the emotional disturbance category through a comprehensive evaluation of state department education policy documents for differences in terminology, definition, and disability-specific evaluation procedures and guidance. The work is contextualized by previous reviews of similar but different purposes relevant to the time periods in which they occurred. Data from the current study show continued convergence toward the language in the federal definition. Results present notable differences related to cultural considerations, the social maladjustment exclusionary clause, and the provision of mental health services. Implications for research and policy are discussed.

BIT·FTA상 외국인투자심사 실행에 관한 연구

Countries with foreign investment screening mechanism have developed practices to avoid international investment disputes. These practices include using security exceptions, exceptions to dispute settlement provisions, and schedules to Annex regarding non-conforming measures in investment agreements. These practices do not specify specific national security requirements and are subject to full self-judgment. Countries with a long history of foreign investment screening, such as the United States, Canada, and Australia, actively use these practices to exclude foreign investment screening from international agreement obligations. These countries interpret the national security exception jurisprudence as applying to foreign investment screening, meaning that foreign investment screening is entirely self-judged.
 However, South Korea does not have a consistent approach to foreign investment screening in its Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs). The security exception clause in these agreements is different in each agreement, and the contents of the reservations are not uniform. However, it can be interpreted that Korea has decided to treat foreign investment screening as an exception to international law, since it joined the Regional Comprehensive Economic Partnership (RCEP), which stipulates that the screening regime shall not be subject to the dispute settlement provisions.
 Foreign investment screening is likely to become more important as a policy tool in the era of expanding national security. The concept of national security has evolved from being applied only in exceptional emergencies such as war to encompassing more permanent situations such as economic security, high-tech protection, supply chain crisis response, and climate change. State measures to protect national security have also become more permanent. Given these circumstances, it is important to reconsider whether it is appropriate to treat foreign investment screening as an exception to international law. Allowing foreign investment screening as an exception to international law could lead to a crisis in the international legal system due to potential abuse of this exception. However, from the government's perspective, securing policy space for foreign investment screening can be advantageous in effectively addressing the growing threat to national security. Therefore, it is crucial to contemplate the stance and standards that should be established for the foreign investment screening practice in Korea moving forward.

Exclusion Clauses in Mobile Communications Industry

Exclusion clauses are contractual provisions commonly employed by mobile communications service providers to limit their liability and protect their interests. However, the extensive use of such clauses raises concerns regarding consumer rights and legal enforceability. This article presents an analysis of exclusion clauses in the mobile communications industry, aiming to shed light on their implications and consequences for consumers. By examining legal frameworks, industry practices, and relevant case studies, this study explores the enforceability of exclusion clauses, their impact on consumer protection, and potential legal challenges they may face. The paper highlights the need for a balanced approach that safeguards both the interests of service providers and the rights of consumers. By providing insights into this critical yet understudied aspect of mobile communications contracts, this article contributes to the broader discourse on fair contractual practices and encourages informed decision-making among policymakers, legal professionals, and consumers alike.

Issues in Exclusion Clauses in the Mobile Communications Industry: Statutory Control and Exclusion Clauses as Terms of Contract

The use of exclusion clauses in the mobile communications industry has become a prominent feature of contractual agreements between service providers and consumers. These contractual provisions, designed to limit the liability of service providers, have raised significant concerns regarding consumer protection. This article explores the salient issues surrounding the use of exclusion clauses in the mobile communications industry, with a specific focus on statutory control and exclusion clause as terms of contract. It examines the legal and practical implications of these clauses and their impact on consumer rights and remedies. The article also considers the challenges posed by complex contractual language in exclusion clauses. The paper is a contribution to ongoing discourses on consumer protection within the dynamic mobile communications landscape.

RAPE IS RAPE EVEN IN MATRIMONY: AMENDING THE INDIAN PENAL CODE TO CRIMINALIZE MARITAL RAPE: A CURRENT COMPELLING NECESSITY

Matrimony is a revered union that establishes a holy connection between two individuals and their respective families. However, when matrimony is entered into without the explicit consent of the parties involved or when the individuals participating in the marriage are not satisfied with the arrangement, it can become unpleasant or unfavourable. Throughout history, our civilization has exhibited a proclivity towards a patriarchal system, dating back to the era of hunting and gathering. It is inherent for men to exhibit dominant emotions as a result of their natural disposition. When examining the global context, it becomes evident that establishing and enforcing law and order play a significant role in defining and regulating societal norms and behaviours. The Indian Penal Code of 1860 encompasses a set of laws and corresponding penalties that have been established. However, a common misconception among individuals is the lack of understanding regarding the historical origins of these regulations, which the British established during a bygone era. Marital rape is not criminalized under Indian law, specifically the Indian Penal Code of 1860, which does not acknowledge the act of a husband raping his wife as a punishable offence. The rationales for this phenomenon are diverse and can be identified in numerous publications of the Law Commission, deliberations within the Parliament, and adjudicatory rulings. There are various justifications for this, including the preservation of the sacred nature of marriage and the availability of alternative legal remedies. This paper examines the fallacies underlying the arguments favouring decriminalizing marital rape. The author presents a scholarly examination of Article 14 of the Constitution of India, asserting that the inclusion of a marital rape exception clause within the Indian Penal Code 1860 is fundamentally inconsistent with constitutional principles. Additionally, the author highlights the dearth of available alternative avenues for a woman to seek legal recourse in cases of marital rape. The author asserts that criminalizing marital rape is imperative and presents a comprehensive framework for achieving this objective.

Halal food certification as an exception clause under the rule of the WTO-GATT: An Indonesia experience

Halal food certification as an exception clause under the rule of the WTO-GATT: An Indonesia experience

Contracts and Finality of Signature: The Coys of Kensington Case

Customers often sign lengthy offer documents, running in several pages, without reading them or understanding their contents. Later, they discover the contract has exclusion clauses or unfavourable terms. Are the terms binding on the person? The case explores the UK High Court judgement in Coys of Kensington Automobiles Limited v Tiziana Pugliese, which is on the theme of the signing of an offer form. The case explores themes frequently encountered in forms, including the following: The font size is small and terms not conspicuous. The form refers to more terms without enclosing them. The applicant is not fully familiar with the language.

Targeted Response from China's New Energy Vehicle Enterprises Analysis Based on Article 6 of FSR

The EU expects to reduce the carbon emissions of all new cars sold to zero by 2035, and new cars that need traditional energy will be banned from the market. This provides policy prospects for China's new energy vehicle enterprises to enter Europe, but the introduction of the Foreign Subsidy Regulation has become a new restriction. Article 6 of the FSR stipulates that the European Commission needs to balance various factors when dealing with subsidies. China's new energy vehicle enterprises can start with this article and mitigate relevant legal risks through interpretation based on the interests of the EU. China's new energy vehicle enterprises can reduce legal risks by using exception clauses, stating the rationality of prices and promoting the realization of environmental protection policy objectives of the EU based on technology.

A tale of policy carve-outs and general exceptions: Eco Oro v Colombia as a case study

ABSTRACT The Eco Oro v. Colombia Decision has garnered immediate public and academic attention and generated immense controversy. One of the reasons for its notoriety was the arbitral tribunal’s unconventional take on the general exceptions clause of the Canada–Colombia Free Trade Agreement and its contention that, even when a challenged measure fulfils the requirements of this exception, a host state’s duty to compensate remained. This conclusion has since been interpreted as an indication that, in spite of states’ attempts to carve certain regulatory and/or administrative measures motivated by public interest out of the protective scope of some recent international investment agreements (IIAs), such as environmental protection, arbitral tribunals continue to disregard these sensitivities. In light of this background, this article will focus on the parties’ arguments, the Tribunal’s analysis, as well as the interpretative implications of the Decision, focusing on indirect expropriation, the fair and equitable treatment, and the application of the general exception clause.

계약전 발병 부담보 조항에 관한 연구

In the past disease insurance terms and conditions, the definition of disease was expressed as “occurring during the insurance period,” and there was a problem in that the onset time depended on the patient's statement, or the insurance company claimed the onset time before the commencement of liability to avoid payment of insurance money. In addition, the Financial Supervisory Service revised the terms and conditions to protect consumer rights and interests and incorporated the pre-contract insurance policy into the standard terms and conditions. However, in June 2017, the Financial Dispute Mediation Committee of the Financial Supervisory Service determined that The pre-existing conditions exclusion clause was invalid, and in July 2018, the corresponding clause was deleted from the standard terms and conditions, so that all insurance companies stopped including the clause. When the terms and conditions were revised to protect the rights and interests of insurance consumers, the incorporated The pre-existing conditions exclusion clause refused to pay insurance money to insurance consumers who faithfully fulfilled the notification obligation. This is contrary to the insurance protection expectations of policyholders, so the Financial Supervisory Service's action to return it to its original state is acceptable. The pre-existing conditions exclusion clause itself may conflict with other terms and conditions, and it is unfair to protect the insurance company, such as restricting the payment of insurance money even when the insurance company signs an insurance contract intentionally or grossly. The problem of reverse selection, which some are concerned about, can be partially solved by the interpretation theory or law of the current insurance terms and conditions, so it is reasonable for the Financial Supervisory Service to delete the burden guarantee clause to protect insurance consumer rights.