Field Of International Economic Law Research Articles

Unilateral Sanctions under International Law and Effectiveness of Blocking

INTRODUCTION. This article discusses modern international legal concept of unilateral sanctions. The authors contribute to the emerging discussion on the qualifying of unilateral sanctions under international law.MATERIALS AND METHODS. In this study we took into account the works of both Russian and foreign scholars in the field of international economic law, as well as analyzed documents and materials of international organizations (United Nations (UN), World Trade Organization (WTO) and others) in order to assess the compatibility of unilateral sanctions with international law. General scientific methods of cognition (analysis, synthesis, induction, and deduction), special legal methods (formal-legal, technical-legal, method of legal analogy) and comparative legal method were used in the presented research.RESEARCH RESULTS. Presented analysis has shown that widely used term “unilateral sanctions” leads to abusive and inappropriate use of international legal term. Analysis of compatibility of unilateral sanctions with other types of coercive measures such as countermeasures, UN Security Council sanctions, retortions, reprisals have shown that unilateral sanctions do not fall under the meaning of all mentioned measures. In addition, unilateral sanctions should not be justified under the WTO security exceptions. The use of extraterritorial unilateral sanctions contradicts one of the fundamental principles of international law – principle of non-interference in internal affairs. Existing blocking unilateral sanctions mechanisms are not efficient enough to compensate negative effect posed by unilateral sanctions.DISCUSSION AND CONCLUSIONS. Authors concluded that unilateral sanctions in most of the cases do not satisfy cumulative criteria of legitimate countermeasure. Unilateral sanctions are not equivalent to the United Nation Security Council sanctions, as there are no “checks and balances” in the decision-making process in the form of determining the degree of threat to peace and security and taking into account humanitarian exceptions. Although there is some correlation between unilateral sanctions and retortions or reprisals, retortions and reprisals posses criteria of legality and proportionality, while, unilateral sanctions are introduced at the state’s discretion without any standard. Furthermore, the authors argue that to avoid abusive use of the WTO security exceptions WTO panels have to rely on the well-balanced approach used by the Panel in Russia – Transit case. This approach shows that the context of security exception should be understood as encompassing only military and closely related to military issues and does not cover political, economic, cultural or any other interests and relations. Existing blocking mechanisms of unilateral sanctions require separate qualification under international law including compatibility with the legitimate countermeasures.

From the Editors in Chief

With this issue, the Journal of International Economic Law launches its 26th volume and celebrates its silver anniversary with an Agora issue. The anniversary Agora has been organized and edited by our distinguished Editorial Board Members: Andrea Bjorklund and Gabrielle Marceau. It features symposium contributions from more than 20 scholars and practitioners and provides both a retrospective and future-oriented accounting of the field of international economic law 25 years after the founding of the Journal. We are especially pleased to feature articles by the leaders of four notable international economic law organizations. The Agora opens with essays from WTO Director-General Ngozi Okonjo-Iweala, IMF Managing Director Kristalina Georgieva and General Counsel Rhoda Weeks-Brown, Deputy Director General of WIPO Lisa Jorgenson, and Secretary-General of ICSID Meg Kinnear. We thank Andrea and Gabrielle for all their efforts to make the Agora issue such a success! This issue also complements prior issues of the Journal and continues to reflect on how international economic law is implicated in the challenges and opportunities faced by societies across the planet. We aspire to be a truly global Journal with both an eye on the future and a sense of the past. We hope to continue to bring attention to ideas that can help confront modern challenges. This issue caps years of the Journal’s fruitful engagement with the main legal and policy debates in the field. We aim to trigger many interesting debates in years to come.

Book Review, Julien Chaisse , China's International Investment Strategy: Bilateral, Regional, and Global Law and Policy, Oxford University Press, 2019, 560 pp, ISBN 9780198827450

In this book, Professor Julien Chaisse, a renowned scholar in the field of international economic law and China-expert, focuses on one of the countries which are proactively (re)shaping our understanding of the international order: the People’s Republic of China (PRC or China). This edited book presents, in a comprehensive, accurate and organized manner, the gradual definition of the China’s investment strategy. This book’s scope includes reflections on the international investment regime, taxation, national economic reforms, mediation, competition law and anti-monopoly law, State-Owned Enterprises (SOEs), corruption, and the highly-debated China’s Belt and Road initiative (BRI) (object of another book edited by Professor Chaisse). Most of the leading legal scholars and professionals who contributed to the book are based in Asia and working on a daily basis on issues relating to China. This diverse group succeeded in offering different, relevant and innovative contributions. The question that the book attempts to answer is whether China is aligned with the dogmas of international investment and trade law. China’s involvement in the global context is in partial contradiction with the national situation, which formed the basis for many commentators’ critical views of China’s accession to the WTO as a risk to the multilateral trading system in the long term. Did this accession lead to free trade or the end of market-based reform of the national economy? Environmental protection or market domination of the environmental industry? Aid for development or aid for resources?

Beyond the ‘Moments’ of Law and Development: Critical Reflections on Law and Development Scholarship in a Globalized Economy

Abstract This paper aims to review and assess the contributions and limitations of law and development (L&D) as a field of legal scholarship in relation to the constitution of the international economy and global economic governance. It seeks to reflect on the theoretical and methodological contributions of L&D theory and practice on the development of international legal scholarship, particularly in the rapidly evolving field of international economic law. The intersections of economic theory, jurisprudence and legal theory and the institutional practice of development agencies and international economic organizations which are the focus of L&D scholarship provide a useful interdisciplinary prism through which developments in the regulatory framework of the global economy can be studied. Mapping the ways in which what Trubek and Santos call the three overlapping spheres of L&D – economic theory, legal theory and institutional practices – enables us to chart, understand and, where necessary, contest, the shifts in development theory and policy and institutional practice that influence and shape legal reform and scholarship.

Interpretation and Application of Investment Measures in Practice of International Investment Arbitration

INTRODUCTION. Developing States are interested in both the inflow of foreign investment and its efficient use in their national economies. In the furtherance of this objective, host States set in their national legislation trade-related investment measures, referred to as “performance requirements” (requirements to achieve certain national economically useful results). The interests of foreign investors and host States in the matter of measures falling within the concept of “performance requirements” mostly diverge, since these measures create for foreign investors competitive restrictions related to the use of their investments. In legal science and practice there are known trade-related investment measures, such as export requirements, foreign exchange restrictions, local content requirements and others. The possibility for foreign investors to invest without performing trade-related investment measures was one of the main problems of transnational investment. The TRIMs agreement and Art. 1106 of NAFTA are devoted to the sole subject of regulation – “performance requirements”. The idea of limiting these measures was simultaneously discussed in the NAFTA negotiations and within the Uruguay round: the elaborated provisions are similar in some aspects, but have their specific characteristics. The article deals with the rules of both agreements in light of dispute settlement practice. The conclusions of the arbitrators are analyzed in chronological order, which helps to trace the evolution of the single concept in two distinct systems of WTO and NAFTA rules. The article demonstrates the common points and differences in the interpretation of the concerned provisions norms, with consideration for the context and objectives of the agreements. MATERIALS AND METHODS. The materials used in the article include the works of Russian and foreign scholars in the field of international economic law and WTO law, international legal documents adopted within the WTO and NAFTA, as well as materials of judicial and arbitration practice of investment disputes. The research was done on the basis of general and specific scientific methods of cognition (dialectical method, analysis and synthesis, deduction and induction, comparative legal and historical-legal methods). RESEARCH RESULTS. The analysis revealed that trade-related investment measures are part of the “performance requirements” listed in Art. 1106 of NAFTA, which developed countries managed to defend in negotiations with developing countries during the drafting of the TRIMs agreement. Despite the integrity of the concept of “investment requirements”, there is an evident difference in the scope of covered measures, as well as the conceptual difference between the notions of “trims” and “performance requirements”, due to the specifics of the WTO and NAFTA. Nevertheless, in both cases, common qualification criteria of prohibited measures have been developed independently from each other in the practice of investment disputes settlement in order to address similar issues of interpretation. DISCUSSION AND CONCLUSIONS. On the ground of the analysis of arbitration practice in the TRIMs and Art. 1106 of NAFTA, the article gives reasons for the conclusion of the parallel development of the concepts of “trade-related investment measures” and “performance requirements”.

Note from the Editors-in-Chief

We are delighted to present the Special Issue of this year’s JIEL. It offers a selection of papers presented at an academic conference on the sidelines of the WTO’s 11th Ministerial Conference which was held in Buenos Aires in December 2017. One of our goals was to give voice to a broader variety of scholars in the field of international economic law, at a critical juncture for the multilateral trading system. Although the conference addressed other topics too, the Special Issue is clustered around two themes: first, a substantive theme focused on e-commerce and the digital economy and how trade rules could or should adapt to them; secondly, a process-based theme addressing how trade rules could or should be adapted in the face of today’s challenges (ranging from plurilateralism and public–private cooperation to variable geometry and exit from trade agreements). We thank all contributors as well as the peer reviewers who turned the papers around in record time. A special thanks goes to Facundo Perez Aznar who has been a driving force in both organizing the conference and shaping this Special Issue.

Spanish

The relationship between the environment and the jus cogens rules of public international law is still being debated in the academia and by practitioners all around the world. This manuscript shows how central this issue is in terms not only of the focus the International Law Commission has placed on it, but also in terms of how Governments and entities around the globe are tackling the manner in which institutions and people deal with phenomena such as global warming. From the insights of some former judges of the International Court of Justice to the views of renowned practitioners, the article lays out different paths to address this urgent issue from the perspective of a country like Colombia. The paper covers a field of international economic law and is the result of an ongoing research related to the role of ethics and morals in contemporary public international law.

Memories of John H. Jackson

John H. Jackson was indeed a great scholar in the field of international economic law. My association with John lasted for almost 40 years and he was one of my closest friends. There are many personal memories of him and I will mention only a few of them.

The Use of Economics in International Trade and Investment Disputes: A Coherent Way Forward

In this paper we assess the quality and coherence of the use of economics in dispute settlement in two fields of international economic law: international trade and international investment law. We argue that four economic concepts are frequently used and/or of critical importance for both international trade and investment law. Those concepts are the concepts of “likeness”/”like circumstances”, causality, “necessity” and damage calculation. We highlight differences in the way in which economics has been applied to assess these concepts and argue that coherence in the use of economics can be increased by reassessing the way in which economics is brought into submissions by parties and the processes that are relevant for adjudicators when interpreting economic evidence. We argue that a common set of guidelines for submitting quantitative evidence in WTO or investor-state dispute settlement proceedings can contribute greatly to setting quality standards and to creating trust as to the reliability and acceptability of economic evidence submitted to adjudicators. In an appendix to this paper we make suggestions as to what such guidelines could look like. 1 This paper was partly authored with support from the project ‘Dispute Settlement in Trade: Training in Law and Economics’ ( www.dissettle.org ), a Marie Curie Initial Training Network funded under the EU Seventh Framework Programme (Grant Agreement No FP7-PEOPLE-2010-ITN_264633). The paper draws heavily on the contributions to the forthcoming volume Jansen, Pauwelyn and Carpenter (Eds.): “The Use of Economics in International Trade and Investment Disputes”, Cambridge University press, and all the contributors to that volume are herewith thanked. The authors would also like to thank Manuel Sanchez Miranda for editorial assistance. All errors and omissions remain the authors’ and views expressed are personal and do not reflect the views of the institutions they are affiliated to. 2

Professor John H. Jackson: The WTO and Public International Law

In reading and re-reading just some of Professor John H. Jackson’s extensive works shedding light on the relationship between the World Trade Organization (WTO) and general international law, we have discovered his voice again. Within a few sentences, the elegance of his writing, the immediacy of his ideas, the breadth and depth of his analysis, all forcefully proclaim his significance to the field of international economic law, with no need to examine his long and impressive biography and bibliography. In those circumstances, we ourselves write with trepidation. It seems unfair to comment at all, with no opportunity for an ‘author’s response’. We first met Professor Jackson at Georgetown Law in 2003, when he had nearly half a century of groundbreaking contributions to the field behind him and we were but lowly PhD candidates having seriously turned our minds to the WTO only a few years before (under the watchful eye of Professor Joseph HH Weiler). Professor Jackson welcomed us as Visiting Scholars to the Institute of International Economic Law with an astonishing degree of warmth and personal and professional kindness, although perhaps less astonishing to anyone who knew him or to the hundreds of students and academics he mentored before and since. Our short summer visit led to continued interactions, including a six-month sabbatical at the Institute in 2009, an invitation to join the Editorial Board of the Journal of International Economic Law, and more recently the chance to join him in editing the International Economic Law Series of Oxford University Press. This kind of nurturing of our academic careers seems not at all exceptional for Professor Jackson. A quick look at the achievements of the former Editorial Assistants of this journal (Michelle Grando, Jennifer Hawkins, Nicolas Lamp, Isabelle Van Damme, to name a few) attests to both his perceptiveness in identifying promise and his ability to bring the right people together, helping them collaborate for the future and securing their addiction to international economic law. And so, to the substance of Professor Jackson’s work. A brief overview of that work is of course impossible, even within the ‘confined’ area of the relationship between the WTO and

The Rights of Man and the Rights of the Man-Made: Corporations and Human Rights

The Citizens United and Hobby Lobby decisions of the US Supreme Court stoked the longstanding controversy over the court’s doctrine that corporations are persons entitled to certain constitutional rights on the same basis as citizens. It is less widely noted that, in some fields of international economic law, firms are increasingly considered not just legal persons but bearers of human rights. This article critically examines the incipient arrogation of human rights discourse in the context of international investment arbitration, where the claims of firms are often articulated and adjudicated with language and standards borrowed from human rights law. This development, which the article describes as the dehumanization of human rights , is part of a larger process whereby international economic institutions accord legal recognition and certain protections to private economic actors. The article traces the important implications of business corporations being considered as bearers of human rights for determining the proper scope and purpose of international human rights norms, and for conceptualizing their relationship to constitutional democracy.

The Rights of Man and the Rights of the Man-Made: Corporations and Human Rights

Recent decisions of the US Supreme Court have stoked the long-standing controversy over the recognition of corporations as “persons” entitled to certain rights under the US Constitution on the same basis as citizens. It is less widely noted that in some fields of international economic law, firms are increasingly considered not just legal persons but bearers of human rights. This article critically examines the incipient arrogation of human rights discourse in the context of international investment law in particular, where the claims of firms are often articulated and adjudicated with language and standards borrowed from human rights law. This development constitutes part of a larger process whereby transnational economic institutions endow corporations with legal status, protections, and benefits. The article traces the implications of business corporations being considered as bearers of human rights for foundational debates regarding the proper scope and purpose of international human rights norms.

International Economic Law and Public International Law: The Past and The Future

The field of international economic law has changed dramatically from fifty years ago. There are now many lawyers around the world engaged in the field, there are courses in law schools, there is a substantial scholarly and professional literature, and international economic law has engaged the interest of public international lawyers.Moreover, there is an emerging generation of international lawyers well versed in traditional principles of public international law as well as international trade law and international investment law. Yet, for a variety of reasons there is still suspicion by some public international lawyers of the legitimacy of international economic law as a field.The challenge for the future is to foster a greater understanding between the areas of trade, investment and other fields of international law so that concepts used in one are readily understood in the other and, where relevant, adapted and applied more generally.

The Field of International Economic Law

In a journal analyzing developments in the theory and practice of international economic law (IEcL), it is appropriate occasionally to reflect on the changing meaning of IEcL and its relation to public and general international law. After an introductory excursus of the three terms—international, economic, and law—this article examines the evolution of the field as such. First, there is a discussion of the key institutional innovations achieved in the early 20th century. Second, there is an overview of the foundational IEcL writings of Ernst Feilchenfeld, Georg Schwarzenberger, and John H. Jackson. The historical contributions of Feilchenfeld, a Georgetown University scholar, have heretofore received little attention in the IEcL literature. Next, the article discusses the burgeoning IEcL scholarship of the past few 25 years and notes the still ongoing efforts to develop a theory of IEcL to explain its purpose in regulating the global economy and achieving a world public order of human dignity.

STANDARDS OF NON-DISCRIMINATION IN INTERNATIONAL ECONOMIC LAW

AbstractThe principle of non-discrimination constitutes a corner-stone in different fields of international economic law, notably international trade in goods and services as well as intellectual property and investment protection. While its basic rationale appears to be straightforward, the application of the different legal elements which constitute a non-discrimination obligation has proven to be most challenging. Adjudicating bodies have been applying different interpretations and standards with regard to the legal elements of ‘less favourable treatment’, ‘likeness’ and ‘regulatory purpose’, which leads to a high fragmentation of the non-discrimination principle in international economic law. This article maps out the different theories for each of these elements on the examples of WTO law, NAFTA, bilateral investment treaties (BIT) and EU law and analyses how these theories affect the scope and liberalizing effect of the non-discrimination obligation. The article then attempts to develop a coherent factor-based application of non-discrimination rules suitable for all fields of international economic law. The article submits the theory that the elements of non-discrimination should not be applied as strict legal conditions which must be proven by a complainant, but as a range of factors which are weighed and balanced by the adjudicating bodies.

Assessing Competition in International Economic Law: A Comparison of ‘Market Definition’ and ‘Comparability’

The extent to which market participants are in a competitive relationship constitutes a key element both in competition law and in international economic law. Competition law practice has developed refined economic instruments designed to define relevant markets on the basis of demand substitutability, supply substitutability and potential and future competition. In contrast, many fields of international economic law, such as trade and investment protection, fail to assess actual market situations. This article identifies conceptual differences and similarities between the legal instruments of the two fields of law in order to analyse whether competition law theories of defining relevant markets could also be applied in international economic law.

Society of International Economic Law (SIEL) 2010 Conference Program

The Second Biennial Global Conference of the Society of International Economic Law (SIEL) will be hosted by the University of Barcelona and its IELPO LL.M. Programme at the premises of the University of Barcelona from the 8th July to 10th July 2010.Over the course of the last two decades, the communities of scholars, practitioners and others active in the area of international economic law have grown and diversified in ways that few could have predicted. The field of international economic law now includes a diverse array of participants and covers many new substantive issues. Inevitably, the term international economic law defies easy definition: it is at once a fully integrated part of public international law and an identifiable field in its own right.This conference provides a venue for exploring many different faces of international economic law. Given that the aim of the Society includes fostering research in the area of IEL and promoting cooperation among all parts within the field, the SIEL Global Conference offers a forum for those inside and outside academia to share pedagogical and research methods, as well as to explore greater cooperation among the many different constituencies of the field.

Challenges Ahead in International Economic Law

Challenges Ahead in International Economic Law

Dispute Settlement Over Exchange Measures Affecting Trade and Investments: The Overlapping Jurisdictions of the IMF, WTO, and the ICSID

One of the risks that international economic law is facing is the inability to give consistent answers to actual needs. Coherence, consistency and predictability of international law rules are particularly relevant in a global world and market, where private actors are increasingly gaining importance. All the fields of international economic law are so intertwined that reaching consistent interpretations is particularly difficult. The overlapping of areas of competence among the main organizations can lead to disruptive conflicts of norms, as well as to excessive fragmentation or sectoralisation. This is clearly observable in international monetary law, where litigations over monetary measures have been brought before other fora because the IMF does not provide for a mechanism to settle international disputes.To ensure coherence and to avoid the coming into existence of conflicting rights and obligations for States which have ratified the same treaties, substantial and procedural linkages have been inserted in a number of provisions. The need for coordination among different treaties is particularly felt for exchange controls and restrictions which affect the functioning of the international monetary system and the world of trade and investment. The purpose of this paper is to evaluate how exchange restrictions and controls are treated within the IMF, WTO and ICSID legal systems, and the degree of consistency of interpretation. After a brief overview of the international system as envisioned after World War II and of the various types of exchange measures, this paper will first analyze how the International Monetary Fund deals with exchange controls and restrictions. It will then examine the current legal aspects of the relationship between the monetary and trade systems, the GATT and GATS safeguard clauses on exchange restrictions consistent with IMF obligations, as well as the panels and Appellate Body decisions on monetary measures affecting trade. Lastly, it will consider how investment treaties take into account exchange restrictions on repatriation of profits and transfer of funds, and how the relative safeguard clauses are structured. An evaluation of the actual role of balance-of-payments clauses is eventually proposed.

Forming the Centre of a Transnational Economic Legal Order? Thoughts on the Current and Future Position of Non-State Actors in WTO Law

The position of non-State actors — including individuals and non-governmental organisations, as well as private corporations and their respective business associations — in WTO law is one of the most contentious topics currently discussed in the field of international economic law. The purpose of this article is not only to show that this discussion raises fundamental questions as to the aims pursued by the WTO, but also to explore the possible consequences of the changing character of international economic law itself, which have so far been little noted in the legal literature. The article starts with an evaluation of the possibilities for individual rights granted to private actors by WTO law. In this connection, the authors come to the conclusion that, judged by its goals and its normative construction, the WTO legal order is not only suitable for according rights directly to individuals, but is actually designed precisely for this purpose. The authors continue with an analysis of the current legal and factual opportunities for non-State actors to participate in the decision-making processes and dispute settlement system of the WTO. In this regard, it is submitted that a number of non-State entities already play an important, albeit mostly informal role in the WTO at present. Furthermore, this participation is likely to increase in the future, due to the currently visible changes in the normative structure of the international economic system, which are leading to the evolution of what can most accurately be characterised as the development of a ‘transnational economic law’. Following an evaluation of these structural changes and their possible impact on the future role played by non-State actors in the international economic system, the article concludes that the WTO and other relevant international organisations obviously need to adapt to the changing normative structure of international economic law, in order to be able to continue performing the regulatory tasks assigned to them.