International Economic Law Research Articles

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.

New (Paradigms In) International Economic Law

ABSTRACT Since the birth of the Journal of International Economic Law (JIEL) in 1998, the foundations of international economic law have undergone multidimensional changes. Emerging political and economic challenges have shaped international economic law into becoming inherently dynamic; not only have new frameworks developed for analyses of international economic relations, but novel social and environmental aspects of government policy now also fall within the field’s ambit. These challenges have shaken the normative foundations of international economic law and new paradigms in this field of law have emerged. Recent developments addressing matters ranging from the climate crisis to the coronavirus disease 2019 pandemic signify a turn in the WTO from negotiating trade rules to addressing pressing concerns facing humankind. When JIEL was first established, civil society renewed its calls for the inclusion of social and environmental concerns in so-called ‘trade and …’ policies. Today, the interlinkages between trade and other issues form an integral part of the international trading system. These new challenges and shifts in economic policy bring (some) traditional understandings of international economic law into question, and challenge the various normative underpinnings of international economic law in three ways: first, in the rise of novel approaches to international economic norm creation; second, in the expansion of subject areas covered by international economic rules; and third, in the steady disintegration of the traditional binaries, such as those between hard and soft law, between public and private actors, and between human rights and investment. These three changes have further provoked the development of analytical frameworks to study these norms. The eclectic and wide-ranging contributions in this special issue offer insightful critiques and provocative challenges to the community of international economic law actors facing unprecedented problems as the Journal celebrates its twenty-fifth anniversary.

Domestic Investment Laws, International Economic Law, and Economic Development

Abstract‘Development’ is a legal concept which has been central to the practice of international economic law (IEL). This Article examines how ‘development’ continues to be at the heart of struggles between domestic investment laws (DILs) and international economic law. By examining over 3000 international investment agreements (IIAs) and DILs signed in the last seven decades, this Article identifies the ways in which the concept of development has evolved in tandem with the growth of international economic law by dividing the history of international investment law into six main phases. It traces the emergence of ‘development’ in DIL to the decolonization era arguing that post 1990, the proliferation of international investment treaties and growth of investment treaty arbitration have been used as tools of liberalization on the weak premise that this would lead to economic development. In this context, this Article examines closely the interpretation of ‘investment’ by ICSID tribunals, promotion of international arbitration for economic development, attempts to internationalize economic development contracts, continued relevance of the New International Economic Order, and shift to sustainable development in IEL discourse.

Domestic Investment Laws and International Economic Law in the Liberal International Order

AbstractInternational Economic Law (IEL) has largely regulated cross-border trade and investment in the post-WWII world. IEL has become an important part of the Liberal International Order that prescribes a set of rule-based relationships for international cooperation based on political liberalism, economic liberalism, and liberal internationalism. However, economic globalization has witnessed a relative decline, especially after the 2008 global financial crisis and the COVID-19 pandemic. This form of ‘de-globalization’ challenges the assumptions upon which modern IEL is premised. This introductory article to the special issue on ‘Domestic Investment Laws and International Economic Law in the Liberal International Order’ explains how domestic law has started playing an increasingly important role in regulating foreign investment. Often overlooked instruments such as Domestic Investment Laws, Investment Screening Mechanisms, and Investment Promotion Agencies are now important tools in promoting or restricting foreign investment flows. Expanding on this premise, the article examines the transition from international to domestic in the Liberal International Order with a focus on Domestic Investment Laws. The move to domestic law does not signal a new era of economic isolation for States. Instead, it presents an effort to achieve similar ends of attracting foreign investors using different means while exercising more control over foreign investment.

The Right to Hospitality in International Economic Law: Domestic Investment Laws and the Right to Invest

AbstractUnder the Liberal International Order (LIO) of the post-WWII years, foreign investment protection was meant to be granted by international law and institutions. But current economic de-globalization is giving way to institutional and legal de-globalization. Domestic laws relating to foreign investment, especially in the form of Domestic Investment Laws, are taking over International Investment Agreements as the standard means of regulating cross-border trade and investment flows. The article compares substantive and procedural standards of investor protection in international and domestic investment law, as well as old and new Domestic Investment Laws, with a focus on non-discrimination and dispute settlement. The move to domestic law in IEL does not always signify a trend for most states to isolate themselves from the international economy. Rather, it is often an effort to achieve similar ends as those of the LIO but using different means. The article discusses an alternative political economy framework for an international (economic) law of ends, the cornerstone of which is the right to hospitality.

New Investment Rulemaking in Asia: Between Regionalism and Domestication

AbstractThe article analyses investment rulemaking in new Asian regionalism in the context of evolving national legislation and regional trade strategies. It argues that the Association of Southeast Asian Nations (ASEAN) and the Regional Comprehensive Economic Partnership (RCEP) represent Asia's pragmatic incrementalism in reforming the investment regime. The process reinforces the relationship between international economic law and domestic investment laws. In tandem with transforming international investment agreements, ASEAN expedited investment and services trade, and established the modern investor–state dispute settlement (ISDS) mechanism. The RCEP further buttresses the ASEAN centrality in regional frameworks by consolidating ASEAN Plus One agreements. Yet, the RCEP's omission of ISDS reflects a distinct approach that may confront challenges to state-to-state proceedings and treaty shopping under overlapping pacts. Finally, the research sheds light on Asian countries' recent investment agreements and domestic dispute settlement that complement the liberal international order. These developments provide valuable models for developing countries and contribute to the understanding of global investment reforms from an Asian perspective.

The Past, Present, and Future of Domestic Investment Laws and International Economic Law

AbstractThis article considers the past, present, and future of domestic investment laws. Its focus is on the ‘facilitative’ investment law, which aims to encourage foreign investment by granting substantive protections to foreign investors and consent to international arbitration over disputes with foreign investors. The article first contends that states had independent reasons to enact such facilitative investment laws alongside investment treaties, even though investment treaties perform very similar functions. Secondly, the article argues that investment laws can be characterized either as unilaterally assumed international obligations of states or simply as domestic laws of states, with differing consequences under each characterization. Thirdly, the article proposes four possible futures for facilitative investment laws: contamination, continuation, compromise, and contestation.

Domestic Investment Incentives in International Trade Law

AbstractDomestic Investment Laws (DILs), a prominent tool of contemporary unilateral International Economic Law (IEL) in the context of the Liberal International Order (LIO), consistently provide for investment incentives as a key aspect of domestic industrial policies geared to influence investment location decisions. The various types of investment incentives include fiscal measures to attract investment, direct subsidies, and other regulatory measures aimed at creating favorable administrative and regulatory conditions for investment. This article analyzes how the provisions of the World Trade Organization (WTO) Agreements contain basic disciplines and set limitations for the distortive effects of investment incentives. It is argued that the relevance of WTO law for domestic investment incentives should not be under-stated; rather, DILs providing investment incentives should be treated as a limited exception to the ongoing move from international to domestic in the era of the LIO.

Domestic Investment Laws and State Capitalism

AbstractState capitalism and the liberal economic order have had an antagonistic relationship. While the international economic law rules have sought to reduce the role of the state in the economy, state-controlled entities have more recently increased in size and importance – both domestically, as well as internationally. In this connection, the article analyses the effects of state capitalism's expansion simultaneously with the domestic investment law of States. The article analyses the underlying principles of state capitalism in an effort to answer the question of whether domestic laws promoting investment – as defined in the special issue – are positive, negative, or neutral to state capitalists. The article further interprets the trends spawned by the propagation of the liberal international economic order as states realize their development targets and envisage to actively contribute to the regulation of international trade and cross-border transactions globally.

The Role of ICSID in International Economic Law

ABSTRACT The International Centre for Settlement of Investment Disputes was established in 1966 as a facility for the resolution of international investment disputes. Today, it has 158 member states and has administered roughly 70% of all known investor-state cases. International Centre for Settlement of Investment Disputes has taken a leadership role in modernizing the procedures for investor-state dispute resolution, especially in the 2006 and 2022 amendments to those rules.

Corporate Power and Accountability in International Economic Law

ABSTRACT Over the past twenty-five years, States, international institutions, and private entities have attempted to rein in corruption and promote corporate social responsibility. Such efforts have produced mixed results but have led to greater international cooperation and the establishment of clear norms. Increasing the accountability of multinational corporate actors remains a challenge but depends upon cooperation among boards of directors, national governments, nongovernmental organizations, and international institutions. This paper analyzes the relationship among municipal statutes, nonbinding ‘soft law’, and private standards. None on their own can effectively solve the problem of irresponsible corporate behavior but together have made meaningful steps in creating a more fair and accountable business environment.

Beyond Color-Blind International Economic Law

This essay makes three claims. First, that the central role of race in international economic law has been erased and much more needs to be done to recover its large footprints in the discipline as well as in the policies and practices that constitute it. Second, that rules of international economic law formally embed racially constructed hierarchies, such as those that subordinate the status of former and current colonies. Further, that this subordination is not merely of the former and current colonies, but also of large swaths of Black and Brown peoples around the world. Third, that international economic law in both the Global North and the Global South has played a key role in the cultural production of racist tropes that justify the continued servitude of the former and current colonies. This subordination ensures that returns to capital serve a small minority of wealthy individuals and corporate entities at the expense of large segments of humanity, particularly Black and Brown peoples.

Consumption Governance: The Role of Production and Consumption in International Economic Law

Consumption Governance: The Role of Production and Consumption in International Economic Law

Digital Trade Law and Human Rights

Trade and human rights have had a complex and contentious relationship. While trade experts assume that human rights and trade law are mutually supportive, human rights lawyers have seldom shared this opinion. Rather, they argue that across different contexts, such as climate change, culture, and development, the hard rules of international trade law focus almost exclusively on economic values and sideline human rights. This essay seeks to shed more light on these interfaces, focusing particularly on the tensions between trade law and the first generation of human rights, like privacy and free speech, that have been rarely discussed so far. It also addresses a gap in the literature on international economic law and human rights with respect to the impact of digitization. In particular, the essay focuses on the human rights implications of digital trade rulemaking, as a relatively new and dynamic subset of international trade law.

International Economic Law in an Era of Multiple Crises: Opportunities and Challenges for Africa in the wake of AFCFTA

Free trade agreements have been known to have numerous benefits, especially from an economic point of view. However, it has been argued that for them to be deemed successful, they ought to address challenges within the socioeconomic and by extension political environment, among others. The Africa Continental Free Trade Area (AfCFTA) was launched in 2018 and ratified in 2019. Regrettably, the AfCFTA arrived at a time when Africa was economically and politically unstable amid covid-19 prevalence; with conflict and economic insecurity have exacerbated the lack of development in the continent. The challenges for growth and opportunities on the continent come in many forms; but for the limitations of this paper on covid-19 and child’s rights as among the crisis facing AfCFTA within international economic law perspectives viz-a-viz the objectives of the AfCFTA to its future perspectives to respond to these different challenges. AfCFTA will create a single market for goods, services and movement of persons within the continent. The AfCFTA Agreement adds to the adoption in 2016 of a Pan-African Investment Code (PAIC) – the first continent-wide model investment agreement whose objective is to foster coherence and consistency regarding the rules and principles that govern investment protection, promotion and facilitation in Africa. This cross-border trade will grow as the continent reaps the benefits of closer regional cooperation. These increased cross-border trades could exacerbate ongoing challenges like child marriage, commercial sexual exploitation of children (CSEC), and child trafficking. Also, increased trade and the associated expansion of economic opportunities could push children out of school and into further engagement in child labour within an environment of poorly enforced child labour laws. The descriptive and analytical frameworks adopted for this paper consider pathways through which the AfCFTA had faced its challenges and opportunities abound. The descriptive approach was adopted in the covid-19 effects on AfCFTA while the analytical approach reviews the enforcement of domestic policies as well as international standards in determining the protection of girls, young women and children in AfCFTA trade activities participation. The findings observed that dueto limited child-care opportunities, some young women have to go to work with their children who are in turn (especially young girls) exposed to exploitation and sexual overtones. There is no uniform or strict enforcement of legislations regarding travelling with children across borders, and this can increase the threat of child trafficking as itis not easy to establish the parents of the child due to the absence of easily verifiable official documentation, except for Rwanda with strictly enforced legislations regarding travelling with children across the border. Despite these issues, the paper concludes that AfCFTA remains a significant and enhanced frameworks for deepening intra-African trade relations and maintaining political stabilities within the continent. It does show how African states navigated the covid-19 crisis and the opportunities of addressing child’s rights in the hope of contributing to the success of the AfCFTA. Finally, the paper asserts that Africa is ready for a free trade agreement by employing a qualitative research approach and reviewing current literature.

多元教学目标背景下在线教学的常态化应用——以国际经济法教学应用为例

多元教学目标背景下在线教学的常态化应用——以国际经济法教学应用为例

Ideas that Rule the World: Nomos, Race, Third World Scholarship and the Narratives of International Economic Law

Ideas that Rule the World: Nomos, Race, Third World Scholarship and the Narratives of International Economic Law

The Need for a 'Micro' Approach to International Economic Law

The Need for a 'Micro' Approach to International Economic Law

SANCTIONS AS A TOOL TO ACHIEVE COMPLIANCE WITH INTERNATIONAL LAW: SOME ISSUES OF NATIONAL IMPLEMENTATION AND ENFORCEMENT

The article is dedicated to sanctions as a tool for enforcing international legal obligations. In particular, some issues of their implementation at the national level are considered. The author analyzes the recent practice and legislation of the US, the EU, Canada and Ukraine. The choice of these actors is explained by their active participation in sanctions imposed on the Russian Federation in relation to its invasion of Ukraine. The main purpose of the study is to make a comparative analysis of national regulations in order to make recommendations for the improvement of the Law of Ukraine «On Sanctions» under which the sanctions on the Russian Federation and their residents are imposed. The publication considers such questions as the definition of sanctions or restrictive measures as they are often named, the grounds of their adoption, their types and enforcement. The last aspect is of great importance due to the fact that private companies often try to evade sanctions because for them sanctions mean restriction of their economic activities and, consequently, financial loss. In this regard the enforcement practice of the US is very useful and can be considered to be an example to follow for Ukraine and even for the EU. At the same time a very broad basis for US sanction imposition poses the question of their lawfulness both through the prism of international economic law and international human rights law. In this connection it is suggested that Ukraine should have a reasonable and more logical approach to the formulation of grounds for sanctions adoption that would be more consistent with the legal positions of other states applying sanctions in order to enforce international law.

Research on the Improvement Idea of the Carbon Tariff System

As the problem of the greenhouse effect becomes more serious, limiting carbon emissions has become an issue in environmental issues. The author agrees that the existing EU carbon tariff policy has a positive incentive to limit carbon emissions. However, for the global carbon emission problem, a joint boycott mechanism should also be established in order to truly make the carbon emission governance of the international community achieve Pareto optimality, that is, to achieve the optimal allocation of resources on the carbon emission issue. But the boycott mechanism is only an answer drawn from the overall efficiency of the international community, and it does not answer the question of the legitimacy of international economic law and the achievement of fair distribution. Therefore, the author interprets carbon tariffs in terms of international law and supports that the purpose of carbon tariffs is to maintain public morality and can become an exception to the principle of most-favored-nation treatment. The author also envisages several preconditions for establishing carbon tariffs to achieve the goal of fairness and to exclude individual countries from using carbon tariffs to restrict international trade in disguise.