Trade Law Research Articles

행정형법의 실체법적 문제점에 관한 소고

The overuse and abuse of criminal law in what is called the Risk Society is an unfortunate trend. Over the past 40 years, administrative criminal law has expanded significantly in size and scope, encompassing the prosecution and judgment of violations of administrative law such as financial market law, tax law, building law, fair trade law, and environmental law. It is estimated that nearly 1,000 statutes contain criminal penalties, with approximately 12,500 criminal code provisions in those statutes. A more significant problem is that many of these regulations, motivated by the aim of controlling risk rather than enhancing social justice, are often too vague or obscure. This makes it challenging to punish individuals who violate criminal offences without criminal intent or even knowledge that these offenses exist.
 The Serious Accidents Punishment Act is a typical example of administrative criminal law containing numerous ambiguities, likely leading to considerable confusion during enforcement. This confusion results in many gray areas, sparking widespread debate throughout the business community. The new law, implemented on January 27, 2022, aims to penalize the owners and management of companies with 50 or more workers for failing to fulfill their duties to prevent serious accidents.
 This article examines the characteristics of administrative criminal laws and analyzes the problems associated with them, such as challenging the principle of clarity and the culpability principle required under the penal code. Moreover, it suggests that Congress should amend or repeal redundant or superfluous administrative criminal laws to avoid overcriminalization and excessive punishment. This would eliminate vague, overly broad criminal offenses, preventing arbitrary application of criminal statutes. Regarding the Serious Accidents Punishment Act, urgent action is needed to abolish or at least amend the law to clarify the obligations and offences for preventing practical serious accidents.

The Crime of Importing Goods Prohibited Under Trade Law

This research focused on the restriction of specific commodities from being brought into Indonesia and the implementation of regulations aimed at tackling the illegal activity of importing these prohibited products. Analyses are conducted on secondary sources of information, including statutes, books, and periodicals, in accordance with a juridical-normative research approach and conceptual approach. The research demonstrates that the limitation on importing specific commodities into Indonesia is intended to safeguard the interests of the nation and state. The forbidden goods encompass items that have the potential to disrupt military and security, pose risks to human health, cause harm to the environment, disrupt industry, trade, and finance, and damage cultural products. The Minister of Trade Regulation No. 18 of 2021, along with the Regulation of the Minister of Trade No. 40 of 2022, clearly states the precise commodities that are prohibited. Law enforcement against importing prohibited items uses administrative and criminal penalties. The imposition of import duties and the confiscation of merchandise are examples of administrative sanctions. Criminal sanctions are governed by articles 110 and 112 of Law No. 7 of 2014, which establish the provisions for cumulative criminal sanctions and penalties. Furthermore, these enforcement measures may be harmonized with customs regulation. In general, this research provides insight into the legal mechanisms implemented to enforce the prohibitions on specific imported products in Indonesia, as well as the underlying justifications for such restrictions, to safeguard national interests.

The Cancellation of Documentary Credit in Iraqi Trade Law Compared to the Standards of the International Chamber of Commerce (UCP 600)

This research is about (the cancellation of documentary Credit in Iraqi Trade law compared to the standards of the International Chamber of Commerce (UCP 600)). It is an analytical and comparative study, it is a scientific attempt that sheds light on how to cancel the documentary credit and its impact and effects in accordance with international standards in the International Chamber of Commerce (UCP 600), and compares it with the Iraqi Trade Law to identify deficiencies in Iraqi law. In order to be able in the near future to complete the legal deficiencies in Iraqi law and to comply with international standards.
 Documentary credit is an important method in the field of international trade that makes commercial movement fast between countries and eliminates fear and anxiety among merchants and those doing business because fear and anxiety ultimately slow down commercial activity. Undoubtedly, the law must take its course to regulate these activities in the best manner.
 Also, in the end, this research presents a set of results and suggestions, such as the solution to readers and researchers, which must be taken into account upon amending the Iraqi Trade law in the future.

FORMAL AND LEGAL BASIS FOR THE INSTITUTIONALISATION OF INTERNATIONAL COMMERCIAL ARBITRATION: 100 YEARS OF EXPERIENCE

The article reveals the formal-legal basis for the institutionalisation of international commercial arbitration. It is found that states are still far from a unified understanding of the basic scope of human rights, but they have a clear common vision of the mechanism for protecting the interests of international commerce. Against the background of the economic and innovative successes of the EU and other countries in the world that have made human rights a priority, it would appear that the source of modern transnational trade problems lies precisely in another group of states in which commercial interests dominate human rights. This second type of state nourishes its development at the expense of the innovations of the first type of state, its constructive and passionate representatives. Innovative solutions are formulated by the freest people, whose freedom is legally and organisationally guaranteed, which becomes a source of release for their creative, productive existential energy. Therefore, the contradictions between these two types of entrepreneurs of nations give rise to commercial disputes regarding the path of development, as well as legal conflicts within each of these types of nations regarding the vector of development or decline. Strategically, it is an ontology of modern problems of international commercial disputes. It is emphasised that the institutionalisation of international commercial arbitration is conceived as the creation of legal models for interpretation, determination of cause-effect relations, assessment of all essential circumstances of commercial relations, about which the parties of this type of social interaction have not reached an agreement and are forced to turn to mediators, to whom they entrust jurisdiction over the dispute between them. It was noted that the legal reality of the institutionalisation of international commercial arbitration reflects the path of human development, which at the present stage is marked by crisis. Logical, rational, clear law is in a permanent process of critical evaluation of the synergy of creative, risky, adventurous, pragmatic entrepreneurship. Ideal legal models absorb the constructive activity of entrepreneurship, foreseeing its long-term prospects as positive. At the same time, it is the task of lawyers to reject those types of economic relationships that threaten common humanity. In conclusion, the UN Commission on International Trade Law is the only global body designed to ensure the optimal course of correlation processes between private international law and transnational commercial activity. At the same time, however, this Commission suffers from all the consequences of the UN's dysfunction. This is particularly evident in the UN's inability to prevent wars, famines, environmental disasters, military crimes and other global crises. It is advisable for the states to create a separate organisation in which they can coordinate their legal standards of joint entrepreneurship in the extractive industries, production, trade, finance, as well as the global environmental, national economic and other consequences of commercial projects. This organisation would become a convenient platform for honest parity in the unification of the legal practice of transnational entrepreneurship and the settlement of its disputes, based on the legal customs and traditions of different nations. This would provide a significant impetus for the healthy creation and application of international private law, capable of determining the vector both of global progress and of appropriate transformations in domestic national economic policies.

Analisis Pengaruh Kebijakan Produk Dalam Hukum Perdagangan Internasional Terhadap Implementasi Skala Bisnis Internasional

Not all products are well received in all countries. Thus, it is important for foreign companies to make various adjustments to the products offered. Companies must ensure that their products are well received by society and do not conflict with society's culture. If companies fail to adapt their products, there is a possibility that the company will not survive in the long term. In this article the author will explain the influence of product policy in international trade law, the importance of product policy factors that influence international business, and how product policy strategies influence the implementation of international business. The research method used is collecting and processing data from various sources, including online journals that are relevant to the topic of discussion.

BUSINESS ACTIVITIES AS A MECHANISM TO ACTIVATE THE LEGAL PRESENCE OF WOMEN – A STUDY IN ALGRERIAN LAW

Equality is the basic principle that all rights and freedoms are based on at present. It prevents every discrimination of any kind, which is sought by national and international trade laws alike, and this is to create opportunities to enable women to establish their legal presence in the labor market by Providing a work environment that preserves women’s rights and is supportive and stimulating for them while being keen to demonstrate the difficulties faced by this on the one hand, and facilitating the exercise of their business and commercial activities on the other hand. This is what the Algerian constitution expressly calls for by devoting the principle of freedom of trade and competition, in addition to opening the way for the time being to commercial investments, which do not differentiate between a man and a woman.

Criminalization of Childlike Sex Dolls under International and EU Law

Abstract Recent years have witnessed the emergence of a market in childlike sex dolls. Even though there is currently no empirical evidence as to whether or not the use of childlike sex dolls would prevent or encourage sexual abuse of children, more and more countries prohibit or consider prohibiting them. However, it is unclear as to where international and EU law stand in relation to these dolls. This article analyses and discusses international and EU legal instruments that might be relevant for a national ban on childlike sex dolls. First, it deals with the question whether the international and EU legal framework on child pornography and other relevant instruments provide a legal basis for prohibiting these objects. Second, it examines whether a ban on childlike sex dolls is compatible with international and EU trade law, in particular with the 1994 General Agreement on Tariffs and Trade and the Treaty on the Functioning of the European Union.

Enforcement Practice of the Antitrust Provisions of the Trade Law in 2021—2022: Approaches of the Competition Authorities and Precedent Court Decisions

The article is devoted to the analysis of precedent acts of competition authorities and court decisions made in 2021—2022 in cases of violation of antitrust provisions of the Federal Law “On the Fundamentals of State Regulation of Trade Activities in the Russian Federation” of December 28, 2009 № 381-FZ were applied (hereinafter referred to as the Law on Trade) in order to study the developed approaches to the application of relevant legal rules. Based on the results of the analysis, the authors come to the conclusion that, despite the insignificance of the number of cases under consideration on violation of the antimonopoly requirements of Law on Trade, the problem of relations between participants in the markets for wholesale and retail trade in food products remains relevant, and therefore competition authorities and courts continue to improve approaches to the application of relevant legal rules, which seem appropriate to use in further monitoring of their compliance.

Selected E-commerce Customs in Russia and China: Comparative Analysis

The article examines the experience of regulating e-commerce in the Russian Federation and China, mainly in terms of compliance with contractual norms, settlement of business disputes and protection of consumer rights. We can conclude that if the use of positive norms predominates in the Russian Federation, then the PRC quite successfully uses ordinary norms, revised and adapted to the needs of today — both at the national level and in the practice of cross-border trade transactions (the formation of a new customary trade law — lex mercatoria). It is especially worth noting the signifi cant role of mediation as a method of resolving business disputes, which is widespread in the PRC. The historical, cultural and current signifi cance of mediation allows us to talk about it as a legal custom that has found its place in the system of modern legislation of the PRC.

ГЛОБАЛЬНА БАГАТОПОЛЯРНІСТЬ: НОВІ МОЖЛИВОСТІ Й ЗАГРОЗИ ДЛЯ РОЗВИТКУ УКРАЇНСЬКОГО ЕКСПОРТУ

Одним з актуальних напрямів сучасної економічної науки є передбачення наслідків глобальної багатополярності. Їх аналіз у сферах міжнародної політики і міжнародного торговельного права дав підстави для висунення припущення, що глобальна багатополярність створює як нові можливості, так і додаткові загрози для розвитку менших економік, що розвиваються (smaller developing economies). Для перевірки припущення на основі даних, зібраних у сфері економіки, запропоновано ці можливості й загрози проаналізувати як сильні й слабкі торговельні стимули, що формують країни – нові реальні й потенційні полюси глобального зростання при закупівлі в менших економіках, що розвиваються, сировини і продукції підвищеної технологічної складності. Для реалізації цього наукового методу розроблено набір методологічних і методичних підходів для уточнення переліку й рейтингування реальних і потенційних полюсів глобального зростання, оцінювання їх часток у закупівлі продукції підвищеної технологічної складності.Апробація запропонованих наукових підходів на прикладі України виявила, що на міжнародних ринках додатковий попит Китаю і потенційних полюсів глобального зростання з-поміж країн з ринками, що прискорено розвиваються, створює сильні торговельні стимули для пожвавлення економічної активності у вітчизняних експортних галузях з виробництва сировини і продукції її неглибокої переробки, а також слабкі – у галузях з виробництва продукції підвищеної технологічної складності. Тому подальше стрімке інерційне розширення торгівлі України з даними країнами неодмінно посилюватиме ризики уповільнення якісних (структурних) змін у вітчизняній зовнішній торгівлі на користь продукції підвищеної технологічної складності. Отримані емпіричні дані підтверджують припущення західних учених, що глобальна багатополярність створює додаткові загрози для розвитку менших економік, що розвиваються, оскільки стимулює збереження за ними ролі постачальника сировинних ресурсів на світові ринки в майбутньому.

Global value chains in EU law

Abstract There is a burgeoning legal literature about the legal underpinnings of global value chains (GVCs). This article contributes to this literature through the lens of European Union (EU) law and proposes a different conceptual way to read GVCs legally. To that end, the contribution proposes understanding the evolving EU law on GVCs as a process of institutionalization leading to at least three legal forms. In EU company law, GVCs manifest actor-centrically as corporate obligations to govern the value chain. This mostly happens in the policies related to sustainability, but also features in some digitalization policies. In EU consumer law, the value chain appears as a collective network of actors that also bears collective responsibility towards the consumer for the production process. Moreover, in EU market practices and trade law, the value chain is approached in a de-personified manner by, on the one hand, targeting products relating to the territory (import/internal market access) and, on the other hand, trading practices in relations characterised by power asymmetry. These findings suggests that, rather than identifying a uniform legal concept of GVCs in EU law, a fragmented picture emerges in which different sub-areas of EU law develop different, partly even opposing, legal understandings of GVCs.

Report on the First CELIS NOW Conference ‘The Age of Open Strategic Autonomy’

On 11–13 May 2023, the CELIS Institute’s Early-Career Scholars’ and Practitioners’ Network on the Law and Practice of Economic Warfare (CELIS NOW) organized its first conference on ‘The Age of Open Strategic Autonomy’ in Berlin, Germany. This new network is designed to provide its members with a unique opportunity to exchange ideas and engage with the growing community of scholars and practitioners interested in investment and trade law in this changing geo-economic world. The CELIS Institute is an independent non-profit, non-partisan research enterprise dedicated to promoting better regulation of foreign investments in the context of security, public order, and competitiveness. CELIS NOW was established by Jonas Fechter (University of Münster) and Janosch Wiesenthal (University of Passau) in 2022, in order to create a forum for early-career lawyers in the field of trade and investment law. Since then, CELIS NOW has grown in size. At this first conference, about 40 lawyers who are professionally engaged with geo-economic trends gathered in Berlin to exchange ideas related to the emerging doctrine of Open Strategic Autonomy. The conference was generously supported by BLOMSTEIN and Freshfields Bruckhaus Deringer. This report summarizes the conference proceedings. Open Strategic Autonomy, Economic Warfare, Economic Security, Geo-Economics, Investment Law, Trade Law, Investment Screening, Foreign Subsidies, Anti-Coercion Instrument

Comparative Analysis of Futures Differences Between China and America

It is an interesting question why futures trading in China is not as popular as futures trading in the United States. The futures market is the product of the development of the market economy and also constitutes an important part of the modern market economy system. There are many differences between Chinese and American futures. This paper compares the origin and cultural differences of futures between the East and the West, the different nature and trading mechanisms of Chinese and American futures, and the different regulatory structures of Chinese and American futures. Points out the shortcomings of the Chinese futures market compared with the American futures market, and gives suggestions on the direction of development in the Chinese future market. Compared with the US futures market, China's futures market was established more than 100 years later, and the trading mechanism, market supervision, and laws and regulations need to be improved. We should learn from the advantages of the US futures market in different aspects, promote the effective allocation of resources, and further integrate into the international market.

Data Protection without Data Protectionism: The Right to Protection of Personal Data and Data Transfers in EU Law and International Trade Law by Tobias Naef

Data Protection without Data Protectionism: The Right to Protection of Personal Data and Data Transfers in EU Law and International Trade Law by Tobias Naef

The Role of International Trade Law in the Energy Transition

Abstract The key to tackling climate change and other environmental concerns primarily lies in the transition away from fossil fuels. Making this transition happen in a just and timely manner requires rapid and radical changes not only to energy sources and technologies but also to the broader socioeconomic and legal assemblages that are built around energy production and consumption. International trade law is one of the critical legal assemblages that can help accelerate or hinder the energy transition. This article focuses on the multilateral trading system and examines the role of international trade law in the energy transition. It argues that existing international trade rules are more likely to impede than accelerate the energy transition and that urgent reform is necessary to ensure that international trade law plays a constructive role in the transition towards a sustainable energy future.

Facilitating Access to Investor-State Dispute Settlement for Small and Medium-Sized Enterprises: Tracing the Path Forward

The costs of accessing investor-state dispute settlement (ISDS) are notoriously high. International investment treaties and investment dispute settlement in particular have been primarily designed with large investors in mind – those with the means to access an international tribunal –, while small and medium-sized enterprises (SMEs) and individual or vulnerable investors can face significant barriers to accessing ISDS. This article is the first in legal scholarship to identify and evaluate the diverse opportunities that exist for the establishment and operation of mechanisms allowing SMEs better and easier access to ISDS. Drawing on the wealth of comparative experience from the functioning of existing dispute settlement assistance mechanisms in international courts and tribunals, the article argues that legal assistance is a more efficient and cost-effective tool than financial assistance and presents concrete proposals for the funding and operation of such a mechanism for SMEs. Finally, the article examines the political cost involved in facilitating SMEs’ access to ISDS, in light of the fact that some states have been increasingly wary of ISDS, but it weighs this challengeagainst the imperative of ensuring effective access to justice. Small and medium-sized enterprises (SMEs), investor-state dispute settlement (ISDS), United Nations Commission on International Trade Law (UNCITRAL), access to justice, international investment agreements (IIAs), advisory centre on international investment law, procedural costs, legal assistance funds, expedited proceedings, UNCItRAL Working Group III

The WTO Joint Statement Initiative on E-commerce: Navigating Digital Trade Rules in a Fragmented World

This article examines the Joint Statement Initiative on Electronic Commerce (E-Commerce JSI), which is being negotiated at the World Trade Organization (WTO) and aims to harmonize international digital trade rules. The E-Commerce JSI is a concrete opportunity for the WTO to demonstrate the ongoing value of its rule-making function at a time when it is under increasing pressure on a range of fronts. However, it also faces several challenges to its conclusion, including resolving differences on key rules (such as on data flows and localization), clarifying the development dimension of the rules being negotiated, and finding a path to include the ultimate agreement in the WTO architecture. This article examines the early successes and promises of the E-Commerce JSI, before assessing three key challenges it now faces. It concludes that the timely finalization of the E-Commerce JSI will be a major win for the WTO, both in terms of substantive rules and in highlighting the relevance of the multilateral institution to the modern development of international trade law. It explains the key obstacles to the conclusion of the negotiation likely rest on the interlinked issues of better communicating the JSI’s development dimension, finding an acceptable compromise on the level of ambition for the rules, and integrating the JSI into the WTO architecture. E-Commerce, Digital Trade, Joint Statement Initiative (JSI), Development Dimension, North-South Divide, Digital Trade Regulations, Multilateral Trade Agreements, Services Domestic Regulation, Work Program on Electronic Commerce (WPEC)

Cyber Borderlines: Exploring the Interplay Between E-Commerce and International Trade Law

This review delves into the intricate interplay between e-commerce and international trade law, shedding light on the dynamic challenges and opportunities presented by the digital age. As e-commerce transcends traditional geographical boundaries, it reshapes global trade dynamics, necessitating a reevaluation of existing regulatory frameworks. The paper navigates through the complexities of jurisdiction, data privacy, intellectual property rights, and trade facilitation in the digital era. It critically examines the role of e-commerce platforms and explores the potential for harmonizing international trade rules. By exploring these dimensions, this review contributes to the understanding of how e-commerce intersects with international trade law and the implications for shaping the future of global commerce.

The EU’s New Regime on Foreign Subsidies: Has the Time Come for a Paradigm-Shift?

In December 2022, the EU introduced a comprehensive regulatory regime for foreign subsidies, which have so far largely remained under the radar of international trade law. The last couple of decades have seen a considerable increase in the economic import of foreign subsidies. Services and investments have grown from marginal importance to a major field of international trade and have been the subject to massive subsidization by state capitalist countries. The WTO’s enlargement to these economies internalized the problem but also undermined the solidity of the pristine paradigm shaped by the societal pattern of western democracies. The EU Regulation on Foreign Subsidies responds to this menace and ushers a paradigm-shift in the field. This paper provides an analysis of the Regulation in the context of its international framework. It identifies the regulatory gap the Regulation reacts to and inquires if it effectively responds to this; it examines if the Regulation complies with international disciplines and if it could serve as a role model to address the increasingly burning question of foreign subsidies. Countervailing Duties, EU Regulation on Foreign Subsidies, Foreign Subsidies, International Trade, State Aid, State Capitalist Countries, Protectionism, Transnational Subsidies, Unfair Trade

A Cross-Cultural Multi-Country Analysis of Unfavorable News Announcements in Public Companies

Value-relevant bad news leads to declining stockholder wealth. Various factors moderate the decline. We explore the moderating effect of culture (country), economic development levels, and insider trading laws. To this effect, we compile rich bad news announcement data from the US, Japan, China, and India. Ours is the first such study to cover comprehensive data from multiple countries.
 Stock markets in the US, Japan, and India experience a significant stock decline following the public announcement of bad news. In contrast, companies traded in the Chinese stock market experienced a positive stock impact. Companies in countries with high long-term orientation (Japan and China) perform better than those with low long-term orientation (the US and India). Economic development levels also play a significant mediating role. Countries with stronger trading laws do not experience stock decline before the public announcement of disruptions. Our study enriches the current state of the art by performing a multi-country analysis of stock impact from bad news announcements. The results are of interest to investors and policymakers.