Trade Law Research Articles

BISNIS KOMODITAS TERLARANG DALAM PERSPEKTIF ETIKA BISNIS HUKUM EKONOMI SYARIAH

The rapid growth of the business world brings significant challenges in terms of legality and morality, particularly regarding the trade of prohibited commodities. Although such businesses are considered illegal in many countries, their circulation continues to expand. The trade in prohibited commodities, such as drugs, alcoholic beverages, and other forbidden products, not only violates national laws but also contradicts the principles of Sharia economic law. This study aims to examine how Sharia economic law views the trade of prohibited commodities from an ethical perspective and how Islamic norms can uphold moral principles and justice in global trade. The research employs a qualitative method with an in-depth literature review approach, drawing on various references related to commodity trade and Sharia economic law. The findings indicate that Sharia economic law emphasizes the importance of justice, welfare, and the prohibition of harmful practices such as usury (riba), uncertainty (gharar), and gambling (maysir). Any form of trade containing elements of harm (mafsadat) to society is prohibited in Islam. In conclusion, the Sharia economic law approach offers a strong ethical foundation to prevent the circulation of prohibited commodities and encourages the establishment of a more just and moral economic system.

First, ‘things’ first: prioritizing environmental goods tariff reductions at the WTO

Abstract Negotiations to liberalize trade in environmental goods are a key indicator for the World Trade Organization’s (WTO) capacity to pursue climate and environmental objectives. Experience with Environmental Goods Agreement negotiations within the WTO demonstrates the necessity to establish obligations and/or procedures that link environment and trade law as the WTO pursues a sustainability agenda.

Missing investment protection rules in India’s new free trade agreements: towards decoupling

Purpose This paper aims to show that India is decoupling its international investment law obligations from its international trade law obligations. This decoupling goes beyond the split between investment protection rules and trade agreements. If investment protection rules are missing from the trade agreement, it is a case of partial decoupling. If India does not legalize its investment relations with a country with whom it has signed a free trade agreement (FTA), either within or outside the trade agreement, it becomes a case of complete decoupling. Design/methodology/approach This paper follows doctrinal methodology. It compares India’s past FTA practice with the new one to show the dissimilarity between India’s FTA 1.0 and 2.0. Findings India’s new FTAs differ from the FTAs signed in the 2000s. Unlike the previous FTAs, the new ones do not contain investment protection rules. India is indulging in decoupling because it wants to de-legalize its international investment relations to exercise greater control over foreign investment. The paper concludes by observing that as India’s fundamental reason for signing FTAs is to be part of global value chains, it should consider including investment protection rules within its trade agreements. Originality/value No research yet compares India’s past FTAs with the new ones to show that investment protection is no longer part of India’s trade agreement practice.

Pertanggungjawaban Atas Kerugian Konsumen pada Jasa Titip Produk Luar Negeri Perspektif Fatwa DSN-MUI No. 112/DSN-MUI/IX/2017 Tentang Akad Ijarah

The service of entrusting foreign products is a business phenomenon that is growing rapidly in Indonesia, but still causes problems, including losses experienced by consumers. Due to the confiscation of overseas entrusted service products by the Immigration authorities. This research aims to analyze liability for consumer losses in overseas product entrustment services in terms of statutory regulations and the DSN-MUI Fatwa. This type of research is normative juridical with a conceptual approach and statutory regulations, data is collected through document study, data is processed and analyzed qualitatively. The results of this research show that liability for consumer losses according to the Consumer Protection Law requires jastipers to provide compensation to consumers. Regulation of entrusted services can refer to the Trade Law, ITE Law, Government Regulations on Trade Through Electronic Systems and the Consumer Protection Law. Meanwhile, in the perspective of the DSN-MUI fatwa regarding the Ijarah contract, responsibility for consumer losses refers to the provisions on rental benefits in compensation if Al-Ta'addi, Al-Taqshir and Mukhalafat al-Syuruth are carried out. Integration between statutory regulations and fatwas is needed to increase consumer protection and encourage responsible business practices in the foreign product delivery service industry.

Second-Generation Flanking Policies: Addressing Extraterritorial and Non-Economic Costs of Trade Liberalization

AbstractFlanking policies – policies that aim to address potential negative effects of trade liberalization, and/or the concerns of domestic stakeholders regarding those negative effects, and that are either legally or factually linked to trade liberalization – have been a critical component of international trade policy since at least 1962. Over the years, however, flanking policies have changed. This Article argues that there is a heretofore unnoticed distinction between what I term first-generation flanking policies and second-generation flanking policies. Specifically, first-generation flanking policies target negative economic effects, or costs, of trade liberalization experienced within the enacting country. Trade adjustment assistance is the paradigmatic example. By contrast, second-generation flanking policies target non-economic costs that arise outside of the enacting country. Examples include the European Union's Carbon Border Adjustment Mechanism, Deforestation-free Products Regulation, and the United States' Uyghur Forced Labor Prevention Act. Because second-generation flanking policies directly target foreign activity, they often employ more trade-distorting policies – tariffs, imports bans, and associated administrative hurdles for imports – than first-generation flanking policies, which more often relied on domestic subsidies. Moreover, they reflect a significant reorientation of the limits of state authority in international trade law. Whereas authority to tax and regulate production in international economic law has historically been based primarily on a territorial link to productive activity, second-generation flanking policies target production but rely on a territorial nexus with consumption of goods and services.

The Impact of the European Deforestation-Free Regulation on Trade Relations With Southeast Asia

Abstract As political and trade ties deepen between the European Union (EU) and Southeast Asia, new challenges have surfaced where EU trade laws and extraterritorial regulations intersect with social and environmental concerns. The EU must balance these with the development goals of its interregional partners. Notably, the EU’s sustainable forest policies have strained relations with palm-oil producers like Indonesia and Malaysia. The upcoming 2023 European deforestation-free regulation adds further tension, as its broad scope and benchmarking have sparked opposition in the forest sector. Examining these challenges highlights the existing and significant conflicts raised by the EU’s unilateral approach to climate mitigation. For the sake of the European environmental strategy’s effectiveness, as it extends beyond economic ambitions, it becomes necessary for the Union to develop a joint and suitable cooperation with its partners, to achieve political consensus while limiting trade disruptions in the forest agricultural sector.

International Trade Law and Global Data Governance: Aligning Perspectives and Practices, written by Neha Mishra

International Trade Law and Global Data Governance: Aligning Perspectives and Practices, written by Neha Mishra

Mutaffifin Suresi'nin İlk Üç Ayeti Üzerine Bir İnceleme

This article provides an in-depth examination of the first three verses of Surah Al-Mutaffifin. The surah emphasizes the core Islamic principles of justice and honesty in trade. The verses strongly condemn fraudulent practices in commerce and highlight the negative consequences of such behavior, both religiously and socially. The article discusses the linguistic analysis of the verses, classical and modern interpretations, jurisprudential perspectives, and their place in Islamic law. Additionally, it explores the relevance of these verses in today's commercial practices and their significance in modern Islamic trade law. Keywords: Surah Al-Mutaffifin, honesty in trade, Islamic trade law, jurisprudential interpretation, justice, social responsibility, fraudulent trade.

Resolving Disputes in International investment through Arbitration

This paper brings forth an extensive analysis of the role of arbitration in resolving disputes in international investment, providing a comparative study of the existing frameworks and emerging alternatives. As cross-border investments continue to grow, disputes between foreign investors and host states have become increasingly common. International arbitration has emerged as the preferred method for resolving such conflicts due to its neutrality, enforceability, and flexibility. The paper explores the key legal instruments governing international investment arbitration, including Bilateral Investment Treaties (BITs), Free Trade Agreements (FTAs), and multilateral agreements like the Energy Charter Treaty. It also examines the two most widely used procedural frameworks: the International Centre for Settlement of Investment Disputes (ICSID) and the United Nations Commission on International Trade Law (UNCITRAL), comparing their distinct approaches to arbitration. While arbitration has proven effective, it faces growing criticisms, including high costs, lengthy proceedings, and concerns about transparency and arbitrator impartiality. The research also highlights regional initiatives, particularly in Latin America and China, which reflect diverse approaches to investment dispute resolution. By comparing these frameworks and emerging trends, the paper sheds light on the strengths, weaknesses, and future direction of international investment arbitration, emphasizing the need for a more transparent, equitable, and accessible system to balance the interests of investors and host states. The analysis concludes by assessing the potential impact of these reforms on the future of international investment law.

General Exceptions in the Digital Trade Environment: Challenges and Reforms under Article 20 of GATT and Article 14 of GATS

With the rapid development trend of digital trade today, this article introduces the legal interpretation of Article 20 of GATT and Article 14 of GATS. Firstly, it explains the application standards of this provision in the WTO. Secondly, it combines existing judgments and digital trade laws issued by international organizations to explain the current situation and shortcomings of the application of digital trade in the provision. The article also discusses how digital trade dynamics such as data flow, privacy concerns, and cross-border service delivery complicate the application of these established trade rules. Finally, the article proposes a series of recommendations aimed at refining the interpretation and development of trade laws to better accommodate the unique demands of the digital economy. These suggestions include the need for clearer definitions of key terms within the GATT articles, the establishment of a more robust framework for digital trade within the WTO, and the promotion of international cooperation to create harmonized standards that facilitate digital trade while protecting consumer and national interests. Through these measures, the article advocates for a more adaptive and forward-looking approach by the WTO to ensure that global trade regulations keep pace with technological advancements and market transformations.

The Relationship of International Trade Law and International Environmental Law: Using Marine Law as the Point of Contact

The Relationship of International Trade Law and International Environmental Law: Using Marine Law as the Point of Contact

Article: Exploring Shortcomings in International Trade Law in Light of the Expansion of Artificial Intelligence

The objective of this paper is to explore the shortcomings in international trade law (ITL) in view of the expansion of Artificial Intelligence (AI), and to propose some recommendations. AI is contributing to the development of international trade while giving rise to other concerns, such as nontariffs measures. Addressing the legal challenges posed by the integration of AI into various facets of society, including international trade, is of major importance. In this context, this paper explores a number of provisions of the General Agreement on Tariffs and Trade (GATT) 1994, those of the General Agreement on Trade in Services (GATS), and ends with those of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Finally, the article proposes some recommendations to better take into account the concerns that AI may give rise to in the multilateral trading system. It highlights the need for close partnership between the World Trade Organization (WTO), the International Standardization Organization (ISO) and the International Electrotechnical Commission (IEC) to better maximize the benefits of AI while minimizing the risks in the context of international trade. Also, it highlights the importance of harmonizing regulations on the trade of AI products and AI-driven trading and the need for a change in legal design that goes beyond mere incremental adjustments.

A Comparative Analysis of Patent Laws in Afghanistan and the TRIPS Agreement

The Agreement on Trade-Related Aspects of Intellectual Property Rights provides for a minimum standard of Intellectual protection. All WTO member countries are under an obligation to comply with the provision of provisions Agreement. Afghanistan, as a member of the WTO, in the case of intellectual property rights, committed to full implementation of the provision of the TRIPS Agreement. Hence, is required to coordinate all its trade law, including patent law. This research paper examines Afghanistan's patent regime in relation to the RTIPs Agreement. The paper provides a comprehensive overview of the fundamental concept of patents and the historical background of patents in the legal system of Afghanistan. It then delves into an analysis of the law and regulations in Afghanistan, evaluating their compliance with the TRIPs agreement. The findings of this research indicate that Afghanistan patent law is compatible with the minimum standard of patent protection in the TRIPs Agreement. Nevertheless, Afghanistan’s patent law is insufficient, there are certain legal lacuna in its provisions which must be amended.

Recognising foreign solvent proceedings under the UNCITRAL Model Law on Cross-Border Insolvency: the Singaporean approach in Ascentra Holdings, Inc v SPGK Pte Ltd [2023] 2 SLR 421

To promote cooperation among stakeholders in different jurisdictions to facilitate coordinated insolvency proceedings, the United Nations Commission on International Trade Law (UNCITRAL) adopted the Model Law on Cross-Border Insolvency (MLCBI) in 1997. The MLCBI harmonises certain procedural aspects of the cross-border insolvency process, though states may choose to make modifications when adopting the MLCBI in their own legal systems. This was completed in Singapore in 2017, and the Singapore Model Law (SML) can now be found in the Third Schedule to the Insolvency, Restructuring and Dissolution Act 2018 (2020 Rev Ed) (IRDA 2018). One topic that has been the subject of much debate internationally is whether foreign solvent proceedings can be recognised under the MLCBI or the corresponding provisions in various jurisdictions: the Nevada Bankruptcy Court first answered this question in the affirmative, but this was explicitly rejected by the High Court of England and Wales (EWHC) in Re Sturgeon Central Asia Balanced Fund Ltd (in liquidation) (No 2) (Re Sturgeon). In Ascentra Holdings, Inc (in official liquidation) v SPGK Pte Ltd (Ascentra), the Singapore Court of Appeal (SGCA) held that foreign proceedings concerning solvent companies may be recognised under the SML. This commentary addresses the salient points of the SGCA's judgment and highlights the positive impact of this gradual harmonisation of the approaches taken in different jurisdictions to the MLCBI. Through a comparative analysis of the conflicting Re Sturgeon decision, three additional justifications based on the preparatory documents pertaining to the MLCBI, relevant authorities in the UK and a purposive reading of the MLCBI are provided for the approach in Ascentra. It is contended in closing that these reasons support the argument for definitively overruling the Re Sturgeon decision in the UK.

The efficient enforcement challenge of secured transactions law reforms in civil law systems—self-help repossession, strict foreclosure, and other methods for the acceleration of enforcement of security interests

Abstract Although the forging of an efficient system for enforcement of security interest is one of the central expectations of secured transaction law reforms in civil law systems, the results hardly give reason for satisfaction. As the reforms tend to be supported and influenced by various international organizations’ projects (especially the World Bank, the European Bank for Reconstruction and Development, the International Institute for the Unification of Private Law, and the United Nations Commission on International Trade Law), most out-of-court methods of enforcement of security interests have played a central role. Yet due to civil law’s general hostility towards self-help as such, either the introduction of the concept has been rejected or the local limited-reach kin have been merely ‘paper tigers’. Similarly, although security interests on several types of collateral (accounts, investment property) or on the workhorse of the English financial system—the floating charge—have also been enforced extrajudicially (save the exceptions), little attention has been attributed to these enforcement modalities. The same applies to strict foreclosure in civil law systems still being prohibited, or restricted, and thus rarely resorted to, due to the inherited hostility towards the doctrine of lex commissoria. Rethinking local laws on preliminary and temporary court orders to match them with such globally known ex parte preliminary measures as the English Mareva Injunction or the French Saisie Conservatoire, which allow creditors to swiftly freeze debtors’ assets and thus substitute self-help repossession, has also been given short shrift. The enforcement segment, consequently, remains the Achilles’ heel of secured transaction law reforms in civil law systems. This article desires to contribute to reform literature by addressing these deficiencies and by offering tested, fully or partially fitting, functional equivalents of self-help repossession.

The evolution of Islamic trade law under the influence of international trade practice: towards the problem of convergence of legal orders

The article provides a historical and legal analysis of the development of Islamic trade law under the influence of secular European trade law. It was concluded that until the second half of the 20th century the influence of European trade law on Muslim legal orders was one-sided. Initially, the penetration of secular European trade law into Islamic commercial law was carried out through the law of medieval merchants (lex mercatoria). From the beginning of the 19th century the reception of secular European trade law was determined by the active colonial policy of European states (the model was the French system of trade law, reflected in the Napoleonic Commercial Code). Only at the end of the 20th century international commercial practice began to take into account Islamic contractual structures, as well as religious prohibitions and permissions of Sharia.

Le concept du contrat du transport maritime de marchandises et les Conventions qui le rglementent

Somalian Piracy constitutes one of the main threats not only to internAlthough the contract of carriage sometimes looks similar to other contracts such as the contract of affreightment and tonnage contract, the legal system that governs it is different. Several Conventions, Protocols or International Rules regulate the carriage of goods. We can mention the American Harter Act, the International Convention for the Unification of Certain Rules Relating to Bills of Lading signed at Brussels on 25 August 1924 (The Hague Rules), the Protocol to Amend the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading signed at Brussels on 23 February 1968 (Visby Rules), the Protocol amending the International Convention for the Unification of Certain Rules of Law relating to Bills of Lading of 25 August 1924 (The Hague Rules), as amended by the Protocol of 23 February 1968, signed at Brussels on December 21st, 1979. We can also mention the United Nations International Convention on the Carriage of Goods by Sea adopted in Hamburg on March 31st, 1978 (Hamburg Rules). In an effort to organize the maritime transport of goods in an equitable manner, each Convention is intended to fill the gaps of the previous one and maintain a balance between the various parties to the contract of carriage. At the beginning of the century, each mode of international carriage continues to be governed by autonomous Rules. For the sake of globalization of trade and trade facilitation, jurists acted for the unification of the rules of international carriage. Thus, the United Nations Commission on International Trade Law (UNCITRAL) adopted on July 3rd, 2008, the "Draft of Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea". On December 11, 2008, the United Nations General Assembly formally adopted the "the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea", and recommended that the rules laid down in the Convention are from now on known as the "Rules of Rotterdam". This Convention has since then been open to ratification by the states. It shall enter into force one year after the ratification meeting at least twenty states. These Rules have advantages, but they also have some disadvantages. A study of these advantages and disadvantages is interesting.: Piracy, international legal system, International Law, sovereign territory, non-liquet, UN resolutions, Universal Jurisdiction, United Nations Charter, Non-State Actor

Legal Reform of Indonesia’s Nickel Export Ban (Indonesia-Europa)

Introduction: Indonesia's nickel export restriction policy is regulated in the Minister of Trade Regulation No. 96 of 2019 concerning Export Requirements for Mining Products from Processing and Refining which is in line with the Minister of Energy and Mineral Resources Regulation No. 11 of 2019 and is the cause of a lawsuit brought by the European Union to the WTO for Indonesia's violation of the provisions of Article XI.1 of the GATT 1994 WTO agreement related to discrimination against export products in the form of nickel ore.Purposes of the Research: The purpose of this research is to analyze the rules of the prohibition of Nickel Exports Based on International Law reviewed based on the theory of state sovereignty in Indonesia.Methods of the Research: This research uses normative legal research using a statutory approach and conceptual approach, and uses descriptive analysis techniques supported by two legal materials, namely primary legal materials and secondary legal materials.Results of the Research: Indonesia certainly has a strong reason why these restrictions are carried out. In addition to national economic growth, it also realizes sustainable development. This research is conducted to describe the policy through the lens of international trade law and Indonesia's authority as a sovereign state.

Neha Mishra, International Trade Law and Global Data Governance: Aligning Perspectives and Practices Hart Publishing, 2024

Neha Mishra, International Trade Law and Global Data Governance: Aligning Perspectives and Practices Hart Publishing, 2024

Talent Development Pathways for Integrating Law and Business in Chinese Universities

The practice of “integration of law and business” in universities has a history of nearly twenty years in China. With the maturity of China’s market economy system, the cultivation of compound talents of law and business become more and more important in the future development of business majors and law majors in universities. This paper mainly adopts literature research method and induction and summary method to collect the relevant literature of the “integration of law and business” curriculum construction and talent training path in the four platforms, and summarizes and analyzes the specific practices in the university running practice. Through research, it is found that in the past five years, the trend of “integration of law and business” in running schools in domestic colleges and universities has been rising, and many business majors in colleges and universities implement the integration of law and business in related courses such as “Economic Law”, “International Economic Law” and “International Trade Law”. Construction of the team of compound teachers of law and business and emphasis on practical teaching are the core part of the cultivating compound talents of law and business. Combing through the historical practice of the training of complex talents of law and business in domestic colleges and universities is helpful to provide reference and guidance for other colleges and universities to carry out the reform of the integration of law and business education, and is conducive to deepening and improving the training mechanism of complex talents of law and business, and train talents who can truly meet the needs of economic and social development.