Suchergebnisse

In this Master Thesis the influence of WTO law within the EU legal order was analyzed, particularly the direct effect of WTO provisions which is denied by the CJEU. Discussions why directly effective WTO law is denied are still ongoing and the analysis of the case law of the CJEU reveals that double standards are applied for WTO law. As the research showed, even though the direct effect of WTO provisions is denied, WTO law undoubtedly has an impact within the EU legal system. It is seen from the standpoint of two conditions when it is possible to rely on WTO rules in order to review the validity of EU legislation and through the consistent interpretation. The statement was presented that rather limited interpretation on the direct effect of WTO law encouraged to seek sufficiently sturdy effect by using the alternatives for direct effect. However, as it was reveal in this Master Thesis, WTO provisions are still avoided and infringed by EU legislative institutions as well as the CJEU. The first chapter of this Master Thesis examines two concepts – direct effect and direct applicability. The issue of equalization of these concepts regarding WTO law is highlighted. The second chapter analyses the grounds and reveals both legal and political reasons why directly effective WTO law is denied within the EU legal system. The third chapter confirms that under certain conditions it is possible to rely on WTO provisions in order to review the lawfulness of EU acts. The last, fourth, chapter highlights the importance of consistent EU measures adoption and interpretation with WTO law.

In this Master Thesis the influence of WTO law within the EU legal order was analyzed, particularly the direct effect of WTO provisions which is denied by the CJEU. Discussions why directly effective WTO law is denied are still ongoing and the analysis of the case law of the CJEU reveals that double standards are applied for WTO law. As the research showed, even though the direct effect of WTO provisions is denied, WTO law undoubtedly has an impact within the EU legal system. It is seen from the standpoint of two conditions when it is possible to rely on WTO rules in order to review the validity of EU legislation and through the consistent interpretation. The statement was presented that rather limited interpretation on the direct effect of WTO law encouraged to seek sufficiently sturdy effect by using the alternatives for direct effect. However, as it was reveal in this Master Thesis, WTO provisions are still avoided and infringed by EU legislative institutions as well as the CJEU. The first chapter of this Master Thesis examines two concepts – direct effect and direct applicability. The issue of equalization of these concepts regarding WTO law is highlighted. The second chapter analyses the grounds and reveals both legal and political reasons why directly effective WTO law is denied within the EU legal system. The third chapter confirms that under certain conditions it is possible to rely on WTO provisions in order to review the lawfulness of EU acts. The last, fourth, chapter highlights the importance of consistent EU measures adoption and interpretation with WTO law.

Recent scholarship in international law has studied the phenomenon of deterritorialization and, in this context, has framed territoriality and functionality as competing modes of organizing the global political order. In this chapter, we challenge this vision by exploring the hypothesis that territoriality and functionality, rather than mere substitutes or competitors, impart meaning to each other. To test this hypothesis, we identify different modes by which functionality and territoriality interact in the reconfiguration of the international legal space, and in particular in the trade and investment regimes. In the context of international trade law, we show how territoriality is multiplied, and how it gives meaning to functionality, in particular at the intersection of the trade regime and regimes for the protection of health and environment. We further develop the idea of the emergence of techno-territoriality, where norms allegedly promoting global technocracy are being shaped by territoriality. The analysis of the international investment regime engages with the threats that contractual clauses exert on territoriality in the context of investment operations, the significance of the territorial nexus requirement in the definition of investment, when intangible financial instruments are involved, as well as the 'international-territoriality' mode conveyed by the activities of sovereign investors abroad. We conclude by arguing that territoriality is not subsumed by functionality, but is rather undergoing a process of transformation into 'non-modern' territoriality: the reassertion of territoriality in investment and trade regimes, albeit in different forms, should be looked at as a positive development to keep alive the 'public' core of international law.

This article examines legal and institutional aspects of the evolution of China's approach to the dispute settlement mechanism of the World Trade Organization (WTO). It begins by analyzing the impact of China's changing attitude toward international law on the escalation of international economic law research. In particular, the article provides the first detailed examination of China's efforts to strengthen public–private cooperation in building its WTO legal capacity. China established think tanks to bridge the information and communication gaps between the government and industries. To develop its WTO lawyers, the Chinese government has consistently required international law firms to collaborate with domestic firms in major disputes and engaged the latter in third-party cases. Finally, the article evaluates China's assertive legalism strategy that enhances its recent participation in WTO rule-making and disputes against the US and the European Union. This research, therefore, provides a valuable case study for other emerging economies and the multilateral trading system.

Taking the success story of the Advisory Center on WTO Law in providing subsidized, low-cost legal advice to developing and LDC members of the World Trade Organization, investment law researchers should ask whether we need a similar advisory center in the field of international investment arbitration.

The constitutionalization of the world trade system has elevated it in legal thinking and given it a false aura of permanency and immutability. The debate among legal academics on this has centered on the technical aspects of trade disputes rather than on the critical issue of the normative nature and effects of the system on those most affected— workers. The opportunistic actors who successfully argued for the creation and constitutionalization of the system have managed to relegate the debate about its continuing benefits to the side. They have benefited from legal scholars' failure to adequately evaluate and analyze the real effects of the system. Being a trade law dissident is more important now than ever before.

Governments everywhere procure goods and services as inputs into the production of public goods and services. Such purchases can account for a substantial share of total demand for goods and services. Governments' tendencies, however, to "Buy National," and other discriminatory purchasing practices, can have high costs. The end result for the world as a whole is likely to be substantially inferior in welfare terms to a cooperative outcome where governments agree to refrain from discrimination. Hence the Government Procurement Act (GPA) aims to subject public purchasing to international competition. However, many developing countries, along with others such as Australia and New Zealand, have refused to join the GPA on the grounds that it is not in their best interest. This volume examines the GPA and discusses what could be done to improve it with a view to expanding its membership. The contributors focus on four broad issues: the negotiating history, content, and operation of the GPA; the economics of the GPA's rules and disciplines; the implementation of the GPA in domestic legal systems; and, finally, possible alternatives to--and improvements on--the current set of multilateral rules and disciplines. Offering the most comprehensive assessment of the subject available, the volume will be of interest to scholars of international trade, as well as people whose work involves them in government procurement, from the buyers and sellers of goods and services to those concerned with legal aspects. ; https://scholarship.law.columbia.edu/books/1144/thumbnail.jpg

The WTO Agreements emphasize free trade, which links with diversity, deregulation, and decentralization. China, on the other hand, emphasizes uniformity and centralization, especially regarding the political control and the one-party system of "democratic dictatorship." China's joining the WTO, therefore, may be considered as a development that changes the regulatory structure to become more diverse, deregulated, and decentralized. This paper, however, finds the opposite. Under the WTO law, China is encouraged to move towards greater uniformity and centralization with its decentralized and non-uniform settings under the market policy. Moreover, the WTO's uniform and centralized encouragements can be integrated into the rule-by-man framework to increase the administrative and economic power of the Party. It is thus unclear whether China's food and product safety problem can be solved.

Under the Nakajima doctrine, the Court of Justice of the European Union (CJEU) can review the legality of a European Union (EU) measure in the light of the World Trade Organization (WTO) agreements if the EU legislature intended to implement a particular obligation assumed in the context of those agreements. This article argues that Nakajima remains a valid exception to the lack of direct effect of WTO law in the EU. Section II highlights the CJEU's restrictive interpretation of Nakajima. Section III shows that in recent case law the CJEU continues to take a narrow interpretation of Nakajima, although the CJEU has been reluctant to abolish it altogether. This section also analyses the feasibility of establishing the intention to implement WTO law based on external circumstances (Section III.B) and demonstrates Nakajima's significance beyond EU law (Section III.C). Section IV criticizes the CJEU's combination of Nakajima and the principle of interpreting EU law in consistency with international law. Section V concludes.

The 'constitutional failures' ushering in World Wars I and II and the emergence of post-war 'multilevel constitutionalism' in Europe suggest that also UN/WTO law can effectively protect international public goods only if UN/WTO law are interpreted and protected for the benefit of citizens in conformity with the human rights and other 'principles of justice' recognized by all UN member states. This paper discusses recent publications by Philip Allott on 'international constitutionalism' and argues that the necessary transformation of the prevailing conceptions of 'international law among sovereign states' into a 'multilevel constitutional law of humanity' requires extending 'multilevel constitutionalism' to UN/WTO governance of public goods with due respect for 'constitutional pluralism' protecting individual and democratic diversity, subsidiarity and 'institutional experimentation'.

The World Trade Organisation (WTO) is an enormously powerful and, therefore, significant international institution for South Africa. Its 148 members account for ninety percent of world trade in which exports account for around a quarter of world GDP. The mandatory nature of WTO agreements, the single undertaking, the strengthened dispute settlement system, the robust trade review process, as well as its widening trade agenda means that it has a major impact on the economic well-being of all its members, including South Africa. Indeed no country, but especially developing countries, can afford to remain outside the WTO regime. Moreover, few developing countries can afford to remain politically isolated within the institution and given the structural and diplomatic capability asymmetries within the WTO, most countries seek alliances with others in order to counter these inequalities and thus strengthen their hand in negotiations.

When it acceded to the WTO in 2001, China accepted comprehensive transparency obligations as well as substantive commitments covering both market access and rules issues. Initially designed to deal with its opaque trade law regime, the transparency obligations were also expected to help democratize the legislative process and promote the development of the rule of law in China. Now that more than 15 years have passed, an important question is: have the transparency obligations delivered on their original promise? This article answers the question by reviewing how the transparency obligations have worked in practice. It notes that, while transparency has improved in some areas, it is still lacking in other areas. The essay discusses the reasons for the uneven progress, and concludes with some tentative suggestions as to how transparency may be further enhanced.

When it acceded to the WTO in 2001, China accepted comprehensive transparency obligations as well as substantive commitments covering both market access and rules issues. Initially designed to deal with its opaque trade law regime, the transparency obligations were also expected to help democratize the legislative process and promote the development of the rule of law in China. Now that more than 15 years have passed, an important question is: have the transparency obligations delivered on their original promise? This article answers the question by reviewing how the transparency obligations have worked in practice. It notes that, while transparency has improved in some areas, it is still lacking in other areas. The essay discusses the reasons for the uneven progress, and concludes with some tentative suggestions as to how transparency may be further enhanced.

This paper highlights that the question of policy space with respect to public support to electricity cannot be answered by clinically isolating legal rules from their factual background – constituted of technological innovations, market developments and the broader political economy. Various stylized scenarios in the green economy are briefly assessed to determine the impact subsidy rules may have. A more general assessment of the SCM Agreement leads to the conclusion that WTO subsidy laws are uncertain and - inasmuch as they may not be fully in line with best green policy prescriptions - unsound. In the face of a prospect of more frictions and litigation, legal security must be positively reinstated. The case-law may contribute to clarify some issues but the more fundamental decisions determining what is, and what is not, legitimate are beyond its purview and competence. For this reason, the recent Appellate Body decision in the Canada – Renewable Energy/ FIT disputes, with its construction of the benefit analysis, is essentially wrong. The paper concludes by arguing that the only real option for a clear and legitimate recognition of green policy space resides with law reform. In this regard, acknowledging that reform is not only an outcome but first of all a process preparing for a negotiated outcome, various suggestions for the way forward are outlined.

Export restrictions imposed on various food products and natural resources have been subject to extensive public attention. Most recently, China's restrictions of its exports of certain minerals and rare earth metals have led to heated debates. The United States (US), European Union (EU), and Mexico have already filed a WTO dispute case against China on this matter. This paper describes the policy objectives and the global welfare implications of export restrictions. It summarizes the relevant WTO regulation, and offers a detailed analysis of the China–Raw Materials case which is before the Dispute Settlement Body (DSB). It argues that although export restrictions is arguably an area of 'under-regulation' or 'regulatory deficiency' in the WTO law, it is strongly biased against the late accession Members, including China. Yet, the way that China institutes its export restrictions raises serious questions about its role in the multilateral trading system, which it relies on for its economic prosperity. Hence, this is an area where China is likely to feel the implications of its so-called 'WTO-plus' commitments on its domestic and trade policies.