The Protection of Legitimate Expectations, Good Faith Interpretation and Fair Dispute Settlement
Author: Marion Panizzon
Publisher: Hart Publishing
This book is the first to account for what good faith stands for in international trade law. The book describes how, why, and when the concept of good faith links WTO Agreements with public international law. It serves as a reference guide for scholars and practitioners by analyzing how GATT (General Agreement on Tariffs and Trade)/WTO dispute settlement institutions apply good faith in practice. Good faith is a general principle of law operating alongside treaties and customary rules. In WTO law, the principle of pacta sunt servanda, the prohibition of abus de droit, and the protection of legitimate expectations are considered to be corollaries of the principle of good faith. An analysis of GATT 1947 and WTO case law reveals that the function of the principle of good faith varies. Panel and the Appellate Body reports make different uses of it. The Appellate Body is prepared to apply the principle to WTO provisions only, while Panels use it more freely and substantively, applying good faith to fill lacunae in any of the WTO covered agreements. Ã?Â?Ã?Â?Additionally, adjudicators use the principle to strike a balance between the obligation to liberalize trade and the right to invoke an exception from trade liberalization for the protection of the environment, culture, public morals, and human life or health. In this way, good faith safeguards the gains of multilateral trade liberalization against disgenuine interests, such as disguised protectionism.
In its ten years of existence, the World Trade Organization (WTO) dispute settlement system has continued to differentiate itself in many ways from more conventional international judicial proceedings such as those before the International Court of Justice (ICJ) or regional integration courts. The regular participation of third parties, the emphasis at all levels of the ?ordinary meaning? of the text of WTO rules, and the raft of proposed amendments to the Dispute Settlement Understanding (DSU) all characterise WTO jurisprudence. In twenty-six incisive contributions, this book covers both the ?legislative? and ?(quasi) judicial? activities encompassed by the WTO dispute settlement system. Essays concerned with rules emphasise proposed improvements and clarifications in such areas as special and differential treatment of less-developed countries, surveillance of implementation, compensation, and suspension of concessions. Other contributions discuss such jurisprudential and practical issues as discrimination, trade-related environmental measures, subsidies and countervailing measures, and trade-related intellectual property rights. The authors refer frequently to the panel, Appellate Body and arbitration reports, a chronological list of which appears as an annex. The contributors include WTO arbitrators, members of the WTO Appellate Body, WTO panelists, and academics from a broad spectrum of countries engaged as legal advisers by the WTO, by governments, or by non-governmental organisations. More than a mere snapshot of the current status of the WTO dispute settlement system, this outstanding work represents a comprehensive analysis that brings a fast-moving and crucially significant body of international law into sharp focus.
The study presents a critical review on the problems stemming from the nature and scope of the WTO remedies, and highlights in a comparative perspective the lacunas and inadequacies in the substantive and procedural aspects of WTO dispute settlement system.
Legitimation und Dogmatik im nationalen und internationalen Rechtsvergleich
Author: Christoph Möllers
Publisher: Mohr Siebeck
English summary: In this work, Christoph Mollers takes the traditional notion of separated powers and tries to modernize it by developing a legitimacy-based model for the legislative, executive and judicial functions. This model is based on the idea of autonomy as the central element for every legal order that claims legitimacy. The institutional implications of the distinction between individual and collective self-determination enable the author to develop certain criteria for the organization of legitimate lawmaking procedures. In this model, the concept of separated powers provides a solution for the perpetual conflict between individual and collective self-determination, both equally accepted by constitutional systems. These criteria can be applied comparatively to traditional problems of separated powers - delegation, constitutional jurisdiction - as well as to problems of multi-level legal systems. German description: Warum sind Staatsorganisationen traditionell in drei Gewalten gegliedert? Auf diese Frage gibt Christoph Mollers eine legitimationstheoretisch begrundete Antwort und macht diese juristisch nutzbar: Moderne Verfassungen legitimieren sich durch den Schutz individueller Freiheit und die Ermoglichung demokratischer Selbstbestimmung, lassen jedoch den Vorrang zwischen beiden Legitimationsformen offen. Statt einer materiellen Vorrangregel dient das Prinzip der Gewaltengliederung dem Ausgleich beider Legitimationsanspruche durch Organisation und Verfahren. Auf Grundlage dieser Einsicht leitet der Autor Kriterien zur Bestimmung der drei Gewalten her, die die Auslegung von Art. 20 Abs. 2. S. 2 GG prazisieren, und im Vergleich mit dem Verfassungsrecht der USA auf Einzelprobleme Anwendung finden: Verfassungsgerichtsbarkeit, gerichtliche Kontrolle der Verwaltung und Delegation der Rechtsetzung. In einem zweiten Argumentationsgang bewahrt sich dieses Modell auch bei foderalen Rechtsordnungen und ubernationale Organisationen wie der EU, der Internationalen Arbeitsorganisation (ILO) und der Welthandelsorganisation (WTO). Probleme der Kompetenzbestimmung zwischen Ebenen, der Verbundverwaltung oder der Anwendbarkeit von internationalem Recht werden durch das Modell auf eine systematische Grundlage gestellt.
This book assesses new developments in and reform of China's banking law system following its accession of the WTO. It focuses on the relationship between GATS/WTO national treatment obligations and China's banking law. Tracing the history of national treatment in China, the book compares the treatment of foreign-funded banks with the treatment of Chinese-funded banks and examines the structure and shortcomings of the existing banking law framework in China. Offering suggestions as to how the framework could be restructured and analysing the economic and political bases of an integrated banking law framework, the book argues that reorganization would bring about greater consistency with GATS/WTO national treatment requirements. The book also explores the ambiguous definition of prudential carve-out, the subtle relationship between GATS national treatment and market access based on WTO cases, national treatment clauses in China’s bilateral investment treaties, and special treatment on banking in China’s free trade agreements. This volume is a valuable resource for academics and students as well as professionals and policy-makers working in the field of banking, WTO, Chinese law and foreign trade.
This book examines the regulation of services within the WTO. It examines the problem of reconciling a liberal system of trade in services with national governments' ability to protect social values through service regulation. The book analyses the existing legal framework and assesses the potential of ongoing trade negotiations.
The growing body of WTO jurisprudence is of profound significance for the development of the general body of international law. With this in mind, Environmental Sovereignty and the WTO succinctly examines how the WTO law can contribute to achieving coherence between general international law, international environmental law and international trade law and avoid conflicts between trade liberalization and global environmental protection. Professor Condon argues that these three branches of law are generally consistent with each other in the area of international law where they intersect. However, WTO jurisprudence can benefit from a more explicit analysis, provided here, of the way that panel decisions fit into the general framework of international law. No law reforms are currently needed to facilitate this task. As the text shows, it is a matter of using the current WTO rules to resolve conflicts between treaties such as the General Agreement on Tariffs and Trade (GATT) and multilateral environmental agreements (MEAs) and to determine the circumstances in which unilateral trade measures should be permitted. The topics addressed in Environmental Sovereignty and the WTO will be of considerable interest to a broad audience given the global political controversy over American unilateralism, the fairness of WTO rules to poor countries, and the effect of trade rules on efforts to protect the global environment. However, the book addresses these controversial issues without sacrificing academic rigour and will appeal to a scholarly and professional audience seeking new approaches to addressing the problems raised by the globalization of law. Published under the Transnational Publishers imprint.
International trade rules have significant impacts on environmental law and policy, at the domestic, regional and global levels. At the World Trade Organization (WTO), dispute settlement tribunals are increasingly called to decide on environment- and health-related questions. Can governments treat products differently based on environmental considerations? Can they block the import of highly carcinogenic asbestos-containing products or genetically modified crops? Does the WTO allow governments to protect dolphins or endangered sea turtles through the use of import restrictions on certain products? How can civil society participate in WTO dispute settlement? This Guide, authored by five world leaders on international environmental and trade law at the Center for International Environmental Law (CIEL), is an accessible, comprehensive, one-of-a-kind compendium of environment and trade jurisprudence under the WTO. Providing an overview for both experts and non-experts of the major themes relevant to environment and trade, it also analyses how WTO tribunals have approached these themes in concrete disputes and provides selected excerpts of the most significant cases.
Author: Zachary Douglas,Joost Pauwelyn,Jorge E. Viñuales
Publisher: OUP Oxford
International investment law is one of the fastest growing areas of international law. It has led to the signing of thousands of agreements, mostly in the form of investment contracts and bilateral investment treaties. Also, in the last two decades, there has been an exponential growth in the number of disputes being resolved by investment arbitration tribunals. Yet the legal principles at the basis of international investment law and arbitration remain in a state of flux. Perhaps the best illustration of this phenomenon is the wide disagreement among investment tribunals on some of the core concepts underpinning the regime, such as investment, property, regulatory powers, scope of jurisdiction, applicable law, or the interactions with other areas of international law. The purpose of this book is to revisit these conceptual foundations in order to shed light on the practice of international investment law. It is an attempt to bridge the growing gap between the theory and the practice of this thriving area of international law. The first part of the book focuses on the 'infrastructure' of the investment regime or, more specifically, on the structural arrangements that have been developed to manage foreign investment transactions and the potential disputes arising from them. The second part of the book identifies the common conceptual bases of an array of seemingly unconnected practical problems in order to clarify the main stakes and offer balanced solutions. The third part addresses the main sources of 'regime stress' as well as the main legal mechanisms available to manage such challenges to the operation of the regime. Overall, the book offers a thorough investigation of the conflicting theoretical positions underlying international investment law, testing their worth by reference to concrete issues that have arisen in the jurisprudence. It demonstrates that many of the most important practical questions arising in practice can be addressed by a carefully dosed resort to theory.
International Trade Law: Interdisciplinary Theory and Practice has been completely revised in its Third Edition, building upon the global successes of its two predecessor editions. Truly a "world law" Textbook applicable in any of the approximately 152 WTO countries, the Third Edition places much emphasis on coverage of developing and least developed countries in Asia, Africa, and Latin America, highlighting the significance of their demographics, politics, culture, and economic dynamism. Europe and the high-profile trade disputes between the United States and the European Union is another chief focal point of this distinctively comprehensive book. Notably, the Textbook avoids two pitfalls: an American-centric approach, and the suggestion that international trade law is only about the WTO. The Textbook contains 50 Chapters dedicated to all aspects of the field, from ancient and medieval views about the morality of trade to the mysteries of adjustments to Constructed Export Price in a dumping margin calculation. The Textbook covers fully the Doha Round and the new, post-9/11 trade security rules. It includes 6 Chapters on free trade agreements (FTAs), 2 Chapters each on agriculture, services, and intellectual property (IP), and plenty of excerpts from key WTO and U.S. court cases. Overall, the Textbook is both a tour de force and user friendly. Not surprisingly, the Textbook has been used at roughly 100 law schools around the world, and translated into Vietnamese. Each chapter is manageably-sized and offers a user-friendly structure, allowing the flexibility of choosing the chapters that best serve the needs of a professor's individual course. The topics in each chapter help students establish a fundamental foundation upon which to build their knowledge of international trade law. Useful notes appear throughout the text, carefully constructed and organized to guide and challenge students, without abandoning them to trying to play "find-the-ball" on their own, piecemeal. The author sets forth five clear and fundamental themes in the preface which resonate throughout the text, providing not only coherence and integration, but also the passion that will ensure lively classroom discussion and debate. The author covers hot topics, such as protectionism, regionalization, labor, the environment, and sanctions, from both a practical and theoretical standpoint. Interesting and substantive interdisciplinary readings provide further penetration of a subject on not only the economics of international trade law, but on perspectives brought to the field by political scientists, international relations specialists, and philosophers.
This work on the law of subsidies has been long-awaited by many actors in international trade. With its introduction of the concept of 'attenuation' of entitlement, Marc Benitah's utterly new analysis alters our understanding of the international economic law of subsidies - and its future invocation and jurisprudence - forever. The issue of subsidies is arguably the predominant theme, at this moment, in international economic law, and a consistent approach to the legal treatment of subsidies is urgently needed. In Professor Benitah's view, the answer lies in the recognition that entitlements granted to a party seeking to defend itself against the `adverse effects' of subsidies must be `attenuated' in order to avoid undesirable economic and social consequences. In the various techniques of attenuation - thoroughly described and analyzed in this book - may be found the unifying thread on which a logical, coherent law of subsidies may be strung. Why techniques of attenuation are intimately linked to the birth of past and future legal disputes relating to subsidies Why significant techniques of attenuation (e.g. taking into account the positive impact of a subsidy on consumers) have not arisen in the GATT/WTO context Why much recent theoretical debate on the concept of 'distortion' has not led to a breakthrough in the law of subsidies Why attenuations favouring developing countries are surprisingly legally vulnerable in practice Why deliberate recourse to techniques of attenuation necessitates their continuing clarification through a case law process. By referring to the legal materials of both the GATT 1947 and the WTO systems at each point in his demonstration, Professor Benitah lays a substantial groundwork for determining innovative WTO norms.
This book is the first legal treatment of tied aid and examines in detail the compatibility of tied aid with EU and WTO law. The workings of the aid projects and aid procurement systems of donor countries granting bilateral aid are fully examined through case studies from the UK, Italy, the EU and the US. Tied aid refers to aid granted to developing countries on condition that goods and services for the aid-financed projects are purchased from the donor country only. The recipient country, in order to receive the grant or the loan, has no other choice but to fulfil the condition imposed by the donor. Economists have shown that tying aid undermines the effectiveness of aid. It leads to higher costs paid for the goods and services purchased and the distortion of the nature of the aid. Further, tying frustrates the potential of aid to foster trade between developing countries - in many of these countries public bodies and, in particular, aid-financed projects are major potential outlets for trade between neighbouring states. The importance of tied aid has been pointed out in economic literature but there is surprisingly little written on the legal aspects of tied aid practices and this book seeks to fill this major gap in the literature. The book is of interest to academics in the field of EU and WTO law, NGOs and practitioners working both in the field of public procurement and development policies.
The goal of this textbook, forthcoming early 2009, is to provide the first complete overview of the issue of legal protection under international, European and German public law including the reciprocal interconnections based on a unified didactic concept.
ÔThis edited collection brings together an impressive array of authors from the world of international trade, the environment and public health. Each of them is eminently well-placed to bring their own particular expertise to bear on the issue at hand, and to do so in a knowledgeable and stimulating manner. This Research Handbook is a must for anyone interested in these overlapping fields of law and policy whether as a basis for learning or as a resource for further research.Õ Ð Mary Footer, University of Nottingham School of Law, UK ÔThis fantastic collection of essays explores the multiple intersections between trade and environment in the WTO. The contributions by leading scholars are theoretically engaged whilst practical in their focus. It is a Òmust readÓ for those concerned to ensure that trade liberalisation does not stand in the way of sustainable development, including urgently needed action to mitigate the risks and consequences of climate change.Õ Ð Joanne Scott, University College London, UK ÔGeert Van Calster and Denise PrŽvost have managed to induce virtually all the great experts on health, environment and WTO law to contribute to their Research Handbook on these subjects. The result is undoubtedly an excellent volume that should adorn the bookcase of any and all interested in the important problem of the relation between international rule-making and regulatory autonomy of states in this area of international economic law.Õ Ð Pieter Jan Kuijper, University of Amsterdam, The Netherlands This Handbook provides state-of-the-art analysis by leading authors on the links between the international trade regime and health and environment concerns Ð concerns that make up an increasing proportion of WTO dispute settlement. Research Handbook on Environment, Health and the WTO surveys fields as diverse as climate change mitigation, non-communicable diseases, nanotechnology and public health care. The volume brings to the fore the debates and complexities surrounding these issues and their implications for the international trading system. The Handbook begins in Part I with a survey of general issues that sets a context for the more specific sectorial studies. Part II considers the most pressing issues within health regulation and trade law, whilst Part III is devoted to environmental regulation and its interface with trade law. Part IV looks specifically at aspects of the dispute settlement process and in particular standard of review, and the book concludes in Part V with a consideration of the impact of trade measures on the health and environment regimes of emerging economies. This comprehensive yet concise Handbook will appeal to academics and researchers in international trade law and environmental law, as well as trade law practitioners.
The Handbook of Space Law addresses the legal and regulatory aspects of activities in outer space and major space applications from a comprehensive and structured perspective. It fundamentally addresses the dichotomy between the state-oriented characte
States reject inequality when they choose to ratify the International Covenant on Economic, Social and Cultural Rights (ICESCR), but to date the ICESCR has not yet figured prominently in the policy calculus behind States' international economic decisions. This book responds to the modern challenge of operationalizing the ICESCR, particularly in the context of States' decisions within international trade, finance, and investment. Differentiating between public policy mechanisms and institutional functional mandates in the international trade, finance, and investment systems, this book shows legal and policy gateways for States to feasibly translate their fundamental duties to respect, protect, and fulfil economic, social and cultural rights into their trade, finance, and investment commitments, agreements, and contracts. It approaches the problem of harmonizing social protection objectives under the ICESCR with a State's international economic treaty obligations, from the designing and interpreting international treaty texts, up to the institutional monitoring and empirical analysis of ICESCR compliance. In examining public policy options, the book takes into account around five decades of States' implementation of social protection commitments under the ICESCR; its normative evolution through the UN Committee on Economic, Social and Cultural Rights, and the Committee's expanded fact-finding and adjudicative competences under the Optional Protocol to the ICESCR; as well as the critical, dialectical, and deliberative roles of diverse functional interpretive communities within international trade, finance, and investment law. Ultimately, the book shoes how States' ICESCR commitments operate as the normative foundation of their trade, finance, and investment decisions.
European Union Law in a Global Context is a comprehensive introduction to European law in its international context. Trevor Hartley provides an explanation of the basic principles of each topic covered. He examines the institutions of the EU and the law-making process; the European Court and international adjudication; EU law (and international law) in national courts; human rights, especially under EU law and the ECHR; the international relations of the EU; remedies under EU law; and the elements of the free movement of goods, persons and services. The coverage of the practical application of EU law in British courts will meet the requirements of those intending to become practitioners, and the inclusion of extracts from leading cases, as well as from the EC treaties and other instruments, ensures that everything the reader will need is contained in a single volume.