In the absence of global antitrust law: looking to “bricks and mortar” institutions and agency networks

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Mary Catherine Lucey
Keyword(s):  
International Trade ◽  
Epistemic Community ◽  
Global Network ◽  
Soft Law ◽  
Science Literature ◽  
The European Union ◽  
Content Type ◽  
Trade Law ◽  
International Trade Law ◽  
Institutional Initiatives

Purpose This paper aims to draw attention to a broad range of experimental institutional initiatives which operate in the absence of a global antitrust regime. The purpose of this paper is to offer food for thought to scholars in other fields of international trade law facing challenges from divergent national regimes. Design/methodology/approach Taking inspiration from political science literature on institutions, this paper crafts a broad analytical lens which captures various organisational forms (including networks), codes (including soft law) and culture (including epistemic communities). The strength and shortcomings of traditional “bricks and mortar” institutions such as the European Union (EU) and General Agreement Tariffs and Trade/World Trade Organisation are first examined. Then, the innovative global network of International Competition Network (ICN) is analysed. Findings It highlights the value of the global antitrust epistemic community in providing a conducive environment for extensive recourse to “soft law”. Examples from the EU and the ICN include measures which find expression in enforcement tools and networks. These initiatives can be seen as experimental responses to the challenges of divergent national antitrust regimes. Research limitations/implications It is desktop research rather than empirical field work. Practical implications To raise awareness outside the antitrust scholarly community of the variety of experimental institutional initiatives which have evolved, often on a soft law basis, in response to the challenges experienced by national enforcement agencies and businesses operating in the absence of a global antitrust regime. Originality/value It offers some personal reflections on the ICN from the author’s experience as a non-governmental advisor. It draws attention to the ICN’s underappreciated range of educational materials which are freely available on its website to everyone. It submits that the ICN template offers interesting ideas for other fields of international trade law where a global regime is unrealisable. The ICN is a voluntary virtual network of agencies collaborating to agree ways to reduce clashes among national regimes. Its goal of voluntary convergence is portrayed as standardisation rather than as absolute congruence. Even if standardisation of norms/processes is too ambitious a goal in other fields of international trade law, the ICN model still offers inspiration as an epistemic community within an inclusive and dynamic forum for encouraging debate and creating a culture of learning opportunities where familiarity and trust is fostered.

scholarly journals A Pluralist Approach to the Law of International Sales

2017 ◽  
Vol 20 ◽  
pp. 1
Author(s):  
Juana Coetzee
Keyword(s):  
International Trade ◽  
Private Law ◽  
The European Union ◽  
Tariff Barrier ◽  
Trade Law ◽  
International Trade Law ◽  
Sales Contracts ◽  
Uniform Law ◽  
Common European Sales Law ◽  
International Sales

International trade can support economic development and social upliftment. However, people are often discouraged from contracting internationally due to differences in legal systems which act as a non-tariff barrier to trade. This article focuses on the private law framework regulating international contracts of sale. During the twentieth century, the problem of diverse laws was primarily addressed by global uniform law such as the United Nations Convention on Contracts for the International Sale of Goods (CISG). However, uniform law is rarely complete and has to be supplemented by national law, trade usage or party agreement. Because of gaps that exist in the CISG the Swiss government made a proposal for a new global contract law. But is this a feasible solution to the fragmentary state of international trade law? In Europe, signs of reluctance are setting in towards further harmonisation efforts. The Proposal for a Common European Sales Law (CESL) was recently withdrawn, and now Britain has voted to leave the European Union; rumour having it that more countries might follow. The current private law framework for international sales contracts consists of a hybrid system where international, national, state and non-state law function side by side. This article submits that universalism is not per se the most efficient approach to the regulation of international sales law and that economic forces require a more varied approach for business-to-business transactions. The biggest challenge, however, would be to manage global legal pluralism. It is concluded that contractual parties, the courts and arbitral tribunals can effectively manage pluralism on a case-by-case basis.        

China's Rippo of Zippo: expanding the costs of pirated intellectual property

2011 ◽  
Vol 1 (3) ◽  
pp. 1-3
Author(s):  
A. D. Amar
Keyword(s):  
International Trade ◽  
Intellectual Property ◽  
Large Scale ◽  
Life Time ◽  
Subject Area ◽  
Master's Level ◽  
Content Type ◽  
Trade Law ◽  
International Trade Law ◽  
Local Logic

Subject area International business; business ethics; international trade law; intellectual property Study level/applicability Undergraduate and Master's level courses in Business and Management, particularly with a focus on international trade. Case overview This case covers the issues that surround piracy of intellectual property by highlighting illegal manufacture and distribution of millions of Zippo brand windproof lighters and considers the seriousness of the large-scale theft of intellectual property by civilized nations. The focus of this case is on the additional victimization of the producers of genuine products, mostly European and American, who have the policy of life-time repair-or-replace warrantee, which by extension, although wrongly, becomes applicable to their counterfeits. Some micro and macro aspects are covered in detail, some are alluded to, while others are left out for the teachers of this case to justify considering the local logic and culture. Expected learning outcomes There are major lessons embedded in this case: first, intellectual piracy is not less than the theft of tangible property. Second, the problem of piracy carried out by large, civilized countries is really serious because of its huge size. Third, if the rights of those developing innovation are not protected and they cut their investments in R&D, the consequence will hurt all people in the world – emerging and developed. Supplementary materials Teaching note.

Deadly migrant trafficking trade by sea and restrictive service trade by the WTO

2015 ◽  
Vol 14 (2) ◽  
pp. 86-104
Author(s):  
Rafiqul Islam ◽  
Khorsed Zaman
Keyword(s):  
International Trade ◽  
Social Inclusion ◽  
Developed Countries ◽  
Global Poverty ◽  
Content Type ◽  
Cross Border ◽  
Trade Law ◽  
International Trade Law ◽  
Law And Policy ◽  
Restrictive Trade

Purpose – The purpose of this paper is to examine one of the most pressing global challenges, the ongoing migrant trafficking across sea, from international trade law and policy perspective. It identifies global poverty as one of the underlying causes of such trafficking. It argues that restrictive trade in labour-intensive services of the World Trade Organization (WTO) contributes to and sustains poverty in many migrant producing countries. Chronic unemployment in poor countries with surplus manual workforce renders these workers bewildered to survive in a jobless and incomeless home markets. Non-liberalization of movements of natural persons under General Agreement on Trade in Services (GATS) Mode 4 prevents legal cross-border delivery of labours. Restrictive trade in agriculture has but aggravated their marginalized plight. It is this poverty trap that pushes workers, lured by smugglers, to take risky migration routes for better life in countries with labour shortages. Design/methodology/approach – The paper adopts a blend approach of theoretical and applied aspects of international trade law and policy, which is interpreted and applied to a fact situation of contemporary challenge of migrant trafficking by sea. Findings – This paper establishes a nexus between restrictive Mode 4 trade and its implications for poverty-induced migration trafficking trade. It suggests a palatable trade law and policy-based reform response for the WTO to ameliorate poverty and migration trafficking trade concurrently through the creation of legal channels for the cross-border delivery of labours by liberalizing Mode 4 trade in a manner beneficial for developed countries as well. Originality/value – Its value lies in its contribution to maximize multi-lateral trade liberalization for the benefit of all countries, social inclusion and economic emancipation of the disadvantaged, which would minimize global poverty.

scholarly journals Animals and the Impact of Trade Law and Policy: A Global Animal Law Question

2020 ◽  
Vol 9 (2) ◽  
pp. 239-262
Author(s):  
Iyan Offor
Keyword(s):  
European Union ◽  
International Trade ◽  
Animal Welfare ◽  
The European Union ◽  
Promising Alternative ◽  
Animal Law ◽  
Trade Law ◽  
International Trade Law ◽  
Law And Policy ◽  
The Impact

AbstractThere is a critical research gap regarding the trade and animal welfare interface: we do not know, empirically, what the impact of trade on animal welfare is. This gap exists, in part, as a result of the paternalism of international trade law and the underdevelopment of global animal law. This article addresses, firstly, the collision of dichotomous trade and animal welfare priorities in legal and political systems. It then explores attempts at reconciliation by the World Trade Organization and the European Union. This involves an investigation of the impact of trade on animal welfare. This impact is categorized into four component parts: (i) open markets, (ii) low animal-welfare havens, (iii) a chilling effect, and (iv) lack of labelling. Case studies from the European Union are examined. Thirdly, the article critiques trade law and policy as ill-suited primary drivers of global governance for animals. Global animal law is identified as a promising alternative, although its early development has been unduly affected by international trade law.

Sustainable development and the international trade law paradigm

2014 ◽  
Vol 13 (2) ◽  
pp. 136-166 ◽  
Author(s):  
Niccolò Pietro Castagno LL.M.
Keyword(s):  
Sustainable Development ◽  
International Trade ◽  
Dispute Settlement ◽  
Case Law ◽  
Dispute Settlement Mechanism ◽  
Content Type ◽  
Normative Force ◽  
Trade Law ◽  
International Trade Law ◽  
Protection Goals

Purpose – The purpose of this paper is to analyse the cross-fertilization between environmental concerns and trade law, through an analysis of their primary texts and case law, and seek to what extent the concept of sustainable development is, or can be, embodied in such field of law. The question posed is whether the international trade law paradigm is well suited to implement the goals embodied in the concept of sustainable development. Design/methodology/approach – In giving a tentative answer to the said question, also through the analysis of some trade law reform proposals, the author advocates that international trade law and sustainable development not only can have compatible goals but that they are (if not, they shall be) inseparably related to one another, from both an economic policy perspective and a legal standpoint. Findings – The author concludes that the paradigms can be complementary to the extent that international trade law, while preserving a formal legal identity deriving from the current shape of its body of rules, has seen its application supporting and, eventually, giving sustainable development a normative force that it could not have achieved otherwise – and this, on a global and uniform scale. Although it may be contended that, after a preliminary survey of relevant international trade case law, this interaction is still a seed in its infancy and some changes must necessarily occur to make the trade paradigm keener and more effective in supporting environmental protection goals, the author argues that, given the difficulties in obtaining such changes, the existing trade paradigm structure has served (and will serve) sustainable development better than other paradigms, as a vehicle through which such concept can drive nations’ economic development more forcefully. Research limitations/implications – The paper contains a reasoned survey of the most important case law, outlining the main legal hurdles that the implementation of sustainable development encounters in the World Trade Organization (WTO) dispute settlement mechanism. Originality/value – The value of this paper stands in the reasoned approach to the legal issues underlying the matters involved, specifically with respect to the analysis of Article XX GATT. Moreover, it remarks the effects that a developed system like the WTO can have in promoting sustainable development, addressing some of the most recent reform proposals.

1 Introduction

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
International Trade ◽  
Time Pressure ◽  
International Investment ◽  
The European Union ◽  
International Investment Law ◽  
Investment Protection ◽  
Trade Law ◽  
International Trade Law ◽  
Energy Charter Treaty ◽  
General Aspects

This introductory chapter provides a background of the Energy Charter Treaty, which entered into force on April 16, 1998. The ECT is a unique international instrument which covers the promotion and protection of investments, trade in energy, transit in the energy sector, environmental aspects, as well as the settlement of disputes under the Treaty. It was negotiated and drafted under considerable time pressure by a large number of States and what is now the European Union. Nevertheless, the ECT was not negotiated and drafted in a legal vacuum. Other relevant international instruments were there for the negotiators to take account of and to be guided by as they deemed appropriate. As far as investment protection is concerned, there were in place several thousands of bilateral investment protection treaties (BITs) providing for the protection of foreign investment in a manner very similar to the corresponding provisions which eventually found their way into the ECT. With respect to international trade, the General Agreement on Tariffs and Trade (GATT) was in force when the ECT negotiations commenced. It was eventually replaced by the World Trade Organization (WTO) in 1995. The present legal commentary on the ECT will not discuss general aspects of these two fields—international investment law and international trade law—in detail. Rather, an attempt has been made to limit the discussion of such general aspects—and of arbitral awards relating thereto—which are relevant for the ECT-provisions in question.

Imposition of trade tariffs by the USA on China: implications for the WTO and international trade law

2020 ◽  
Vol 19 (2) ◽  
pp. 69-84
Author(s):  
Uchechukwu Nwoke
Keyword(s):  
International Trade ◽  
The Body ◽  
Content Type ◽  
Trade Law ◽  
International Trade Law ◽  
Domestic Legislation ◽  
The Usa ◽  
National Economies ◽  
National Governments ◽  
Gatt 1994

Purpose The increased integration of national economies and the belief that international trade is beneficial to societies has led to the formation of the World Trade Organization (WTO), to regulate the conduct of international trade by national governments. Using US domestic legislation and case laws, as well as the provisions of the General Agreement on Tariffs and Trade (GATT) 1994, the purpose of this paper is to analyze the legality or otherwise of the recent imposition of unilateral trade tariffs by the USA on China. Design/methodology/approach This paper adopts a doctrinal approach through a critical review of extant legislation and case laws. Drawing from existing literature in the area of WTO and international trade law, the paper argues that the imposition of tariffs by the Trump administration is outside the scope provided for by the WTO rules. Findings The paper finds that the imposition of unilateral tariffs by the Trump Government, while in breach of US domestic legislation and case laws, as well as the country’s obligations under the GATT 1994, portends a clear danger to the continued existence of the WTO and to international trade in general. Originality/value This paper is an original study of the author, which extends the body of knowledge in the area of international trade law, by analyzing the possible implications of the imposition of trade tariffs by the USA on China and offering suggestions on how the impasse can be resolved.

scholarly journals Interacción y eficacia de los mecanismos de la autorregulacion contra la competencia desleal en el comercio y el Derecho mercantil internacional = The interplay and efficacy of the self-regulation and soft law mechanisms against the unfair competition in the International Trade Law

2020 ◽  
Vol 12 (1) ◽  
pp. 346
Author(s):  
Anna María Ruiz Martín
Keyword(s):  
International Trade ◽  
Self Regulation ◽  
Codes Of Conduct ◽  
Strong Relationship ◽  
Unfair Competition ◽  
The Self ◽  
Soft Law ◽  
Trade Law ◽  
International Trade Law ◽  
Hard Law

Resumen: El presente artículo analiza la eficacia e interacción de los diferentes mecanismos de la autorregulación o del Soft law en el Comercio internacional contra las prácticas comerciales desleales y/o la competencia desleal. Mecanismos que siempre han sido controvertidos por su naturaleza no vinculante entre otros aspectos. Se trata de poner de relieve ciertos pros y contras de estos mecanismos, su relación con el hard law o las normas del Comercio internacional en las que se ha incluido cierta tutela contra lo que en estas instancias se entiende cómo competencia desleal en el mercado internacional (por ejemplo, el artículo 10 bis CUP incluido en el Tratado ADPIC y algunas disposiciones del Tratado GATT). Por medio de esta relación, que, a pesar de no estar todavía reconocida a nivel institucional, existe y puede mejorar la tutela contra las prácticas comerciales desleales dotándoles de mayor fuerza vinculante ante los tribunales en el ámbito de la litigación transfronteriza, tratando en el artículo la infracción de los mecanismos de la autorregulación, en especial, de lo que se conoce cómo Responsabilidad Social Corporativa y el Compliance, como un posible acto de competencia desleal en cuanto a poder considerarlas, obligaciones de tipo extracontractual.Palabras clave: competencia desleal, prácticas comerciales desleales (B2B-B2C), autorregulación, Responsabilidad Social Corporativa (RSC), compliance, mercado internacional, Hard law, Soft law, OMC, GATT, ADPIC, artículo 10 bis CUP, códigos de conducta.Resumen: El presente artículo analiza la eficacia e interacción de los diferentes mecanismos de la autorregulación o del Soft law en el Comercio internacional contra las prácticas comerciales desleales y/o la competencia desleal. Mecanismos que siempre han sido controvertidos por su naturaleza no vinculante entre otros aspectos. Se trata de poner de relieve ciertos pros y contras de estos mecanismos, su relación con el hard law o las normas del Comercio internacional en las que se ha incluido cierta tutela contra lo que en estas instancias se entiende cómo competencia desleal en el mercado internacional (por ejemplo, el artículo 10 bis CUP incluido en el Tratado ADPIC y algunas disposiciones del Tratado GATT). Por medio de esta relación, que, a pesar de no estar todavía reconocida a nivel institucional, existe y puede mejorar la tutela contra las prácticas comerciales desleales dotándoles de mayor fuerza vinculante ante los tribunales en el ámbito de la litigación transfronteriza, tratando en el artículo la infracción de los mecanismos de la autorregulación, en especial, de lo que se conoce cómo Responsabilidad Social Corporativa y el Compliance, como un posible acto de competencia desleal en cuanto a poder considerarlas, obligaciones de tipo extracontractual.Palabras clave: competencia desleal, prácticas comerciales desleales (B2B-B2C), autorregulación, Responsabilidad Social Corporativa (RSC), compliance, mercado internacional, Hard law, Soft law, OMC, GATT, ADPIC, artículo 10 bis CUP, códigos de conducta.Abstract: This paper analyses the efficacy and interplay of the different mechanisms of the Self-Regulation (Soft Law) in the International Trade Law to fight against the unfair commercial practices or unfair competition. These mechanisms, as it well known, are considered as quite controversial, taking into account their non-binding legal nature. It will be emphasized, despite the above mentioned, that these mechanisms actually, have a strong relationship with certain mechanisms of hard law set out in the International Trade Law which recognize the protection, up to a certain degree, against the unfair competition in the globalized market such as the Article 10 bis PC included in the TRIPS and some provisions of the GATT.  Hence, it will be analysed the infraction of soft law rules against unfair competition, namely of the Social Corporate Responsibility and Compliance as a potential act of unfair competition such as a non-contractual obligation. In doing so, it could be reinforces these mechanisms with a more binding nature before the Courts, namely in international litigation against unfair competition.Keywords: unfair competition, unfair commercial practices (B2B-B2C) self-regulation, compliance, Corporate Social Responsibility (CSR), international market, soft law, hard law, WTO, Article 10 bis PC, GATT, TRIPs, Codes of conduct 

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