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.

scholarly journals Rule-based Dispute Settlement Mechanism for ASEAN Economic Community: Does ASEAN Have It?

2016 ◽  
Vol 1 (2) ◽  
pp. 182
Author(s):  
Koesrianti Koesrianti
Keyword(s):  
International Trade ◽  
Dispute Settlement ◽  
Economic Community ◽  
Dispute Settlement Mechanism ◽  
Rule Based ◽  
Trade Law ◽  
International Trade Law ◽  
Political Security ◽  
Asean Economic Community ◽  
Settlement Mechanism

ASEAN Charter 2007 as ‘constitution’ of ASEAN aims to establish ASEAN Community (AC) in 2015 that ASEAN constitutes as a rule-based organization. ASEAN Community consists of three pillars, namely, ASEAN Political Security Community (APSC), ASEAN Economic Community (AEC), and ASEAN Socio Cultural Community (ASCC). AEC will posses as the lead for the Communities. The objective of AEC is to form a single market and production base with some priority sectors. Accordingly, many economic regional organizations provide Dispute Settlement Mechanism (DSM) to resolve disputes that may arise among the member countries. The dispute mechanism aims to provide predictability and security in international trade by providing strict time-frames, and was designed to be mutually agreed by the disputing members, flexible and binding. ASEAN trade DSM is designed as a legalistic mechanism. This paper examines DSM in ASEAN, especially economic disputes in the context of international trade law. In doing so, this paper analyzes DSM provided in the ASEAN Charter by comparing to DSM in the WTO context.

scholarly journals Rule-based Dispute Settlement Mechanism for ASEAN Economic Community: Does ASEAN Have It?

2016 ◽  
Vol 1 (2) ◽  
pp. 182
Author(s):  
Koesrianti Koesrianti
Keyword(s):  
International Trade ◽  
Dispute Settlement ◽  
Economic Community ◽  
Dispute Settlement Mechanism ◽  
Rule Based ◽  
Trade Law ◽  
International Trade Law ◽  
Political Security ◽  
Asean Economic Community ◽  
Settlement Mechanism

ASEAN Charter 2007 as ‘constitution’ of ASEAN aims to establish ASEAN Community (AC) in 2015 that ASEAN constitutes as a rule-based organization. ASEAN Community consists of three pillars, namely, ASEAN Political Security Community (APSC), ASEAN Economic Community (AEC), and ASEAN Socio Cultural Community (ASCC). AEC will posses as the lead for the Communities. The objective of AEC is to form a single market and production base with some priority sectors. Accordingly, many economic regional organizations provide Dispute Settlement Mechanism (DSM) to resolve disputes that may arise among the member countries. The dispute mechanism aims to provide predictability and security in international trade by providing strict time-frames, and was designed to be mutually agreed by the disputing members, flexible and binding. ASEAN trade DSM is designed as a legalistic mechanism. This paper examines DSM in ASEAN, especially economic disputes in the context of international trade law. In doing so, this paper analyzes DSM provided in the ASEAN Charter by comparing to DSM in the WTO context.

“Constitutionalization” and Dispute Settlement in the wto: National Security as an Issue of Competence

1999 ◽  
Vol 93 (2) ◽  
pp. 424-451 ◽  
Author(s):  
Hannes L. Schloemann ◽  
Stefan Ohlhoff
Keyword(s):  
National Security ◽  
Dispute Settlement ◽  
Uruguay Round ◽  
Significant Shift ◽  
Dispute Settlement Mechanism ◽  
Economic Relations ◽  
Trade Law ◽  
International Trade Law ◽  
Dispute Settlement System ◽  
Settlement Mechanism

The 1994 Uruguay Round revision of the dispute settlement mechanism under the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) has made it a forum both for traditional trade issues and for interests ranging from environmental protection to national security. The limits of GATT jurisdiction have become important issues of dispute settlement within the WTO, especially as the emergence of the WTO and its rule-based, quasi-obligatory dispute settlement system has spurred a significant shift toward legalism. Constitutional structures are developing much faster in international trade law than in any other area of international law and, in the aftermath of the Uruguay Round, are integrating ever more aspects of economic relations among states. Within the WTO regime the dispute settlement mechanism established by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) plays a prominent role in enforcing its rules and reconciling a wide array of the members’ interests. The limits of the reach of the dispute settlement mechanism, given its obligatory character, are, to a certain degree, the limits of the constitutionalization of the organization as a whole.

Due Diligence in International Trade Law

2020 ◽  
pp. 312-328
Author(s):  
Markus Krajewski
Keyword(s):  
Sustainable Development ◽  
Human Rights ◽  
International Trade ◽  
Trade Agreements ◽  
Good Faith ◽  
Due Diligence ◽  
Trade Regime ◽  
International Trade Agreements ◽  
Trade Law ◽  
International Trade Law

This chapter assesses and analyses elements of due diligence in existing international trade agreements. It highlights due diligence obligations in this field, such as obligations to cooperate, to negotiate in good faith, or to notify about measures which could be harmful to other countries. The chapter also discusses elements applicable to the negotiation and implementation of trade agreements, especially with regard to the requirements of human rights and sustainable development impact assessments. The chapter argues that, even though due diligence is not a term of art in international trade law, it could be seen as a cornerstone of the international trade regime.

scholarly journals Remarks by Natalie Y. Morris-Sharma

2018 ◽  
Vol 112 ◽  
pp. 198-200
Author(s):  
Natalie Y. Morris-Sharma
Keyword(s):  
International Trade ◽  
United Nations ◽  
Dispute Settlement ◽  
Trade Law ◽  
International Trade Law ◽  
The United Nations

These remarks approach the panel topic of investor-state dispute settlement (ISDS) at the crossroads, by reflecting on the ongoing discussions on ISDS reform that are taking place at the United Nations Commission on International Trade Law (UNCITRAL). There are three sets of factors likely to inform how ISDS is being transformed.

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.

Part III Guide to Key Jurisdictional Issues, 17 Counterclaims in Investment Treaty Arbitration

2018 ◽  
Author(s):  
Clodfelter Mark A ◽  
Tsutieva Diana
Keyword(s):  
International Trade ◽  
United Nations ◽  
Case Law ◽  
The Core ◽  
Trade Law ◽  
International Trade Law ◽  
Investment Treaty ◽  
Investment Arbitration ◽  
Investment Law ◽  
Investment Treaty Arbitration

The last decade has seen an increase in the efforts of respondent States to have their own claims against investor-claimants heard in investor-State proceedings commenced against them. The investment arbitration case law has revealed a host of legal and practical difficulties in admitting counterclaims. Most of these stem from the core requirement that parties must consent to submit their differences to investment arbitration. The applicable arbitration rules have also been cited as a bar to counterclaims. This chapter explores the functionality of applicable procedural rules as bases for an investment tribunal’s authority to hear counterclaims under the two main investment law regimes: the International Centre for Settlement of Investment Dispute (ICSID) Convention and Arbitration Rules and the United Nations Commission on International Trade Law Arbitration Rules. A review of the milestone cases under these two regimes reveals the major problems that have arisen.

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.

John Jackson and WTO Dispute Settlement

2016 ◽  
Vol 15 (3) ◽  
pp. 404-406
Author(s):  
WILLIAM J. DAVEY
Keyword(s):  
International Trade ◽  
World Trade ◽  
Dispute Settlement ◽  
Law School ◽  
Economic Relations ◽  
Trade Law ◽  
The Bible ◽  
International Trade Law ◽  
Wto Dispute Settlement ◽  
The World

John Jackson bestrode the world of international trade law like a Colossus. His 1969 treatise on World Trade and the Law of GATT was called the bible of GATT law. His 1977 casebook on Legal Problems of International Economic Relations created a new law school course and introduced thousands of students around the globe to international trade law. It was the leading international trade law casebook for decades, and his students went on to positions of responsibility throughout the world in governments, international organizations, and private practice. His analysis of GATT infirmities convinced certain influential governments to push for a new international trade organization, which eventually saw life as the World Trade Organization. It was a great honor for me to have been associated with John for over thirty years. Indeed, his 1985 invitation to join as a co-author of the casebook after my first year in law teaching undoubtedly saved me many years of drudgery as a corporate/securities law scholar. Thus, I am pleased to offer some thoughts on John's influence on dispute settlement under GATT and the WTO.

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