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Journal of International Economic Law Current Issue

Published: Wed, 11 Apr 2018 00:00:00 GMT

Last Build Date: Thu, 12 Apr 2018 04:45:53 GMT


International Economic Law without Human and Constitutional Rights? Legal Methodology Questions for my Chinese Critics

Wed, 11 Apr 2018 00:00:00 GMT

Democracy and constitutionalism are communitarian methodologies. My arguments for limiting market failures, governance failures, and related injustices in the global division of labour by using the universal recognition of human rights for reinterpreting the ‘international law of states’ as ‘multilevel governance of public goods’ protecting citizens—and by learning from republican, democratic, and cosmopolitan constitutionalism—have never pleaded for ‘radical individualism’ and ‘rights-absolutism’. This response to my Chinese critics uses 10 methodology and research questions for challenging their claim that Chinese traditions of Confucian ethics offer a sufficient substitute for the lack of democratic constitutionalism and of effective human rights law inside the People’s Republic of China. In view of the dangers of totalitarianism, Asian lawyers should participate in ‘JIEL debates’ on how Confucian ethics and communitarian legal traditions in many Asian countries can be reconciled with stronger protection of human rights in international economic law.

Lost in internationalization: Rise of the Renminbi, Macroprudential Policy, and Global Impacts

Wed, 11 Apr 2018 00:00:00 GMT

The internationalization of China’s Renminbi will be a game changer to the global finance and politics, and its success thus far has been evidenced by the International Monetary Fund (IMF)’s recent move to include the currency in its SDR basket. This scheme provides a unique opportunity to reflect on the very nature of law and finance and calls into question the conventional understanding of how financial institutions function: Why has authoritarian China, with its peculiar market settings, been able to make rapid progress in internationalizing its currency? This article applies the theory of macroprudential policy to examine the scheme’s viability, timeline, and impacts. It argues that currency internationalization does not only depend on market forces but also requires strong state-led actions at critical junctures to reset the institutional equilibrium. China has taken advantage of its extra-large economy by carrying out fragmented but coherent institutional engineering, and adopting an institutional bridging approach for amplifying the effects. However, systemic risks inherent in China’s banking system have been triggered by the project’s international success due to its aggressive timeline and procyclical nature. In this regard, this scheme has wrongly pitched itself as an international project rather a domestic one. As a responsible issuer of a major international currency, China has to re-align the project to focus on domestic institutions macroprudentially, with special caution paid to any attempt to pursue the prestige normally conferred upon such issuers, including extraterritoriality and export of institutional designs overseas.

Liberalization at the Speed of Light: International Trade in Electricity and Interconnected Networks

Tue, 03 Apr 2018 00:00:00 GMT

Rapid technological advances are making it technically and economically feasible to transport electricity over longer distances irrespective of the size of the entity who generates it and consumes it, activating international obligations that had been previously dormant. In parallel, global energy priorities have drastically changed as a result of the Paris Agreement and the need to reduce greenhouse gas emissions, whilst approximately 15% of the world's population still lacks access to electricity. As governments try to adapt to the new sectoral landscape, on the one hand, and attempt to fulfil the desperate need to improve access to electricity in the poorest regions of the world, on the other, attention must be paid to the international rules that govern electricity trade as governments may infringe such rules when pursuing those goals. This article seeks to provide a general legal framework for the study of electricity measures, including those that relate to renewable energy, as they pertain to international trade. To this end, two issues are discussed. First, the three-pillared structure that governs global electricity trade, i.e. a combination of multilateral, regional and sectoral agreements, as well as the complex relationship between these separate legal regimes. Secondly, it analyses World Trade Organization (WTO) law as it applies to the trade in electrical energy and electricity services, and expounds how the three-pillared structure identified adapts to electricity trade. While primarily an electricity-related manuscript, this article covers issues of relevance not only to trade in electricity but to international trade law in general, particularly in connection with industries where international sectoral agreements coexist with multilateral and regional trade rules, discussing issues that range from conflict of norms to fragmentation and legal convergence.

The Principle of Independent Responsibility of the European Union and its Member States in the International Economic Context

Mon, 02 Apr 2018 00:00:00 GMT

The article discusses the principle of independent responsibility of international organizations and their Member States, drawing on the example of the European Union (EU). It evaluates the EU’s call for competence-based responsibility which suggests that responsibility should follow allocation of competence inside the EU, irrespective of who carried out the conduct in question. The article challenges this approach by suggesting that while States are free to transfer their powers to an international body, obligations are non-transferable. The discussion is based on the analysis of the EU’s participation in the World Trade Organization and the Energy Charter Treaty.

Between ‘Member-Driven’ WTO Governance and ‘Constitutional Justice’: Judicial Dilemmas in GATT/WTO Dispute Settlement

Fri, 30 Mar 2018 00:00:00 GMT

The power-oriented General Agreement on Tariffs and Trade (GATT)/World Trade Organization (WTO) traditions of ‘member-driven governance’ risk undermining the dispute settlement system of the WTO and its judicial administration of justice. US President Trump, the ‘Brexit’, and non-democratic rulers challenge multilateral treaties and judicial systems by ‘populist protectionism’ prioritizing ‘bilateral deals’. This contribution uses the example of the US blockage of the WTO Appellate Body system for illustrating the ‘republican argument’ why public goods (PGs, res publica) cannot be legitimately protected without judicial remedies, rule of law and democratic governance. Adversely affected governments, citizens, and courts of justice must hold power politics more accountable and publicly challenge illegal WTO practices so as to protect transnational ‘aggregate PGs’ (like the WTO trading and legal system) for the benefit of citizens. WTO members should use their power of majority voting for authoritative interpretations of WTO law supporting ‘judicial administration of justice’ in multilevel governance of the world trading system. Multilevel judicial control of trade regulation legitimizes ‘member-driven governance’ by protecting rule of law as approved by parliaments when they authorized ratification of the WTO Agreement and its legal implementation for the benefit of citizens, their equal rights and social welfare.

Intellectual Property Rights and Climate Change: Interpreting the TRIPS Agreement for Environmentally Sound Technologies. By WEI ZHUANG

Wed, 28 Mar 2018 00:00:00 GMT

Intellectual Property Rights and Climate Change: Interpreting the TRIPS Agreement for Environmentally Sound Technologies. By ZhuangWei, Cambridge University Press, 2017. ISBN 9781316662892.

The Potency of the SPS Agreement’s Excessivity TestThe Impact of Article 5.6 on Trade Liberalization and the Regulatory Power of WTO Members to take Sanitary and Phytosanitary Measures

Tue, 20 Mar 2018 00:00:00 GMT

The article investigates the current and potential relevance of Article 5.6 SPS in deciding SPS disputes, and its impact on trade liberalization and WTO Members’ power to take sanitary and phytosanitary measures.Article 5.6 of the SPS Agreement states that SPS measures may not be more trade restrictive than required to achieve a Member's appropriate level of protection. This obligation is self-standing and separate (in Article 5.6) from the necessity test (Article 2.2). We argue that its autonomous nature makes Article 5.6 SPS a distinct type of trade-off instrument (‘excessivity test’).Using the software ATLAS.ti, we conducted a systematic content analysis of all SPS disputes invoking Article 5.6. In particular, we surveyed the jurisprudential development of the provision (outcomes of 5.6 SPS cases over time, DSB application of the three cumulative conditions and their respective outcome determinacy).Our findings show that the importance of Article 5.6 has significantly increased over time, and holds immense potential for challenges to WTO Members domestic SPS measures for being excessively trade restrictive.

Financial Disputes in International Courts

Mon, 19 Mar 2018 00:00:00 GMT

The question of adjudication in international financial law has rarely been analysed comprehensively in the legal literature. This can probably be explained with the fact that, unlike in other areas of international economic law, there is no international financial court specifically designed to adjudicate international disputes between financial regulators, or between governments and financial institutions or investors. Moreover, the informality of regulatory cooperation through Transnational Regulatory Networks (TRNs), the use of soft laws to regulate international financial relations, and the presence of prudential carve-outs in international treaties was supposed to keep financial supervisory and regulatory authorities free from international scrutiny and to limit the judicial review of regulatory measures to a purely domestic exercise. Yet, financial measures are increasingly challenged in international investment tribunals, human rights courts, and regional courts. From 1995 to 2016, there have been more than 100 known international disputes on financial services, of which roughly two-thirds involved a supervisory measure such as the resolution or bankruptcy of an insolvent bank or the imposition of supervisory fines. The remaining claims mostly included violation of sovereign debt contracts, or emergency legislation affecting financial services. Investment arbitrations, in particular, are considerably on the rise. The increased number of regulatory disputes represents fundamental implications for the financial regulatory community in terms of domestic governance, regulatory cooperation, and global financial stability. This essay empirically investigates and maps for the first time the patterns of international adjudication in financial law, and comments on what the rise of international litigation means for the global financial architecture.

The Rise of Populist Nationalism and the Renegotiation of NAFTA

Fri, 16 Mar 2018 00:00:00 GMT

Countries that have traditionally led the way in promoting economic globalization and its institutions have seen a recent surge of populism and nationalism, calling into question the liberal international economic order. The rhetoric of these critics is often vague, however, and it is unclear what a populist or nationalist approach to international economic policy would look like. The North American Free Trade Agreement (NAFTA) renegotiation initiated by the Trump administration could give us the first clues. Will their proposals destroy the trading system as we know it, or merely tweak it? This article examines these issues by discussing the concepts of nationalism and sovereignty, and then viewing the Trump administration’s specific NAFTA proposals through those lenses.

Human Rights, Justice, and Courts in IEL: A Critical Examination of Petersmann’s Constitutionalization Theory

Wed, 14 Mar 2018 00:00:00 GMT

Petersmann’s works focus on the normative and fundamental issues of international economic law (IEL) with such nonvarying analytical tools as the concepts of human rights, justice, and judicial review and thus can be examined in general in a comprehensive setting including Chinese thought. Based on the purported universal recognition of human rights, Petersmann insists on a paradigm of bottom-up struggles for IEL constitutionalization, but the Universal Declaration of Human Rights does not require radical individualism and rights absolutism in light of its absorption of Chinese thought. Petersmann’s explication of IEL justice is transcendental without sufficient consideration of the positive role governments can play, whereas the Confucian ideological framework renliyi hints at a nascent approach for addressing global poverty and underdevelopment. Petersmann views the courts as the guardian of human rights and justice. However, the Chinese legal system has an increasingly negative attitude toward the incorporation of human rights law into the judicial process, and Chinese courts favor diversified dispute settlement mechanisms partly because of the preference for negotiated solutions. Due to the divergent ideological presumption concerning root values, Petersmann’s theory is fundamentally different from Chinese thought, a difference that cannot be described in the context of pluralism.