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Preview: Journal of International Economic Law - current issue

Journal of International Economic Law Current Issue

Published: Fri, 13 Oct 2017 00:00:00 GMT

Last Build Date: Fri, 08 Dec 2017 14:53:10 GMT


The Renminbi and Systemic Risk

Fri, 13 Oct 2017 00:00:00 GMT

The internationalization of China’s currency, the renminbi (RMB), is arising in ways that depart considerably from historical precedent and what ‘law and macroeconomic’ theory would predict. Instead of waiting for international markets for its currency to evolve organically, the Chinese government has undertaken a quasi-mercantilist strategy designed to promote the currency and its own national RMB-based infrastructure. This strategy has emphasized tightly managed capital account deregulation over prudential reforms and robust market supervision, and incentivizes foreign jurisdictions to compete for RMB-based transactions.China’s monetary strategy introduces novel systemic risks to the global financial system, including a potentially inadequate provision of renminbi liquidity, a regulatory race to the bottom between offshore RMB-hubs, and significant transmission belts of financial risk to even non-renminbi markets. To mitigate these risks, this Article outlines a policy recipe of stronger macroprudential oversight, transparent countercyclical capital account reforms and credible commitments to refrain from competitive currency devaluations.

John Jackson and the Architecture of Global Trade and Economic Law

Fri, 13 Oct 2017 00:00:00 GMT

Journal of International Economic Law, first published on 18 May 2016; doi:10.1093/jiel/jgw038.

Reforming the Governance of International Financial Law in the Era of Post-Globalization

Wed, 11 Oct 2017 00:00:00 GMT

International financial law (IFL) is evolving from a situation of acquiesced anarchy (characterized by coordination dilemmas, compliance gaps, and unwarranted independence of regulators) towards a more ordinate and coordinated framework. The conceptual crisis of the New International Financial Architecture (NIFA) and the failure of the system of global division of regulatory labour between international financial institutions (IFIs), international setting bodies, and national regulatory authorities have revealed a vacuum of power and mandate. Hints of a shift in the global governance of financial markets are acknowledged in the reform of the Financial Sector Assessment Program (FSAP) and in the potential role of the Reports on Observance of Standards and Codes (ROSCs), jointly administered by the IFIs. The central role of the Financial Stability Board (FSB) as global coordinator has significantly reinforced the functions of monitoring and rationalizing implementation (i.e. with a creative result) of international regulatory standards, in combination with surveillance mechanisms by the International Monetary Fund (IMF). In addition, FSB’s constituency under the G-20 may render its political mandate as more acceptable by Members and stakeholders at large. However, although the framework created in the aftermath of the financial crisis may allow for more coordinated solutions, effective action by governments is missing. This notwithstanding, IFL has largely achieved authoritative characters, in so far as it can determine outcomes and compel obedience. Proceeding from Ernst-Ulrich Petersmann’s posture that international economic law has failed to effectively protect public values and to ensure participatory democracy and global justice, while international law has historically protected individuals from governmental intervention and power abuse, the legitimacy of IFL is critically investigated. To this extent, the Author addresses the superseded theory of Transnational Regulatory Networks (TRNs), which has been partially resumed by the Informal International Lawmaking (IN-LAW) project, the compensatory approach advocated by the Global Administrative Law (GAL) scholarship, and a democratic-striving approach. With a view to the upcoming scenario of ‘post-globalization’, as embodied by the Trump presidency and by the Brexit, the Author envisages a renovated role of the intergovernmental (ministerial) cooperation within the FSB for the protection of global financial stability as public good.

Is it Rational and Consistent? the Wto’s Surprising Role in Shaping Domestic Public Policy

Sat, 23 Sep 2017 00:00:00 GMT

What makes regulation rational? And why is rationality important to an international tribunal? In the World Trade Organization (WTO) context, these questions have had significant implications for the public policy of its Member countries. The WTO Appellate Body’s emerging emphasis on means–ends rationality testing is based on the questionable premise that consistent regulation is non-discriminatory. It has led regulators, such as the EU, to defend—and probably even construct—complex regulation in a way that emphasizes conformity to one overarching policy objective. More surprisingly, the Appellate Body has re-cast itself as public policy watchdog, pointing out when governments do not appear to be committed to their cause. In response, governments have strengthened disputed regulation, rather than making it less trade-restrictive. This retreat to rationality can be seen as a result of a difficult challenge facing the Appellate Body: how to review national regulation without passing judgment on it. More specifically, the rationality test pays the price of the Appellate Body’s retreat from proportionality.

Balancing Efficacy with Policy Space: the Treatment of Public Services in EU Trade Agreements

Sat, 23 Sep 2017 00:00:00 GMT

The tensions created by public services in international trade agreements continue to stir academic interest while remaining highly controversial. This is attributable to their incongruent aims that require careful balancing. Taking the European Union’s (EU) ‘second generation’ trade agreements as its focus, this article examines the extent to which such agreements balance the efficacy of their core trade disciplines with space for public service provision. The agreements are examined in three respects: (i) exclusions to overarching scope; (ii) options for limiting the application of core disciplines; and (iii) the availability of exceptions. This article’s primary aim is to determine how the EU balances the efficacy of its trade disciplines with space for the provision of public services. This remains largely unexplored in current academic discourse and has assumed importance given the EU’s ongoing trade negotiations.

Rethinking Subsidy Disciplines for the Future: Policy Options for Reform

Sat, 23 Sep 2017 00:00:00 GMT

Subsidies are a critical instrument in the toolbox that governments use to achieve a variety of policy goals. In an increasingly interdependent world, addressing the negative externalities of subsidies while maintaining their market correcting function and the policy space for development is an imperative from a sustainable development perspective. In light of the changes in the global economy and emerging social and environmental concerns, the present article seeks to assess the adequacy of existing international subsidy disciplines and suggest possible areas for improvement and reform. Recent steps on agricultural export subsidies in WTO at the Nairobi Ministerial in December 2015, and in the Transpacific Partnership (TPP) negotiations ending in late 2015 on fisheries subsidies (notably, a result of ‘soft law’ pressures); agricultural export subsidies, and state-owned enterprises suggest that progress can be made. Three groups of policy options are identified. Firstly, revisit international disciplines by creating, under the WTO Agreement on Subsidies and Countervailing Measures, a narrowly defined category of non-actionable subsidies with clear boundaries, as well as a category of subsidies subject to absolute prohibition or a presumption of prohibition. Secondly, the procedures for establishing, monitoring, and resolving disputes for the various types of subsidies should be adjusted by strengthening the role of a neutral decision-maker while restricting the option for unilateral action. Finally, a key consideration in the field of subsidies is that of obtaining better data and measuring impacts. The establishment of an independent platform for data collection using common standards and definitions is recommended. Where appropriate, the article seeks to identify gaps in priorities and concerns over subsidy disciplines between advanced and developing economies. Inevitably, the article is more of a summary than a treatise; the goal was to spark discussion and thinking, leading eventually to action.

The Evolution of the EU External Trade Policy in Services – CETA, TTIP, and TiSA after Brexit

Wed, 16 Aug 2017 00:00:00 GMT

The conclusion of the Transatlantic Trade and Investment Partnership (TTIP) constitutes a priority and key component of the external trade policy of the European Union (EU). It is also an immediate follow-up to several years of regulatory cooperation between the two global trade powers. In an era of megaregionals, services is the only area where significant negotiating traction exists at the bilateral and multilateral level. However, recent events such as the imminent Brexit and the withdrawal of the USA from the Transpacific Partnership (TPP) cast doubt on the future of trade deals. Even so, services remain a key sector of export interest for the EU and thus completing agreements such as the TTIP or the Trade in Services Agreement (TiSA) is of crucial importance, allowing the EU to create new opportunities for service suppliers but also to reshape the regulatory philosophy governing the future regulation of global trade in services. With respect to TTIP, the EU Commission, backed by the EU executive, has advanced an ambitious agenda and submitted a conditional offer to the US, hoping for further liberalization on the two sides of the Atlantic. Against this backdrop, this article offers a critical account of the EU external trade policy, focusing on the EU’s recent external action with respect to services liberalization. The article advances three theses: first, that such ambitious agreements mark a new era of offensive services strategy which, however, is contained by internal conflicts and disagreements regarding certain still sensitive silos such as audiovisual or public services and Brexit shall exacerbate such internal conflicts in the medium run; second, that megaregionals can be used to accelerate domestic regulatory reform and openness in the service sector; and third, that TiSA will constitute a litmus test for the EU’s commitment to the World Trade Organization (WTO) cause. When appropriate, the article draws parallels with existing EU legislation and case law; other EU Free Trade Agreements such as the recently concluded Comprehensive Economic and Trade Agreement (CETA) with Canada; the General Agreement on Trade in Services (GATS); and TiSA.

The Asian Infrastructure Investment Bank: Bringing ‘Asian Values’ to Global Economic Governance?

Wed, 02 Aug 2017 00:00:00 GMT

This article examines the recent establishment of the Asian Infrastructure Investment Bank (AIIB) through the prism of the ‘Asian values’ debate. It maps the key attributes of these ‘Asian values’ first, to the institutional governance structure of the AIIB, and second, to its proposed decision-making procedures; specifically, in relation to the criteria and process for evaluating, assessing, and monitoring the economic, social and environmental sustainability of infrastructure projects that this new Multilateral Development Bank (MDB) will be supporting. The object of this exercise is to postulate whether an ‘Asian values’ approach to international development finance can be proposed as a viable alternative to currently Western-dominated institutions of global economic governance and ultimately, the Anglo-American form of capitalism that still underpins the global economy. The twin roles of China within the AIIB, first as the financial catalyst for AIIB investment in regional infrastructure projects, and second, as a potential regional hegemon through its dominance of the AIIB governance structure, will be canvassed. The article concludes by proposing an ‘Asian values’ approach to global economic governance as the foundation of a new research agenda which can be used to assess the future operations of this Bank and other new MDBs.

Reforming Investor–State Dispute Settlement: A (Comparative and International) Constitutional Law Framework

Fri, 07 Jul 2017 00:00:00 GMT

As a result of the steep increase in investment arbitrations, and the problems this has brought to the fore, many reform efforts in international investment law focus on changes to investor–state dispute settlement (ISDS). Reform proposals, however, diverge widely (ranging from exiting the system completely to institutionalizing it further through the creation of an appellate mechanism or a permanent investment court) and do not proceed on the basis of a normative framework that is globally consented. This risks achieving needed systemic reform. The present article sets out the contours of such a normative framework. It suggests that the criticism of ISDS has its origins in frictions with constitutional principles, namely democracy, the rule of law, and human rights. Reform proposals, as a consequence, should be developed by reference to principles of (comparative and international) constitutional law. Such a framework can be used to formulate a number of concrete proposals for ISDS reform, in particular increased institutionalization of ISDS and the implementation of other mechanisms that allow states to ensure that ISDS develops in line with the principle of democracy and respect for the rule of law and for the protection of human rights.

The Workload of the WTO Appellate Body: Problems and Remedies

Thu, 06 Jul 2017 00:00:00 GMT

The WTO Appellate Body has seen its workload grow significantly over the years, reflecting not only the rising number of cases handled by the WTO dispute settlement mechanism, buts also an increase in the size of the disputes, the number of issues raised on appeal, the number of participants and third participants, the total length of submissions, as well as an accumulation of jurisprudence. As a result, Appellate Body proceedings now as a rule exceed, in some cases significantly, the 90-day timeframe prescribed by the Dispute Settlement Understanding. The present article sheds new light on this controversial issue, taking as a starting point the relevant reform proposals made by WTO Members. Bringing into the discussion broader – institutional, policy and comparative – considerations, the article delves into the adequacy and sufficiency of the different alternatives for alleviating the Appellate Body's workload with a view to identifying the most opportune ways for ensuring the efficient future functioning of the WTO dispute settlement system.

Comparative Commercial Contracts: Law, Culture and Economic Development. By Boris Kozolchyk

Fri, 26 Aug 2016 00:00:00 GMT

Comparative Commercial Contracts: Law, Culture and Economic Development. By KozolchykBoris, USA: West Academic Publishing, 2014, ISBN9780314289681; 1363 pages.

John Jackson and the Architecture of Global Trade and Economic Law

Wed, 18 May 2016 00:00:00 GMT

When I was a young law student in Europe, the advice from my mentors was clear: if you are interested in the World Trade Organization (WTO), go to Georgetown, and study with John Jackson. He played a key role, they said, in developing the intellectual framework for the WTO’s dispute settlement system and wrote what was generally referred to as ‘the Bible of International Trade’.