Erich Vranes
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562787
- eISBN:
- 9780191705366
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562787.001.0001
- Subject:
- Law, Public International Law, EU Law
This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The ...
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This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The relationship between WTO law and international and domestic efforts to protect the environment has moved to centre stage in WTO and international environmental law. It has also spurred the discussion on fragmentation in international law in recent years. This book analyses these issues by examining the ‘horizontal’ interaction between WTO law and ‘other’ international law, the ‘vertical’ relationship between WTO law and domestic law, and the contents of and interrelations between fundamental provisions of WTO law. This study relies on established insights from legal theory in order to achieve greater clarity in legal argumentation. The main results of this analysis are applied to two topical instances of international regime interplay, namely the relevance of WTO law for international and domestic measures protecting the earth's climate and the ozone layer. A series of controversial topics in WTO and general international law are addressed in this book such as the notion of conflicts of norms and the resolution of conflicts of norms; the role of international law in WTO proceedings; extraterritorial jurisdiction and unilateral trade measures; proportionality and balancing of interests in international and WTO law; the core disciplines of the GATT and the TBT Agreement; process and production-based measures (PPMs) in WTO law; and climate protection, protection of the ozone layer, and WTO disciplines. Less
This book deals with a central topic in general international law, WTO law, and international environmental law, namely the relevance of the WTO legal system for environmental protection. The relationship between WTO law and international and domestic efforts to protect the environment has moved to centre stage in WTO and international environmental law. It has also spurred the discussion on fragmentation in international law in recent years. This book analyses these issues by examining the ‘horizontal’ interaction between WTO law and ‘other’ international law, the ‘vertical’ relationship between WTO law and domestic law, and the contents of and interrelations between fundamental provisions of WTO law. This study relies on established insights from legal theory in order to achieve greater clarity in legal argumentation. The main results of this analysis are applied to two topical instances of international regime interplay, namely the relevance of WTO law for international and domestic measures protecting the earth's climate and the ozone layer. A series of controversial topics in WTO and general international law are addressed in this book such as the notion of conflicts of norms and the resolution of conflicts of norms; the role of international law in WTO proceedings; extraterritorial jurisdiction and unilateral trade measures; proportionality and balancing of interests in international and WTO law; the core disciplines of the GATT and the TBT Agreement; process and production-based measures (PPMs) in WTO law; and climate protection, protection of the ozone layer, and WTO disciplines.
Lukasz Gruszczynski
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199578924
- eISBN:
- 9780191722646
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578924.001.0001
- Subject:
- Law, Public International Law, Environmental and Energy Law
The last sixty years witnessed an unprecedented expansion of international trade. The system created by the General Agreement on Tariffs and Trade and later by the World Trade Organization (WTO) has ...
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The last sixty years witnessed an unprecedented expansion of international trade. The system created by the General Agreement on Tariffs and Trade and later by the World Trade Organization (WTO) has proved to be an efficient tool for the elimination of trade tariff barriers. This process also coincided with the increased national risk regulatory controls. Governments, responding to the demands of their domestic constituencies, have adopted a wide range of regulatory measures aimed at protecting the environment and human health. Although for the most part, these new regulatory initiatives served legitimate objectives, it has also turned out that internal measures might become an attractive vehicle for protectionism, taking the place that was traditionally occupied by tariff barriers. The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) is an attempt by the international community to limit possible abuses while accepting a considerable margin of regulatory discretion of WTO Members. Does it optimally strike a balance between competing objectives of international free trade and regulatory freedom in the field of risk regulation? In answering this question, the book engages in a comprehensive and critical examination of the substantive provisions of the SPS Agreement and the corresponding case law. Special attention is paid to three specific issues: the appropriateness of the disciplines established by the SPS Agreement, the consistency of their interpretation by the WTO case law, and the normative content of those requirements that have not yet been addressed by SPS jurisprudence. The book concludes that despite some failures of the SPS system, the Agreement provides an operable and efficient mechanism for the supervision of domestic SPS measures.Less
The last sixty years witnessed an unprecedented expansion of international trade. The system created by the General Agreement on Tariffs and Trade and later by the World Trade Organization (WTO) has proved to be an efficient tool for the elimination of trade tariff barriers. This process also coincided with the increased national risk regulatory controls. Governments, responding to the demands of their domestic constituencies, have adopted a wide range of regulatory measures aimed at protecting the environment and human health. Although for the most part, these new regulatory initiatives served legitimate objectives, it has also turned out that internal measures might become an attractive vehicle for protectionism, taking the place that was traditionally occupied by tariff barriers. The WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) is an attempt by the international community to limit possible abuses while accepting a considerable margin of regulatory discretion of WTO Members. Does it optimally strike a balance between competing objectives of international free trade and regulatory freedom in the field of risk regulation? In answering this question, the book engages in a comprehensive and critical examination of the substantive provisions of the SPS Agreement and the corresponding case law. Special attention is paid to three specific issues: the appropriateness of the disciplines established by the SPS Agreement, the consistency of their interpretation by the WTO case law, and the normative content of those requirements that have not yet been addressed by SPS jurisprudence. The book concludes that despite some failures of the SPS system, the Agreement provides an operable and efficient mechanism for the supervision of domestic SPS measures.
Luca Rubini
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199533398
- eISBN:
- 9780191714740
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533398.003.0001
- Subject:
- Law, Public International Law, EU Law
This introductory chapter is organized as follows. Section I introduces reader to the subject of this book then Section II turns to the desirability and feasibility of the adoption of a comparative ...
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This introductory chapter is organized as follows. Section I introduces reader to the subject of this book then Section II turns to the desirability and feasibility of the adoption of a comparative (WTO-EC law) approach in its analysis. The importance of a ‘contextual’ examination is underlined and discussed using a case-study on the attitudes to legal interpretation prevailing in the two systems at issue. Section III singles out the main elements of the analysis by clarifying what the author considers as ‘definition’ of subsidy in this book. Section IV introduces a crucial relationship — that between ‘scope and justification’ – and its impact on the boundaries of the ‘definition’ of subsidy. This interaction, which is a recurring theme of the book, is set into the broader theoretical discourse by linking the issue of subsidies with the concepts of distributive justice and equality. An overview of the subsequent chapters is presented.Less
This introductory chapter is organized as follows. Section I introduces reader to the subject of this book then Section II turns to the desirability and feasibility of the adoption of a comparative (WTO-EC law) approach in its analysis. The importance of a ‘contextual’ examination is underlined and discussed using a case-study on the attitudes to legal interpretation prevailing in the two systems at issue. Section III singles out the main elements of the analysis by clarifying what the author considers as ‘definition’ of subsidy in this book. Section IV introduces a crucial relationship — that between ‘scope and justification’ – and its impact on the boundaries of the ‘definition’ of subsidy. This interaction, which is a recurring theme of the book, is set into the broader theoretical discourse by linking the issue of subsidies with the concepts of distributive justice and equality. An overview of the subsequent chapters is presented.
Erich Vranes
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562787
- eISBN:
- 9780191705366
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562787.003.0010
- Subject:
- Law, Public International Law, EU Law
This chapter focuses on the legal relationship, and possible conflicts of norms, between the international ozone regime and WTO law. After a brief analysis of the Vienna Convention for the Protection ...
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This chapter focuses on the legal relationship, and possible conflicts of norms, between the international ozone regime and WTO law. After a brief analysis of the Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol, its amendments, and adjustments, it examines the possible conflicts of norms that may stem from the adoption of trade measures against parties not complying with the ozone regime, and conflicts with WTO law that may arise from the imposition of trade restrictions vis-à-vis states that are not party to the ozone regime. The chapter concludes that from the viewpoint of the international ozone protection regime, the often cited ‘chilling effect’ of the WTO treaty and the need to revise WTO law appear to be overstated.Less
This chapter focuses on the legal relationship, and possible conflicts of norms, between the international ozone regime and WTO law. After a brief analysis of the Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol, its amendments, and adjustments, it examines the possible conflicts of norms that may stem from the adoption of trade measures against parties not complying with the ozone regime, and conflicts with WTO law that may arise from the imposition of trade restrictions vis-à-vis states that are not party to the ozone regime. The chapter concludes that from the viewpoint of the international ozone protection regime, the often cited ‘chilling effect’ of the WTO treaty and the need to revise WTO law appear to be overstated.
Luca Rubini
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199533398
- eISBN:
- 9780191714740
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533398.003.0014
- Subject:
- Law, Public International Law, EU Law
This chapter analyses the ‘impact standards’ in WTO subsidy and EC State aid rules. ‘Impact standards’ are those elements of the definition of subsidy (or State aid) that identify the negative ...
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This chapter analyses the ‘impact standards’ in WTO subsidy and EC State aid rules. ‘Impact standards’ are those elements of the definition of subsidy (or State aid) that identify the negative effects produced by the measure. Building on the findings on the objectives of subsidy control outlined in Chapter 2, i.e., the protection of market access and of competition, the first section analyses the impact subsidies may have on the competitive process. This is arguably the deepest and most specific concern of subsidy rules, and should hence be properly reflected in the ‘impact standards’ of the relevant definitions of subsidy. This broad analysis leads to the core of the chapter where the current standards in the EC and WTO are examined and critically evaluated. Among the various findings, a trend from a ‘trade’ to a ‘competition’ perspective is advocated.Less
This chapter analyses the ‘impact standards’ in WTO subsidy and EC State aid rules. ‘Impact standards’ are those elements of the definition of subsidy (or State aid) that identify the negative effects produced by the measure. Building on the findings on the objectives of subsidy control outlined in Chapter 2, i.e., the protection of market access and of competition, the first section analyses the impact subsidies may have on the competitive process. This is arguably the deepest and most specific concern of subsidy rules, and should hence be properly reflected in the ‘impact standards’ of the relevant definitions of subsidy. This broad analysis leads to the core of the chapter where the current standards in the EC and WTO are examined and critically evaluated. Among the various findings, a trend from a ‘trade’ to a ‘competition’ perspective is advocated.
Luca Rubini
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199533398
- eISBN:
- 9780191714740
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533398.003.0006
- Subject:
- Law, Public International Law, EU Law
This chapter begins by providing a conclusive critical assessment of the state of the law with respect to the forms of governmental action that constitute a subsidy or a State aid in the WTO and EC, ...
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This chapter begins by providing a conclusive critical assessment of the state of the law with respect to the forms of governmental action that constitute a subsidy or a State aid in the WTO and EC, and provides suggestions about whether the law, or its interpretation, should be changed. This critical assessment is carried out from a marked comparative standpoint. The analysis of the similarities and differences between the two disciplines, and the two legal systems as a whole, will help us to better evaluate the correctness of the solutions adopted in each legal system. The analysis is twofold, adopting two different viewpoints. On the one hand, it assesses the regulation of subsidies and State aids ‘in itself’ (which is called ‘internal perspective’), focusing in particular on the concerns about the expansiveness of the definition in terms of forms of governmental actions covered. On the other hand, taking an ‘external perspective’, the chapter briefly looks at the ‘other rules’ that in the two legal systems might apply to the same or similar forms of governmental action and address possible worries about system coherency.Less
This chapter begins by providing a conclusive critical assessment of the state of the law with respect to the forms of governmental action that constitute a subsidy or a State aid in the WTO and EC, and provides suggestions about whether the law, or its interpretation, should be changed. This critical assessment is carried out from a marked comparative standpoint. The analysis of the similarities and differences between the two disciplines, and the two legal systems as a whole, will help us to better evaluate the correctness of the solutions adopted in each legal system. The analysis is twofold, adopting two different viewpoints. On the one hand, it assesses the regulation of subsidies and State aids ‘in itself’ (which is called ‘internal perspective’), focusing in particular on the concerns about the expansiveness of the definition in terms of forms of governmental actions covered. On the other hand, taking an ‘external perspective’, the chapter briefly looks at the ‘other rules’ that in the two legal systems might apply to the same or similar forms of governmental action and address possible worries about system coherency.
Andrew Lang
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199592647
- eISBN:
- 9780191731396
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199592647.001.0001
- Subject:
- Law, Public International Law
The rise of economic liberalism in the latter stages of the 20th century coincided with a fundamental transformation of international economic governance, especially through the law of the World ...
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The rise of economic liberalism in the latter stages of the 20th century coincided with a fundamental transformation of international economic governance, especially through the law of the World Trade Organization. This book provides a new account of this transformation, and considers its enduring implications for international law. Against the commonly-held idea that ‘neoliberal’ policy prescriptions were encoded into WTO law, the book argues that the last decades of the 20th century saw a reinvention of the international trade regime, and a reconstitution of its internal structures of knowledge. In addition, the book explores the way that resistance to economic liberalism was expressed and articulated over the same period in other areas of international law, most prominently international human rights law. It considers the promise and limitations of this form of ‘inter-regime’ contestation, arguing that measures to ensure greater collaboration and cooperation between regimes may fail in their objectives if they are not accompanied by a simultaneous destabilization of each regime's structures of knowledge and characteristic features. With that in mind, the book contributes to a full and productive contestation of the nature and purpose of global economic governance.Less
The rise of economic liberalism in the latter stages of the 20th century coincided with a fundamental transformation of international economic governance, especially through the law of the World Trade Organization. This book provides a new account of this transformation, and considers its enduring implications for international law. Against the commonly-held idea that ‘neoliberal’ policy prescriptions were encoded into WTO law, the book argues that the last decades of the 20th century saw a reinvention of the international trade regime, and a reconstitution of its internal structures of knowledge. In addition, the book explores the way that resistance to economic liberalism was expressed and articulated over the same period in other areas of international law, most prominently international human rights law. It considers the promise and limitations of this form of ‘inter-regime’ contestation, arguing that measures to ensure greater collaboration and cooperation between regimes may fail in their objectives if they are not accompanied by a simultaneous destabilization of each regime's structures of knowledge and characteristic features. With that in mind, the book contributes to a full and productive contestation of the nature and purpose of global economic governance.
Holger Hestermeyer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552177
- eISBN:
- 9780191706936
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552177.001.0001
- Subject:
- Law, Human Rights and Immigration, Public International Law
This study examines the alleged conflict of WTO law with international human rights law, using a prominent example of such a conflict: that between international patent law, i.e., the TRIPS ...
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This study examines the alleged conflict of WTO law with international human rights law, using a prominent example of such a conflict: that between international patent law, i.e., the TRIPS Agreement, and access to medicine as guaranteed, e.g., by the International Covenant on Economic, Social and Cultural Rights. The highly controversial political issue of the appropriate application of international patent law to life-saving medicines gained the world's attention during the discussion about the price of AIDS medication, but recent examples also include patents on medicines for bird flu and for anthrax. The book discusses the patent law and the international human rights law involved, distinguishing between obligations under different human rights instruments. It introduces both areas of law and then explains the concept of conflict between legal regimes and why patent law and human rights law are in conflict. The current state of international law on the conflict between legal regimes and the origin of such conflicts is analyzed, covering such issues as hierarchy in international law and introducing the concept of ‘factual hierarchy’ of regimes. The book then turns to the role of human rights law in the WTO system, concluding that such law currently is limited to aiding the interpreting of the WTO Agreements. It shows how a further integration of human rights law into the WTO regime could be achieved and describes the progress made towards accommodating human rights concerns within the TRIPS Agreement, culminating in the first ever decision to amend a core WTO Agreement in December 2005.Less
This study examines the alleged conflict of WTO law with international human rights law, using a prominent example of such a conflict: that between international patent law, i.e., the TRIPS Agreement, and access to medicine as guaranteed, e.g., by the International Covenant on Economic, Social and Cultural Rights. The highly controversial political issue of the appropriate application of international patent law to life-saving medicines gained the world's attention during the discussion about the price of AIDS medication, but recent examples also include patents on medicines for bird flu and for anthrax. The book discusses the patent law and the international human rights law involved, distinguishing between obligations under different human rights instruments. It introduces both areas of law and then explains the concept of conflict between legal regimes and why patent law and human rights law are in conflict. The current state of international law on the conflict between legal regimes and the origin of such conflicts is analyzed, covering such issues as hierarchy in international law and introducing the concept of ‘factual hierarchy’ of regimes. The book then turns to the role of human rights law in the WTO system, concluding that such law currently is limited to aiding the interpreting of the WTO Agreements. It shows how a further integration of human rights law into the WTO regime could be achieved and describes the progress made towards accommodating human rights concerns within the TRIPS Agreement, culminating in the first ever decision to amend a core WTO Agreement in December 2005.
Luca Rubini
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199533398
- eISBN:
- 9780191714740
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533398.003.00013
- Subject:
- Law, Public International Law, EU Law
This chapter focuses on the concept of ‘specificity’ or ‘selectivity’. This idea, which is common to both EC State aid and WTO subsidy laws, raises important conceptual and practical questions, ...
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This chapter focuses on the concept of ‘specificity’ or ‘selectivity’. This idea, which is common to both EC State aid and WTO subsidy laws, raises important conceptual and practical questions, addressed in the two main sections of the chapter.Less
This chapter focuses on the concept of ‘specificity’ or ‘selectivity’. This idea, which is common to both EC State aid and WTO subsidy laws, raises important conceptual and practical questions, addressed in the two main sections of the chapter.
Erich Vranes
- Published in print:
- 2009
- Published Online:
- May 2009
- ISBN:
- 9780199562787
- eISBN:
- 9780191705366
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199562787.003.0011
- Subject:
- Law, Public International Law, EU Law
This chapter examines the legal relationship between WTO law and domestic climate protection measures that are taken in line with the international climate change regime, which is set up through the ...
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This chapter examines the legal relationship between WTO law and domestic climate protection measures that are taken in line with the international climate change regime, which is set up through the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. It uses climate protection measures taken in EU law as practical examples for examining and illustrating the impact of WTO law on domestic climate protection measures. In particular, it addresses ecodesign requirements for energy-using products, voluntary life-cycle labelling (climate labelling), voluntary agreements with the industry, mandatory carbon-dioxide labelling, fiscal measures in the car sector (tax differentiation on the basis of CO2 emissions and fiscal promotion of biofuels). Correcting a frequent misunderstanding, this chapter submits inter alia that process-based (PPM-based) environmental labels are not per se prohibited under WTO law.Less
This chapter examines the legal relationship between WTO law and domestic climate protection measures that are taken in line with the international climate change regime, which is set up through the United Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. It uses climate protection measures taken in EU law as practical examples for examining and illustrating the impact of WTO law on domestic climate protection measures. In particular, it addresses ecodesign requirements for energy-using products, voluntary life-cycle labelling (climate labelling), voluntary agreements with the industry, mandatory carbon-dioxide labelling, fiscal measures in the car sector (tax differentiation on the basis of CO2 emissions and fiscal promotion of biofuels). Correcting a frequent misunderstanding, this chapter submits inter alia that process-based (PPM-based) environmental labels are not per se prohibited under WTO law.
Matthias Oesch
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199268924
- eISBN:
- 9780191699306
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268924.003.0012
- Subject:
- Law, Public International Law
This chapter deals with the issue of standard of review relating to international law. The crucial question is to what extent and with what intensity a panel should review the interpretation of ...
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This chapter deals with the issue of standard of review relating to international law. The crucial question is to what extent and with what intensity a panel should review the interpretation of international legal instruments and, if not convinced, come up with its own interpretative conclusion. Section I turns to the panels' and the Appellate Body's general competence to examine matters which turn on the correct interpretation and application of international law other than WTO law. For methodological purposes, it seems advisable to categorize the various legal sources stemming from the wide and heterogeneous body of international law. Each of the categories of international law is then examined as to the standards of review applied by panels and the Appellate Body so far. This is done in Sections II to IV. Finally, Section V summarizes the practice and critically assesses it in the light of general standard- of-review principles.Less
This chapter deals with the issue of standard of review relating to international law. The crucial question is to what extent and with what intensity a panel should review the interpretation of international legal instruments and, if not convinced, come up with its own interpretative conclusion. Section I turns to the panels' and the Appellate Body's general competence to examine matters which turn on the correct interpretation and application of international law other than WTO law. For methodological purposes, it seems advisable to categorize the various legal sources stemming from the wide and heterogeneous body of international law. Each of the categories of international law is then examined as to the standards of review applied by panels and the Appellate Body so far. This is done in Sections II to IV. Finally, Section V summarizes the practice and critically assesses it in the light of general standard- of-review principles.
JOSÉ E. ALVAREZ
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780198765639
- eISBN:
- 9780191710070
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198765639.003.0004
- Subject:
- Law, Public International Law
This chapter discusses the varied forms of international institutional law. It looks into the role of the Security Council as law-maker and its position between power and law. A selective survey on ...
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This chapter discusses the varied forms of international institutional law. It looks into the role of the Security Council as law-maker and its position between power and law. A selective survey on the standard-setting in other international organizations is also presented. The survey mentions the Codex Alimentarius, ICAO's standards and recommended practices, international organizations ‘advisory’ material, ILO recommendations, and IAEA standards. Also mentioned are the FAO's and UNEP's prior informed consent regime, WTO Soft Law, the WHO's Code on marketing of breast-milk substitutes, the World Bank guidelines, IMF conditionality, and emerging global administrative law. The chapter ends with interim conclusions that are at odds with the standard accounts of the limited role of international organizations in law-making and that describe the emerging global administrative law that these organizations produce.Less
This chapter discusses the varied forms of international institutional law. It looks into the role of the Security Council as law-maker and its position between power and law. A selective survey on the standard-setting in other international organizations is also presented. The survey mentions the Codex Alimentarius, ICAO's standards and recommended practices, international organizations ‘advisory’ material, ILO recommendations, and IAEA standards. Also mentioned are the FAO's and UNEP's prior informed consent regime, WTO Soft Law, the WHO's Code on marketing of breast-milk substitutes, the World Bank guidelines, IMF conditionality, and emerging global administrative law. The chapter ends with interim conclusions that are at odds with the standard accounts of the limited role of international organizations in law-making and that describe the emerging global administrative law that these organizations produce.
Luca Rubini
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199533398
- eISBN:
- 9780191714740
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533398.003.0005
- Subject:
- Law, Public International Law, EU Law
This chapter deals with questions similar to those that were analysed in Chapter 4 on WTO law. Following the first three techniques to define the legal relevance of the conduct of the government ...
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This chapter deals with questions similar to those that were analysed in Chapter 4 on WTO law. Following the first three techniques to define the legal relevance of the conduct of the government (formulation of the definition, standards of imputability, origin of the resources), it analyses the forms of governmental action that are covered by Article 87(1) EC, and, where necessary, provides a critique.Less
This chapter deals with questions similar to those that were analysed in Chapter 4 on WTO law. Following the first three techniques to define the legal relevance of the conduct of the government (formulation of the definition, standards of imputability, origin of the resources), it analyses the forms of governmental action that are covered by Article 87(1) EC, and, where necessary, provides a critique.
Robert Howse
- Published in print:
- 2013
- Published Online:
- January 2014
- ISBN:
- 9780199680405
- eISBN:
- 9780191760266
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199680405.003.0025
- Subject:
- Economics and Finance, Macro- and Monetary Economics, Development, Growth, and Environmental
Appellate Body’s major rulings that have helped clarify members’ rights and obligations under the various WTO agreements. It also provides an overview of steps in a WTO dispute, making reference to ...
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Appellate Body’s major rulings that have helped clarify members’ rights and obligations under the various WTO agreements. It also provides an overview of steps in a WTO dispute, making reference to the relevant legal provisions, deadlines, and practices of the participating actors and institutions. The chapter concludes by exploring the challenges and opportunities for developing countries using the WTO dispute settlement system effectively.Less
Appellate Body’s major rulings that have helped clarify members’ rights and obligations under the various WTO agreements. It also provides an overview of steps in a WTO dispute, making reference to the relevant legal provisions, deadlines, and practices of the participating actors and institutions. The chapter concludes by exploring the challenges and opportunities for developing countries using the WTO dispute settlement system effectively.
Luca Rubini
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199533398
- eISBN:
- 9780191714740
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199533398.003.0015
- Subject:
- Law, Public International Law, EU Law
This book sought ‘to provide an analytical and conceptual framework’ of the legal definitions of WTO subsidy and EC State aid. It develops a subsidy language, made of issues and tests, concepts and ...
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This book sought ‘to provide an analytical and conceptual framework’ of the legal definitions of WTO subsidy and EC State aid. It develops a subsidy language, made of issues and tests, concepts and categories. Most importantly, some general elements have emerged as essential characteristics, and useful tools of interpretation, of a more abstract concept of subsidy, transcending, but always connected to, the actual definitions posited in WTO and EC law. The first is a form of public action; the second the conferral of an economic advantage; and the third an impact on the competitive process. These constitute the subject of the analysis in the three main parts of the book (respectively Parts II, III and V). It is hoped that with this packaged conceptual toolbox the ‘interpreter and policy-maker’ may have a better understanding of the topic. This chapter outlines the main conclusions that the use of that conceptual framework has allowed us to reach.Less
This book sought ‘to provide an analytical and conceptual framework’ of the legal definitions of WTO subsidy and EC State aid. It develops a subsidy language, made of issues and tests, concepts and categories. Most importantly, some general elements have emerged as essential characteristics, and useful tools of interpretation, of a more abstract concept of subsidy, transcending, but always connected to, the actual definitions posited in WTO and EC law. The first is a form of public action; the second the conferral of an economic advantage; and the third an impact on the competitive process. These constitute the subject of the analysis in the three main parts of the book (respectively Parts II, III and V). It is hoped that with this packaged conceptual toolbox the ‘interpreter and policy-maker’ may have a better understanding of the topic. This chapter outlines the main conclusions that the use of that conceptual framework has allowed us to reach.
Michael Ioannidis
- Published in print:
- 2014
- Published Online:
- November 2014
- ISBN:
- 9780198716945
- eISBN:
- 9780191785627
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716945.003.0006
- Subject:
- Law, Public International Law, Comparative Law
Chapter 6 investigates the applicable standard of review in the WTO context. The chapter criticizes the current usage of standards of review by the WTO adjudicating bodies, noting in particular that ...
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Chapter 6 investigates the applicable standard of review in the WTO context. The chapter criticizes the current usage of standards of review by the WTO adjudicating bodies, noting in particular that notions such as ‘objectiveness’ or ‘reasonableness’ fail to give a clear answer to the question why some domestic decisions are awarded greater deference than others. The chapter proposes to abandon the current approach to applicable standard of review based on the indeterminate notion of ‘objectiveness’ in favour of a more qualified perspective, focusing on the concrete reasons offered by the WTO adjudicating bodies. In this context, the chapter identifies national sovereignty, domestic expertise, and respect for basic procedural guarantees as primary reasons. Finally, the chapter argues that decisions resulting from domestic procedures sufficiently open to the consideration of foreign interests should be given greater deference than those taken behind doors, closed to the foreigners affected by them.Less
Chapter 6 investigates the applicable standard of review in the WTO context. The chapter criticizes the current usage of standards of review by the WTO adjudicating bodies, noting in particular that notions such as ‘objectiveness’ or ‘reasonableness’ fail to give a clear answer to the question why some domestic decisions are awarded greater deference than others. The chapter proposes to abandon the current approach to applicable standard of review based on the indeterminate notion of ‘objectiveness’ in favour of a more qualified perspective, focusing on the concrete reasons offered by the WTO adjudicating bodies. In this context, the chapter identifies national sovereignty, domestic expertise, and respect for basic procedural guarantees as primary reasons. Finally, the chapter argues that decisions resulting from domestic procedures sufficiently open to the consideration of foreign interests should be given greater deference than those taken behind doors, closed to the foreigners affected by them.
Matthias Oesch
- Published in print:
- 2003
- Published Online:
- March 2012
- ISBN:
- 9780199268924
- eISBN:
- 9780191699306
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199268924.003.0010
- Subject:
- Law, Public International Law
This chapter analyses the relevant case law with regard to the standard of review relating to WTO law. Sections I and II examine panel and Appellate Body practice pursuant to Article 11 of the ...
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This chapter analyses the relevant case law with regard to the standard of review relating to WTO law. Sections I and II examine panel and Appellate Body practice pursuant to Article 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and Article 17.6(ii) of the AD Agreement, respectively. Since the issue of standard of review is closely related to the method of treaty interpretation, the latter is also briefly considered in Section III. Finally, in the course of an excursus, Section IV looks at the sources of guidance which panels and the Appellate Body have been looking at in order to be adequately informed on the correct interpretation of WTO law.Less
This chapter analyses the relevant case law with regard to the standard of review relating to WTO law. Sections I and II examine panel and Appellate Body practice pursuant to Article 11 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and Article 17.6(ii) of the AD Agreement, respectively. Since the issue of standard of review is closely related to the method of treaty interpretation, the latter is also briefly considered in Section III. Finally, in the course of an excursus, Section IV looks at the sources of guidance which panels and the Appellate Body have been looking at in order to be adequately informed on the correct interpretation of WTO law.
Bradly J. Condon and Tapen Sinha
- Published in print:
- 2013
- Published Online:
- September 2013
- ISBN:
- 9780199654550
- eISBN:
- 9780191747953
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199654550.003.0004
- Subject:
- Law, Environmental and Energy Law, Public International Law
This chapter analyses the limits that international investment agreements (IIAs) place on climate change measures and considers the consequences of these measures for attracting foreign investment. ...
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This chapter analyses the limits that international investment agreements (IIAs) place on climate change measures and considers the consequences of these measures for attracting foreign investment. The study is based on specific provisions in NAFTA Chapter 11 and other IIAs, and the relevant jurisprudence from international investment tribunals. The discussions cover WTO law and IIAs; international investment and climate change measures; applying investment agreements to climate measures; performance requirements; non-discrimination obligations; minimum standard in customary international law; compensation for expropriation; and rights of investors versus right to regulate. The analysis shows that legitimate climate change regulation should not trigger liability to compensate foreign investors. However, this may not eliminate the chilling effect, since it is costly for States to defend against such claims even if they do not succeed.Less
This chapter analyses the limits that international investment agreements (IIAs) place on climate change measures and considers the consequences of these measures for attracting foreign investment. The study is based on specific provisions in NAFTA Chapter 11 and other IIAs, and the relevant jurisprudence from international investment tribunals. The discussions cover WTO law and IIAs; international investment and climate change measures; applying investment agreements to climate measures; performance requirements; non-discrimination obligations; minimum standard in customary international law; compensation for expropriation; and rights of investors versus right to regulate. The analysis shows that legitimate climate change regulation should not trigger liability to compensate foreign investors. However, this may not eliminate the chilling effect, since it is costly for States to defend against such claims even if they do not succeed.
- Published in print:
- 2010
- Published Online:
- June 2013
- ISBN:
- 9780804771436
- eISBN:
- 9780804777384
- Item type:
- chapter
- Publisher:
- Stanford University Press
- DOI:
- 10.11126/stanford/9780804771436.003.0004
- Subject:
- Sociology, Politics, Social Movements and Social Change
This chapter shows how practitioners offer multiple motives for initiating a WTO dispute. Accounts of practitioners demonstrate that the idea of a “good case” encompasses flexible sets of motives ...
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This chapter shows how practitioners offer multiple motives for initiating a WTO dispute. Accounts of practitioners demonstrate that the idea of a “good case” encompasses flexible sets of motives including economic, political, and symbolic characteristics of trade grievances, to mobilize WTO law. The flexibility is due to uncertainties associated with litigation, which are manifestations of five features of the WTO: the newness of the system, the organizational and legal structure of the dispute system, the context of the WTO as an intergovernmental agreement, the persistence of inequality between states, and the difficulties of securing meaningful compliance. The discussion considers six variations of the good case, including symbolic, communicative, and affective motives above and beyond the existence of a trade grievance.Less
This chapter shows how practitioners offer multiple motives for initiating a WTO dispute. Accounts of practitioners demonstrate that the idea of a “good case” encompasses flexible sets of motives including economic, political, and symbolic characteristics of trade grievances, to mobilize WTO law. The flexibility is due to uncertainties associated with litigation, which are manifestations of five features of the WTO: the newness of the system, the organizational and legal structure of the dispute system, the context of the WTO as an intergovernmental agreement, the persistence of inequality between states, and the difficulties of securing meaningful compliance. The discussion considers six variations of the good case, including symbolic, communicative, and affective motives above and beyond the existence of a trade grievance.
Gregory Messenger
- Published in print:
- 2016
- Published Online:
- March 2016
- ISBN:
- 9780198716464
- eISBN:
- 9780191785061
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198716464.001.0001
- Subject:
- Law, Public International Law, Company and Commercial Law
The World Trade Organization is a central piece in the regulation of international trade. WTO law is inspired by domestic and regional trade law just as domestic and regional systems are required to ...
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The World Trade Organization is a central piece in the regulation of international trade. WTO law is inspired by domestic and regional trade law just as domestic and regional systems are required to comply with the rules at the WTO level. Complementing this bidirectional relationship is the network of institutions that have developed at the WTO (and beyond) that serve as forums for the membership and as autonomous actors in their own right. The result is a complex network of domestic, regional, and international influences on the development of WTO law that go beyond the disciplines found in the covered agreements or the interpretations given by panels and the Appellate Body. This book sets out a novel approach to understanding the development of WTO law in such a globalized world and offers a conceptual framework that accepts a multitude of factors on the development of WTO law, arguing that WTO law develops as a result of three separate but interacting types of causal influence (instrumental, systemic, and constitutive). Taking a different approach to causation from either social-scientific or traditional legal models, this book identifies the key role of globalized actors as the driving force behind the development of WTO law yet not in control of it.Less
The World Trade Organization is a central piece in the regulation of international trade. WTO law is inspired by domestic and regional trade law just as domestic and regional systems are required to comply with the rules at the WTO level. Complementing this bidirectional relationship is the network of institutions that have developed at the WTO (and beyond) that serve as forums for the membership and as autonomous actors in their own right. The result is a complex network of domestic, regional, and international influences on the development of WTO law that go beyond the disciplines found in the covered agreements or the interpretations given by panels and the Appellate Body. This book sets out a novel approach to understanding the development of WTO law in such a globalized world and offers a conceptual framework that accepts a multitude of factors on the development of WTO law, arguing that WTO law develops as a result of three separate but interacting types of causal influence (instrumental, systemic, and constitutive). Taking a different approach to causation from either social-scientific or traditional legal models, this book identifies the key role of globalized actors as the driving force behind the development of WTO law yet not in control of it.
