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Summary and Prospects

Richard Pomfret

in The Economics of Regional Trading Arrangements

Summarizes the book's contents and discusses prospects for the principle of non‐discrimination in the international trading system.

Human Rights Relating to Reproductive and Sexual Health

Rebecca J. Cook, Bernard M. Dickens, and Mahmoud F. Fathalla

in Reproductive Health and Human Rights: Integrating Medicine, Ethics, and Law

This chapter identifies rights that could be applied to advance reproductive and sexual health. The human rights are clustered under the following interests in reproductive and sexual health, which ... More

This chapter identifies rights that could be applied to advance reproductive and sexual health. The human rights are clustered under the following interests in reproductive and sexual health, which are shown in the horizontal subsections of the table: life, survival, security, and sexuality; reproductive self-determination, and free choice of maternity; health and the benefits of scientific progress; non-discrimination and due respect for difference; and information, education, and decision-making.Less

Residential Segregation and Regional Democracy

Iris Marion Young

in Inclusion and Democracy

Residential racial and class segregation produce or exacerbate distributive injustice and political exclusion. Integration as the dispersal of a concentrated minority among the majority, however, ... More

Residential racial and class segregation produce or exacerbate distributive injustice and political exclusion. Integration as the dispersal of a concentrated minority among the majority, however, often has its own harmful consequences. An alternative ideal of differentiated solidarity combines positive affinity grouping with non‐discrimination and regional government that encourages attention to shared problems and inequality.Less

The Intersection of Law and Markets

Michelle P. Egan

in Constructing a European Market: Standards, Regulation, and Governance

Focuses on the role of European case law in fostering an integrated market. Through a series of landmark cases, including Cassis De Dijon, Dassonville, and Keck, the European Court of Justice has ... More

Focuses on the role of European case law in fostering an integrated market. Through a series of landmark cases, including Cassis De Dijon, Dassonville, and Keck, the European Court of Justice has supported trade and commerce in determining whether national legislation is protectionist or serves a legitimate function in promoting health, safety, and other public policy objectives. Analogies with the US are also discussed, particularly in promoting interstate commerce by addressing trade discrimination, and in developing legal principles to balance sovereign state powers with the need for integrated markets. The central argument is that a common framework of market rules has been pursued within a setting of well‐defined legal and judicial mechanisms, which have also provided mechanisms of enforcement and compliance with treaty goals. Of central importance is that legal reasoning shifted the focus of market integration from harmonization to mutual recognition as a key trade strategy to integrate markets. The role of law has been critical in sustaining a market economy, and case law shapes both states and markets, determining the constitutional limits to state intervention in markets and the level of government at which regulation is most appropriate and legitimate through legal mechanisms of non‐discrimination, balancing standards, and proportionality.Less

Risk Management Disciplines and the SPS Agreement

Lukasz Gruszczynski

in Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement

This chapter concentrates on the risk management dimension of the SPS Agreement. It submits that the concept of risk management may be legitimately used in the context of the SPS Agreement, while its ... More

This chapter concentrates on the risk management dimension of the SPS Agreement. It submits that the concept of risk management may be legitimately used in the context of the SPS Agreement, while its recognition helps to reconcile the WTO's obligations with international and domestic practice in the SPS field. The second part addresses the specific SPS requirements that are relevant to risk management actions. This includes disciplines pertaining to the determination of an appropriate level of protection, options evaluation, implementation and maintenance of SPS measures, and their monitoring and review. The chapter notes the moderate success of case law in elucidating the normative content of relevant provisions and identifies those developments that appear unsatisfactory (e.g. the proportionality requirement). Special attention is also given to the problem of risk perception as a possible justification for divergences in domestic risk regulations. In this context, the chapter argues that the role of Article 5.5 is limited to detection of discrimination rather than imposing any technocratic rationality.Less

Age Discrimination in Law and Policy: How the Equal Treatment Directive Affects National Welfare States

Deborah Mabbett

in Promoting Solidarity in the European Union

This chapter examines how the European Court of Justice (ECJ) has navigated, or sometimes failed to navigate, a knotty problem in the application of equality laws. It discusses the ECJ's approach to ... More

This chapter examines how the European Court of Justice (ECJ) has navigated, or sometimes failed to navigate, a knotty problem in the application of equality laws. It discusses the ECJ's approach to the relationship between sex equality law and social policy. This is followed by an account of recent cases which take up the age discrimination provisions in the Framework Equal Treatment Directive (FETD). It shows that the ECJ steered itself into stormy waters in its early decision in Mangold, but has since tried to find a way out. In so doing, it might seem to have weakened the potential impact of the FETD. The final section considers whether and why this might be an appropriate outcome in light of the policy objectives of the Directive and the political conditions under which it was promulgated.Less

Property Protection and Protection of Cultural Heritage

Federico Lenzerini

in International Investment Law and Comparative Public Law

In contemporary international law, the tension between the public interest in safeguarding cultural heritage and private property rights — including investors' rights — is often hard to settle, as ... More

In contemporary international law, the tension between the public interest in safeguarding cultural heritage and private property rights — including investors' rights — is often hard to settle, as full realization of one of them may inescapably lead to sacrificing the other. Although this tension is resolved by domestic legislations through solutions that are sometimes quite heterogeneous, a considerable practice has evolved at the level of international investment arbitration, which allows some conclusions to be drawn concerning the existence of certain general principles of law regulating the interaction between the two values in question. In particular, certain restrictions to private property rights are legitimate for safeguarding cultural heritage, provided that they are applied in a proportional and non-discriminatory manner and investors are granted just compensation or financial aid and access to effective judicial remedies.Less

Consequences for the International Trading System

Richard Pomfret

in The Economics of Regional Trading Arrangements

Examines the systemic effects of RTAs on the global economy. Discusses why RTAs tend to proliferate as well as why the multilateral trading system's basis in non‐discriminatory trade policies is ... More

Examines the systemic effects of RTAs on the global economy. Discusses why RTAs tend to proliferate as well as why the multilateral trading system's basis in non‐discriminatory trade policies is resilient. Finally, addresses the question of whether RTAs are building blocks or stumbling blocks in the construction of a liberal international trading system.Less

The Merits and Limits of Comparativism: National Treatment in International Investment Law and the WTO

Jürgen Kurtz

in International Investment Law and Comparative Public Law

This chapter critically examines cross-fertilization of jurisprudence across the shared obligation of national treatment in WTO law and investment treaties. It focuses on the methodological tendency ... More

This chapter critically examines cross-fertilization of jurisprudence across the shared obligation of national treatment in WTO law and investment treaties. It focuses on the methodological tendency of investor-State arbitral tribunals to draw on complex WTO jurisprudence when ruling on a similar but not identical legal norm in the investment treaty setting. The chapter begins by identifying and disaggregating the separate historical imperatives in the use of the national treatment across the two regimes. It then uses that context to examine how comparative analysis might be employed to offer sensible and constructive insights. That ideal methodology is then contrasted against the case-law, which reveals critical errors by investor-State tribunals in using WTO law in the adjudication of three key interpretative questions. The chapter concludes by identifying useful juridical mechanisms in WTO law that have not, to date, been explored and which might be productively used to guide future arbitral tribunals.Less

Non-Discriminatory Treatment in Investment Disputes

Federico Ortino

in Human Rights in International Investment Law and Arbitration

This chapter analyzes the principle of non-discrimination on the basis of the nationality of the investor as one of the key legal guarantees provided to foreign investors by international investment ... More

This chapter analyzes the principle of non-discrimination on the basis of the nationality of the investor as one of the key legal guarantees provided to foreign investors by international investment agreements. As these guarantees may directly restrain states' legislative, administrative, or judicial measures taken to implement a host of public policies, their potential impact on human rights is not difficult to perceive. Given the general and undefined nature of the non-discrimination principle, its meaning and import can only be elucidated by arbitration, the chosen mechanism for the settlement of investment disputes. Based on an examination of the growing body of arbitral jurisprudence, the chapter argues that there still exists a wide margin of inconsistency in the way arbitral tribunals interpret the national treatment standard. The chapter emphasizes that the diversity of treaty language and the diversity of the interpretation of this language may represent a very useful learning ground for policy makers in the field.Less

Environmental Rights, Sustainable Development, and Investor-State Case Law: A Critical Appraisal

Riccardo Pavoni

in Human Rights in International Investment Law and Arbitration

This chapter examines the increasing number of international investment disputes where issues relating to environmental rights, sustainable development and foreign investment protection were ... More

This chapter examines the increasing number of international investment disputes where issues relating to environmental rights, sustainable development and foreign investment protection were inextricably intertwined, in order to determine whether arbitrators have approached such interrelationships by taking environmental and sustainable development principles into consideration. It identifies the status and relevance accorded to environmental principles and obligations, either of a customary or treaty nature, in investor-state disputes. The chapter's purpose is to shed into light the extent to which arbitrators are prepared to take into account the obligation of host states to protect the environment and their citizens' right to a healthy environment. The final part of the chapter focuses on the relationship between investment law and the exercise of environmental participatory rights (information, public participation, and access to justice in environmental matters) at the national level.Less

Non-discrimination and Equality

Brenda Hale

in The Judicial House of Lords 1876–2009:

This chapter considers the House of Lords' jurisprudence on discrimination and equality. At a particular time in the battle for equality it may be necessary to fight for the right to be treated in ... More

This chapter considers the House of Lords' jurisprudence on discrimination and equality. At a particular time in the battle for equality it may be necessary to fight for the right to be treated in the same way as the dominant group. At another stage it may be necessary to fight for the recognition of difference so that true substantive equality can be achieved. As the prohibited grounds of discrimination in domestic law are broadened to include age, sexual orientation, and religion or belief, the issues are likely to become even more complicated and controversial as these may well be inconsistent with one another. There is still much work to be done, by the courts as well as in Parliament.Less

Which Level of Protection?—The Scope of the Prohibition of Restriction: Equal Treatment and Market Access

Steffen Hindelang

in The Free Movement of Capital and Foreign Direct Investment: The Scope of Protection in EU Law

This chapter maps the scope of the ‘prohibition of restriction’ enshrined in Article 56 (1) EC — falling into two tests, the non-hindrance and the non-discrimination tests — in both intra-Community ... More

This chapter maps the scope of the ‘prohibition of restriction’ enshrined in Article 56 (1) EC — falling into two tests, the non-hindrance and the non-discrimination tests — in both intra-Community and third-country contexts. First, the operation of the non-hindrance and non-discrimination tests in an intra-Community context is analyzed. With respect to the ‘non-hindrance’ test this chapter in particular addresses the issue of whether and to what extent the doctrinal concepts developed by the Court in the context of other freedoms can be translated into the ambit of free movement of capital. Turning to the ‘non-discrimination test’, although Article 56 (1) EC does not explicitly mention the ‘prohibition of discrimination’, this omission is not to be understood as saying that within the ambit of free movement of capital, discriminatory conduct would not in principle be prohibited. In the second part of the discussion, the chapter assesses whether the construction set forth for an intra-Community context needs to be revised when it comes to third country capital movement. The discussion largely evolves around two points. First, the persuasiveness of teleological considerations based on the argument that free capital movement in a third-country context allegedly serves the Treaty aims to a lesser extent than it does in an intra-Community context is critically reviewed. Secondly, within the context of the non-discrimination test, the question of ‘comparability’ in principle of domestic/intra-Community and third country direct investment is examined.Less

Non-Discrimination and Justification in the GATT

Erich Vranes

in Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory

This chapter addresses the non-discrimination disciplines of the GATT (most-favoured-nation treatment and national treatment) and related issues, notably justification on non-economic grounds under ... More

This chapter addresses the non-discrimination disciplines of the GATT (most-favoured-nation treatment and national treatment) and related issues, notably justification on non-economic grounds under Article XX of the GATT. It argues that the term ‘like products’ in Articles I and III of the GATT should primarily be understood to mean products that are in a sufficiently close competitive relationship. It argues that the so-called ‘aim and effects’ test is legally flawed. It then examines the concept of ‘less favourable treatment’ in Article III of the GATT, showing that WTO scholarship has often misunderstood the concept of indirect (de facto) discrimination. The chapter then examines the role of the wording ‘so as to afford protection’ in Article III. Finally, it thoroughly examines Article XX, the concepts of necessity and proportionality, the so-called ‘new necessity test’, and the appropriate margin of appreciation.Less

The Trade Disciplines Arising under the TBT Agreement

Erich Vranes

in Trade and the Environment: Fundamental Issues in International Law, WTO Law, and Legal Theory

This chapter analyses the functions and scope of application of the WTO TBT Agreement. It examines its relationship with the GATT and the SPS Agreement, its non-discrimination disciplines, the ... More

This chapter analyses the functions and scope of application of the WTO TBT Agreement. It examines its relationship with the GATT and the SPS Agreement, its non-discrimination disciplines, the prohibition on unnecessary technical barriers to trade, and justification under the TBT Agreement. It also analyses the requirement to base technical regulations on international standards. This chapter argues that the TBT Agreement contains several concretisations of the necessity requirement, but does not introduce a proportionality review.Less

The Conservative Movement

Carol A. Horton

in Race and the Making of American Liberalism

This chapter analyzes the development of the contemporary conservative movement from the late 1960s through the 1980s. In the 1970s, neoconservatism played a particularly important role in fashioning ... More

This chapter analyzes the development of the contemporary conservative movement from the late 1960s through the 1980s. In the 1970s, neoconservatism played a particularly important role in fashioning a new brand of racial conservatism with a powerful cultural resonance. Framed in the liberal language of non-discrimination and equal rights, this position denounced race-conscious policies and equalitarian politics more broadly as politically illegitimate and socially destructive. During the same period, veteran conservative activists regrouped to organize the New Right, which combined a powerful appeal to the intertwined racial and class identities of working-class whites with innovative and effective techniques of political organizing. Together, the neoconservatives and the New Right laid the foundations for a new conservative political establishment with the organizational muscle to systematically market conservative ideas, engineer a conservative takeover of the Republican Party, leverage a more conservative federal judiciary, and mobilize grassroots support for conservative causes. While encompassing a wide range of issues, a central—and ultimately successful—goal of the movement was to banish socioeconomic equity issues from the forum of legitimate political discussion.Less

July 1999: Lesbian Cohabitants in Canada

Kenneth McK Norrie

in Professor Norrie's Commentaries on Family Law

Discusses the decision of the Canadian Supreme Court in M v H (1999) 2 SCR 3 in which that court held that a same-sex couple should be treated as “spouses” for the purposes of legislation permitting ... More

Discusses the decision of the Canadian Supreme Court in M v H (1999) 2 SCR 3 in which that court held that a same-sex couple should be treated as “spouses” for the purposes of legislation permitting financial claims at the end of the relationship.Less