- Docente: Peter Plamenoff Petkoff
- Crediti formativi: 6
- SSD: IUS/04
- Lingua di insegnamento: Inglese
- Modalità didattica: Convenzionale - Lezioni in presenza
- Campus: Forli
-
Corso:
Laurea Magistrale in
Economia e management (cod. 9203)
Valido anche per Laurea in Economia e commercio (cod. 9202)
Laurea in Economia e commercio (cod. 9202)
Contenuti
THE WTO AND INTERNATIONAL TRADE LAW
Module Leader: Peter Petkoff
There has never been a more exciting time to study international trade law. The major global
developments in trade and investment and the legal regimes that regulate both of these areas of
activity means that this subject is of considerable theoretical but also practical significance to
public international law. This dynamic course considers the law and practice of the
international and regional trading system by evaluating (1) the substantive treaties and rights
that have been established by States as part of this system; and (2) the accompanying dispute
settlement mechanisms (both inter-State and investor-State international arbitration) that
operate in the area.
In terms of the substantive rights of international economic law these are contained in such
agreements as the World Trade Organisation (WTO) and regional trade agreements (such as,
e.g., the North American Free Trade Area (NAFTA), ASEAN, and the recently concluded USled
Trans-Pacific Partnership (TPP).)
The WTO dispute settlement system is one of the most effective and important processes of
dispute resolution that exists in international law. The course provides a detailed consideration
of the WTO dispute settlement system and compares and contrasts it with other dispute
settlement mechanisms in international economic law, most notably Investor-State arbitration
under the auspices of the International Centre for the Settlement of Investment Disputes
(ICSID).
International trade law as a system is based on a number of fundamental – primarily economic
– “systemic values”, and the course provides students with the opportunity to develop a
thorough understanding of how these systemic values interact with other global and domestic
policy goals such as environmental and labour standards protection, retaining for the State a
considerable measure of national regulatory autonomy in areas such as health and financial
regulation, and the protection of intellectual property rights.
The course will prepare students for further post-graduate research in the area of international
economic law or indeed for a career with many of the entities that practice international
economic Law (e.g. law firms, governments, international organisations or non-governmental
organisations).
ASSESSMENT TASKS
1. Final Coursework (2,000 words, released in last class and due within one week) – 100%
of total marks
LEARNING METHODOLOGY
International Trade Law applies a ‘Flipped Class’ approach to the student learning experience.
As such, this course features pre-class work and interactive workshops. Pre-class work is
independent and includes textbook readings as well as reflective questionnaires. In the
workshops, the emphasis is on inquiry-based learning, which involves active student
participation in legal problem-solving activities within small groups. These activities build on
the pre-class work, so its completion before each workshop is essential. Overall, this course
requires you to build personal capabilities in professional behaviour, self-direction, team-work,
persuasive discussion and presentation skills.
Outline of the Course:
Seminar 1: An Introduction to the International Trading System: Law and
Policy
Seminar 2: Preferential Trade Agreements and the International Trading
System
Sem 3: Legal & Institutional Aspects of the WTO Part 1
Sem 4: Legal & Institutional Aspects of the WTO Part 2
Sem 5: Most Favoured Nation & National Treatment
Sem 6: Tariffs, Quotas, & General Exceptions
Sem 7: TBT/SPS Agreements
Sem 8: TBT/SPS Agreements
Sem 9: Subsidies
Sem 10: Subsidies/WTO Dispute Settlement
Sem 11: WTO Dispute Settlement
Sem 12: Investment Treaty Arbitration
Sem 13: Trade in Services
Although the course is self-contained (i.e., no prior knowledge of economics or public
international law is required), a basic knowledge of public international law is, however,
important for anyone taking this course. Those who have never studied public international law
before are required to do some background reading. Please read M. Shaw, International Law,
(8th ed., Cambridge University Press 2017), Chapters 1-3 and 5.
It is recommended that you buy as a textbook for the course: Peter Van den Bossche and
Werner Zdouc, The Law and Policy of the World Trade Organization (4th ed., Cambridge
University Press, 2017). Matsushita, Schoenbaum, & Mavroidis, The World Trade
Organization: Law, Practice, and Policy (3rd ed., Oxford, 2016) is also good as an alternative.
Lester, Mercurio & Davies, World Trade Law: Text, Materials and Commentary (3rd ed.,
Bloomsbury 2018) is another alternative as a general textbook though the treatment is light in
some areas. It is however compulsory to purchase for the course: The WTO Agreements: The
Marrakesh Agreement Establishing the World Trade Organization and its Annexes
(Cambridge University Press, December 2017). You should access the WTO case-law either
by us ing the WTO web-page (www.wto.org) or by us ing the web- s i te
(www.worldtradelaw.net).
A great deal of material on the WTO is available on the WTO's website. You should browse
this website and in particular the pages relating to dispute-settlement. The GATT/WTO Texts
and WTO cases indicated as part of the readings are all available from the WTO website. The
WTO cases are also available at: http://www.worldtradelaw.net/
Please note common abbreviations throughout:
JIEL - Journal of International Economic Law
EJIL - European Journal of International Law
WTR- World Trade Review
AJIL - American Journal of International Law
JWT - Journal of World Trade
*denotes compulsory reading for the Seminars.
Seminar 1: An Introduction to the International Trading System: Law
and Policy
Readings:
Van den Bossche & Zdouc, The Law and Policy of the World Trade Organization (4th ed.,
Cambridge University Press, 2017), Chapter 1.
Matsushita, Schoenbaum, & Mavroidis, The World Trade Organization: Law, Practice, and
Policy (3rd ed., Oxford, 2016), Chapter 2.
Further Readings:
Sarooshi, 'Sovereignty, Economic Autonomy, the US, and the International Trading System:
Representations of a Relationship', 15(A) EJIL (20041 p.651.
Charnovitz 'What is International Economic Law', 14(1) JIEL (2011). p.3.
Lang, 'Reconstructing Embedded Liberalism: John Gerard Ruggie and Constructivist
Approaches to the Study of the International Trade Regime', 9(1) JIEL (20061 p. 81.
D. Yigzaw, 'Where the real issue lies: normative conflict between the WTO system and human
rights', 18 International Trade and Business Law Review (2015), p. 18.
Petersmann, 'The WTO Constitution and Human Rights', 3 JIEL (20001 p. 19; but
Cf. Alston, 'Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply
to Petersmann', 13(4) EJIL (20021 p.815.
Heiskanen, 'The Regulatory Philosophy of International Trade Law', 38(1) JWT (2004). p.l.
Lowenfeld, International Economic Law (2nd ed., Oxford, 2008), pp.3-19.
Jackson, The World Trading System (MIT, 1997) pp. 1-30.
Lester, Mercurio & Davies, World Trade Law: Text, Materials and Commentary, Chapter 1 &
19.
Jackson 'The Changing Fundamentals of International Law and Ten Years of the WTO', 8(1)
JIEL (20051 p.3.
Seminar 2: Preferential Trade Agreements and their Relationship to the International
Trading System
Readings:
Van den Bossche & Zdouc, Chapter 10.
Matsushita, Schoenbaum, & Mavroidis, Chapter 14.
Lester, Mercurio & Davies, Chapter 8.
Further Readings:
*Weiler, 'Epilogue: Towards a Common Law of International Trade' in Weiler (ed.), The EU.
the
WTO, and the NAFTA (Oxford, 2000), pp.201-231.
P Apaza Lanyi & A Steinbach, "Promoting Coherence Between PTAs and the WTO Through
Systemic Integration", 20(1) Journal of International Economic Law (2017), p. 61.
R Basedow, 'The WTO and the Rise of Plurilateralism—What Lessons can we Learn from the
European Union's Experience with Differentiated Integration?', 21(2) Journal of International
Economic Law (2018), p. 411.
Cho, 'Breaking the Barrier between Regionalism and Multilateralism: A New Perspective on
Trade
Regionalism', 42 Harvard International Law Journal (20011 p.419.
Trachtman, 'Toward Open Recognition? - Standardization and Regional Integration under
Article
XXIV of GATT', 6(21 JIEL (20031 p.459.
Crump, 'Global Trade Policy Development in a Two-Track System', 9(2) JIEL (20061
p.487.
Zahrnt, 'How Regionalization can be a Pillar of a More Effective World Trade Organization',
39(4)
J#T (20051 p.671.
Mavroidis, 'If I Don't Do It, Somebody Else Will (Or Won't)', 40(1) JTET (20061 p. 187.
Estrella and Horlick, 'Mandatory Abolition of Anti-dumping, Countervailing Duties and
Safeguards in Customs Unions and Free-Trade Areas Constituted between World Trade
Organization Members: Revisiting a Long-standing Discussion in Light of the Appellate
Body's
Turkey-Textiles Ruling', 40(5) JWT (20061 p. 909.
Mavroidis, 'Always look at the bright side of non-delivery: WTO and Preferential Trade
Agreements, yesterday and today', 10(3) ff7K(2011).p.375.
GATT/WTO Texts:
Art XXIV GATT
Turkey - Restrictions on Imports of Textile and Clothing Products, Read Panel Findings; and
whole Appellate Body decision.
Transparency Mechanism for Regional Trade Agreements. Decision of 14 December 2006
(General Council)
The 2018 renegotiation and amendment of NAFTA:
S Lester and I Manak, "The Rise of Populist Nationalism and the Renegotiation of
NAFTA" 21(1) Journal of International Economic Law (2018), p. 151. https;//
www.vox.com/2018/10/2/17923638/usmca-trump-nafta-trade-agreement
https://ustr.gov/trade-agreements/free-trade-agreements/north-american-free-trade-agreementnafta
https://globalarbitrationreview.com/article/1175101/new-nafta-curbs-isds
Seminars 3 & 4: Legal & Institutional Aspects of the GATT/WTO System
Readings:
Van den Bossche & Zdouc, chapter 2.
Matsushita, Schoenbaum, & Mavroidis, Chapters 2-3.
Further Readings:
* Steinberg, 'Judicial Lawmaking at the WTO: Discursive, Constitutional and Political
Constraints',
98(21 AJIL (20041 p.247.
D. Geraets, 'Ensuring Continued Support for the Rules-Based Multilateral Trading System:
Need
for a Public-Private Approach', 21(2) Journal of International Economic Law (2018), p. 433.
T Li & Z Jiang, "Human Rights, Justice, and Courts in IEL: A Critical Examination of
Petersmann's
Constitutionalization Theory", 21(1) Journal of International Economic Law (2018), p. 193.
Ernst-Ulrich Petersmann, "International Economic Law without Human and Constitutional
Rights?",
21(1) Journal of International Economic Law (2018), p. 213.
Bronckers, 'More power to the WTO?' 4(\) JIEL (20011. p.41.
Jackson, 'WTO "constitution" & proposed reforms', 4(1) JIEL (2001). p. 67.
Hilf, 'Power, rules and principles - which orientation for WTO/GATT law?' 4(11 JIEL (20011
p.111.
Blackhurst and Hartridge 'Improving the Capacity of WTO Institutions to Fulfil their Mandate',
7(3)
JIEL (20041 p.705.
Rolland, 'Redesigning the Negotiation Process at the WTO', 13(11 JIEL. p.65-110.
Trachtman, 'The Missing Link: Coherence and Poverty at the WTO', 8(31 JIEL (20051 p.611.
Yigzaw, 'Where the Real Issue Lies: Normative Conflict between the WTO System and Human
Rights', 18 Int'l Trade & Bus. L. Rev. 31 (2015
Wolfe, 'Decision-Making and Transparency in the 'Medieval' WTO: Does the Sutherland
Report have
the Right Prescription?' 8(3) JIEL (20051 p.631.
Trachtman, 'The Constitutions for the WTO', 17(31 EJIL (20061 p.623.
Dunoff, 'Constitutional Conceits: The WTO's 'Constitution' and the Discipline of International
Law',
17(31 EJIL (20061 p.647.
Steger, 'The World Trading System: A New Constitution for the Trading System', in New
Directions in International Economic Law: Essays in Honour of John Jackson, edited by
Bronckers
& Quick, (2000), p. 135.
Kennedy, 'Two Single Undertakings - Can the WTO Implement the Results of a Round?', 41(11
■//EL(20111.p.77.
Liu, Accession Protocols: Legal Status in the WTO Legal System' 48 JWT (20\4) 4. p.751.
Guan, 'Consensus Yet Not Consented: A Critique of the WTO Decision-Making by Consensus'
17
.//EL(201411.p.77.
The changing US approach to the WTO:
https;//ustr.gov/about-us/policv-offices/press-office/press-releases/2018/iune/statementambassador-
robert-e
https;//www.rollcall.com/news/politics/trumps-threat-to-leave-the-wto-alarms-manyevenin-
congress:
https;//www.nytimes.com/2017/12/10/business/wto-united-states-trade.html;
https;//www.chathamhouse.org/expert/comment/trump-has-shown-how-dangerous-heglobal-
tradingsvstem?
gclid=EAIaIOobChMIv67AwLXT30IVvp3tCh35qAESEAMYASAAEgIudfD
BwE
#
Selected primary materials:
Reparation for Injuries, ICJRep. 1949. p. 174 at p. 179.
WTO Case: United States: Import prohibition of shrimp and shrimp products (Brought by
India, Malaysia, Pakistan, Thailand) (the 'Shrimp-Turtle' case), Appellate Body report WT/
DS58/AB/R. 12 October 1998.
Marrakesh Agreement establishing the World Trade Organisation, (1994) in The Legal
Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations: The Legal
Texts, GATT Secretariat (1999)
Understanding on Rules and Procedures Governing the Settlement of Disputes in The
Legal Texts: The Results of the Uruguay Round of Multilateral Trade Negotiations:
The Legal Texts, GTT Secretariat (1999).Seminar 5: Most-Favoured Nation and
National Treatment Principles
(A) The Most-Favoured Nation
Principle
Readings:
Van den Bossche & Zdouc, chapter 4.
Matsushita, Schoenbaum, and Mavroidis, chapter 6.
Jackson, chapter 6.
Further Readings:
Goco, 'Non-Discrimination, 'Likeness', and Market Definition in World Trade
Organization Jurisprudence', 40(2) JWT(2006). p.315.
GATT/WTO Text:
*GATT Article I.
Selected WTO Reports:
Spain-Brazil Unroasted Coffee case: https://www.wto.org/english/tratop_e/dispu_e/gatt_e/
80coffee.pdf
EC - Bananas III. WT/DS27/AB/R.
Canada—Autos. WT/DS139/AB/R.
(B) National Treatment
Principle:
Readings:
Matsushita, Schoenbaum, and Mavroidis, chapter 7.
Van den Bossche & Zdouc, chapter 5.
Jackson, chapter 8.
Further Readings:
Verhoosel, National Treatment and WTO Dispute Settlement: Adjudicating the Boundaries of
Regulatory Autonomy (Hart Publishing, 2002), pp. 1-44.
Porges and Trachtman, 'Robert Hudec and Domestic Regulation: the Resurrection of Aims and
Effects', Journal of World Trade (2003). p.783.
Horn & P.C. Mavroidis, 'Still Hazy after All These Years: The Interpretation of National
Treatment in the GATT/WTO Case-law on Tax Discrimination' 15(1) European Journal of
International Law (2004). p.39.
GATT/WTO Text:
GATT Articles III. XL Ad Article III para 2.
Selected WTO Reports:
European Communities - Measures Affecting Asbestos and Asbestos -Containing Products,
Panel Report. WT/DS135/R and Appellate Body Report. WT/DS135/AB/R.
Japan Taxes on Alcoholic Beverages, WTO Report of the Panel WT/DS8/R and
Report of the Appellate Body WT/DS8/AB/R.
Canada Periodicals. Appellate Body Report. WT/DS31/AB/R.
Korea —Alcoholic Beverases. WT/DS75/AB/R.
Korea — Various Measures on Beef WT/DS161/AB/R.
Seminar 6: Tariffs, Quotas, & General Exceptions
(A) Tariffs and Quotas
Readings:
* Van den Bossche & Zdouc, chapters 6 & 7.
Matsushita, Schoenbaum, and Mavroidis, chapter 8.
Jackson, chapter 5.
The US/China "trade (tariff) war":
'Trump orders further China tariffs' https://www.bbc.co.uk/news/business-45527935
'Under Section 301 Action, USTR Releases Proposed Tariff List on Chinese Products',
https://ustr.gov/about-us/policy-offices/press-office/press-releases/2018/april/undersection-
301-
action-ustr
'Xi Jinping says no one wins in 'cold war,' but Pence won't back down',
https://edition.cnn.com/2018/ll/16/politics/xi-pence-cold-war-apec-intl/index.html
'Trump says U.S. may not impose more tariffs on China', https://www.reuters.com/article/ususa-
trade-china/trump-says-u-s-may-not-impose-more-tariffs-on-china-idUSKCNlNL28Q
'China - Certain Measures Concerning the Protection of Intellectual Property Rights - Request
for consultations by the United States',
https://docs.wto.org/dol2fe/Pages/FE_Search/FE_S_S006.aspx?
Ouerv=(%20@,Svmbol=%20(wt/d s542/
l%20')')&Language=ENGLISH&Context=FomerScriptedSearch&languageUIChanged=true#
Further Readings:
Zedalis, 'The United States/European Communities Biotech Products Case: Opportunity for
World Trade Organization Consideration of Whether Internally Applied Non-Tax Measures
Fall Within the Scope of the General Agreement on Tariffs and Trade Article XI(l)'s Reference
to "Other Measures'", 38(4) JffT(2004). p.647.
De Cordoba, Laird and Vanzetti, 'Blend it Like Beckham-Trying to Read the Ball in the World
Trade Organization Negotiations on Industrial Tariffs', 38(5) JWT (2004). p.773.
GATT/WTO Text:
*GATT 1994: Articles I, II, III, XI. (Also: Articles X, VIII, VII, GATT Customs Valuation
Code
1979, Agreement on Rules of Origin, XII, XVIII, Understanding on Balance of Payments
Provisions,
XIII).
GATT/WTO Reports:
European Communities - Regime For The Importation, Sale And Distribution Of Bananas,
Report of the Appellate Body (WT/DS27/AB/R1
EC — Computer Equipment WT/DS62/AB/R.
Spain - Tariff Treatment of Unroasted Coffee from Brazil L/5135. adopted on 11 June 1981.
28S/102.
Canada - Administration of the Foreign Investment Review Act, (FIRA Case! GATT. 30 Supp
BIDS 140. Panel Report Adopted Feb 7 1984.
Japan - Trade in Semi Conductors. 24th Supp. BIDS 116 (1989) GATT Panel Report. Adopted
May 4 1988.
(B) General Exceptions (developing countries, health, safety, and environment)
Readings:
*Van den Bossche & Zdouc, chapter 20.
Jackson, chapter 9.
Further Readings
Barrels, 'The WTO Legality of the EU's GSP+ Arrangement', 10 (4)JIEL (20071 p. 869.
Wardhaugh, 'GSP+ and Human Rights: Is the EU's Approach the Right One?', \6 JIEL 4 (20\3).
p.827.
GATT/WTO texts:
GATT Article XX. XI.
GATT Enabling Clause (text contained, for ease of reference in EC case (below),
WT/DS246/AB/R.
GATT/WTO Reports:
United States — Import Prohibitions of Certain Shrimp and Shrimp Products, Panel
Report. WT/DS58/R. and Appellate Body Report. WT/DS58/AB/R.
European Communities - Measures Affecting Asbestos and Asbestos -Containing Products,
Panel Report. WT/DS135/R and Appellate Body Report. WT/DS135/AB/R.
United States - Standards for Reformulated and Conventional Gasoline, complaints by
Venezuela (WT/DS2) and Brazil (WT/DS4) Report of the Appellate Body, DSR 1996:1, 3.
EC- Conditions for the Granting of Tariff Preferences to Developing Countries case.
WT/DS246/AB/R. 7 April 2004.
Brazil - Measures Affecting Imports of Retreaded Tyres, Panel and Appellate Body Report.
WT/DS332
US— Gasoline. WT/DS2/AB/R.
EC-Measures Prohibiting the Importation and Marketing of Seal Products. WT/DS400/AB/R.
Seminars 7 & 8: The SPS & TBT Agreement
Readings:
Van den Bossche, chapters 13 & 14.
Matsushita, Schoenbaum, & Mavroidis, Chapter 13.
Further TBT Readings:
*R Howse, "A New Device for The WTO Technical Barriers to Trade Agreement and
'International Standards', in Christian Joerges and Ernst-Ulrich Petersman (eds),
Constitutionalism, Multilevel Trade Governance and International Economic Law (Hart
Publishing, 2011).
*MM Du, "Domestic Regulatory Autonomy under the TBT Agreement: From Non-
Discrimination
to Harmonization", 6 (2) Chinese JIL (2001).
MM Du, "Reducing Product Standards Heterogeneity through International Standards in the
WTO: How Far Across the River?" 44 (2) Journal of World Trade (20101. 295-318.
A Davies, 'Technical Regulations and Standards under the WTO Agreement on Technical
Barriers to Trade' (2014) 41 Legal Issues of Economic Integration. 1. pp. 37-63.
R Howse & P Levy, 'The TBT Panels: US-Cloves, US-Tuna, US-COOL' 12 WTR (2)
(20131 327-375.
Schebesta and Sinopoli, 'The Potency of the SPS Agreement's Excessivity Test: The Impact of
Article 5.6
on Trade Liberalization and the Regulatory Power of WTO Members to take Sanitary and
Phytosanitary
Measures', 21(1) Journal of International Economic Law (2018), p. 123.
GATT/WTO Text:
* TBT Agreement
TBT WTO Reports:
EC- Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R (12
March 2001)
European Communities- Trade Descriptions of Sardines, WT/DS231/AB/R (26 September
2002)
United States- Measures Concerning the Importation, Marketing and Sale of Tuna and Tuna
Products, WT/DS3 81/AB/R (16 May 2012).
Australia - Plain Packaging of Tobacco Products case, Report of the Panels, WT/DS435/R,
WT/DS441/R WT/DS458/R, WT/DS467/R, 28 June 2018.
United States — Certain Country of Origin Labelling (COOL) Requirements, WT/DS3 84/AB/
R (29 June 2012).
United States- Measures Affecting the Production and Sale of Clove Cigarettes, WT/DS406/
AB/R (4 April 2012).
Further SPSReadings:
Fisher, Risk Regulation and Administrative Constitutionalism (2007), Chapter 5.
J. Scott, The WTO Agreement on Sanitary and Phytosanitary Measures (2007), Chapters 1 & 3.
Mavroidis, 'Trade and Environment after the Shrimps-Turtle Litigation', 34 Journal of World
Trade (JWT) (February 20001 p.73.
Pauwelyn, 'The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures', 2 Journal of
International Economic Law (JIEL) (Dec 19991 p.641.
Wouters & Geraets, 'Private Food Standards and the World Trade Organization: Some Legal
Considerations', 11 (3) WTR (20121 p.479.
C. Foster, 'Public Opinion and the Interpretation of the World Trade Organisation's
Agreement on Sanitary and Phytosanitary Measures', 11(2) JIEL (2008). p.427.
Quick and Bluthner, 'Has the Appellate Body Erred? An Appraisal and Criticism of the
Ruling in the WTO Hormones Case', 2 JIEL (Dec 19991 p.603.
Mayeda, 'Developing Disharmony? The SPS and TBT Agreements and the Impact of
Harmonization on Developing Countries', 7(4) JIEL (20041 p.737.
Green, 'Climate Change, Regulatory Policy and the WTO: How Constraining Are Trade
Rules?',
8(lU7EL(20051p.l43.
Motaal, 'The "Multilateral Scientific Consensus" and the World Trade Organization', 38(5) JWT
(20041 p.855.
Loppacher, 'The Efficacy of World Trade Organization Rules on Sanitary Barriers: Bovine
Spongiform Encephalopathy in North America', 39(31 JWT(20051 p.427.
Motaal, 'Is the World Trade Organization Anti-Precaution?', 39(3) JWT(20051 p.483.
Goh, 'Tipping the Apple Cart: The Limits of Science and Law in the SPS Agreement after
Japan—Apples', 40(41 JTET (20061 p.655.
Cheyne, 'Risk and Precaution in World Trade Organization Law', 40(5) JWT (20061
p.837.
SPS: GATT/WTO Text:
*Agreement on the Application of Sanitary and Phytosanitary Measures Agreement on
Technical Barriers to Trade
SPS: WTO Reports:
European Communities - Measures Affecting Meat and Meat Products (Hormones), Panel
Report. WT/DS26 and Appellate Body Report. WT/DS26/AB/R.
Australia - Measures Affecting the Importation of Salmon, complaint by Canada, Panel Report.
WT/DS18 and Appellate Body Report. WT/DS18/AB/R. adopted 6 November 1998.
European Communities - Measures Affecting Asbestos and Asbestos -Containing Products,
Panel Report. WT/DS135/R and Appellate Body Report. WT/DS135/AB/R.
Japan — Agricultural Products II, WT/DS76/AB/R.
EC-GMO, Panel Report, WT/DS291. WT/DS292 and WT/DS923, 29 September 2006, (read
the summary of the dispute; and from the very large Panel Report only the Findings of the
Panel).
Seminar 9:
Subsidies Readings:
Van den Bossche & Zdouc, chapter 12
Matsushita, Schoenbaum, & Mavroidis, Chapter 10.
Lester, Mercurio & Davies, chapter 10
Jackson, chapters 10 & 11. Lowenfeld,
pp. 199-241.
Further Readings:
Sarooshi. 'Sovereignty. Economic Autonomy, the US. and the International Trading System:
Representations of a Relationship'. 15(4) European Journal of International Law (2004).
p.651.
Hoda and Ahuja. 'Agreement on Subsidies and Countervailing Measures: Need for
Clarification and Improvement'. 39(61 JWT(2005X p. 1009
*Rubini. 'Ain't Wastin' Time No More: Subsidies for Renewable Energy. The SCM Agreement.
Policy Space, and Law Reform'. 15(2) JIEL (20121 p.525.
Henschke. 'Going it alone on climate change A new challenge to WTO subsidies disciplines:
are
subsidies in support of emissions reductions schemes permissible under the WTO'. 11(1) WTR
(20121 p.27.
Steinberg and Josling. 'When the Peace Ends: The Vulnerability of EC and US Agricultural
Subsidies to WTO Legal Challenge'. 6(21 JIEL (20031 p.369.
Ya Oin. 'WTO Regulation of Subsidies to State-Owned Enterprises (SOEs) - A Critical
Appraisal
of the China Accession Protocol'. 7(41 JIEL (20051 p. 863.
Magnus. 'World Trade Organization subsidy discipline: is this the "retrenchment round" ?'.
38(6)
J#T (20041 p.985.
Collins & Salembier, 'International Disciplines on Subsidies: The GATT, the WTO and the
Future
Agenda', 30:1 JWT(Fob. 1996), p.5.
Cross. 'King Cotton. Developing Countries and the 'Peace Clause': The WTO's US Cotton
Subsidies
Decision'. 9(1) JIEL (20061 p. 149.
Fukunaga. 'Securing Compliance Through the WTO Dispute Settlement System:
Implementation of
DSB Recommendations'. 9(21 JIEL (20061 p.383.
GATT/WTO Texts:
GATT 1994: Articles VI, XVI
Agreement on Implementation of Article VI of GATT 1994
Agreement on Subsidies and Countervailing Measures
Decisions and Declaration Related to the Agreement on the Implementation of Article VI of
GATT
1994
WTO Reports:
* Indonesia - Certain Measures Affecting the Automobile Industry, Panel Report. WT/DS55.
Australia - Subsidies Provided to Producers and Exporters of Automotive Leather case, WT/
DS126/R 25 May 1999.
US - Definitive Anti-Dumping and Countervailing Duties on Certain Products from China,
Appellate Body Report. WT/DS379/AB/R, 11 March 2011
Brazil - Export Financing Programme for Aircraft case, Panel (WT/DS46/R) and Appellate
Body (WT/DS46/AB/R) decisions.
US - Imposition of Countervailing Duties on Certain Hot-Rolled Lead and Bismuth Carbon
Steel Products Originating in the United Kingdom case (the 'Hot Rolled Lead case'), WT/DS/
13 8/R. 1999; and Hot Rolled Lead case, WT/DS/13 8/AB/R. 2000.
* US - Countervailing Measures Concerning Certain Products from the European
Communities
(Hot Rolled Lead II), 9 December 2002, (WT/DS/212/AB/R).
United States - Tax Treatment for 'Foreign Sales Corporations", WT/D S10 8/AB/R. para. 90.
Canada - Certain Measures Affecting the Automotive Industry, WT/DS/139/AB/R. para.91.
EC - Measures Affecting Trade in Large Civil Aircraft, Panel (WT/DS316/R) and Appellate
Body
(WT/DS316/AB/R)
US' - Measures Affecting Trade in Larger Civil Aircraft (2nd Complaint), Panel (WT/DS/353/
R) and
Appellate Body (WT/DS/353/AB/R)
Canada - Measures Relating to the Feed-in Tariff Program, Panel (WT/DS412-416/R) and
Appellate Body (WT/DS412-416/AB/R)
Seminars 10-11: WTO Dispute Settlement
Readings:
Van den Bossche & Zdouc, Chapter 3.
Lester, Mercurio & Davies, Chapter 5.
Matsushita, Schoenbaum, & Mavroidis, Chapter 4.
Further Readings:
Heiskanen, 'The Regulatory Philosophy of International Trade Law', 38(1) ./EFT (2004). jxL
Jackson, 'International Law Status of WTO Dispute Settlement Reports: Obligation to Comply
or Option to "Buy Out"?', 98(1) AJIL (2004). p.109.
Sarooshi, International Organizations and Their Exercise of Sovereign Powers (2005, OUP),
pp.95-100.
Steinberg, 'Judicial Lawmaking at the WTO: Discursive, Constitutional and Political
Constraints', 98(2) AflL (2004). p.247.
Sutherland Report.
Sarooshi, 'The Future of the WTO and its Dispute Settlement System', Vol 2(1) International
Organizations Law Review (2005). p. 129.
Matsushita, 'The Sutherland Report and its Discussion of Dispute Settlement Reform', 8(3)
JIEL (2005).p.623.
J Kurtz, 'The Use and Abuse of WTO Law in Investor-State Arbitration: Competition and its
Discontents', 20(3) The European Journal of International Law (2009). p.749.
Davey 'The Sutherland Report on Dispute Settlement: A Comment', 8(2) JIEL (2005). p.321.
Mavroidis, 'Amicus Curiae Briefs Before The WTO: Much Ado About Nothing'. Jean Monnet
Working Papers, 2001. Davey, 'The WTO Dispute Settlement System: The First Ten Years',
8(1) JIEL (2005). p. 17.
Flett, 'Collective Intelligence and the Possibility of Dissent: Anonymous Individual Opinions in
WTO Jurisprudence' (2010)13 (2)JIEL 287
Vidigal, 'Re-Assessing WTO Remedies: The Prospective and the Retrospective', \6JIEL 3
(2013)
p.505.
Other GATT/WTO Texts:
GATT 1994, Articles XXII - XXXV
Marrakesh Agreement Establishing the World Trade Organisation ("WTO Charter") Trade
Policy
Review Mechanism (WTO Charter, Annex 3)
*Understanding on Rules and Procedures Governing the Settlement of Disputes (WTO
Charter. Annex 2).
Selected WTO Reports:
United States - Import Prohibitions of Certain Shrimp and Shrimp Products, Panel Report.
WT/DS58/R. and Appellate Body Report. WT/DS58/AB/R.
European Communities - Measures Affecting Asbestos and Asbestos-Containing Products,
Panel Report. WT/DS135/R and Appellate Body Report. WT/DS135/AB/R.
European Communities -Measures Affecting Meat and Meat Products (Hormones), Panel
Report. WT/DS26 and Appellate Body Report. WT/DS26/AB/R.
European Communities - Regime For The Importation. Sale And Distribution Of Bananas.
Report of the Appellate Body: WT/DS27/AB/R. 25 September 1997
Seminar 12: Investment Treaty Arbitration
Readings:
Convention on the Settlement of Investment Disputes between States and Nationals of Other
States
R. Dolzer and C. Schreuer, Principles of International Investment Law 2nd ed. (2012)
C Schreuer et al, The ICSID Convention: A Commentary (2009)
Sarooshi, 'Investment Treaty Arbitration and the World Trade Organization: What Role for
Systemic Values in the Resolution of International Economic Disputes?', 49 Texas
International Law Journal 3 (2014V
Frank J. Garcia, Lindita Ciko, Apurv Gaurav, Kirrin Hough, Reforming the International
Investment Regime: Lessons from International Trade Law 18(4) J Int Economic Law (2015),
p.861.
Sarooshi and Volterra, 'The resolution of investment disputes by arbitration: risks facing host
States', 33 (\) Butterworths Journal of International Banking and Financial Law (2018) 12.
On investment treaty arbitration, a very helpful resource is the ITA web-site (https ://www.
italaw. com) where you can find most of the cases by using the "Search" function in the menu
bar.
Please also consult of course the ICSID web-site which contains a number of the cases: https://
icsid.worldbank.org/en/Pages/icsiddocs/ICSID-Convention.aspx as well as the Oxford
University Press "Investment Claims" website which can be accessed through Oxlip.
Selected jurisdiction issues of investment treaty arbitrations (the cases listed below can be
obtained from the ITA and ICSID websites cited above):
Jurisdiction ratione personae: rights of shareholders: Siemens AG v. Argentine Republic,
ICSID Case No. ARB/02/8, Decision on Jurisdiction, 3 August 2004; Enron Corporation
and Ponderosa Assets v. Argentine Republic, ICSID Case No. ARB/01/3, Decision on
Jurisdiction, 14 January 2004; and Noble Energy v. Ecuador, ICSID Case No. ARB/05/12,
Decision on Jurisdiction, 5 March 2008,
Jurisdiction rationae materiae:
The inherent concept of an investment in Article 25 ICSID: the "Salini test": Salini v.
Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July 2001. The
application of the Salini test by non-ICSID arbitral tribunals: Invesmart v. Czech
Republic, Award, 26 June 2009, UNCITRAL; and White Industries Australia
Limited v. The Republic of India, Final Award, dated 30 November 2011,
UNCITRAL; and cf Romak SA (Switzerland) v. The Republic of Uzbekistan, Award,
26 November 2009 (PCA Case No. AA280); and Alps Finance and Trade AG v. The
Slovak Republic, Award, 5 March 2011 (UNCITRAL).
Minority shareholding as an investment: CMS Gas Transmission Co v Argentine
Republic, ICSID Case No ARB/01/8, Decision on Annulment, 25 September 2007; and
Sempra Energy International v Argentine Republic, ICSID Case No ARB/02/16,
Decision on Annulment, 29 June 2010; and Roslnvest Co UK Ltd v Russian
Federation, SCC Case No V(079/2005), Final Award, 12 September 2010.
* Jurisdiction rationae temporis: the issue of time-bars, e.g. Articles 1116(2)-1117(2) of the
NAFTA: Teemed v. Mexico, ICSID Case No. ARB(AF)/00/2, Award, 29 May 2003, 10
ICSID
Reports 130; United Parcel Service of America v. Government of Canada
(UNCITRAL) Award on the Merits, 24 May 2007 and cf. Grand River Enterprises Six
Nations, Ltd, et al. v. United States of America, UNCITRAL, Award, 12 January 2011.
Seminar 13: The General Agreement on Trade in Services
Readings:
* Matsushita, Schoenbaum, and Mavroidis, chapter
16. Lowenfeld, pp. 117-142.
Further Readings:
Altinger and Enders. "The Scope and Depth of GATS Commitments'. 19:3 The World Economy
(19961 p.307.
Hartridge, Kaul and Odarda, eds., Handbook of GATS Commitments - Trade in Services Under
the
WTO (2003).
Sarooshi, 'Commonwealth Developing Countries and the WTO Telecommunications Regime'
in
Multilateral and Regional Trade Issues for Developing Countries (Turner and Grynberg, eds.)
(2003), p.9.
Bronckers and Larouche, 'Telecommunications Services and the World Trade Organisation',
31:3
J#T(1997),p.5.
Mattoo, 'National Treatment in the GATS: Corner-Stone or Pandora's Box?', 31:1 JWT (1997),
p.107.
Sauve, 'Assessing the General Agreement on Trade in Services', 29:4 JWT (1995), p. 125.
Wang, 'MFN Treatment Under the General Agreement on Trade in Services and its Application
in
Financial Services', 30:1 JWT'(1996), p.91.
Lang. 'The GATS and Regulatory Autonomy: A Case Study of Social Regulation of the Water
Industry'. 7(4) JIEL (20051 p.801.
Muselli and Zarrilli. 'Oil and Gas Services: Market Liberalization and the Ongoing GATS
Negotiations'. 8(21 JIEL (20051 p.551.
Luff. 'Telecommunications and Audio-visual Services: Considerations for a Convergence
Policy at
the World Trade Organization Level'. 38(6) JWT(20041 p.1059.
Adlung and Roy. 'Turning Hills into Mountains? Current Commitments Under the General
Agreement on Trade in Services and Prospects for Change'. 39(6) JWT(20051 p. 1161.
Fox. 'The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and
Competition'. 9(2) JIEL (20061 p.271.
Adlung. 'Public Services and the GATS'. 9(2) JIEL (2006). p.455.
Lapid. 'Outsourcing and Offshoring Under the General Agreement on Trade in Services'. 40(2)
JWT
(20061 p.341.
Delimatsis. 'Due Process and 'Good' Regulation Embedded in the GATS - Disciplining
Regulatory
Behaviour in Services Through Article VI of the GATS' 10(1) JIEL (2007). p. 13.
WTO, Guide to reading the GATS Schedules of Specific Commitments and the Lists of Article
II
(MFN) Exemptions.
G, Gari, Is the WTO's Approach to International Standards on Services
Outdated?
19(3) J Int Economic Law (2016), p.589.
WTO Texts:
WTO Agreement Annex IB: General Agreement on Trade in Services & Decisions Relating to
the
GATS
WTO Council for Trade in Services, Fourth Protocol to the GATS, S/L/20, 1996
WTO Council for Trade in Services, Decision on Commitments in Basic Telecommunications,
S/L/19, 1996
* WTO Group on Basic Telecommunications, Reference Paper on Regulatory Principles, 24
April
1996, available on WTO website.
WTO reports:
Mexico - Measures Affecting Telecommunications Services - Panel Report. WT/DS204/R (facts
and findings of Panel only), 2004.
United States - Measures Affecting the Cross-border Supply of Gambling and Betting Services
-Panel Report. WT/DS285/R (facts and findings of Panel only), 2004, Appellate Body Report.
WT/DS285/AB/R.
Canada—Autos, WT/DS139/AB/R.
EC — Bananas III, WT/DS27/AB/R.
Canada Periodicals case, Appellate Body Report. WT/DS31/AB/R.
Seminar Questions
Seminar 1 Brief Outline: An Introduction to the International Trading System
1. The debate surrounding international trade and its role in political and economic
globalisation.
2. The objective of international trade law.
3. The main types of regulatory measures that impede trade and their effects.
4. The core principles of international trade law: Free Trade and the MFN and NT
principles.
5. The role and importance of trade liberalisation and its relation to the present WTO
Agreements.
6. What the WTO wants to be when it grows up: the concept of a Free Trade Area.
7. Ways of conceiving a Free Trade Area (FTA): top-down (imposed by States) and
bottom-up (achieved by traders).
8. Why do States enter into FTA agreements?
9. The “theology” of international trade law: the principle of Free Trade and its role in the
promotion of efficient production and the creation of maximum global wealth.
10. What Free Trade is not about: the distribution of productive resources or wealth.
11. The relationship between the principles of Comparative Advantage and Free Trade.
12. What are the challenges to Comparative Advantage (CA) and Free Trade as the
underpinnings of the international trading system?
• CA is based on a perfectly competitive economy which doesn’t exist in practice.
• The role of the government in changing conditions of CA within a State and the
difficulties posed by the WTO disciplines on subsidies.
• The adverse effect domestically of CA – e.g. wages and employment levels
within a State; and the “race to the bottom” in terms of environment and labour
standards that may be compromised by a government in order to ensure a low
cost of production.
• The “imposition” of cultural homogeneity.
• Infant industry objections.
13.Your conclusionSeminar 2 Brief Outline: Preferential Trade Agreements (PTAs) and
their Relationship to the International Trading System
1. PTAs and the International Trading System: Regional Customs Unions and Free Trade
Agreements.
2. Why do we need an Article 24 derogation in the GATT for PTAs?
3. What are the conflicting policy and legal objectives that Article 24 of the GATT seeks to
balance?
4. What are the economic and political objections to PTAs?
5. To what extent have these objections been met by Article 24?
6. Why are PTAs allowed within the multilateral trading system as embodied in the WTO
Agreements?
7. The renegotiation and amendment of NAFTA
8. What are the component elements of RCUs and FTAs as permitted by the WTO?
9. To what extent and in what circumstances can an RCU be formed in a way that is
incompatible with a State’s existing GATT obligations? The WTO Turkey-India case.
Seminars 3 & 4 Brief Outline: Legal & Institutional Aspects of the WTO
1. What was the envisaged relationship between the International Trade Organization (ITO)
and the GATT? Why did the ITO not emerge as an organization? How did the GATT
have force as a treaty despite it not formally entering into force?
2. How did the GATT evolve into a functioning quasi-organization despite the absence of
the ITO? Consequences for the relationship between the GATT Secretariat and Member
States.
3. The evolution of GATT dispute settlement and Article 23 (2) of the GATT.
4. The increased liberalization of trade and the GATT Secretariat. The 8 Negotiating Rounds
and the issue of Non-Tariff Barriers.
5. “GATT â-lá-cartè”: What legal problems do the GATT Side-Codes raise?
6. The Uruguay Round Agreements “single package” approach. The relationship between
GATT 1947, GATT 1994, and the WTO: the shift from a power-based system to a rulesbased
system.
7. How does the WTO as an Organization function vis-à-vis the WTO Agreements? To what
extent does the trade compliance function affect the trade liberalization function of the
WTO?
8. When can an International Organization be said to possess International Legal
Personality?
9. What powers and duties flow from the possession of such Personality? The ICJ UN
Reparations case.
10. To what extent does the WTO possess International Legal Personality? What
consequences does this have for relations between the WTO and its Member States?
11. To what extent can the WTO Agreements be characterised as a “constitution” for world
trade?
12. What are the arguments made by those in favour of the constitutional character of the
WTO Agreements and to what extent do they possess cogency?
13. What values – and therefore constituencies – does the WTO promote to the detriment of
others?
14. To what extent should the WTO be a forum for the balancing of trade and non-trade
values?
15. The changing US approach to the WTO
Seminar 5 Brief Outline: Basic Principles & Core Concepts of the WTO I: MFN &
NT Principles
(A) Most Favoured Nation Treatment Principle
16. What are the advantages and disadvantages from a systemic perspective of an MFN
obligation being multilateral rather than bilateral in nature?
17. The different approach to MFN afforded by adopting the perspective of the individual State:
(1) the possibility of an “efficient” MFN violation; (2) the role of the legislative and judicial
arms of domestic government.
18. What is the content and scope of coverage of the WTO MFN obligation?
• The concept of “like product”.
(i) Importance of the concept for determining the application of the value of equality
which underlies MFN.
(ii) Why would a State wish to discriminate against “like products”?
(iii) The problem of establishing rules on the basis of which products may be
differentiated. What factors should be taken into account? Detailed consideration of the
principles in the Canada-Autos WTO case and Spain-Brazil Coffee GATT case.
(iv) The Harmonized Code System – the International Convention on Harmonized
Commodity Description and Coding System.
• The meaning of “advantage” in Article I of GATT 1994. Detailed consideration of the EC
– Bananas III case (Panel and Appellate Body).
• The object and purpose of Article I (1). Canada – Autos case (Appellate Body, para.84).
• To what extent does the MFN obligation extend to de jure as well as de facto
discrimination? Detailed consideration of the principles in the Canada-Autos case.
• To what extent do GATT exceptions to MFN render the obligation illusory? What
systemic problems are posed by the specific and general exemptions under the GATT?
(B) National Treatment Principle
19. What are the objects and purposes of the NT principle contained in Article III (1), III(2), and
III(4) of GATT 1994?
20. The NT principle and the issue of the application of the value of equality: What are the
different approaches to determining the “likeness” of products in Articles III(2) and (4) of
GATT 1994?
• To what extent does “likeness” depend solely on the products themselves? The
physical properties approach: detailed consideration of the principles in the Japan
Alcoholic Beverages case.
• To what extent should there be a role for the market in determining “likeness”? The
directly competitive or substitutable products test: detailed consideration of the principles
in the Japan Alcoholic Beverages case and Korea Alcoholic Beverages case.
• To what extent should consumer habits and tastes be taken into account when
determining “likeness”? Detailed consideration of the principles in the EC-Canada
Asbestos case.
21. To what extent should Article III apply beyond the product itself to include the method or
process of its production?
Seminars 6-7 Brief Outline: Tariffs, Quotas, and General Exceptions
1. Tariffs under the WTO
• the concept of a tariff as a tax and its distributive effects for an economy and for
traders
• binding and non-binding tariffs
• the WTO framework – Article 2 and MFN
2. The US-China Trade (Tariffs) War
3. Quotas under the WTO
• the distributive effects of a quota for traders
• the negative consequences of a quota for traders
• the WTO framework – Articles 11 & 13
4. General Exceptions under Article XX of the GATT
• The chapeau of Article XX and the three standards that must not be violated:
- what is arbitrary discrimination
- what is unjustifiable discrimination
- what is a disguised restriction on international trade
- assessment of these standards as expounded and clarified in the Shrimp Turtle case
(Appellate Body)
• The exception to protect health: Article XX (b)
- Article XX (b) and the ‘necessity test’.
- what discretion is left to the domestic regulator? The role of values?
- assessment of the treatment of Article XX (b) in the Korea-Beef and Asbestos cases
• The exception to protect the environment: Article XX (g)
- what is an ‘exhaustible natural resource’?
- when can a ‘measure’ be said to ‘relate to’ the conservation of an exhaustible natural
resource?
- how should a national measure that discriminates against trade treat domestic
production or consumption?
- assessment of the treatment of Article XX (g) in the Shrimp Turtle and US –
Gasoline cases.
Seminar 8-9 Subsidies
1. The concept of a subsidy
2. The Subsidies and Countervailing Measures (SCM) Agreement and the tension between (i)
constraints on governments in order to protect and promote free trade and (ii) national
regulatory autonomy of governments.
3. The approach to economic policy encapsulated in the SCM Agreement: the value of
‘corporate economic autonomy’.
4. The SCM Definition of a Subsidy: e.g. Brazil – Export Financing Programme for Aircraft
case, Appellate Body, para.157.
• What constitutes a ‘government or any public body’? US – AD/CVDs (China). • What is a
financial contribution?
(i) A direct transfer of funds: e.g. Australia – Subsidies Provided to Producers and
Exporters of Automotive Leather case.
(ii) (ii) Government revenue that is otherwise foregone: e.g. US – Foreign Sales
Corporation case and Canadian Certain Measures Affecting the Automotive
Industry case.
(iii)(iii) Government-directed provision of goods or services: US - Measures Treating
Export Restraints as Subsidies case.
• When is there a ‘benefit’? Canada - Measures Affecting the Export of Civilian Aircraft case
and US – Hot Rolled Lead cases.
5. The Categories of Subsidy
• The concept of Specificity
• The category of Prohibited Subsidies: export subsidies and local content subsidies:
e.g. Australia - Subsidies Provided to Producers and Exporters of Automotive Leather
case and US – Foreign Sales Corporation case.
Seminars 10-11 Brief Outline: WTO Dispute Settlement
1. Why is the WTO dispute settlement system (DSS) a quasi-judicial and not judicial system
of dispute settlement?
2. To what extent does the DSS make law? The relationship between the Dispute Settlement
Body and the WTO political organs.
3. The Dispute Settlement Body and the adoption of Panel and Appellate Body reports: the
reverse consensus rule.
4. The move from the power-based system of the GATT to the rules-based system of the
WTO.
5. Why did the most powerful economic power, the United States, push for the
establishment of a binding DSS during the Uruguay Round?
6. The development of ICSID Dispute Settlement
7. WTO Dispute Settlement compared to ICSID Dispute Settlement
8. The process of establishment of a Panel and the importance of the Consultation Phase.
9. The initial stages of the Panel phase of a case.
• Mandate of the Panel
• Selection of Panellists
• The requirement of “measures” to be addressed by a Panel and changes to or the
termination of such measures before the Panel hearings
10. How has the DSS treated the submission of amicus curiae briefs? In your view, to what
extent, if at all, should amicus curiae briefs be allowed in the DSS?
11. The Appellate Body phase of a case: selected issues:
• Remand authority?
• Recommendations and Rulings
12. Developing country participation in the DSS: current practice and prospects.
13. Selected possible areas of DSS reforms:
• Remedies
• Panels and Appellate Body: permanent panellists and AB term extension
• Amicus curiae briefs
• Compliance
• Compensation
• Retaliation
14. Why has the US changed its approach to WTO Dispute Settlement?
Seminar 12 Brief Outline: Investment Treaty Arbitration
15. WTO Dispute Settlement compared to Investment Treaty Arbitration:
The role of systemic values?
National regulations relating to the environment and dispute settlement
The applicable law used to resolve disputes
The issue of remedies
The issue of amicus curiae submissions
16. Selected jurisdictional issues of investment treaty arbitrations:
• Jurisdiction ratione personae: rights of shareholders: Siemens AG v.
Argentine Republic, ICSID Case No. ARB/02/8, Decision on Jurisdiction, 3
August 2004; Enron Corporation and Ponderosa Assets v. Argentine Republic,
ICSID Case No. ARB/01/3, Decision on Jurisdiction, 14 January 2004; and Noble
Energy v. Ecuador, ICSID Case No. ARB/05/12, Decision on Jurisdiction, 5
March 2008,
• Jurisdiction rationae materiae:
- The inherent concept of an investment in Article 25 ICSID: the “Salini test”:
Salini v. Morocco, ICSID Case No. ARB/00/4, Decision on Jurisdiction, 23 July
2001.
- The application of the Salini test by non-ICSID arbitral tribunals: Invesmart v.
Czech Republic, Award, 26 June 2009, UNCITRAL; and White Industries
Australia Limited v. The Republic of India, Final Award, dated 30 November
2011, UNCITRAL; and cf. Romak SA (Switzerland) v. The Republic of
Uzbekistan, Award, 26 November 2009 (PCA Case No. AA280); and Alps
Finance and Trade AG v. The Slovak Republic, Award, 5 March 2011
(UNCITRAL).
- Minority shareholding as an investment: CMS Gas Transmission Co v
Argentine Republic, ICSID Case No ARB/01/8, Decision on Annulment, 25
September 2007; and Sempra Energy International v Argentine Republic,
ICSID Case No ARB/02/16, Decision on Annulment, 29 June 2010; and
RosInvest Co UK Ltd v Russian Federation, SCC Case No V(079/2005),
Final Award, 12 September 2010.
• Jurisdiction rationae temporis: the issue of time-bars, e.g. Articles
1116(2)-1117(2) of the NAFTA: Tecmed v. Mexico, ICSID Case No. ARB(AF)/
00/2, Award, 29 May 2003, 10 ICSID Reports 130; United Parcel Service of
America v. Government of Canada (UNCITRAL) Award on the Merits, 24 May
2007 and cf. Grand River Enterprises Six Nations, Ltd, et al. v. United States of
America, UNCITRAL, Award, 12 January 2011.
Orario di ricevimento
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