Archive for international trade law

Lunchtime Talk: Listening to What Developing Countries Say in Disbelief: Robert E. Hudec’s Complex Legacy by Prof. C.L. Lim (HKU)

Posted in Discussion Papers and Commentary, Upcoming Events and Announcements with tags , , , , on February 10, 2009 by jeremyleong

FILA…, in association with the Fletcher School‘s International Law Society, invites you to a lunchtime talk by Prof. C.L. Lim, Professor of Law and Associate Dean at Hong Kong University.

 

*LISTENING TO WHAT DEVELOPING COUNTRIES SAY IN DISBELIEF: ROBERT HUDEC’S COMPLEX LEGACY*

by

Prof. C. L. Lim, Professor of Law and Associate Dean, Hong Kong University Law School

With a special introduction by Prof. Joel P. Trachtman, Professor of International Law, The Fletcher School

*
Lunch shall be provided

Date/Time: 5th March 2009/12.45 pm to 2.30 pm

Venue: The Crowe Room, The Fletcher School of Law & Diplomacy

Kindly RSVP to Jeremy Leong at jeremy.leong@tufts.edu <mailto:jeremy.leong@tufts.edu> (places are limited)

Prof. Lim will speak on international trade law and distributive justice in the development context. In what he terms as the “conventional morality” of trade, Prof. Lim will address existing theories on trade law and developing countries and revisit the legacy of the late Robert E. Hudec. In so doing, build a new paradigm in understanding both the receptiveness and the bias today against arguments about right and wrong in trade law and policy.

More information on the event and the speaker may be found at http://fletcher.tufts.edu/FILA/pdf/Fletcher_5March2009.pdf.

 

 

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Fragmentation of International Law: Dispute Settlement

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , , , on February 3, 2009 by jeremyleong

Here is a new angle for the fragmentation of international law discussion, in particular how individual international tribunals deal with fragmentation. Ruti Teitel and Robert Howse in “Cross-judging: Tribunalization in a Fragmented but Interconnected Global Order” argue against studying tribunalization in an aggregate quantitative assessment. Instead, they advocate a deeper qualitative study of whether tribunalization and fragmentation “introduces new dissonances and points in different and perhaps conflicting normative and institutional directions” to individual tribunals.  

 

In canvassing international human rights tribunals and international economic law tribunals, they find:-

 

Instead international legal order will resemble the messy porous multiple value and constituency politics of democratic pluralism, which is nevertheless underpinned by a more absolutist baseline commitment to the preservation of the human as such. This may still be in a sense fragmentation, but in mirroring non- or anti-hierarchical democratic pluralism this kind of fragmentation enhances rather than menaces international law’s claim to legitimacy… Tribunalization can come to sight both in “humanity law” and in international economic law as an attempt to purify international legal regimes from “politics”-a response to the international law skeptics’ claim or suspicion that international law is just an epiphenomenon or a justificatory rhetoric for power politics.”

 

My view is less hopeful. Teitel and Howse accept the limits of the assumption that “(t)ribunalization means depoliticization.” Tribunalization only leads to a new level of political game with new constraints. Yet, they accept that tribunalization and fragmentation need not be a problem so long as there remains a “commitment to openness in the project of legal hermeneutics” – a praxis driven,

construction and evolution of legal order, whether domestic or international.  

 

At the extreme, this is not merely constructivism but a form of “uber-constructivism”. To extend Wendt’s oft quoted observation that states do not know what they want, Teitel and Howse are postulating that tribunals do not know what they want. This ignores a simple legal and political fact of life for tribunals. Tribunals are creatures of consent and are bound by that consent. Their mandates are spelt out by treaty. Simply put, tribunals are told what they should want. Yes, I agree that sometimes this instruction is not spelt out all that clearly. However, to assume that states parties to dispute settlement treaties have themselves a collective commitment to openness in the project of legal hermeneutics” jumps too many analytical steps.

 

At their most conservative, Teitel and Howse may just be advocating for some sort of universalist interpretative technique which results in harmonization. To date, this exists: the VCLT. But Teitel and Howse appear to be advocating something beyond the VCLT and if so, must, in the absence of further evidence, fall foul of positive international law.

 

The paper can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1334289.

 

Views and comments are very welcome!

Obama, Change and International Law Part II: A Historical View

Posted in General Thoughts and Comments, Journal Watch with tags , , , , , on February 3, 2009 by jeremyleong

Sometime ago, we asked about how the new US President and his “Change” campaign affects international law.

 

Mary O’Connell from Notre Dame Law School offered a historical perspective in a Jurist Op-Ed. She traces US treatment of international law from Morgenthau to Obama and argues that scholastic developments in “political science and law have resulted in a decline in respect for and even knowledge of general international law in this country.”

 

Yet, she concludes on an optimistic note:-

 

“President Obama studied international relations at Columbia University and law at Harvard when the intellectual emphases were on civil and human rights but not general international law. Many of his new advisers in foreign policy are well known for their concern for human rights but are also associated with pressing for the use of military force even in violation of international law. Indeed, it is understandable that any student of political science in the United States in recent decades would conclude that the best way to show American commitment to human rights is to be willing to use military force in response to human rights violations…Complying with international law across the board in areas of human rights, the environment, the economy and the use of force may sound like a radical change for America. But it is change we should believe in.”

 

Complying with international law across the board is already proving extremely challenging. On one hand, President Obama, has taken immediate action on the Gitmo/human rights front. On the other hand, we wonder whether the US will succumb to protectionism and test the limits of WTO law in the face of the current economic crisis. (At least one commentator thinks so. See http://opiniojuris.org/2009/01/29/the-obama-stimulus-violates-international-law/)

 

For the full text of O’Connell’s Op-Ed, see http://jurist.law.pitt.edu/forumy/2009/01/president-obama-new-hope-for.php. Cyber hat tip to Opinio Juris for pointing it out.

Fragmentation of International Law: Forum Shopping

Posted in General Thoughts and Comments, Journal Watch with tags , , , on January 16, 2009 by jeremyleong

The fragmentation of international law has recently taken a new and practical twist in a narrow field of international law.

 

WTO law is no stranger to fragmentation. The “trade and …” agenda is rife with debate over how international environmental law, international human rights law etc interacts with international trade law. But now, there is a re-newed discussion of how regional trade agreements (“RTAs”) interact with WTO law in a dispute settlement context.

 

First, where parties to a trade dispute are members to both the WTO and a RTA and the RTA in question provides for dispute settlement, which dispute settlement clause should prevail? The Mexico-Soft Drinks and Argentina-Poultry cases in the WTO show that this ambiguity allows disputants to forum shop. Moreover, concurrent jurisdiction between the two allows losers to have a second bite of the cherry.

 

In the most recent edition of Journal of International Economic Law, CL Lim and Henry Gao (in “Saving the WTO from the Risk of Irrelevance”) advocate that RTA disputes should be resolved through the WTO DSU system. In the context of recent WTO Panel and Appellate Body decisions in Mexico-Soft Drinks and Argentina-Poultry, they argue that the WTO DSB may be the most effective forum to resolve RTA disputes as it provides a multilateral solution without sacrificing the utility of bilateral consultations.

 

This leads to the second question. Which law should a tribunal apply? WTO law or RTA law? Lim and Gao suggest amending the DSU to allow WTO tribunals to apply RTA law. I refrain from commenting on the political viability of this suggestion for the moment. In the absence of such an amendment, what can tribunals do? The International Law Commission has suggested various principles such as allowing lex specialis to supercede lex generalis and having later law prevail over earlier law. This has been considered by WTO tribunals. Yet, these principles mask what appears to be the development of a body of jurisprudence concerning choice of international law.

 

Can existing principles which apply to conflicts of domestic law be used analogously in conflicts of international law? Prof. Trachtman explains the international allocation of jurisdiction between states in terms of property and liability rules. This assumes that states may or may not have an interest in having their law applied extra-territorially. But how about between international and/or regional institutions? Can it be said that there is jurisdictional competition between the WTO and RTA organizations to resolve disputes and apply their own law?

 

I know that more work on choice of international law is being carried out and will update accordingly. Meanwhile, I would love to hear any comments or views out there.

Limits of Law/Limits of Science?

Posted in General Thoughts and Comments with tags , , , , , , on November 4, 2008 by jeremyleong

The previous post (https://fletcherfila.wordpress.com/2008/10/30/international-law-science-broadly-speaking-and-technology/) discusses international law’s relationship with science. It was considered that science plays (and has the potential to play) a significant role in helping lawyers decide if international law has been complied with. One example provided was the SPS Agreement in the WTO. The recent WTO Appellate Body Report in EC-Hormones II (http://www.worldtradelaw.net/reports/wtoab/us-hormonessuspension(ab).pdf) sheds some insight on how this plays out. 

In cowardly fashion, I had resisted from blogging about this case until the experts at the International Economic Law and Policy Blog (http://worldtradelaw.typepad.com/ielpblog/) had provided their views.

 

In this case, the EC claimed that it had removed its illegal measures pursuant to the DSB finding in EC-Hormones I. Accordingly, it alleged that continued suspension of concessions and other obligations by the US and Canada without further recourse to a “compliance panel” pursuant to Article 21.5 of the DSU violated the DSU. Prof. Pauwelyn summarizes the findings at http://worldtradelaw.typepad.com/ielpblog/2008/10/is-the-bloodbat.html. In particular, the Appellant Body held that commencement of proceedings pursuant to Article 21.5 is the duty of all parties to the dispute and that all parties had violated the DSU by failing to do so. The end result: an Article 21.5 “compliance panel” is to be requested and the entire affair re-heard. So far, most commentators have viewed the decision favorably.

 

What is most indicative is the amount of reliance placed on scientific evidence as a result of the deal struck in the SPS Agreement. Accordingly, adjudication of compliance will turn on expert evidence adduced by litigants. What happens then if the experts disagree (as was the case here)? In order to address this issue, the Appellate Body has placed a distinction between “scientific uncertainty” and “insufficiency of evidence”. Joanne Scott notes the difficulty in making this distinction in her post. (Followed by some discussion on whether this distinction is procedural or substantive) “Is the idea here that scientists can reasonably disagree about how to interpret the results of risk assessment, even when they recognise that the risk assessment is valid?” (http://worldtradelaw.typepad.com/ielpblog/2008/10/2-quick-points.html)

 

So, to recap, the SPS Agreement embodies a political compromise which allows international law to defer to scientific findings. In a way, science becomes a secondary escape valve for political pressure. (Law being the primary one.) However, a cynic may say that these scientific findings may become politicized where conflicting and opposing experts are relied upon by litigants. Regardless, the Appellate Body tries to reconcile possible conflicting scientific evidence by recourse to legal language.

This begs an institutional question about the SPS Agreement’s place in the WTO DS system then? If science was meant to be the tiebreaker in the SPS Agreement? Why the additional loop back to law? I suppose the DSU and Article 21.5 were intended to cater to broader (less-scientific) disputes. However, if increased litigation over the SPS Agreement is contemplated, would a “carve out” which places final adjudication in the hands of a panel of purely scientific arbitrators be feasible? That way, the DS System may be saved the trouble of distinguishing what is evidentially insufficient and what is scientifically uncertain and can merely defer to this scientific panel.

International Law, Science (Broadly Speaking) and Technology

Posted in General Thoughts and Comments with tags , , , , , , , , on October 30, 2008 by jeremyleong

So far, posts here have been limited to international law’s relationship with mainly the social sciences (e.g. economics, sociology, political science, etc). Regretfully, we have neglected to mention international law’s relationship with other fields of science such as the natural sciences and applied sciences such as physics, mathematics.

 

It is regrettable because science and technology has to a large extent permeated international law creation. They have also affected abilities to comply as well as change preferences for compliance or commitment to international law. There have been plenty of occasions where international law has been rendered irrelevant by scientific discovery and technological advancement and there are plenty of occasions where scientific discovery and technological advancement have provided sufficient incentives for states to cooperate in creating new international law.

 

Space law is one example. The first human was sent into space in 1961. Thereafter, the short period from 1965 to 1979 saw a proliferation of treaties relating to delimiting property in outer space; rescuing astronauts; registration of satellites; liability for damage caused by space objects; and regulating activities on the moon. Another example relating to compliance to international obligations can be found in the EC-Computer Equipment case in the WTO where a dispute essentially arose over the tariff classification of LAN equipment before and after the “Internet boom”. Science’s integration into international law is very clear from the WTO SPS Agreement that provides that scientific basis is necessary before a state can invoke the provisions of the SPS Agreement to carry out prima facie WTO-inconsistent measures to protect plant, animal and human health. See generally, http://www.microsoft.com/Presspass/exec/bradsmith/11-03-06InternationalLaw.mspx for an interesting speech by a SVP of Microsoft to ASIL on the relevance of technology to international law.

 

The interaction continues to this day. Contemporary issues like climate change, nuclear non-proliferation and the law on use of force are affected by technological advancements and scientific discoveries in the fields of clean energy, nuclear physics and military science. It seems the international law, at times, struggles to keep pace with the science.

 

Maybe a leaf can be taken from domestic law such as patent law and information technology law. Patent lawyers and information technology lawyers have embraced technology as part of their trade. (Just as international trade lawyers and competition lawyers have embraced economics are part of the same.)

 

I also look forward to more work on how technological methodologies permeate into international law. The “Science Studies” movement has already started to look at science from broader sociological/economic and philosophical context. See e.g. http://www.compilerpress.atfreeweb.com/Anno%20Ben%20David%20&%20Sullivan%20Sociology%20of%20Science%20ARS%201975.htm. I suspect that an examination which integrates law’s place in this may soon follow. This article I chanced upon entitled, “Law in a Shrinking World: The Interaction of Science and Technology on International Law” (http://works.bepress.com/joseph_w_dellapenna/11/) may be a good start.

 

Would love to hear the views of any technologists and scientists out there.