The Rise of the BASIC Group Within the International Climate Regime : The Challenge of Ensuring Equitable Mitigation Obligations

The chapter examines the current emission reduction obligations within the climate regime. It looks at the formation and rise of the BASIC negotiation group within the international climate COP negotiations and examines the role that BASIC nations are now playing shaping international mitigation policy.

Subsidies of the Australian clean energy package

The Australian Clean Energy Package has been introduced to respond to the global challenge of climate change and reduce Australia’s greenhouse gas emissions. It includes legislation to establish an emissions trading scheme. In support of the entities that are liable under this Package, there are a number of assistance measures offered to alleviate the financial burden that the Package imposes. This paper considers whether these assistance measures are subsidies within the context of the law of the World Trade Organization. In order to do this, the rules of the Agreement on Subsidies and Countervailing Measures are examined. This examination enables an understanding of when a subsidy exists and in what circumstances those subsidies occasion the use of remedies under the law.

The border adjustments of the Australian clean energy package

Climate change is a global challenge. For this reason, it has been suggested that a global solution is necessary. In Australia the Clean Energy Package has been introduced with a purpose of reducing Australia’s greenhouse gas emissions inventory, and responding to international obligations. This Package contains the institutional framework for an emissions trading scheme. The Package also includes amendments for other existing legal arrangements. These arrangements include a greenhouse gas emissions price on certain imported products. With this in mind the purpose of this paper is twofold. First, to consider the border adjustments and import charges of the Clean Energy Package and determine whether these comply with the rules of the World Trade Organization. Second, to analyse whether a border tax adjustment could be included in the Package for emissions intensive trade exposed (EITE) products. This paper concludes that, although the existing arrangements appear to comply with the WTO legal requirements, a border adjustment on EITE products could not be implemented in a manner that would comply with these rules.

Emissions trading and the GATS financial services provisions : a case study of the Australian carbon pricing mechanism

Purpose The purpose of this paper is to determine whether greenhouse gas (GHG) tradeable instruments will be classified as financial products within the scope of the World Trade Organization (WTO) law and to explore the implications of this finding. Design/methodology/approach This purpose is achieved through examination of the units of the Australian Carbon Pricing Mechanism (CPM), namely eligible emissions units. These units are analysed through the lens of the definition of financial products provided in the General Agreement for Trade in Services (the GATS). Findings This paper finds that eligible emissions units will be classified as financial instruments, and therefore the provisions that govern their trade will be regulated by the GATS. Considering this, this paper explores the limitations that are introduced by the Australian legislation on the trade of eligible emissions units. Research limitations/implications This paper is limited in its analysis to the Australian CPM. In order to draw conclusions on the issues raised by this analysis it is necessary to consider the WTO requirements against an operating emissions trading scheme. The Australian CPM presents a contemporary model of an appropriate scheme. Originality/value The findings in this paper are crucial in a GHG constrained society. This is because emissions trading schemes are becoming popular measures for pricing GHG emissions, and for this reason the units that are traded and surrendered for emissions liabilities must be classified appropriately on a global scale. Failing to do this could result in differential treatment that may be contrary to the intentions of important global agreements, such as the WTO covered agreements.

The enemy of music : modeling the behavior of a cultural industry in crisis

The purpose of this explorative study is to contribute to the understanding of current music industry dynamics. The situation is undeniably quite dramatic: Since the turn of the millennium, the global music industry has declined by $ US 6.2 billion in value—a fall of 16.3% in constant dollar terms. IFPI, the trade organization representing the international recording industry, identifies a number of exogenous factors as the main drivers of the downturn. This article suggests that other factors, in addition to those identified by IFPI, may have contributed to the current difficulties. A model is presented which indicates that business strategies which were designed to cope with the challenging business environment have reduced product diversity, damaged profitability, and contributed to the problem they were intended to solve.

The Responsibility to Protect and International Law

The Responsibility to Protect (R2P) is a major new international principle, adopted unanimously in 2005 by Heads of State and Government. Whilst it is broadly acknowledged that the principle has an important and intimate relationship with international law, especially the law relating to sovereignty, peace and security, human rights and armed conflict, there has yet to be a volume dedicated to this question. The Responsibility to Protect and International Law fills that gap by bringing together leading scholars from North America, Europe and Australia to examine R2P’s legal content. The Responsibility to Protect and International Law focuses on questions relating to R2P’s legal quality, its relationship with sovereignty, and the question of whether the norm establishes legal obligations. It also aims to introduce readers to different legal perspectives, including feminism, and pressing practical questions such as how the law might be used to prevent genocide and mass atrocities, and punish the perpetrators.

What further benefit, if any, might Australia get from the ALI-III Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases?

In 2006, the American Law Institute (ALI) and the International Insolvency Institute (III) established a Transnational Insolvency Project and appointed Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (Netherlands) as Joint Reporters. The objective was to investigate whether the essential provisions of the ALI Principles of Cooperation among the NAFTA Countries (ALI-NAFTA Principles) and the annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases (ALI-NAFTA Guidelines) may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. In 2012, Professor Fletcher and Professor Wessels presented the report Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“ALI-III Report”) to the Annual Meetings of the American Law Institute and the International Insolvency Institute. In 2013, the Australian Academy of Law (AAL) provided support to the authors to undertake research on the possible benefits for Australia of courts and insolvency administrators of referring to the ALI-III Report when addressing international insolvency cases. This AAL project was at the request of the Council of Chief Justices of Australia and New Zealand. This research Report compares the Global Principles for Cooperation in International Insolvency Cases with the Cross-border Insolvency Act 2008 and the UNCITRAL Model Law as it has been adopted and has force of law in Australia. Further, it examines the Global Guidelines for Court-to-Court Communications in International Insolvency Cases in light of Australian cross-border insolvency and procedural law. Finally, it makes brief reference to and commentary on the Global Rules on Conflict–of-Laws Matters in International Insolvency Cases annexed to the ALI-III Report from the perspective of Australian choice of law rules.

National security and pandemics

Pandemics are for the most part disease outbreaks that become widespread as a result of the spread of human-to-human infection. Beyond the debilitating, sometimes fatal, consequences for those directly affected, pandemics have a range of negative social, economic and political consequences. These tend to be greater where the pandemic is a novel pathogen, has a high mortality and/or hospitalization rate and is easily spread. According to Lee Jong-wook, former Director-General of the World Health Organization (WHO), pandemics do not respect international borders. Therefore, they have the potential to weaken many societies, political systems and economies simultaneously.

The rise and fall of the international law of maritime terrorism : the ghost of piracy is still hunting!

Maritime terrorism is a serious threat to global security. A major debate in this regard is the treating of acts of maritime terrorism as piracy by some scholars and a rejection of this view by others. Moreover, the international law of maritime terrorism suffers from fundamental definitional issues, much like the international law of terrorism. This article examines the current international law of maritime terrorism with a particular emphasis on the debate regarding the applicability of the international law of piracy in the case of maritime terrorism. It argues that the international law of piracy is not applicable in the enforcement and prosecution of maritime terrorists on the high seas. International treaties on terrorism and the post-September 11 developments relating to international laws on terrorism have created a workable international legal framework for combating maritime terrorism, despite some bottlenecks.

An Australian perspective on the ALI-III global principles for cooperation in International insolvency cases

In 2012, Professor Ian Fletcher (United Kingdom) and Professor Bob Wessels (The Netherlands) presented a Report to the American Law Institute and the International Insolvency Institute entitled Transnational Insolvency: Global Principles for Cooperation in International Insolvency Cases (“Global Principles”). This followed their appointment as Joint Reporters to investigate whether the essential provisions of the American Law Institute Principles of Cooperation among the North American Free Trade Agreement Countries with their annexed Guidelines Applicable to Court-to-Court Communication in Cross-border Cases may, with certain necessary modifications, be acceptable for use by jurisdictions across the world. This article comments on the Global Principles from the perspective of a jurisdiction which has adopted the UNCITRAL Model Law on Cross-border Insolvency (“Model Law”). In 2008, Australia enacted a standalone statute, the Cross-border Insolvency Act 2008 (Cth) to which is annexed the Model Law. In that process, it made minimal changes to the Model Law text. Against the background of the 2008 Act, related procedural laws as well as Australia’s general insolvency statutes and recent cross-border insolvency jurisprudence, this article comments on the potential relevance of the Transnational Insolvency Report as a point of reference for Australian courts and insolvency administrators when addressing international insolvency cases. By comparing the Global Principles with the Model Law as closely adopted in Australia, this analysis is a resource for other Model Law jurisdictions when considering the potential relevance of the Global Principles for their own international insolvency practice.

Developments in court to court communications in International insolvency cases

As business increasingly operates on a global basis, courts are called upon more often to adjudicate insolvency cases with international connections. The financial collapse of Lehman Brothers Holding Inc (‘Lehman Holdings’) provides a recent example where courts across many jurisdictions were called upon to determine issues arising from a multistate insolvent enterprise. Lehman Holdings filed for Chapter 11 bankruptcy protection in the United States on 15 September 2008. Lehman Brothers was the fourth largest investment bank in America and the largest company ever to file for bankruptcy in the United States. However the effects of its collapse were felt worldwide, including within Australia.

Intellectual property and global warming: Climate justice

Engaging in a close analysis of legal and political discourse, this chapter considers conflicts over intellectual property and climate change in three key arenas: climate law; trade law; and intellectual property law. In this chapter, it is argued that there is a need to overcome the political stalemates and deadlocks over intellectual property and climate change. It is essential that intellectual property law engage in a substantive fashion with the matrix of issues surrounding fossil fuels, clean technologies, and climate change at an international level. First, this chapter examines the debate over intellectual property and climate change under the auspices of the United Nations Framework Convention on Climate Change 1992, and the establishment of the UNFCCC Climate Technology Centre and Network. It recommends that the technology mechanism should address and deal with matters of intellectual property management and policy. Second, the piece examines the discussion of global issues in the World Intellectual Property Organization, WIPO GREEN. It supports the proposal for a Global Green Patent Highway to allow for the fast-tracking of intellectual property applications in respect of green technologies. Third, the chapter investigates the dispute in the TRIPS Council at the World Trade Organization over intellectual property, climate change, and development. This section focuses upon the TRIPS Agreement 1994. This chapter calls for a Joint Declaration on Intellectual Property and Climate Change from the UNFCCC, WIPO, and the WTO. The paper concludes that intellectual property should be reformed as part of a larger effort to promote climate justice. Rather than adopt a fragmented, piecemeal approach in various international institutions, there is a need for a co-ordinated and cohesive response to intellectual property in an age of runaway, global climate change. Patent law should be fossil fuel free. Intellectual property should encourage research, development, and diffusion of renewable energy and clean technologies. It is submitted that intellectual property law reform should promote climate justice in line with Mary Robinson’s Declaration on Climate Justice 2013.

The Jean Chretien Pledge to Africa act: Patent law and humanitarian aid

This article evaluates the implementation of the WTO General Council Decision in 2003, which resolved that developed nations could export patented pharmaceutical drugs to member states in order to address public health issues - such as HIV/AIDS, tuberculosis, malaria and other epidemics. The Jean Chretien Pledge to Africa Act 2004 (Canada) provides authorisation for the export of pharmaceutical drugs from Canada to developing countries to address public health epidemics. The European Union has issued draft regulations governing the export of pharmaceutical drugs. A number of European countries - including Norway, the Netherlands, France, and Switzerland - are seeking to pass domestic legislation to give force to the WTO General Council Decision. Australia has shown little initiative in seeking to implement such international agreements dealing with access to essential medicines. It is argued that Australia should implement humanitarian legislation to embody the WTO General Council Decision, emulating models in Canada, Norway, and the European Union. Ideally, there should be no right of first refusal; the list of pharmaceutical drugs should be open-ended; and the eligible importing countries should not be limited to members of the WTO.

Incentives for global public health: Patent law and access to essential medicines

This portrait of the global debate over patent law and access to essential medicines focuses on public health concerns about HIV/AIDS, malaria, tuberculosis, the SARS virus, influenza, and diseases of poverty. The essays explore the diplomatic negotiations and disputes in key international fora, such as the World Trade Organization, the World Health Organization and the World Intellectual Property Organization. Drawing upon international trade law, innovation policy, intellectual property law, health law, human rights and philosophy, the authors seek to canvass policy solutions which encourage and reward worthwhile pharmaceutical innovation while ensuring affordable access to advanced medicines. A number of creative policy options are critically assessed, including the development of a Health Impact Fund, prizes for medical innovation, the use of patent pools, open-source drug development and forms of 'creative capitalism'.

The case for the plain packaging of tobacco products

AIMS: The Framework Convention on Tobacco Control (FCTC) requires nations that have ratified the convention to ban all tobacco advertising and promotion. In the face of these restrictions, tobacco packaging has become the key promotional vehicle for the tobacco industry to interest smokers and potential smokers in tobacco products. This paper reviews available research into the probable impact of mandatory plain packaging and internal tobacco industry statements about the importance of packs as promotional vehicles. It critiques legal objections raised by the industry about plain packaging violating laws and international trade agreements. METHODS: Searches for available evidence were conducted within the internal tobacco industry documents through the online document archives; tobacco industry trade publications; research literature through the Medline and Business Source Premier databases; and grey literature including government documents, research reports and non-governmental organization papers via the Google internet search engine. RESULTS: Plain packaging of all tobacco products would remove a key remaining means for the industry to promote its products to billions of the world's smokers and future smokers. Governments have required large surface areas of tobacco packs to be used exclusively for health warnings without legal impediment or need to compensate tobacco companies. CONCLUSIONS: Requiring plain packaging is consistent with the intention to ban all tobacco promotions. There is no impediment in the FCTC to interpreting tobacco advertising and promotion to include tobacco packs.