Gutachten zu den ökologischen Anforderungen an das Inverkehrbringen von Produkten erstattet dem Bundesamt für Umwelt BAFU

Das schweizerische Verfassungsrecht belässt dem Gesetzgeber einen hinreichenden Spielraum, Massnahmen bezüglich der Inverkehrsetzung von importierten Produkten nach Massgabe von Anforderungen an die Produktionsbedingungen im Exportland (Production and Process Methods, PPMs) im Bereich der untersuchten Produkte (Palmöl, Soya, biogene Treibstoffe, Textilien, Baumwolle) im Rahmen eines Bundesgesetzes zu erlassen. Der Gestaltungsspielaum bemisst sich im einzelnen nach den detaillierten Bestimmungen des WTO Rechts. Dabei steht die Förderung freiwilliger Labels und von internationalen Standards für Best Practices im Vordergrund. Es schliesst indessen auch einseitige Import- restriktionen auf Grund von PPMs nicht aus, soweit vorgängig durchgeführte Verhand- lungen mit den Exportstaaten nicht zielführend sind und freiwillige Massnahmen nicht genügen. Das kann vor allem im Rohstoffhandel und im Konzernhandel (intrafirm trade) zutreffen. Die Regelungen unterliegen einer Verhältnismässigkeitsprüfung und sie dürfen sich nicht zum Schutze der einheimischen Industrie auswirken. Das GATT-recht erlaubt auch zollrechtliche Massnahmen als Mittel und Anreiz zur Förderung von Best Practices im Exportstaat. Das Freihandelsabkommen Schweiz-EU folgt den gleichen Grundsätzen, schliesst indessen zollrechtliche Massnahmen bezüglich der erfassten Produkte aus. Das Bundesgesetz über die Beseitigung technischer Handelshemmnisse verlangt die Anpassung an EU-rechtliche PPM Standards, soweit diese bestehen. Damit werden auch Spannungen im Rahmen des Freihandelsabkommens vermieden. Das THG erlaubt aber auch die ein- seitige Entwicklung von Best Practices und damit die Schaffung von Anreizen für die Ent- wicklung internationaler Standards. Das Cassis-de-Dijon Prinzip findet vorliegend keine unmittelbare Anwendung. Die hier behandelten Importregelungen beschränken sich auf die Rohstoffe und die unmittelbar daraus gewonnenen Basisprodukte. Sie lassen sich nicht auf verarbeitete Produkte übertragen. Diese können nur im Rahmen einer internationalen Harmonisierung miteinbezogen werden, welche alle Stufen der Verarbeitungsskette zu erfassen vermögen. Dies kann im Alleingang nicht erreicht werden.

Trade and Culture in International Law : Paths to (Re)Conciliation

The UNESCO Convention on cultural diversity marks a wilful separation between the issues of trade and culture on the international level. The present article explores this intensified institutional, policy- and decision-making disconnect and exposes its flaws and the considerable drawbacks it brings with it. These drawbacks, the article argues, become particularly pronounced in the digital media environment that has impacted upon both the conditions of trade with cultural products and services and upon the diversity of cultural expressions in local and global contexts. Criticising the strong and now increasingly meaningless path dependencies of the analogue age, the article sketches some possible ways to reconciling trade and culture, most of which lead back to the WTO, rather than to UNESCO.

Trade and Culture : Keep the Border Fuzzy, Please

The relationship between trade and culture can be singled-out and deservedly labelled as unique in the discussion of 'trade and ...' issues. The reasons for this exceptional quality lie in the intensity of the relationship, which is indeed most often framed as 'trade versus culture' and has been a significant stumbling block, especially as audiovisual services are concerned, in the Uruguay Round and in the subsequent developments. The second specificity of the relationship is that the international community has organised its efforts in a rather effective manner to offset the lack of satisfying solutions within the framework of the WTO. The legally binding UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions is a clear sign of the potency of the international endeavour, on the one hand, and of the (almost desperate) desire to contest the existing WTO norms in the field of trade and culture, on the other. A third distinctive characteristic of the pair 'trade and culture', which is rarely mentioned and blissfully ignored in any Geneva or Paris talks, is that while the pro-trade and pro-culture opponents have been digging deeper in their respective trenches, the environment where trade and cultural issues are to be regulated has radically changed. The emergence and spread of digital technologies have modified profoundly the conditions for cultural content creation, distribution and access, and rendered some of the associated market failures obsolete, thus mitigating to a substantial degree the 'clash' nature of trade and culture. Against this backdrop, the present paper analyses in a finer-grained manner the move from 'trade and culture' towards 'trade versus culture'. It argues that both the domain of trade and that of culture have suffered from the aspirations to draw clearer lines between the WTO and other trade-related issues, charging the conflict to an extent that leaves few opportunities for practical solutions, which in an advanced digital setting would have been feasible.

Trade Versus Culture in the Digital Environment : An Old Conflict in Need of a New Definition

Following the recent UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions, the first wave of scholarly work has focused on clarifying the interface between the Convention and the WTO Agreements. Building upon these analyses, the present article takes however a different stance. It seeks a new, rather pragmatic definition of the relationship between trade and culture and argues that such a re-definition is particularly needed in the digital networked environment that has modified the ways markets for cultural content function and the ways in which cultural content is created, distributed and accessed. The article explores first the significance of the UNESCO Convention (or the lack thereof) and subsequently outlines a variety of ways in which the WTO framework can be improved in a ‘neutral’, not necessarily culturally motivated, manner to become more conducive to the pursuit of cultural diversity and taking into account the changed reality of digital media. The article also looks at other facets of the profoundly fragmented culture-related regulatory framework and underscores the critical importance of intellectual property rights and of other domains that appear at first sight peripheral to the trade and culture discussion, such as access to infrastructure, interoperability or net neutrality. It is argued that a number of feasible solutions exist beyond the politically charged confrontation of trade versus culture and that the new digital media landscape may require a readjustment of the priorities and the tools for the achievement of the widely accepted objective of cultural diversity.

The Protection and Promotion of Cultural Diversity at the International Level

The Convention on the Protection and Promotion of the Diversity of Cultural Expressions, adopted under the auspices of the United Nations Educational, Cultural and Scientific Organization (UNESCO) in 2005, entered into force on 18 March 2007 after an incredibly swift ratification process. The Convention is the culmination of multiple-track efforts that spread over many years with the objective of providing a binding instrument for the protection and promotion of cultural diversity at the international level. These efforts, admirable as they may be, are not however isolated undertakings of goodwill, but a reaction to economic globalisation, whose advancement has been significantly furthered by the emergence of enforceable multilateral trade rules. These very rules, whose bearer is the World Trade Organization (WTO), have been perceived as the antipode to "culture" and have commanded the formulation of counteracting norms that may sufficiently "protect" and "promote" it. Against this backdrop of institutional tension and fragmentation, the present chapter explicates the emergence of the concept of cultural diversity on the international policy- and law-making scene and its legal dimensions given by the new UNESCO Convention. It critically analyses the Convention's provisions, in particular the rights and obligations of the State Parties, and asks whether indeed the UNESCO Convention provides a sufficient and appropriate basis for the protection and promotion of a thriving and diverse cultural environment.

EC Electronic Communications and Competition Law

Telecommunications have developed at an incredible speed over the last couple of decades. The decreasing size of our phones and the increasing number of ways in which we can communicate are barely the only result of this (r)evolutionary development. The latter has indeed multiple implications. The change of paradigm for telecommunications regulation, epitomised by the processes of liberalisation and reregulation, was not sufficient to answer all regulatory questions pertinent to communications. Today, after the transition from monopoly to competition, we are faced perhaps with an even harder regulatory puzzle, since we must figure out how to regulate a sector that is as dynamic and as unpredictable as electronic communications have proven to be, and as vital and fundamental to the economy and to society at large. The present book addresses the regulatory puzzle of contemporary electronic communications and suggests the outlines of a coherent model for their regulation. The search for such a model involves essentially deliberations on the question "Can competition law do it all?", since generic competition rules are largely seen as the appropriate regulatory tool for the communications domain. The latter perception has been the gist of the 2002 reform of the European Community (EC) telecommunications regime, which envisages a withdrawal of sectoral regulation, as communications markets become effectively competitive and ultimately bestows the regulation of the sector upon competition law only. The book argues that the question of whether competition law is the appropriate tool needs to be examined not in the conventional contexts of sector specific rules versus competition rules or deregulation versus regulation but in a broader governance context. Consequently, the reader is provided with an insight into the workings and specific characteristics of the communications sector as network-bound, converging, dynamic and endowed with a special societal role and function. A thorough evaluation of the regulatory objectives in the communications environment contributes further to the comprehensive picture of the communications industry. Upon this carefully prepared basis, the book analyses the communications regulatory toolkit. It explores the interplay between sectoral communications regulation, competition rules (in particular Article 82 of the EC Treaty) and the rules of the World Trade Organization (WTO) relevant to telecommunications services. The in-depth analysis of multilevel construct of EC communications law is up-to-date and takes into account important recent developments in the EC competition law in practice, in particular in the field of refusal to supply and tying, of the reform of the EC electronic communications framework and new decisions of the WTO dispute settlement body, such as notably the Mexico-Telecommunications Services Panel Report. Upon these building elements, an assessment of the regulatory potential of the EC competition rules is made. The conclusions drawn are beyond the scope of the current situation of EC electronic communications and the applicable law and explore the possible contours of an optimal regulatory framework for modern communications. The book is of particular interest to communications and antitrust law experts, as well as policy makers, government agencies, consultancies and think-tanks active in the field. Experts on other network industries (such as electricity or postal communications) can also profit from the substantial experience gathered in the communications sector as the most advanced one in terms of liberalisation and reregulation.

Rezension zu: Inge Govaere and Hanns Ulrich (eds.): Intellectual Property, Public Policy and International Trade

The contemporary intellectual property rights (IPR) system is not a simple, smoothly working block of rules but is complex and full of ambiguities, and as many argue, imperfections. Some deficits relate on the one hand to the inherent centrality of authorship, originality and mercantilism to the ‘Western’ IP model, which leaves numerous non-Western, collaborative or folkloric modes of production outside the scope of protection. On the other hand, some imperfections stem from the way IPR are granted, whereby creators acquire a temporary monopoly over their works and thus exclude the public from having access to them. In this sense, it is often uncertain whether the existent IPR model appropriately reflects the precarious balance between private and public interests, and whether the best incentives to promote creativity and innovation - the initially stated objectives of intellectual property protection - are offered. The matter becomes still more complicated when one considers that the IPR system is not domestically contained but is globalised and strongly affected by rules at the regional and international levels. The question of whether the balance between private interests and public values is sustained within the international legal framework, epitomised by the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO), is precisely the topic of the book reviewed here. Review of Intellectual Property, Public Policy, and International Trade, edited by Inge Govaere and Hanns Ullrich, P.I.E. Peter Lang, 2007.

Trade versus Culture : The Policy of Cultural Exception and the World Trade Organization

This chapter is a contribution to the Palgrave Handbook of European Media Policy (co-edited by Pauwels, Donders & Loisen). It is the chapter’s purpose to examine the proponents of the cultural exception policy, their strategies and demands, and to explore how they came to be reflected in the law and policy of the World Trade Organization (WTO). The chapter also looks at the current state of affairs, as although WTO law has not undergone any substantial amendments since its entry into force in 1995, the media landscape has in the meantime been truly transformed, in some aspects in a revolutionary manner. The broader picture of global governance has not remained still either, with new and emergent powers, changing mechanisms of rule-making and taking.

The Protection and Promotion of Cultural Diversity in a Digital Networked Environment : Mapping Possible Advances to Coherence

The present paper is the result of a four-year-long project examining the concept and the policies of cultural diversity and the impact of digital media upon the regulatory environment where the goal of cultural diversity is to be achieved. The focus of the project was primarily on the international level and in particular on the World Trade Organization (WTO) and the United Nations Educational Scientific and Cultural Organization (UNESCO), which also epitomise the often framed as opposing pair of trade and culture. In the broad context of the project, we sought to pinpoint the essential elements of an international trade-and-culture conducive framework that can also overcome the existing fragmentation in the field of international law and move towards more coherent solutions. In a narrower context, we sketched some possible improvements to the WTO law that can make it more suitable to the digital networked environment and to the objective of diverse media that some states aspire. . Our key messages are: (1) Neither the WTO nor UNESCO currently offers appropriate solutions to the trade and culture predicament and allows for efficient protection and promotion of cultural diversity; (2) The trade and culture discourse is overly politicised and due to the related path dependencies, a number of feasible solutions appears presently blocked; (3) The digital networked environment has profoundly changed the ways cultural content is created, distributed, accessed and consumed, and may thus offer good reasons to reassess and readjust the present models of governance; (4) Access to information appears to be the most appropriate focus of the discussions with view to protecting and promoting cultural diversity in the new digital media setting, both in local and global contexts; (5) This new focal point demands also broadening and interconnecting the policy discussions, which should go beyond the narrow scope of audiovisual media services, but cautiously account for the developments at the network and applications levels, as well as in other domains, such as most notably intellectual property rights protection; (6) There are various ways in which the WTO can be made more conducive to cultural policy considerations and these include, among others, improved and updated services classifications; enhanced legal certainty with regard to digitally transferred goods and services; incorporation of rules on subsidies for services and on competition.

Commentary of GATS Article IX : Business Practices

Commentary of Article IX of the General Agreement on Trade in Services (GATS) on business practices, including a textual analysis of the provision, as well as an examination of the pertinent WTO case law and of other related international and regional rules and practices.

Trade Governance in the Digital Age (Preface)

The development of new digital technologies has resulted in significant transformations in daily life, from the arrival of online shopping to more fundamental changes in the ways we work and communicate. Many of these changes raise questions that transcend market access and liberalisation and demand cooperation and coherent regulatory design. International trade regulation has hitherto not reacted in a forward-looking manner to the digital revolution; particularly at the multilateral level, legal engineering has yielded few tangible results. This book examines whether WTO laws possess the necessary flexibility and resilience to accommodate the changes brought about by burgeoning digital trade. By revealing both the potential and the limitations of the WTO framework, it provides a broad picture of the interaction between digital technologies and trade regulation, links the often disconnected discourses of international trade law, intellectual property and cyberlaw, and explores discrete problems in different domains of global trade regulation.

International Regulation of Postal Communications

The article provides a concise overview of the rules applicable to postal communications at the international level. Particular attention is paid to the regulations of the Universal Postal Union (UPU), the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO), as well as the relationship between the two. Outlook on possible future developments accounting for the rapid technological advances and the liberalisation of markets wraps the analysis up. This is a 2010 update that takes into consideration the changes made in the UPU acts in 2008, as well as the latest developments in the WTO's Doha Round negotiations.

The Trade Versus Culture Discourse: Tracing its Evolution in Global Law

The intensified flows of goods, services, peoples and ideas across borders intrinsic to globalization have had numerous and multi-faceted effects. Those affecting culture have been perhaps the most controversial, as it is more often than not difficult to identify the spill-overs across economic and non-economic areas and across borders, as it is equally hard to qualify the effects of these spill-overs as positive or negative. The debate also tends to be politically and even emotionally charged, which has so far not proven advantageous to establishing a genuine dialogue, nor to finding solutions. This contention and the divergent interests of major players in the international community have been reflected in the institutions and rules of global law. It is the objective of this chapter to explore this institutional architecture, in particular its main (and opposing) constituent fora of the World Trade Organization (WTO) and the United Nations Educational Social and Cultural Organization (UNESCO). The chapter traces the evolution of these institutions and their interaction over time, as well as the underlying objectives, demands and strategies of the key proponents in the trade versus culture discourse, which ultimately shaped the existent law and policy. The chapter concludes with an appraisal of the present state of affairs situating the discussion into the contemporary global governance landscape.

Postal Communications, International Regulation

The article provides a concise overview of the rules applicable to postal communications at the international level. Particular attention is paid to the regulations of the Universal Postal Union (UPU), the General Agreement on Trade in Services (GATS) of the World Trade Organization (WTO), as well as the relationship between the two. Outlook on possible future developments accounting for the rapid technological advances, in particular the Internet, and the liberalisation of markets wraps up the analysis. This is a 2013 update that takes into consideration the changes made in the UPU acts in 2012, as well as the latest developments in the WTO's Doha Round negotiations.