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.

Book Review: M. Holoubek, D. Damjanovic, M. Trainer: Regulating Content. The European Regulatory Framework for the Media and Related Creative Sectors

Review of 'Regulating Content - The European Regulatory Framework for the Media and Related Creative Sectors', by M. Holoubek, D. Damjanovic, M. Trainer (Alphen aan den Rijn: Kluwer Law International, 2007), including some thoughts on contemporary media regulation.

Book Review: Public Service Media and Policy in Europe

Much has happened in the past fifty years, and the broadcasting system and in fact the entire media landscape have changed in many significant ways. Yet, the debate on the role of public service media and the involvement of the state in them still perseveres. It has indeed been reinvigorated due to the tectonic shifts in media production, distribution, access and consumption caused by digital technologies in general, and the Internet in particular. The gist of the debates has however curiously remained almost the same and is still focused on a set of economic arguments that call for state intervention in public media, and not unimportantly, on the various political interpretations of these economic arguments. In Europe, the debate has another essential core too, as Public Service Broadcasting (PSB) has been traditionally entrusted to serve some higher goals intrinsically related to key democratic and cultural processes. Accordingly, PSB in Western Europe has developed as the core media institution at the national level and has become deeply embedded in many facets of the nation’s economic, political, social and cultural life. Against the backdrop of PSB’s history, its vital tasks in society, as well as the dramatic changes brought about by the digitally networked environment, the question on the future of PSB and its transition into Public Service Media (PSM) is very interesting, to say the least, and highly challenging at the same time. The book by Karen Donders, Public Service Media and Policy in Europe (Palgrave, 2012), makes an essential contribution to these complex debates, and more importantly, adds some new value to an otherwise saturated discourse.

Should There Be New Multilateral Rules for Digital Trade?

The Internet revolution and the digital environment have spurred a significant amount of innovative activity that has had spillover effects on many sectors of the economy. For a growing group of countries – both developed and developing – digital goods and services have become an important engine of economic growth and a clear priority in their future-oriented economic strategies. Neither the rapid technological developments associated with digitization, nor their increased societal significance have so far been reflected in international economic law in a comprehensive manner. The law of the World Trade Organization (WTO) in particular, has not reacted in any proactive manner. A pertinent question that arises is whether the WTO rules are still useful and able to accommodate the new digital economy or whether they have been rendered outdated and incapable of dealing with this important development? The present think-piece seeks answers to these questions and maps the key issues and challenges which the WTO faces. In appraisal of the current state of affairs, developments in venues other than the WTO, and proposals tabled by stakeholders, some recommendations for the ways forward are made.

Towards a treaty instrument on marine genetic resources

Marine genetic resources other than fish and mammals are of increasing commercial interest and importance in genetic engineering, but fail being properly addressed in the law of the sea and in international economic law. The paper analyses the implication of the United Nations Convention on the Law of the Sea, the Convention on Biodiversity, the WTO Agreement on Trade Related Aspects of Intellectual Property Rights and related instruments under the auspices of WIPO. The paper argues that the triangle of these agreements does not adequately address marine genetic resources in particular in the high seas. Neither concerns of protecting biodiversity nor of access and benefit sharing find appropriate answers commensurate to the commercial potential of marine genetic resources. The paper suggests developing an instrument inspired by, and comparable to, the mechanisms developed by the International Treaty on Plant Genetic Resources for Food and Agriculture. The instrument would grant facilitated access to marine genetic resources and offer a more detailed set of rules with respect to the sharing of benefits resulting from their use, thereby addressing the existing legal gaps in a comprehensive way.

God, the WTO – and hunger

Considering that endemic hunger is a consequence of poverty, and that food is arguably the most basic of all human needs, this book chapter shows one of the more prominent examples of rules and policy fragmentation but also one of the most blatant global governance problems. The three monotheistic religions Judaism, Christians and Islam are surprisingly unanimous about God’s prescriptions on hunger or, put theologically, on what can be said, or should be said, about the interpretations and traditions which, taken together, form the respective and differentiated traditions, identities and views of these beliefs on how to deal with poverty and hunger. A clear social ethos, in the form of global needs satisfaction, runs through both Jewish and Christian texts, and the Qur’an (Zakat). It confirms the value inversion between the world of the mighty and that of the hungry. The message is clear: because salvation is available only through the grace of God, those who have must give to those who have not. This is not charity: it is an inversion of values which can not be addressed by spending 0.7% of your GDP on ODA, and the implication of this sense of redistributive justice is that social offenders will be subject to the Last Judgement. Interestingly, these religious scriptures found their way directly into the human rights treaties adopted by the United Nations and ratified by the parliaments, as a legal base for the duty to protect, to respect and to remedy. On the other side the contradiction with international trade law is all the more flagrant, and it has a direct bearing on poverty: systematic surplus food dumping is still allowed under WTO rules, despite the declared objective ‘to establish a fair and market-oriented agricultural trading system’. A way forward would be a kind of ‘bottom up’ approach by focusing on extreme cases of food insecurity caused by food dumping, or by export restrictions where a direct effect of food insecurity in other countries can be established. Also, international financing institutions need to review their policies and lending priorities. The same goes for the bilateral investment treaties and a possible ‘public interest’ clause, at least in respect of agricultural land acquisitions in vulnerable countries. The bottom line is this: WTO rules cannot entail a right to violate other, equally binding treaty obligations when its membership as a whole claims to contribute to the Millennium Development Goals and pledges to eradicate extreme poverty and hunger.

Seals and the Need for more Deference to Vienna by WTO Adjudicators

This paper asks how World Trade Organization (WTO) panels and the Appellate Body (AB) take public international law (PIL) into account when interpreting WTO rules as a part of international economic law (IEL). Splendid isolation of the latter is not new; indeed it is intended by the negotiators of the Understanding on the Settlement of Disputes (DSU). At the same time, the Vienna Convention on the Law of Treaties (VCLT) is quite clear when it provides the general rules and the supplementary means of treaty interpretation. Despite such mandatory guidance, WTO adjudicators (when given a choice and assuming they see the conflict) prefer deference to WTO law over deference to Vienna and take a dogmatic way out of interpretation quandaries. The AB and panels make abundant reference to Vienna, though less so to substantive PIL. Often times, however, they do so simply in order to buttress their findings of violations of WTO rules. Perhaps tellingly, however, none of the reports in EC – Seals contains even a single mention of VCLT, despite numerous references to international standards addressing indigenous rights and animal welfare. In the longer term, and absent a breakthrough on the negotiation front, this pattern of carefully eschewing international treaty law and using PIL just for the sake of convenience could have serious consequences for the credibility and acceptance of the multilateral trading system. Following the adage ‘negotiate or litigate’ recourse to WTO dispute settlement increases when governments are less ready to make treaty commitments commensurate with the challenges of globalisation. This is true even for ‘societal choice’ cases on the margins of classic trade disputes. We will argue here that it is precisely for cases such as these that VCLT and PIL should be used more systematically by panels and the AB. Failing that, instead of building bridges for more coherent international regulation, WTO adjudicators could burn those same bridges which the DSU interpretation margin leaves open for accomplishing their job which is to find a ‘positive solution’. Worse, judicial incoherence could return to WTO dispute settlement like a boomerang and damage the credibility and thus the level of acceptance of the multilateral trading system per se.

Foreign Direct Investment in Agriculture: Land Grab or Food Security Improvement?

“Large-scale acquisition of land by foreign investors” is the correct term for a process where the verdict of guilt is often quicker than the examination. But is there something really new about land grab except in its extent? In comparison with colonial and post-colonial plantation operations, should foreign investors today behave differently? We generally accept coffee and banana exports as pro-growth and pro-development, just as for cars, beef and insurance. What then is wrong with an investment contract allowing the holder to buy a farm and to export wheat to Saudi Arabia, or soybeans and maize as cattle feed to Korea, or to plant and process sugar cane and palm oil into ethanol for Europe and China? Assuming their land acquisition was legal, should foreigners respect more than investment contracts and national legislation? And why would they not take advantage of the legal protection offered by international investment law and treaties, not to speak of concessional finance, infrastructure and technical cooperation by a development bank, or the tax holidays offered by the host state? Remember Milton Friedman’s often-quoted quip: “The business of business is business!” And why would the governments signing those contracts not know whether and which foreign investment projects are best for their country, and how to attract them? This chapter tries to show that land grab, where it occurs, is not only yet another symptom of regulatory failures at the national level and a lack of corporate social responsibility by certain private actors. National governance is clearly the most important factor. Nonetheless, I submit that there is an international dimension involving investor home states in various capacities. The implication is that land grab is not solely a question whether a particular investment contract is legal or not. This chapter deals with legal issues which seem to have largely escaped the attention of both human rights lawyers and, especially, of investment lawyers. I address this fragmentation between different legal disciplines, rules, and policies, by asking two basic questions: (i) Do governments and parliaments in investor home countries have any responsibility in respect of the behaviour of their investors abroad? (ii) What should they and international regulators do, if anything?

The role of the state in investor-state arbitration

The Role of the State in Investor-State Arbitration is a collection of contributions from lawyers, arbitrators and political scientists on the development of the concept of the “State” in a field that currently presents an increasing number of controversial disputes: Investor-State Arbitration. The book analyzes the limits of the host State as a regulator, studying issues such as attribution and the role of State-Owned Enterprises and sub-State entities; the changing role of the home State in Investor-State disputes, including its direct participation in Investor-State arbitration and State to State dispute settlement; and the overall role that both home and host States can play in the improvement of Investor-State Dispute Settlement.

Legal Aspects of Sino-­African Tied Aid: The Art of Playing with a Legal Grey Area

Sino-African trade has seen a fifty-fold increase in the years 1999 to 2008. In some African regions, particularly in sub-Saharan Africa, China has even replaced the US as the most important trading partner today. But China holds not a single FTA on the African continent, while other major trading partners of African economies rely on an extensive framework of different trade agreements. What is, thus, the legal basis of the recent increase of Sino-African trade? Interestingly, Sino-African trade has seen a particularly strong increase in countries that have entered into tied aid agreements with China. These agreements are commonly known under the term ‘Angola-Model’ and consist of a multifaceted network of barter-trading-systems, aspects of tied aid and concessions for oil and other commodities linked with a state loan. It is likely that these agreements have an impact on the trade-flows between African countries and China. This paper discusses the legal character of this new form of economic cooperation, or modern version of tied aid. Critical legal aspects related to this form of tied aid refer to violation of the principle of most-favoured nation (MFN), illegitimate export subsidies, market access, public procurement and transparency in the international trading system. However, despite the recent outcry of the foremost Western community against the strategy of the Chinese government on the African continent, the practice of the Angola-Model based tied aid is not entirely new, and neither is it against the law. The case of tied aid is situated in a legal grey area that should be examined thoroughly in order to strengthen the international trading system and to support developing countries in their attempt to gain from tied aid arrangements.

Communication services

This is a concise encyclopedia entry that discusses the applicable law of the World Trade Organization (WTO) with regard to telecommunications, audiovisual, postal and courier services, which are framed in terms of existing WTO classification under the common heading of 'Communication Services'. The chapter analyzes the pertinent rules of the General Agreement on Trade in Services (GATS), the present state of commitments, the problems faced in light of the recent technological advances that affect, albeit differently, all these sectors. It includes insights from the case-law and a brief overall appraisal of the prospects for change.