General Issue
Vol. VI, No. 2
(Winter '12)

The customary methods of international treaty interpretation and dispute settlement, as codified in the Vienna Convention on the Law of Treaties, require interpreting treaties and settling disputes ‘in conformity with the principles of justice and international law’, including ‘human rights and fundamental freedoms for all’ (Preamble, VCLT). As all member states of the United Nations (UN) have human rights obligations, this article explores the impact of human rights on legal methodology, on the justification of international economic regulation, and on promoting ‘human rights coherence’ of international economic law (IEL) as well as synergies between IEL and human rights law (HRL).

This paper argues that the primacy of monetary relief for investment treaty breaches must be reconsidered in light of the historic shift in the protective scope and objectives of international investment agreements. Over the past few decades international rules on the protection of foreign investment have undergone considerable change, with the notion of property replaced by a broader rubric of investment, and the protection against expropriation supplemented by the arsenal of non-expropriatory standards of treatment, including the guarantees of fair and equitable treatment, non-discrimination, and sanctity of contract. Not only are core investment protection standards liable to a broad interpretation, thus bringing a variety of host state conduct within the purview of investment treaties, but they are also mutually intersubstitutable to the extent that investors are enabled to retroactively redefine the material and jurisdictional scope of the relevant treaty instruments. The notion of internationally proscribed conduct has evolved dramatically, so it is no longer limited to outrageous and egregious incidences of state interference with foreign investment, vastly increasing the exposure of host states to the risk of having to meet claims for monetary loss The resulting widening in the scope of state responsibility before investors necessitates revisiting the validity of the grand bargain underlying the use of monetary remedies in international investment law.

The flawed Doha Round is mired in two fundamental problems. First, it has fallen victim to key players’ reluctance to liberalise trade further. Second, the methodology that has been applied is faulty, legitimising the widespread departure from the original purpose and legal framework of the WTO. This has ushered in a fragmented regime in the WTO domain. As a result, there seems to be three possible outcomes for the Doha Round: an unfortunate death, a partial conclusion, or a conclusion with pervasive divergences and fragmentation. All three possibilities may make the WTO yield to protectionist pressures, with sweeping implications for the multilateral trade regime. Against this backdrop, this article analyses the nature of the Doha Round Negotiations; its potential outcomes, and possible implications for the multilateral trading system. The article examines various means to prevent the WTO from losing its credibility as a negotiating forum, and suggests improvements in negotiation methodology to conclude the Doha Round successfully in the future.

The notion of governance is increasingly applied to the field of intellectual property. In this note, I explore how countries should make policy decisions in this key area, by keeping their focus on the promotion of domestic innovation while minimizing negative welfare impacts. The latter objective was well known when the TRIPS Agreement was negotiated in the 1990s, but the former, much less apparent. In this note, I consider recent research on innovation clusters and ways in which government, private capital and higher education institutions can work together, and specifically ways in which governments can “incentivize the quest” for innovation. I also discuss problems associated with the creation of incentives, including “patent trolls” and ways in which intellectual property might hinder full use of the internet as an innovation vector.

​Until recently, export restrictions by countries producing natural resources have not been the subject of much discussion in WTO jurisprudence. However, the situation is changing rapidly due to the prospect of an increasing scarcity of natural resources. The Appellate Body (AB) in the Chinese Minerals dispute handed down a decision upholding most of the panel rulings and reversing some. The major rulings of the AB report include the following. First, with respect to terms of reference, the AB reversed the panel’s ruling that insufficiency of information and arguments in the original terms of reference could be cured by later submissions of the parties and rendered moot some other parts of the Panel’s decisions. By overturning the panel ruling on this point, the AB may have tried to tighten up the discipline with respect to drafting of the terms of reference. However, it seems to the author, that this issue has to be decided on a case-by-case basis. Second, the AB held that the panel’s recommendation could cover not only the measures which the claimants alleged to be an infringement of WTO agreements at the time of initiating the dispute settlement procedure, but also subsequent measures, as long as they are related to implementing the Panel’s recommendation; thus, it upheld the panel’s ruling in this regard. The author believes that the purpose of the panel’s recommendations is to rectify a WTO-inconsistent measure and bring it in conformity with WTO agreements. In a dispute like the one at hand, where the framework legislation is implemented through a series of measures; whereby some measures are abolished and renewed annually, the panel recommendation ought to have some prospective effect in order for it to be effective. Third, the AB upheld the Panel’s ruling that China could not invoke a provision in its Accession Protocol to justify its export restrictions based on Article XX exceptions, as Para 11.3 of the Accession Protocol does not state that rights and obligations under the WTO Agreement (GATT 1994) are not affected. Fourth, the AB criticized the Panel report in respect of its ruling that Article XI: 2 (a) and Article XX: (g) of the GATT are mutually exclusive and application of one precludes the application of the other., The AB stated that there would be subject matters that are covered both by GATT Article XI: 2 (a) and, at the same time, by Article XX: (g). This ‘overlap theory’ enunciated by the AB seems to lead to a contradiction, that an application of Article XI: 2 (a) could constitute an infringement of Article XX: (g) and vice-versa, making a harmonious interpretation of these two provisions difficult. Fifth, the AB reversed that portion of the panel’s holding which held that in order to satisfy the requirement of GATT Article XX: (g), the export restriction in question must be primarily aimed at guaranteeing the effectiveness of the domestic restriction because there is no wording in Article XX: (g) that would justify this requirement. The AB Report in the Chinese Export Restrictions of Minerals dispute is an important precedent in the relationship between WTO principles and export control of natural resources and it is hoped that WTO jurisprudence in this area is further enriched.

This note outlines a proposal for creating and maintaining a strong and balanced international trade law framework. The author argues that the institutional balance between the judicial and legislative arms of the international trade law system has been tipped. In the World Trade Organization (WTO), as the rule-making body remains in a decade-long deadlock, the specter of judicial activism is raised as the WTO dispute settlement system (WTO DSS) attempts to adequately address the evolving needs of its Members. In contrast, although most Bilateral and Regional Trade Agreements (RTAs) include dispute resolution mechanisms, it appears the parties are largely continuing to rely on the WTO DSS to provide a judicial check. In order to address these issues and restore equilibrium, this note proposes that disputes under RTAs are referred to the WTO DSS for resolution. If implemented, this proposal would provide the WTO DSS with an expanded mandate to consider emerging issues in international trade law, and provide RTAs with access to a robust judicial mechanism to resolve disputes. This proposal encourages increased engagement and interaction between the two systems and in doing so, creates a path for de facto convergence in trade law jurisprudence. The key strengths of both systems—a robust judicial mechanism provided by the WTO and a dynamic source of international trade law provided by the everexpanding network of RTAs—are aligned.

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