Special Issue
Vol. XVI, No. 1
(Winter '24)
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EU's International Rulebook Monopoly: A TWAIL Critique of Multilateral Investment Court Reform and Barriers for Developing Economics
Aishwarya Alla & Samriddhi Guha
Surmounting criticism against the current state of investor-state dispute settlement (ISDS) resulted in the European Commission’s proposal for the establishment of a two-tiered multilateral investment court (MIC) with state- appointed judges, aimed at facilitating transparency, consistency, impartiality and predictability within the international investment law regime. The United Nations Commission on International Trade Law Working Group III (UNCITRAL WG3) has led the quest for ISDS reform, with negotiations about the viability of the MIC underway since 2016. The bulk of existing scholarship on the MIC has focussed on its inability to satisfactorily address the most pressing issues plaguing ISDS. This paper aims to examine the proposal for an MIC from a different theoretical lens, inspired by Third World Approaches to International Law (TWAIL), locating it within the larger picture of what ‘reform’ as an exercise means to the geopolitical hegemony that marks transnationalism today. It contextualises a MIC within the European Union’s (EU) increasingly bold attempts to engineer a trade and investment regime favourable to its interests regardless of what that may mean for developing economies, particularly through its promotion of preferential trade agreements (PTAs) which claim to prioritise non-trade policy objectives such as the rule of law among other EU fundamental values. This paper focuses on the contested legality of the standing investment courts envisioned under the European Union – Vietnam Free Trade Agreement (EU-Vietnam FTA) and the Comprehensive Economic and Trade Agreement (CETA), and the contents of the MIC proposal, this paper first positions its analysis within the observable convergence between the international trade and investment regulatory systems. It posits that any version of an MIC must be tested on the legal principles of the existing trade regime — and ultimately concludes that it fails this test, effectively constituting an inequitable trade barrier to developing economies.
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The Pivotal Moment: How India’s FTA Strategy Post-RCEP Redefined India’s External Trade Engagements?
James J. Nedumpara
The article chronicles the shift in India’s approach to negotiating trade agreements post-2020, especially since choosing to exit from the Regional Comprehensive Economic Partnership Agreement (RCEP). While integration with the Southeast Asian countries remains appealing for India, especially in finding a foothold in regional value addition, the article explains the fundamental concerns in exploring and implementing the Look East policy, particularly in view of China’s rise as a global economic and political power. The article further explores why developing domestic resilience and removing certain disabilities is crucial to preparing India for more ambitious trade agreements. The article further argues that in order to consider meaningful trade agreements with advanced countries, notably the West, India will have to fundamentally reconsider its long-entrenched position on several trade topics, including certain non-trade issues, while ensuring that necessary and sufficient policy space is preserved.
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International Trade and the Rise of Digital Borders
Juan Pablo Gómez Moreno
With the advancement of the digital economy, the regulation of cross-border data flows and other matters related to international trade in digital goods and services has become a significant issue on the political agenda. The protection of citizens’ data and national security and sovereignty are major concerns for many countries, leading to the implementation of digital borders, such as data localisation, content regulation, geo-blocking, cyber-security laws, and data transfer restrictions, which pose significant challenges to international trade and connectivity.
Policymakers and international organisations must consider a range of solutions that take into account the complexities and nuances of the digital economy to prevent this from happening. This includes developing a multilateral framework that balances the interests of different stakeholders and updating existing trade rules to promote transparency, predictability, and fair competition in the digital economy. Such a framework requires significant international cooperation and consensus-building, which may prove challenging given the current geopolitical climate.
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Renewable Energy at the WTO and in Free Trade Agreements: No Baton to Pass On
Rishabha Meena & Advaith Rao
Renewable energy presents a credible solution to combating the ills of the climate crisis and global warming. In recent years, countries have increasingly focused on combating climate change by actively promoting and incentivising the adoption of renewable energy technologies. However, it is not easy, and such policies are now walking the tightrope of scrutiny under WTO law, the most recent being DS 629: Turkey — EVS (China), DS 625: Chinese Taipei — Offshore Wind Installations (EU); and DS 623: US —IRA (China). Such disputes have often undermined the effectiveness of the WTO rules towards energy transition vis-à-vis certainty in international trade regimes through the rule of law. Against this background, the present paper attempts to undertake a critical look into the interaction between WTO law and renewable energy in furtherance of the goals of sustainable development and climate mitigation. It particularly studies the provisions pertaining to renewable energy as they appear in Free Trade Agreements (FTAs) of major players such as America, Australia, and the European Union, as well as those countries in the African, South American, and Asian regions to capture the nature of obligations, their scope, and ambition. Finally, the paper concludes.
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Application Of Artificial Intelligence in Monitoring and Enforcement Of Sustainable Development Commitments in Free Trade Agreements: Legal Issues and Implementation Strategies
Trần Minh Chiến
Monitoring and implementing the commitment to sustainable development in free trade agreements is an urgent requirement and plays a fundamental role in the development of global trade. In this context, artificial intelligence has developed tremendously and has had essential applications in monitoring and enforcing these commitments. Through the implementation of commitments as well as mechanisms for monitoring and enforcing sustainable development in Free Trade Agreements, this article analyses and clarifies the roles of artificial intelligence in monitoring compliance with environmental and social commitments, assessing and forecasting compliance with sustainability commitments and automated monitoring systems. The application of artificial intelligence in monitoring and enforcing these commitments also raises legal issues regarding data privacy and security, compliance with international legal regulations, fairness and transparency in artificial intelligence monitoring. Thereby, the article provides implementation strategies and legal recommendations to optimize the application of AI in monitoring compliance with sustainable development commitments, in order to promote global economic development.
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Removing North from the Equation: How Does the Concept of Coloniality Influence the South-South Investment Arbitration?
Julia Sochacka
‘Coloniality’ is a term describing the arrangement of the post-colonial world, in which former colonisers are still seen as superior and their knowledge and social systems as default, while the former colonies are placed in an inferior position and continue to be dominated. When this concept is applied to the structure of International Investment Law (IIL), it is rather indisputable that the idea of equal opportunities for investors’ home states and host states is heavily perpetuated by asymmetrical power dynamics, predominantly serving the interests of the capital-exporting states in the Global North.
Having acknowledged the divide between North and South in the international investment protection system, the next step forward is to examine whether the inequalities brought upon the investment regime by the coloniality mindset have also been transposed to disputes between states and investors from the Global South alike, and if so, what can be done to foster a level playing field in this regard.
This contribution seeks answers to two questions: when the North is removed from the equation, how much does the concept of coloniality resurface in IIL, and how can it be decolonised? It is further argued that the coloniality of knowledge manifests most prominently through the Investor-State Dispute Settlement (ISDS) system, and one of the ways of decolonising IIL is through the regionalisation of investment arbitration.
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Book Review: Hong Kong as an Actor in International Economic Law: Multilateralism, Bilateralism, and Unilateralism
Guiliu Luo
Dr Guiliu Luo’s review of Hong Kong as an Actor in International Economic Law by Julien Chaisse provides a critical overview of how the book examines Hong Kong’s role in international economic governance. First, she discusses the book’s exploration of Hong Kong’s unilateral policies, emphasising its low taxes, free-market system, and independent foreign exchange controls, which distinguish it from Mainland China. She then reviews Chaisse’s analysis of Hong Kong’s bilateral economic relations, particularly its free trade and investment agreements with partners such as New Zealand and ASEAN, as well as the challenges posed by the revocation of its Special Trading Status with the United States. On multilateralism, Luo highlights Hong Kong’s participation in institutions like the WTO, OECD, ICSID, and UNCITRAL, particularly in global dispute resolution and investment law. A key focus of her review is the book’s discussion of Hong Kong’s evolving relationship with China, especially how the “One Country, Two Systems” framework influences its foreign investment law. She also examines the book’s treatment of the WTO’s Origin Marking Requirement ruling and Hong Kong’s economic rivalry with Singapore. Luo praises Chaisse’s comprehensive approach, noting its depth in addressing trade, investment, and taxation issues. She concludes that the book is a valuable resource for scholars and policymakers seeking insight into Hong Kong’s place in international economic law.