Essentials of WTO Law, by Peter Van den Bossche & Denise Prévost

By Denise Prévost

It is widely recognised that international trade has the potential to stimulate economic growth and reduce poverty worldwide. However, for this potential to be realized, international trade has to be managed and regulated at the international level through legal rules. If not, it is likely to aggravate economic inequality, social injustice and environmental degradation instead of improving the current situation. In a time of increasing international economic integration, international trade law affects many core areas of public policy. The law of the World Trade Organization (WTO) represents the broadest and most important system of rules governing international trade. Therefore, understanding the way in which WTO law manages and regulates international trade is of key importance in order to grasp its impact on society.  It is this legal system that forms the subject matter of this book.

At a time when developments in the law of the WTO have made this field increasingly complex, Essentials of WTO Law meets the need for an accessible text providing a concise overview of WTO law. Essentials of WTO Law contains a timely and carefully considered introduction to the substantive rules and institutional arrangements of the WTO and incorporates key clarifications from the case law. The topics covered include the relationship between WTO law and other international law; the WTO rules ensuring market access and non-discrimination for goods and services; the way in which WTO rules aim to balance trade liberalisation with the right of governments to pursue legitimate regulatory objectives; WTO rules on unfair trade; WTO rules that promote harmonisation of national regulation; and the institutional rules of the WTO that govern membership, decision-making and dispute settlement.

Essentials of WTO Law is written in a highly reader-friendly, non-technical manner suitable for both undergraduate law students and students from other disciplines. It is also a useful source for policy makers and other professionals who need an introduction in this complex field. It provides a clear and systematic discussion of key issues of WTO law and includes useful pedagogical features such as illustrative examples of the application of the legal framework to practical situations to facilitate understanding. Recommendations for further reading complement the text and enable students to gain a more in-depth understanding of current debates and critical analysis of the issues discussed in the book. An online resources section provides students with the tools they need to work within this field. Co-written by a Member of the Appellate Body of the WTO and leading authority in the field, it forms essential reading for anyone who wants to get to grips with this fascinating and challenging field of law.

Essentials of WTO Law has recently been published by Cambridge University Press.

Rethinking the International Law of Crime – Provocations from Transnational Legal Studies, by Prabha Kotiswaran and Nicola Palmer

By Natalie Sedacca

In this recent article for Transnational Legal Theory, Kotiswaran and Palmer engage with Boister’s account of a new ‘transnational criminal law’ (‘TCL’) focussed on the suppression of certain type of conduct via national legal foundations as distinct from the more established field of international criminal law (‘ICL’), aimed primarily at protecting common values such as human dignity or international interests such as peace and security.[i] Drawing on a range of methodologies and perspectives including transnational legal studies, legal pluralism, socio-legal studies, ethnography and legal realism, the authors argue that, while helpful from a descriptive standpoint, the distinction entails a problematic idealisation of ICL.

The fragmentation of ICL at a national level is argued to demonstrate parallel difficulties to those faced by TCL, with a view that ‘at the level of law and legal institutions, legal fragmentation and resistance to overstretched claims to universal objectives have marked the renationalization’ of ICL. One area of particular challenge is ICL’s claim to the protection of human rights, which poses substantial challenges in reconciling the two fields. For example, broad definitions of principles such as co-perpetration, command responsibility and joint criminal enterprise are included in ICL with a view to prioritising the rights of victims, but inevitably result in a narrowing of the range of available defences, potentially infringing upon the due process rights of the accused. Indeed, this concern has continued to surface frequently in the period of c9 months since the article’s publication, including recent disquiet regarding the ICC trial chamber’s decision to dismiss William Ruto and Joshua Arap Sang ‘without prejudice’ as opposed to acquitting them.[ii]

It is noted, moreover, while conceptions of a ‘justice cascade’ described entailing a move to increased individual criminal accountability in relation to human rights violations[iii] is tempered by research acknowledging a persistence of amnesties and suggestions of more varied processes that may be effective in the search for accountability,[iv] the ICC’s principle of complementarity bears upon the possibilities for acceptance of such variation. A number of prejudices entailed in the ICC’s establishment are depicted, relating, for example, to women and children’s ability to make choices during conflict, as well as the resistance to using criminal law in relation to corporate conduct. It is therefore argued that, having problematised Boister’s idealised categories, his insights into TCL can be used ‘to shine a critical light on ICL,’ which in reality faces similar challenges to TCL in relation to issues such as hegemony and democratic deficits.

The paper then turns to expand the study of TCL beyond ‘suppression treaties’ (those designed by Boister as intended primarily ‘to make international cooperation in suppression of the particular form of conduct effective’[v]) in order that the full range of transnational legal methodologies may be applied. An interrogation of ‘the unspoken assumption that crime is an exceptional phenomenon to otherwise normal circuits of exchange of goods and services’ is illustrated with reference to the ‘anti-trafficking’ framework, which is seen to entail a problematic ‘gendered dichotomy of innocent female victims and dangerous male Eastern European and Russian criminals’ masking broader concerns about immigration. The initial phase of ‘sex work exceptionalism’ has, however, given way to subsequent phases focussing on labour trafficking as ‘modern slavery’ (2009-2014) and in turn to the enacting of legal interventions framed on the basis of these terms (2014 to date).

In light of the continued dynamic development of anti-trafficking law, the paper argues for ‘a legal realist re-assessment of the horizontality of TCL,’ drawing on the work of Robert Hale[vi] to expose the role of criminal law in backing unequal bargaining arrangements, in the wider context of the state as ‘an active player in reinforcing inequality.’ Such an outlook would problematize the division between public and private law, including a conception of criminal law in the context of regulation of transnational socio-economic problems. Further, a comparative approach is argued to have the potential of ‘deepening the vertical dimension of TCL,’ while an understanding of colonial criminal law promises an insight into the background framework in which efforts to suppress phenomena such as modern slavery takes place, as well as bringing to bear ‘the rich insights of postcolonial theory.’

 

Notes

[i] Neil Boister, ‘Transnational Criminal Law?’ (2003) 14 European Journal of International Law 953.

[ii] E.g. Kevin Jon Heller, ‘Opinio Juris » Blog Archive The Ruto Trial Chamber Invents the Mistrial Without Prejudice – Opinio Juris’ <http://opiniojuris.org/2016/04/08/the-icc-invents-the-possibility-of-a-mistrial/> accessed 10 April 2016.

[iii] Lutz, Ellen and Sikkink, Kathryn, ‘The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America’ (2001) 2 Chicago Journal of International Law 1.

[iv] Louise Mallinder and Kieran Mcevoy, ‘Rethinking Amnesties: Atrocity, Accountability and Impunity in Post-Conflict Societies’ (2011) 6 Contemporary Social Science 107.

[v] Boister (n 1). P967

[vi] Robert Hale, ‘Bargaining, Duress, and Economic Liberty.’ (1943) 43 Columbia Law Review 603.

Transnational Sovereignties: Constellations, Processes, Contestations

On 17th and 18th March 2016, a conference on Transnational Sovereignties, convened by Peer Zumbansen and Stephen Minas, took place at the Transnational Law Institute.

During the conference, the student editors were lucky enough to be able to interview some of the speakers – the interviews will be posted here shortly.

Here are some impressions of the conference:

Update: A report on the Transnational Sovereignties Conference can now be found on the website of the Transnational Law Institute.

 

Power struggle: The U.S. Supreme Court’s Clean Power Plan decision and the Paris Agreement on climate change.

By Stephen Minas

In this election year, the United States Supreme Court finds itself in the eye of converging storms. The sudden death of long-serving Associate Justice Antonin Scalia has furnished the Republican primary season with a fresh conspiracy theory. More importantly, it has prompted a new confrontation between the Republican-controlled Congress and the Democratic administration, with the Republican Senate majority’s extraordinary refusal to even open hearings on any candidate to succeed Scalia nominated by President Barack Obama. The dysfunctional politics which precipitated a shutdown of the executive branch of government in 2013 may thereby damage the Court of final appeal’s ability to dispose of the most politically controversial dockets. (If the Supreme Court is deadlocked, the decision under review stands.)

It is in these unlikely circumstances that a major climate change initiative of the Obama administration has been suspended, pending final adjudication. In February, the Supreme Court issued a 5-4 ruling on an application brought by 27 states to stay the implementation of the Obama administration’s Clean Power Plan. Justice Scalia voted with the majority. The Court’s decision stayed the administration from implementing the plan until the United States Court of Appeals for the District of Columbia Circuit has ruled on the merits of a challenge to the Plan and until the process of appeal to the Supreme Court has been exhausted.

The Court’s ruling is dramatic both as a rupture from past practice (“not once had the Supreme Court ever stayed a regulation that was still being reviewed by the Court of Appeals”) and for its consequences. The Clean Power Plan’s ultimate fate will in part depend on when a successor to Justice Scalia is confirmed. If the Supreme Court as currently constituted hears an appeal from the Court of Appeals in the current matter, a four-four split decision would mean the lower court’s ruling stands.

The Clean Power Plan is an major component of the suite of policies which would give effect to the United States’ climate change mitigation undertakings under the United Nations Framework Convention on Climate Change (UNFCCC). The Plan was announced by President Obama in August 2015 in order to reduce carbon dioxide (CO2) emissions from American power plants, which accounted for 31 per cent of U.S. greenhouse gas emissions in 2013. Under the Plan, the Environmental Protection Agency (EPA) would set CO2 emission performance rates for power plants which U.S. states, beginning in 2022, would be obliged to meet. (For the legal background on how the EPA came to regulate CO2 emissions, see here.)

Under the UNFCCC Paris Agreement adopted in December 2015, all states must communicate Nationally Determined Contributions to address climate change. The United States’ 2015 intended Nationally Determined Contribution (INDC) states that the U.S. will reduce its greenhouse gas emissions from 2005 to 2025 by 26 to 28 per cent. The INDC (released before the Clean Power Plan was announced) includes cutting carbon pollution from power plants in a list of measures relevant to implementation. In the United States’ 2016 biennial report under the UNFCCC, the Plan has been factored into the ‘current measures’ scenario of projected U.S. emissions, which ‘has shifted significantly downward, reflecting the impacts of the Clean Power Plan and additional major actions’.

The Clean Power Plan would have required states to submit implementation plans by September 2016. A notice on the EPA’s website states that the ‘EPA will continue to provide tools and support’ for states that ‘choose to continue to work to cut carbon pollution from power plants and seek the agency’s guidance and assistance’. Experts differ on the decision’s likely impact on implementation of the United States’ INDC. Professor Michael Gerrard argues that the ruling, while ‘unprecedented, unexpected and unexplained’, is unlikely to be decisive of whether the US meets its 2025 target.

The Supreme Court’s decision demonstrates again that lawmaking by international negotiation is a multi-level game – involving domestic courts as well as legislatures. Previously, it was Congress that prevented the United States from participating in important aspects of climate governance, with the Senate repudiating the UNFCCC Kyoto Protocol with a 95-0 vote. The Senate’s rejection of Kyoto has loomed large in the Obama administration’s climate strategy. At the Paris conference, one word held up the adoption of the Paris Agreement until the final evening, after American negotiators spotted a passage in the draft agreement which they believed would have required the administration to send the Agreement to the Senate for advice and consent. The passage read: ‘Developed country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets.’ The ‘shall’ was replaced with ‘should’.

The Court’s ruling also draws attention to an interesting feature of the bottom-up, pledge-and-review model of climate cooperation embodied in the Paris Agreement. As Nationally Determined Contributions must be legislated, regulated and implemented domestically, they are subject to challenge in domestic courts. As Lord Carnwarth of the UK Supreme Court noted during the ‘Adjudicating the Future’ symposium at King’s College London, it is ultimately up to judges to sort through the legal implications of the Paris outcomes.

The Paris Agreement’s regime of Nationally Determined Contributions faces its first such challenge in the Clean Power Plan litigation. As Professor David Victor has argued, it is also an opportunity to show that the pledge-and-review model has the flexibility to absorb unexpected reverses. As an iterative process with five-yearly reviews, the resilience of the regime established by the Paris Agreement will be repeatedly tested.

Stephen Minas is a research fellow at the Transnational Law Institute, King’s College London and a member of the IUCN World Commission on Environmental Law.

Muthucumaraswamy Sornarajah

King’s College London, November 23, 2015

“Why no to Transnational Legal Education” is the topic of an essay Sornarajah is presenting in King’s College London in front of students who are part of the LL.M. in Transnational Law as well as in front of their Professor Peer Zumbansen, founder of the programme and inaugural professor of Transnational Law.

There is one thing he must say to these students. Students, who in his eyes are in danger of becoming thieves:

“In 1929, the English Court of Appeal (at that time known as the strongest commercial court in history with presiding judges Lords Banks, Scrutton and Atkins) stated in the Czarnikow case that “there shall be no Alsatia in England.” Alsatia was not a foreign land, but it was the name of an area in London close to St. Paul’s Cathedral where thieves had made a habit to congregate. Redfern and Hunter argue that it is now populated by a new breed of thieves, namely large multinational law firms. What the Court of Appeal meant was that as much as it was impermissible for a subculture of thieves to make their own law, so too, commercial arbitrators could not make their own laws in competition with the laws made by state bodies. The same objection applies to modern Transnational Law.”

Some of the professors present at the presentation are experts in these fields of law in which these corporations make their big money. Many students are dreaming of working for such companies. Sornarajah is here to warn them and he likes to provoke. He knows very well that studying Transnational Law can be important for the very reason of understanding problems of legitimacy and justice in this field. Sornarajah speaks with slight humour, and with the tranquility of someone who knows best. His point is clear. Do not join the wrong side.

Sornarajah is 73 years old and his first name is Muthucumaraswamy. Sornarajah LLB (Ceylon), LLM (Yale), LLM, PhD, LLD (London) is CJ Koh Professor at the Faculty of Law of the National University of Singapore. He is Visiting Professor at the Centre for Human Rights, London School of Economics. He was the Tunku Abdul Rahman Professor of International Law at the University of Malaya at Kuala Lumpur. He was Head of the Law School of the University of Tasmania, Australia. He was Research Fellow at the Centre for International Law, Cambridge and at the Max Planck Institut fur Offentliches Auslandisches Recht at Heidelberg, Germany.He was Visiting Professor at many universities including Osgoode Hall Law School, Toronto._  He has an impressive career and he is known as great legal theorist and expert in a variety of legal fields. Among other topics, he is an expert in International Investment Law.

In this field of law, he suggests, we ought to start anew. What we need, according to Sornarajah as well as the TWAIL perspective, is a justice based system in International Investment Law._

Would Sornrajah disagree with that simple phrase, after all he only mentions his article and the approach he shares? He probably would. Instead he would most likely explain that one must not be a TWAIL scholar, neither must one speak from a TWAIL perspective to come to the conclusion that the system of International Investment Law must be changed. “This system, is not normal,” he says. However, it is normal, so Sornarajah, that a state exercises its jurisdiction in cases that occur on its soil and that are of concern to its economy, its citizens and the domestic conditions of its development – in short, its policies and laws. The situation created by International Investment Treaties is abnormal, he argues. Thus, one could conclude that one just has be “normal” and have a “normal” perspective in order to come to the realisation that the system of International Investment Law ought to be changed. This does not presuppose a TWAIL perspective. Sornarajah makes this point very clear.

This is the second time, Sornarajah has challenged our understanding of normality this evening. The first time he did so was at the very beginning of the event. He waited until everybody took his place. Then calmly, patiently and friendlily he worked his way through the rows of students, shaking everybody’s hand, looking in their eyes and thanking them for coming to his presentation. The thought that arises in this context is that maybe, besides attempting to transform International Investment Law, Sornarajah could also easily write an article about changing the way professors ought to interact with students.

But is this essentially just a ‘goody two shoe’ perspective? Probably Sornarajah would also deny that. Isn’t it rather a standard of politeness that everyone should conceive as normal? And instead, not being interested in the guests of one’s presentation is what should be abnormal? It becomes clear that Sornarajah doesn’t only manage to challenge standards of normality in his theory. He has the indisputable charisma of an experienced man, who has thought longer and with more hardship about a great amount of issues than you or I have. Controversial issues, which are often wrongly considered to be just ‘normal’, are occurring in our surroundings every day. It is up to us to recognise them as such.

Publications

The Publication Section of the TLT Blog showcases recent and upcoming publications (not limited to those from the TLT journal) from different fields that theorise and address the framework of transnational law.

Transnational Law is an evolving and emerging area of legal study which cuts across the boundaries of political, economic, social, and cultural aspects of the society impacting directly and indirectly on the landscape of the international system and the global village we live in. We envision that the Publication Section of this blog will serve as a bridge for introducing relevant literature and recent and upcoming publications from different fields that contribute to enriching legal culture and its pertinent application in our daily lives as students, academics, and legal scholars.

Along with the key themes of the books, articles, or essays, this section features introductory and explanatory comments to be provided either by the author, other specialists in the field, or members of the TLT student editorial board, and / or review articles. These introductions will situate the text in the world of transnational law while looking through the lens of the authors or the book reviewer.

Do you have any publication or authors in mind related to the application of transnational law within your respective field? To suggest a publication for inclusion in this section, please email us to blog@tltjournal.com

TLI Think! Research Papers

This is an overview of the articles of the TLI Think! Research Paper Series published on SSRN by the Transnational Law Institute at King’s College London.

TLI Think! Paper No. 01/2015 Amber Marks, Ben Bowling and Colman Keenan Automatic justice? Technology, Crime and Social Control
TLI Think! Paper No. 02/2015 Eve Darian-Smith The Crisis in Legal Education: Embracing Ethnographic Approaches to Law
TLI Think! Paper No. 03/2015 Thomas Schultz International arbitration scholarship: forms, determinants, evolution
TLI Think! Paper No. 04/2015 Peer Zumbansen Theorizing as Activity: Transnational Legal Theory in Context
TLI Think! Paper No. 05/2015 Stephen Minas The Rise of Transnational Networks in Climate Change Governance: A Study in Hybridity
TLI Think! Paper No. 01/2016 Karin Buhmann Public Regulators and CSR: The ‘Social Licence to Operate’ in Recent United Nations Instruments on Business and Human Rights and the Juridification of CSR
TLI Think! Paper No. 02/2016 Ralf Michaels Transnationalizing Comparative Law
TLI Think! Paper No. 03/2016 Shane Paul Chalmers Law’s Imaginary Life on the Ground: Scenes of the Rule of Law in Liberia
TLI Think! Paper No. 04/2016 Alejandro Chehtman Terrorism and the Conceptual Divide between International and Transnational Criminal Law
TLI Think! Paper No. 05/2016 Cedric G. Dupont and

Thomas Schultz

Towards a New Heuristic Model: Investment Arbitration as a Political System
TLI Think! Paper No. 06/2016 Dia Dabby, Bethany Hastie, Jocelyn Stacey Doctoral Studies in Law: From the Inside Out
TLI Think! Paper No. 07/2016 Peer Zumbansen Where the Wild Things Are: Journeys to Transnational Legal Orders, and Back
TLI Think! Paper No. 08/2016 Eva Pils Resisting Dignity Takings in China