European Yearbook of International Economic Law 2020

Editorial
Contents
Part I: Rights and Obligations of Business Entities under International Economic Law
The Changing Nature of Corporate Influence in the Making of International Economic Law: Towards ``Multistakeholderism´´
1 Introduction
2 The Liberal Model of International Economic Law and Its Regulation
3 Corporate Influence and Lobbying Before Intergovernmental Organisations
4 Multi-Stakeholder Initiatives
5 Concluding Remarks: The Future of Multi-Stakeholder Initiatives
References
Coming of Age: The System of OECD National Contact Points for Responsible Business Conduct in Its 20 Years
1 Introduction
2 Enhancing the Effectiveness of the OECD Guidelines and Fostering the Functioning of NCPs
2.1 Peer-Review
2.2 Cooperation Among NCPs
3 Exploring Indirect Enforcement Powers and Building Policy Coherence
3.1 Public Procurement
3.2 Export Credits and Trade Support
3.3 Investment Protection
4 Future Challenge: Climate Change
5 Conclusion
References
Towards a German Supply Chain Act? Comments from a Choice of Law and a Comparative Perspective
1 Introduction
2 Background: The UN Guiding Principles for Business and Human Rights
3 Spatial Reach: The (Important) Role of Private International Law
3.1 The Rome II Regulation
3.2 In Theory: Free Party Choice of Law
3.3 In Practice: Law of the Place of Injury
3.4 In Environmental Damage Cases: Victim´s Right to Choose
3.5 Roads to Domestic Law?
3.5.1 Manifestly More Closely Connected?
3.5.2 Rules of Safety and Conduct?
3.5.3 Overriding Mandatory Provisions?
4 Substantive Reach: The (Invaluable) Role of Comparative Law
4.1 Human Rights Due Diligence Legislation
4.2 In Particular: The French Loi de Vigilance
4.2.1 Remarkable Design
4.2.2 Limited Reach
5 Conclusion: Limited Effectiveness of National Law in Times of Globalisation
6 Outlook: Towards a European Supply Chain Instrument!
References
An International Economic Law Perspective on the United Nations Convention Against Corruption
1 Introduction
2 A Historical Perspective on the International Regulation of Corruption
2.1 The Influence of Corporate Scandals on the Framing of Corruption as a Legal Problem
2.2 The Failed Negotiation of a Treaty on Illicit Payments at the United Nations
2.3 The Reemergence of the Subject of Corruption at International Organizations in the 1990s
3 The Contemporary Transnational Criminal Law Approach to Corruption
3.1 UNCAC´s Criminalization Provisions
3.2 UNCAC´s Enforcement Provisions
3.3 UNCAC´s Prevention Provisions
4 Reflections on the Relationship Between UNCAC and International Economic Law
References
State Responsibility for Corruption: A Return to Regular Order
1 Introduction: The Centrality of State Responsibility in Corruption Decision-Making
2 Revisiting the ``Attribution Asymmetry´´ in Relation to Corruption Decisionmaking
2.1 Two Attribution Asymmetries
2.2 Attribution of Corrupt Conduct Under the Framework of State Responsibility in the ILC Rules
3 Does a Relevant Primary Rule Exist on the Consequences of Corruption, Whether Grounded in National Law, Transnational Public...
3.1 The Consequences of Corruption in National Law
3.2 The Consequences of Corruption in Transnational Public Policy
3.3 The Consequences of Corruption in International Law and Investment Arbitration
3.3.1 ``Corruption´´ Is Not Monolithic: Distinguishing Bribery from Influence Peddling and Their Consequences
3.3.2 The Consequences of Bribery in International Law Are Not Binary, and Are Affected by the Unique Circumstances of Each Ca...
4 A Return to Ordinary Order: Circumstantial Responsibility for Corruption Grounded on the Draft Articles
5 Conclusion
References
Human Rights in International Investment Law
1 Introduction
2 Law and Society´s Demands on Business vis-à-vis Human Rights
3 Links Between International Investment Law and Human Rights
4 Human Rights Provisions in Investment Treaties and Investor-State Contracts
4.1 References and Exemptions
4.2 Investor Obligations
4.3 Human Rights-Related Provisions in Investment Treaties
4.4 Human Rights Provisions in Investor-State Contracts
4.5 Other Sources of Human Rights and Human Rights-Related Issues
5 The Utility of Human Rights Provisions in International Investment Treaties and Investor State-Contracts
5.1 The Utility of Human Rights Provisions for State Regulatory Sovereignty
5.2 The Utility of Human Rights Provisions for Investor Obligations
6 Conclusion
References
Rights of Action of Business Entities in Regional Economic Systems
1 Introduction
2 Member States´ Motivation to Introduce Rights of Action and Their Procedural Details
2.1 The Rule of Law Model: Rights of Action as Defence Instruments
2.1.1 Historical Will
2.1.2 Procedural Details: Subordinating Business Entities Procedurally
Accessing the ECJ
Accessing the EFTA Court
2.2 The Functional Model: Rights of Action as Instruments of Control and Participation
2.2.1 Historical Will
2.2.2 Procedural Details: Approximating the Procedural Status of Business Entities and States
The ``Minimum Model´´ of Broad Access to Court: Companies Before the ECOWAS Court of Justice
The ``Maximum Model´´ of Broad Access to Courts
3 Rights of Action of Business Entities in Practice: Comparison of ``Legal Protection Models´´
3.1 Judicial Extension of Individual Access to Court
3.1.1 Doctrinal Determinants for Expanding Individual Access to Court
Subject Matter
Locus Standi
3.1.2 Method
The Restrictive Model of Literal Interpretation
The Broad Model of Teleological Interpretation: Extending Access to Justice Beyond Wording and Systematics
3.2 Judicial Restriction of Individual Access to Court
3.2.1 Doctrinal Determinants for Restricting Individual Access to Court
Subject Matter
Locus Standi
3.2.2 Method
3.2.3 Decentralising Legal Protection of Business Entities Before Domestic Courts
4 Conclusion
References
Can Current Regulation Effectively Manage PMC Conduct and Ensure Accountability?
1 Introduction
2 Regulation
2.1 UN-Level Regulation
2.1.1 Guiding Principles
2.1.2 Legally Binding Instrument
2.1.3 UN Draft Convention
2.2 Industry Standards and Regulation
2.2.1 Montreux Doc
2.2.2 ISO Standards and Toolkit
2.2.3 International Code of Conduct
2.3 Challenges of Self-Regulation
3 Accountability: Mechanisms and Challenges
3.1 Individual Responsibility and PMC Immunity
3.2 IHL and State Responsibility When Using PMCs
3.2.1 ILC Articles
3.2.2 Command and Control
3.3 Challenges Associated with the Corporate Status of PMCs
3.3.1 Societas Delinquere Non Potest
3.3.2 Corporate Veil
4 Who Can Hold PMCs to Account and How Will the Law Develop?
4.1 Finding the Appropriate Body of Law to Invoke Responsibility
4.1.1 Domestic Criminal Legal Systems
4.1.2 International Criminal Law
4.1.3 Transnational Model: Alien Tort Statute
4.2 How Is the Law Likely to Evolve?
4.2.1 Consolidate Existing PMC Regulation
4.2.2 Reinforce National Jurisdiction to Tackle Corporate Impunity
4.2.3 Adopt TCL/ILC Procedure
5 Conclusion
References
Dual-Use Export Control: Security and Human Rights Challenges to Multilateralism
1 Introduction
2 Dual-Use Export Control: Concept and Frameworks
2.1 Concept of Dual-Use Items
2.2 Legal Frameworks for Dual-Use Export Control
3 Unilateralism Within the Multilateral Trade Regime
3.1 The Security Exception
3.2 Deferential Review
4 Multilateralism Within Export Controls
5 Return of Unilateralism with a Universalistic Twist?
5.1 US´ Export Controls Act: Departure from Military-Based Rationale
5.1.1 Export Controls Act of 2018
5.1.2 National Security-Based Controls on Emerging Technologies
5.2 Revising the EU´s Dual-Use Regulation: Human Rights Perspectives
5.2.1 The Proposed Autonomous Export Control on Cyber Surveillance
5.2.2 November 2020 Draft Text
6 Conclusion
References
Part II: Current Challenges, Development and Events in European and International Economic Law
The New European Parliament and Its Role in EU Trade Policy: Reset or Repeat?
1 The Newly Elected European Parliament
2 What Is EU Trade Policy?
2.1 Non-Legislative Initiatives
2.2 Legislative Initiatives
2.3 Initiatives with Trading Partners Outside the EU
3 The Role of the European Parliament in Trade Policy
3.1 The OLP, Delegated Acts and Trade Agreements
3.2 Implementing Acts and the Right of Initiative
3.3 European Parliament´s Own Instruments and the Right to be Informed
4 The 2019-2024 European Parliament: What´s New?
4.1 Is the New European Parliament Institutionally Stronger?
4.2 Is There a Trade-Friendly Coalition in the New Plenary?
4.3 Is There a Trade-Friendly Coalition in the New INTA?
4.4 Do the Political Groups Have New Trade Priorities?
4.4.1 The Risk of Waning Enthusiasm
4.4.2 The Chances of Growing Appreciation
5 Results so Far in This European Parliament
6 Conclusion
Reference
The WTO´s Crisis: Between a Rock and a Hard Place
1 Introduction
2 Developments Inside the WTO
2.1 No Progress in the DDA and the Forecast of an Everlasting `Reformstau´
2.2 Broken Windows in the WTO House: Systemic Violations and Their Effects on the Functioning of the WTO
2.3 Two Pandora´s Boxes: Trade Wars and Security Exceptions-And an Unhealthy Commonality of the Two
2.3.1 How Securely Designed Is the Security Exception Clause?
2.3.2 Countermeasures in Trade Wars
2.3.3 An Uncomfortable Commonality
2.4 Destruction of the AB: Sounding the Death Knell for the WTO?
3 Developments Outside of the WTO
3.1 Proliferation of Preferential Trade Agreements: Is Most-Favoured-Nation Turning from the Rule to the Exception?
3.2 WTO-Plus, -Minus, -Extra Obligations and How They Relate to the WTO
3.3 Standard Setting or Why Weaker States Will Suffer Mostly from Bi- and Plurilateral Trade Negotiation Settings
4 Fixing the WTO: Why and How?
4.1 Is International Economic Law in General or Only the WTO in Particular in Decline?
4.2 Is the WTO Worth Saving?
4.3 Majority Voting as a Way Out or a Further Step into the Crisis?
5 Conclusion
References
PPM-Based Trade Measures to Promote Sustainable Farming Systems? What the EU/EFTA-Mercosur Agreements Can Learn from the EFTA-...
1 Introduction
2 Diversified Farming Systems Versus Specialised, Monoculture-Based Agricultural Systems
2.1 Two Main Categories of Farming Systems for Policy Purposes
2.2 Weak Framework Conditions for Diversified Farming Systems
3 Need for an Enabling Trade Framework to Promote Diversified Farming Systems
4 Sustainability Chapter Versus PPM-Related Trade Measures
4.1 EU/EFTA-Mercosur Agreement: More Nuanced Sustainability Chapter
4.1.1 Market Concessions in Agriculture
4.1.2 Sustainability Chapter to Increase Diplomatic Pressure
4.2 EFTA-Indonesia Agreement: Market Concessions Conditional on Sustainability Criteria
5 WTO-Conformity of Tariff Preferences Based on PPMs
5.1 Main Lines of Argumentation
5.2 Non-Discriminatory and Proportional PPMs
6 The Example of Brazil: A Missed Opportunity in the EU/EFTA-Mercosur Agreement?
6.1 Diversity in Brazil´s Landscape and Socio-Economic Disparities: Potential and Threats
6.2 Effective Policy Framework in Place, But Now Weakening
6.3 Trade as a Lever to Promote Sustainable Development in Mercosur Countries and Europe
7 Conclusion
References
The Mercosur-EU FTA and the Obligation to Implement the Paris Agreement: An Analysis from the Brazilian Perspective
1 Introduction
2 The Mercosur-EU FTA and Climate Change
2.1 Why Trade and Climate Change?
2.2 Trade and Climate Change in the Mercosur-EU FTA
3 The Paris Agreement and Brazil
3.1 The Paris Agreement´s Objectives
3.2 Brazil´s Intended National Determined Contributions
3.3 Which Measures Has Brazil Already Adopted to Implement Its iNDCs?
3.4 Is Brazil Close to Implementing Its iNDCs?
4 What Is the Impact of a Climate Change Provision in the Mercosur-EU FTA?
4.1 What Does ``Shall Effectively Implement´´ in Fact Mean?
4.2 What Are the Consequences of an Eventual Violation of the Climate Change Provision?
5 Conclusion
References
Part III: Book Reviews
Rodrigo Polanco, The Return of the Home State to Investor-State Disputes: Bringing Back Diplomatic Protection?
1 Introduction: Back to the Future?
2 Premise: Back with a Vengeance?
3 Methodology, Structure, Take-Away
4 Critique: Why Only the Home State? Answering Unasked Questions
5 Conclusion: A Road Not Taken-And for Good Reason
References
Constantinos Yiallourides, Maritime Disputes and International Law - Disputed Waters and Seabed Resources in Asia and Europe
Martin Jarrett, Contributory Fault and Investor Misconduct in Investment Arbitration
Margaretha Wewerinke-Singh, State Responsibility, Climate Change and Human Rights Under International Law
References
Prabhash Ranjan, India and Bilateral Investment Treaties. Refusal, Acceptance, Backlash
References
Julien Fouret, Rémy Gerbay and Gloria M. Alvarez, The ICSID Convention, Regulations and Rules: A Practical Commentary