The Journal of

WORLD INVESTMENT

ABSTRACTS 

Faizel Ismail: On the Road to Cancun—A Development Perspective on EU Trade Policies and Implications for Central and East European Countries

This article evaluates the European Union's trade policies, concluding that, in order to fulfill its commitments to the global trading system, trade liberalization and efficient global markets, the EU must undertake major transformation of its agriculture and trade policy. The author argues that, despite the EU's assertion of its commitment to environmental sustainability, its trade, agriculture and fisheries policies exacerbate environmental degradation and undermine the trade opportunities of developing countries. The author also critically evaluates the existing EU Common Agricultural Policy Mid-Term Review proposals set forth by EU Commissioner Fischler, arguing that they fall short of contributing to significant reform and that recent decisions taken in this regard by the EU Agriculture Ministers have further diluted reform prospects. Finally, the author argues that the Cancun Wto Ministerial Meeting provides the EU with a final opportunity to make meaningful proposals for agriculture sector reform and thereby re-assert the leadership role it established in Doha and further contribute to the development of the multilateral trading system.

Faizel Ismail is Head of the South African Delegation to the World Trade Organization in Geneva, Switzerland. He led the trade negotiations held between the new Government of South Africa and the European Union which resulted in a Trade, Development and Co-operation Agreement which took effect on 1 January 2000. He was a discussant for the Wto's Trade Policy Review of the EU in 2002. Mr Ismail is also the author of The Doha Declaration on Trips and Public Health and the Negotiations in the Wto on Paragraph 6—Why Phrma Needs to Join the Consensus! which appeared in the May 2003 issue of The Journal of World Intellectual Property.

Peter Nunnenkamp: Fdi for Development?—Assessing the Case for a Multilateral Investment Agreement from the Perspective of Developing Countries

Worldwide competition for foreign direct investment (Fdi) has become fiercer since almost all developing countries have unilaterally liberalized their Fdi regulations. Nevertheless, some developing countries remain opposed to multilateral negotiations on investment under the umbrella of the World Trade Organization. In strictly economic terms, the case for a multilateral agreement is considerably weaker than its proponents in industrialized countries suggest. The standard arguments that such an agreement would substantially reduce Fdi-related transaction costs and thus result in more Fdi are not compelling. At the same time, the requests of some developing countries for a "balanced" and "development friendly" investment agreement, including corporate obligations and allowing for flexible Fdi policies, are not convincing either. For political-economy reasons, developing countries are well advised to commit themselves to rule-based Fdi policies as a bargaining chip in Wto negotiations rather than engaging in futile efforts to block multilateral negotiations on investment altogether.

Peter Nunnenkamp is Research Director at the Institute for World Economics in Kiel, Germany. He is also the author of European Fdi Strategies in Mercosur Countries, which appeared in the September 2001 of The Journal of World Investment.

Samtani Anil and Lay Hong Tan: Ict Investments and Electronic Commerce Initiatives in Asean

The determinants for the development and growth of e-commerce can be distilled into three underlying core industries—the telecommunications industry, the Internet and the personal computer industry. This article provides an overview of the development and growth of these three determinants in the States Members of the Association of South-East Asian Nations. The second part of the article looks specifically at the e-Asean Framework Agreement, an initiative by the Asean governments to capture opportunities in trade and investment created by the new revolution in the information and communications technology markets. The third and final part of the article looks at the challenges and initiatives to promote e-commerce in Asean with an emphasis on the legal issues surrounding e-commerce activities and the impediments to e-commerce in the Asean countries.

Samtani Anil is an Advocate and Solicitor before the Supreme Court of Singapore, a Solicitor before the Supreme Court of England and Wales, and Assistant Professor of Law at Nanyang Business School, Nanyang Technological University in Singapore. He is also the author (with Yin Yin Joanna Gok, Boon Shiang Gue and Su Li Gina Tan) of Software Piracy in Singapore, which appeared in the July 2001 issue of The Journal of World Intellectual Property, and (with Joab Soh Wai Keong, Lawrence Lee Hock Young and Agnes Chua Bee Neo) of Copyright Infringement in Universities in Singapore—Problems and Possible Solutions, which appeared in the September 2002 issue of The Journal of World Intellectual Property.

Lay Hong Tan is an Advocate and Solicitor before the Supreme Court of Singapore, and Associate Professor at Nanyang Business School, Nanyang Technological University in Singapore

Ruwantissa Abeyratne: Liberalization of Trade in Air Transport Services

The fortunes of the air transport industry have never been perceived as encouraging. On the one hand, the rigid regulatory regime that effectively precludes free and open competition among air carriers and, on the other hand, the largely cosmetic advantage perceived by States to accrue to them by retaining the national identity of their carriers have both acted in the past as catalysts in hindering full liberalization of air transport. However, it is now encouraging that the international aviation community is showing a sense that the industry must be liberalized further if its resources are to be used to their fullest and the benefits accruing from it are to be maximized. At the Fifth Worldwide Air Transport Conference in March 2003, 794 participants from 145 Contracting States of the International Civil Aviation Organization and 27 observer organizations addressed various issues pertaining to liberalization of the industry. From an investment perspective, the success of the liberalization process is essential if the industry is to improve its return on investment. The present article addresses the various issues involved.

Ruwantissa Abeyratne is a senior official at the International Civil Aviation Organization in Montréal, Quebec, Canada, and a frequent contributor to both The Journal of World Investment and The Journal of World Intellectual Property. His most recent articles were Investing in Insurance of Air Transport—Some Perspectives, which appeared in the June 2002 issue of The Journal of World Investment, and Intellectual Property Rights and Privacy Issues—The Aviation Experience in Api and Biometric Identification, which appeared in the July 2002 issue of The Journal of World Intellectual Property.

Todd Weiler: Dodging Bullets—A First Look at the Final Award in The Loewen Group and Raymond Loewen v. U.S.A.

The author explains how the Nafta Tribunal in the Loewen case concluded that a Canadian company's treatment at the hands of a Mississippi State judge and jury constituted an egregious denial of justice—and thus breached the "fair and equitable treatment" standard of the Nafta's investment chapter—but nonetheless studiously—or perhaps incredulously—avoided rendering a damages award in favor of the investors. While the author explains how the Tribunal's reasoning might be justifiable as an application of international legal principles, he nonetheless hints that applied cynicism may provide the clearer reason for this outcome. Bad law normally follows bad facts, because sympathy captures the better sense of one's judgment. The author surmises that, in the Loewen case, the Tribunal may have tried so hard to avoid a politically embarrassing result for the United States that it found an entirely different way to make bad law. While the impact of this Award is likely to fall within the narrow band of cases involving direct challenges to court decisions as government measures, it nevertheless rings warning bells about the danger of mixing politics and law.

Todd Weiler teaches international economic law at the University of Windsor Law School in Windsor, Canada, and at the Centre for Energy, Petroleum & Mineral Law & Policy in Dundee, Scotland. He has been involved as expert counsel in more than one dozen Nafta investment disputes and maintains a leading Website on Nafta law at <<www.naftaclaims.com>>. Mr Weiler is also the author of Metalclad v. Mexico—A Play in Three Parts, which appeared in the December 2001 issue of The Journal of World Investment.

Document:
In the Proceeding between The Loewen Group, Inc. and Raymond L. Loewen (Claimants) and United States of America (Respondent)
Icsid Case No. Arb(AF)/98/3
Award

Reproduced here is the full text of the Award as dispatched to the Parties on 26 June 2003.