The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS 

Thomas W. Wälde: Energy Charter Treaty-based Investment Arbitration—Controversial Issues

The article is based on the arbitration of the first Ect investment dispute that was fully litigated to the award stage. It discusses the issues raised there and their implications, in particular the embedding of a substantive part of the Ect's investment obligations in EU law, in particular its international dimension (accession, Europe Agreements) but also its environmental policies and directives. It focuses on attribution of State enterprise conduct to the State, questions of contract performance under the Ect (including the umbrella clause) and an application of the Wto discrimination test. The first Ect case had a strong environmental and energy-efficiency dimension: at issue was protection of an energy-efficient and environment-friendly investment against contract breaches in the context of the import of cheaper and to some extent nuclear energy competing with the higher cost of the operation. Environmental arguments, in particular those based on promotion of co-generation, also played a role.

Thomas Wälde, Dr. iur./LL.M. (Harvard), is Professor and Jean Monnet Chair at the Centre for Petroleum and Mineral Law and Policy, Dundee University, Scotland; and Principal, Thomas Wälde & Associates and TWA International Mediation Services. He is also the author of Renegotiation and Contract Adaptation in International Investment Projects—Applicable Legal Principles and Industry Practices (with Abba Kolo), which appeared in The Journal of World Investment, Vol. 1, No. 1, July 2000; and of Efficiency in Mediation—Solving a Complex Cross-border Energy Infrastructure Dispute in the Shadow of Three Moving Regulatory Regimes (with Michael Clancy), which appeared in The Journal of World Investment & Trade, Vol. 5, No. 2, April 2004.

Joachim Karl: The Competence for Foreign Direct Investment—New Powers for the European Union?

In the context of the current discussions on the adoption of a Constitution for Europe, the Convention on the Future of Europe has suggested transferring the competence for foreign direct investment (investment originating from or destined to countries outside the EU) to the European Union. This article examines the possible effects of such a transfer of competence in case it is finally agreed upon. It elaborates on the scope of the proposed new competence, the possible content of international investment agreements that the EU might conclude in the future and the impact that an EU competence for Fdi might have on the respective investment policy instruments of Member States. The article concludes that the transfer of competence for Fdi to the EU would constitute an important step towards deepening the internal integration and calls for a close cooperation between the EU and its member states in this area. Of especial importance is the model for future EU international investment agreements which the author presents as an annex to the article.

Joachim Karl, Dr. Iur., Mpa (Harvard), is Senior Expert in the Department of Investment and Energy Efficiency at The Energy Charter Secretariat, Brussels, Belgium.

Guiguo Wang: Globalization of Trade Law—The Example of the Argentina–Poultry Case

Due to the “great trend” of economic globalization, international agreements and international organizations are exerting more and more influence upon the legislation, administration and jurisdiction of members of the international community. Among the numerous international organizations, the World Trade Organization has exerted the most important influence on its Members. The Argentina–Poultry anti-dumping case represents a rare precedent in Wto history, one which shows to what extent the Wto may impact the sovereignty of its Members.

This article examines the details of that case, the legal reasoning behind the final Award, the interplay between national laws and international norms and the implications of the Award for globalization of trade law.

Guiguo Wang is Distinguished Professor of Law at Hunan Normal University, Changsha, China; Chairman of the Hong Kong Wto Research Institute; Professor (Chair) of Chinese and Comparative Law at the School of Law of City University of Hong Kong; and an Associate Editor of The Journal of World Investment & Trade. He is also the author of the following articles which have appeared in The Journal of World Investment: The New Neo-Confucianism and International Economic Law, Vol. 1, No. 1, July 2000;  The Globalized Economy in Quest of Globalization of the Rule of Law—From the Perspective of the National Treatment Principle; Vol. 2, No. 1, March 2001; and The China–Hong Kong Closer Economic Partnership Agreement Revisited, which appeared in The Journal of World Investment & Trade, Vol. 5, No. 1, February 2004.

Jacques Werner: Arbitral Chronicle

In this article, the author examines the nature of the arbitrator’s commitment—the effects it has on personal and professional life and how differing perceptions of that commitment affect the nature of the arbitral process itself. He also touches briefly on other issues of contemporary arbitration practice: the tension between lawyerly and peer arbitration; and the need to find ways to broaden access to arbitral justice.

Jacques Werner is Principal, Werner et Associés, Geneva, Switzerland; and a frequent international arbitrator.

M. Rafiqul Islam: A Wto Multilateral Framework for Competition Policy and Trade-Induced Development—Debunking their Complementarity in Developing Countries

The issue of competition has assumed prominence in the global marketplace due to increasing private anti-competitive practices which thwart multilateral trade liberalization under the World Trade Organization. This article examines the history of efforts to devise a global competition policy in the context of the relationship between competition policies and the economic development needs of developing countries. It examines, in particular, the implications that a multilateral or universal competition policy would have for developing countries. It concludes that a Wto multilateral competition policy is a prematurely conceived, rickety idea under the existing circumstances of global trade, especially given the inherent problems of the Wto system, which it examines in some detail.

M. Rafiqul Islam is Associate Professor of Law at Macquarie University, Sydney, Australia.

Roman Grynberg, Sacha Silva and Jan Yves Remy: Plurilateral Financial Standards and their Regulation at the Wto—The Experience of Small Developing States

Many small developing States have developed not inconsiderable export-oriented financial services sectors which have become major sources of foreign exchange and a viable supply of development finance. However, they are now faced with implementing increasingly complex external regulations as part of their integration into the multilateral system and the Wto. This article illustrates their experiences with some of the multinational bodies formulating standards for the regulation of the international financial services sector, paying particular attention to the Oecd Harmful Tax Initiative, those developed by the Financial Action Task Force to combat money laundering and, most recently, the financial regulations under the revised Basel Capital Accord. It then goes on to explore how the issue of international regulation of financial services is relevant to the more general but very crucial Wto negotiations on domestic regulation of services under the Gats and suggests ways in which the interests of these small States and those of the major financial centers can be harmonized for the benefit of all.

Roman Grynberg is Deputy Director of Trade and Regional Integration at the Commonwealth Secretariat, London. He is also the author (with Bridget Chilala) of Wto Compatibility of the Oecd Defensive Measures against Harmful Tax Competition, which appeared in The Journal of World Investment, Vol. 2, No. 3, September 2001.

Sacha Silva is a Consultant commissioned by the Commonwealth Secretariat, London.

Jan Yves Remy is a Research Assistant in the Economic Affairs Division of the Commonwealth Secretariat, London.