The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS 

An Chen: A Reflection on the South–South Coalition in the Last Half Century from the Perspective of International Economic Law-Making—From Bandung, Doha and Cancún to Hong Kong

This article traces the historical practice of the South–South coalition in the South–North conflict to innovate international economic law. By meditating on the historical experience and taking into consideration of the new fruits of the Wto’s Hong Kong Ministerial Conference, the author explores the historical track of the South–South coalition in renovating international economic law-making. The author argues that the weak nations should be united to reach their goal, since there is sharp contrast of power between the “strong North and the weak South”. The South–South union can only approach its aim with patience without being blindly optimistic, because any expectation of instant success is far from the reality. On the other hand, because interdependence between the South and the North and the majority of the South and the minority of the North is the trend of the time, even possible setbacks or ruptures of the negotiations after the Hong Kong Conference will not necessarily lead to the paralysis or collapse of the Wto multilateral trading system. Struggling with tenacity is the necessary path of the South-South coalition to strive for its inherent interests and the renovation of international law. 

An Chen is Senior Professor at the Law School, Xiamen University, and former dean (1987–1998); Chairman of the Chinese Society of International Economic Law since 1993; and an International Arbitrator, selected and designated to the International Centre for Settlement of Investment Disputes under the Washington Convention by the Chinese government since 1993.

Steven Kouris: The Wto’s Dispute Settlement Procedures—Are They up to the Task after 10 Years?

This article critiques the Wto dispute settlement system’s current weaknesses and examines whether comprehensive reform is the answer, having regard to the very fabric that defines the Wto, its treatment of developing and least developed Members and the institutional and international challenges it faces.  It is the writer’s view that comprehensive reform (even though legally an ideal outcome) is not the answer, as this would be difficult to achieve within a “Member-driven” organization like the Wto and contrary to its objectives.  Rather, the system would benefit from sensible and cautious reform to the remedies it provides, by developing credible transparency and access procedures and addressing system ambiguities and the imbalance and inequalities faced by less powerful Members.

Steven Kouris LL.B. practices law in Sydney, Australia.

Meir Perez Pugatch: Political Economy of Intellectual Property Policy-Making—An Observation from a Realistic (and Slightly Cynical) Perspective

The political economy of intellectual property rights (Iprs) focuses on the linkage between the different interests and goals of specific groups (corporations, non-governmental organizations, consumers, and even decision-makers and politicians) and IP systemic outcomes. A political-economy approach treats the regulation of Iprs as an ongoing battlefield of interests. Accordingly, it does not take the international system of Iprs for granted. Rather, it explores and unveils the political route by which such a system is constituted and associates
its outcome to the particular interests of different groups. This article suggests an alternative political-economy-interest-based approach to the analysis of systemic IP outcomes. It focuses on two cases studies: the Directive of the European Parliament and of the Council on the patentability of computer-implemented inventions (Ciid); and the implementation of Paragraph 6 of the Doha Declaration on the Trips Agreement and Public Health (the Wto deal on drug patents).

Dr. Meir Perez Pugatch is with the School of Public Health at the University of Haifa, Israel.  He is also the author of The International Regulation of Iprs in a Trips and Trips-plus World, which appeared in The Journal of World Investment & Trade, Vol. 5, No. 3, June 2005.

Bjørn Kunoy: Singing in the Rain—Developments in the Interpretation of Umbrella Clauses

The umbrella clause seeks to break with the well-established principle in international law in accordance with which a conceptual distinction is made between a treaty violation and a contractual breach. Accordingly, foreign investors’ protection is scheduled to be increased. However, due to various legal issues, the investor's reliance on umbrella clauses can to a certain extent be held to remain superfluous, as the interpretation of this provision by Icsid tribunals has not so far resulted in supplementary protection to investors. Only an imputed effect has been conferred to the umbrella clauses inserted in bilateral investment treaties. The interpretation of the umbrella clause has, however, not yet reached a point of pre-maturity, as occurs in the latest inconsistent interpretation of these obligation commitments by Icsid tribunals. The author concludes that the legal surroundings of the umbrella clause are still in their infancy and various interpretative clarifications of this disputed provision can be expected in the future.

Bjørn Kunoy holds a Master’s degree in European Legal Studies from the College of Europe, Bruges, Belgium; a Master’s degree in International Trade and Investment Law from the Université Paris X-Nanterre; and a Degree in Law from the Université Paris V-René Descartes.  He is also the author of Developments in Indirect Expropriation Case Law in Icsid Transnational Arbitration, which appeared in The Journal of World Investment & Trade, Vol. 5, No. 3, June 2005.

Thitapha Wattanapruttipaisan and Ngo Van Lam: Trade and Investment in the Knowledge-Based and Innovation-Driven Global Economy—Issues and Options for Business Development and Internationalization

This article focuses on a major, but relatively neglected, structural problem in most developing economies, including those in the Association of Southeast Asian Nations (Asean). This problem relates to their efforts to foster enterprise development and internationalization to take full advantage of the expanding opportunities in a liberalized and deregulated environment in production, trade and investment across the globe. Currently, an Achilles heel of businesses in Asean is low productivity and local value addition because of the persistent and heavy reliance on external technologies which are mature, readily available and widely shared. The region’s high-tech electronics industry, among others, is illustrative of labor-intensive, low valued-added and standard-segment manufacture of a product-cycle nature. Changed mindsets are thus overdue among Asean businesses and governments as regards research promotion and technological creativity and their commercialization. This, together with an enhanced science and technology base, has become the key to attaining higher orbits of productivity, to attracting and anchoring high value-added activities, and to sustaining competitiveness and first-mover advantage in a global economy increasingly based on knowledge, driven by innovation, and underpinned by ongoing learning and competence building.

Thitapha Wattanapruttipaisan is Head of the Studies Unit, Bureau for Economic Integration, Asean Secretariat in Jakarta, Indonesia.

Ngo Van Lam is Advisor at the Foundation for International Human Resource Development in Bangkok, Thailand.