The Journal of

WORLD INVESTMENT & TRADE

ABSTRACTS 

Jean-Christophe Liebeskind: The Legal Framework of Swiss International Trade and Investments—Part ii: Protection

To support its international trade and investments, Switzerland has developed a remarkably sophisticated internal and external legal framework. This article covers indifferently trade and investments. While there are fundamental differences, at the same time they are so closely inter-related that they are indissociable elements of the external economy here addressed as a whole. The article is published in two parts. The present second part  discusses the protection offered by the legal instruments available under Swiss law, including the treaties to which Switzerland is a party and the remedies available whenever trade is hampered or investments are damaged. The first part, published in The Journal of World Investment & Trade, Vol. 7, No. 3, June 2006, offered an overview of these instruments for the promotion and the support of Swiss exports and outbound investments.

Jean-Christophe Liebeskind is a Swiss attorney-at-law in Beijing, China.

Tania Voon: To Uphold, Modify or Reverse?—How the Wto Appellate Body Treats Panel Reports

Article 17.13 of the Wto Dispute Settlement Understanding (Dsu) provides that the “Appellate Body may uphold, modify or reverse the legal findings and conclusions of the panel”. In the vast majority of disputes, the Dispute Settlement Body (Dsb) adopts the panel report “as modified by” the Appellate Body report. Yet this simple terminology masks the diversity of the Appellate Body’s rulings. The Appellate Body does much more than simply uphold, modify or reverse panel findings, as reflected in the 77 reports it has circulated to date. More and more frequently, it declares panel findings to be moot and of no legal effect or finds that panels have failed to comply with their obligations under Article 11 of the Dsu. Sometimes, and often without detailed explanation, the Appellate Body refuses to decide a question before it. The Appellate Body also makes varying recommendations to the Dsb where a Member is found to have violated its Wto obligations. In this article, the author teases out the different approaches the Appellate Body has taken to its role of reviewing panel reports, highlighting problematic issues that generally go unquestioned.

Tania Voon, PhD (Cantab), LLM (Harv), LLB (Hons) (Melb), BSc (Melb), AMusA., is Senior Lecturer at the University of Melbourne Law School, Australia; Former Legal Officer, Appellate Body Secretariat, World Trade Organization; and Fellow, Tim Fischer Centre for Global Trade & Finance, Australia.

Senai W. Andemariam: Can (Should) Article xx(b) Gatt Be a Defense against Inconsistencies with the Sps and Tbt Agreements?

Gatt Article xx(b) refers to measures taken to protect human, animal or plant life or health. Recurrent use of sanitary and phytosanitary (Sps) measures necessitated the introduction of the Wto’s Sps Agreement—to elaborate the provisions of Article xx(b). Another Wto Agreement—the Agreement on Technical Barriers to Trade (the Tbt Agreement)—also has links with Gatt Article xx(b). This article initially elaborates the relationships between Article xx(b) and these two Agreements. It then discusses the interplay between Article xx(b) and the two Agreements when a given trade measure is made the subject of arguments under either of the two Agreements, other Gatt provisions and Article xx(b). The article finally discusses the question it basically tries to answer: whether Gatt Article xx(b) can be used to justify a measure found to be inconsistent with the Sps/Tbt Agreements.

Senai W. Andemariam, formerly a Judge with the Ministry of Justice, State of Eritrea, is currently Professor of Law at the University of Asmara, Eritrea

Tsai-Yu Lin: Addressing the Issue of Trade in Services and Public Health in the Case of Tobacco—Are the Fctc Restrictions on Tobacco Advertising Inconsistent with the Gats?

In spite of popular scepticism about the impacts of Wto disciplines on the application of the Framework Convention on Tobacco Control (Fctc), in this article the author argues that the General Agreement on Trade in Services (Gats) specifically does not preclude the Parties to the Fctc from adopting tobacco advertising restrictions as a tobacco control measure, reflecting to a certain extent that domestic regulation on the curb of tobacco consumption and services trade liberalization in advertising may co-exist. Tobacco advertising restrictions in any form prompted by the Fctc, by their very nature, in the author’s view, would be restrictions on the contents of an advertisement undertaken by the advertisers. Such restrictions, on the one hand, are irrelevant to the restrictions on trade in advertising services covered by Gats Article xvi on market access; on the other hand, they are not concerns related to the manner in which the advertising service will be performed, as contained in technical standards under Article vi on domestic regulation. Wto Members are explicitly recognized to enjoy regulatory autonomy in services under the Gats. This suggests that tobacco advertising restrictions could be adopted for public health purposes by Members without a violation of specific commitments for trade in advertising services.

Tsai-Yu Lin, LL.B., National Chengchi University, Taiwan; LL.M., Edinburgh University, U.K.; Ph.D., National Chengchi University, Taiwan; is Professor in the Department of International Business of Soochow University, Taiwan.

The Wto and the EU are young, albeit far-reaching, systems of international integration. The EU is not only a “regional trade agreement” permissible under Wto law but also a Member of the Wto on its own right. But where exactly are the points of intersection between Wto and EU law? Do the two systems interact in a co-operative manner, or are they heading towards conflict? Does EU law form part of a wider, Wto-based, ius commune of international trade? Or is it simply the “national” law of a Wto Member? Although not explicitly raised, this set of questions underlay the three Banana disputes before the EU courts during the course of 2005: Van Parys, Chiquita and Fiamm. This article critically examines the EU courts’ findings that an EU measure explicitly held to be incompatible with Wto law by the Wto’s dispute settlement body is not unlawful as a matter of EU law.

 Adrian Emch is a former Fulbright scholar and has an LL.M. each in EU law (Bruges) and international law (Tulane) and is currently in private practice.

Hakim Ben Hammouda, Stephen N. Karingi, Angelica E. Njuguna and Mustapha Sadni Jallab: Africa’s (Mis)fortunes in Global Trade and the Continent’s Diversification Regimes

In this article, Africa’s diversification trends are explored to try and uncover some stylized facts that can be stated as to how Africa has fared. The stylized facts show that efforts towards diversification at the continental and sub-regional levels had positive results in the 1970s and early 1980s. However, these gains were reversed in most cases beginning in the mid-1980s, as they could not withstand the pressures occasioned by the economic crises of the period. And where gains occurred, they were highly volatile and fragile. The most significant result of the response of African countries is that their diversification efforts have resulted in what this study has characterized as five regimes. After presenting the diversification patterns in Africa, this article characterizes the different diversification regimes in the continent.

The authors are staff members of the Trade and Regional Integration Division of the United Nations Economic Commission for Africa.