European Yearbook of International Economic Law 2019 (European Yearbook of International Economic Law, 10)

European Yearbook of
International Economic Law
2019
	Editorial EYIEL 10 (2019)
	Contents
	Editors and Contributors
	Part I: 100 Years International Labour Organization
	The ILO as an Actor in International Economic Law: Looking Back, Gazing Ahead
		1 Introduction
		2 The ILO´s Concern with International Economic Law
			2.1 Preamble to the ILO Constitution
			2.2 Constitutional Framework
			2.3 Early ILO Positions on IEL
			2.4 The Declaration of Philadelphia and the New Impetus for Employment Promotion
			2.5 The Challenge of the ``Washington Consensus´´
			2.6 Trade Liberalization and the ``Social Clause´´ Debate
			2.7 World Summit for Social Development and the WTO Singapore Declaration
			2.8 ILO Declaration on Fundamental Principles and Right at Work
			2.9 The Decent Work Agenda and the 2008 Declaration on Social Justice for a Fair Globalization
			2.10 From the 2008 Financial Crisis to the Social Development Goals
			2.11 Business and Labour Rights to the Fore
			2.12 Addressing the Future of Work
			2.13 A Few Elephants in the Room
		3 Pathways to Convergence?
			3.1 Back to Basics for Avoiding Conflict
				3.1.1 International Law Devices
				3.1.2 Data, Research and Reports
			3.2 Could the SDGs Enhance Social and Economic Policy Coherence?
			3.3 Additional Proposals
				3.3.1 Global Commission Proposals
				3.3.2 Individuals´ Proposals
		4 Conclusion
		References
	Decent Work in Global Supply Chains: Mapping the Work of the International Labour Organization
		1 Introduction
		2 The Main Reason for ILO´s Inaction on International Supply Chains Till 2016
		3 The (2016) 105th Session of the International Labour Conference: Agenda Item IV-Decent Work in Global Supply Chains
			3.1 The Pre-conference Report of the ILO Office
			3.2 The Debate on Agenda Item IV at the ILC
			3.3 The Outcomes of the 105th ILC Session on Agenda Item IV
			3.4 Merits and Demerits of the 2016 ILC Conclusions on Agenda Item IV
		4 The (2017) ILO Programme of Action and the Roadmap on Decent Work in GSCs
		5 The (2017) Revised Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy
		6 Decent Work and Protection of Fundamental Principles and Rights at Work in Export Processing Zones (EPZs)
			6.1 The Background Report of the ILO Office
			6.2 The Achievements of the Tripartite Meeting of Experts on EPZs
			6.3 The (2018) Decision of the ILO Governing Body on the Follow-Up Action on EPZs
		7 Concluding Remarks
		References
	Supervision of International Labour Standards as a Means of Implementing the Guiding Principles on Business and Human Rights
		1 Introduction
		2 ILO´s Traditional Supervision of International Labour Standards as a Remedy Mechanism in Cases of Infringements of UNGP Labo...
			2.1 Representation Under Article 24 of the ILO Constitution
				2.1.1 Examples
				2.1.2 Characteristics of Article 24 Representation
			2.2 Complaints Under Article 26 of the ILO Constitution
				2.2.1 Examples
				2.2.2 Particularity of Article 26 Procedure
			2.3 Remedy by Regular Supervision
				2.3.1 The Committee of Experts on the Application of Conventions and Recommendations
				2.3.2 Examples
				2.3.3 Discussion at the Conference Committee on the Application of Standards
				2.3.4 Examples
				2.3.5 Common Features of the Regular Supervision
			2.4 Freedom of Association Complaints
				2.4.1 ``Special´´ Nature of the Freedom of Association Procedure
				2.4.2 Examples
				2.4.3 Advantage and Limits of the CFA Procedure
		3 ILO´s Tripartite Declaration on Multinational Enterprises
			3.1 A Peculiar Legal Instrument
			3.2 ``Enforcement´´ of the Tripartite Declaration
				3.2.1 The Periodical Survey
				3.2.2 Interpretation Procedure
			3.3 Difference Between the OECD Guidelines and the ILO Tripartite Declaration
		4 Conclusion
		References
	Linkages of Trade, Investment and Labour in Preferential Trade Agreements: Between Untapped Potential and Structural Insuffici...
		1 Introduction
		2 Contextualizing Labour Provisions in Contemporary PTAs
			2.1 Implications of Trade and Investment Liberalization on Labour Standards
			2.2 The Emergence of Trade-Labour and Investment-Labour Linkages Through Labour Provisions in Preferential Trade Agreements
			2.3 Labour Provisions´ Underperformance
		3 Contemporary Trade-Labour Linkages
			3.1 Substantive Clauses
				3.1.1 Preservation of Policy Space: Labour-Relevant Exceptions from Trade Disciplines
				3.1.2 Importation Bans and Conditions for Goods Produced Under Illicit or Low Working Conditions
				3.1.3 Obligations to Effectively Enforce and to Maintain Existing Standards
				3.1.4 Obligations to Pursue and Achieve International Standards
					ILO Instruments and Other International Standards
					Bilaterally Agreed Labour Standards
				3.1.5 Interim Conclusion
			3.2 Mechanisms for Implementation and Enforcement: Recurring Structural Insufficiencies
				3.2.1 The Principal Modes of Implementation
				3.2.2 Institutional Mechanisms
					Committee Structure and Civil Society Participation
					Inter-State Dispute Settlement
				3.2.3 Structural Insufficiencies
					Governments´ Central Role and the Problem of `Over-Politicization´
					Non-alignment Between Interest and Capacities: The Sidelining of Stakeholders and `Disappointment Trap´
				3.2.4 Persistence of Structural Insufficiencies in Contemporary PTAs
			3.3 Conclusion
		4 Contemporary Investment-Labour Linkages
			4.1 Substantive Elements
				4.1.1 Preservation of Policy Space: Reaffirmations of the Right to Regulate
				4.1.2 NLS Clauses in the Context of Investment
				4.1.3 Regulation of Investor Conduct
				4.1.4 Conflict Rules Subordinating the Investment Chapter
				4.1.5 Interim Conclusion
			4.2 Mechanisms for Implementation and Enforcement
			4.3 Similar Structural Insufficiencies and the Risk of Underperformance
			4.4 Conclusion
		5 Towards a Systematic and Structural Revision of PTA Labour Provisions
		References
	From International Framework Agreements to Transnational Collective Bargaining
		1 Introduction
		2 Development of International Framework Agreements
		3 Characteristics and Content of Current International Framework Agreements
			3.1 Characteristics of International Framework Agreements
			3.2 Content of International Framework Agreements
			3.3 Implementation and Monitoring of International Framework Agreements
		4 New Discourse: Transnational Collective Agreements
			4.1 European Collective Agreements
				4.1.1 Content of European Collective Agreements
				4.1.2 Contracting Parties
			4.2 Mandate for the Conclusion and Negotiation of Agreements
				4.2.1 European Level
				4.2.2 International Level
		5 Stronger Mechanism of Enforcement in the Bangladesh Accord
			5.1 General Information on the Bangladesh Accord
			5.2 Mechanism of Implementation
			5.3 Legal Enforceability of the Accord Through International Arbitration
		6 Legal Enforcement of Transnational Collective Agreements
			6.1 Applicable Law
			6.2 Country to File the Case
			6.3 Legal Framework for Transnational Collective Agreements
				6.3.1 Option One for a Legal Framework in the EU: Uniform Legal Effect in All the Member States
				6.3.2 Option Two for a Legal Framework in the EU: Status Contract
				6.3.3 Option Three for a Legal Framework in the EU: The Same Legal Effect as Collective Agreements Concluded in the Member Sta...
				6.3.4 Further Prospects for a Legal Framework for TCAs at European Level
				6.3.5 Legal Frame for TCAs at International Level
		7 Conclusion
		Bibliography
	The ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy Revisited: Is There a Need...
		1 Introduction
		2 Historical Backdrop and the Nature of the Tripartite Declaration
		3 The Contents of Tripartite Declaration
		4 Implementation and Enforcement of Declaration
			4.1 Promotion
			4.2 Company-Union Dialogue
			4.3 Interpretation Procedure
		5 Assessment of the Declaration and Proposals for Reform
		6 Conclusions
		References
	EU Free Trade Agreements as an Instrument of Promoting the Rule of Law in Third Countries: A Framework Paper
		1 Introduction
		2 The Rule of Law in EU External Relations Law
			2.1 The Rule of Law as a Fundamental Value of the EU
			2.2 Consensual Components of the Rule of Law
		3 Political and Legal Framework of the EU Rule of Law Promotion Through FTAs
			3.1 Foreign Policy Objectives
			3.2 EU Power and Norm Diffusion
			3.3 Who Is the Counterpart? EU Bargaining Power in Trade Negotiations
				3.3.1 Economic Characteristics
				3.3.2 Development Aid/Aid Dependency
				3.3.3 Political Regime (and the Interplay of Economic and Political Factors)
				3.3.4 Integration Aspirations and EU Strategic Interests
			3.4 Legal Basis
			3.5 Disciplines That Contain Rule of Law Obligations
		4 Legal Mechanisms of EU Rule of Law Promotion Through FTAs
			4.1 Administrative Cooperation
				4.1.1 Administrative Cooperation Stricto Sensu
				4.1.2 Customs Cooperation and Mutual Administrative Assistance Agreements/Protocols
				4.1.3 ``Customs and Trade Facilitation´´ Chapters of the DCFTAs
			4.2 Public Procurement
				4.2.1 SAAs with Western Balkans
				4.2.2 DCFTAs with Eastern Neighbours
				4.2.3 CEPA
		5 Conclusion
		References
	Rule of Law in International Monetary and Financial Law: Reviving Old Spectres
		1 Introduction: Law and Economic Growth
		2 Law and Development as Predecessor of RoL
		3 From Synergies of Human Rights and Free-Market Movements to the RoL
		4 The Rule of Law and the World Bank
		5 The Rule of Law and the International Monetary Fund
		6 The Rule of Law and the European Bank for Reconstruction and Development
		7 Conclusions
		References
	Part II: Regions
	The Appellate Body of the WTO: An International Court by Another Name
		1 From an Afterthought to the `Heart´ of the WTO Dispute Settlement System
		2 `On-Call´ Judges
		3 A Court by Any Other Name
		4 Final Remarks
		References
	Irmgard Marboe, Calculation of Compensation and Damages in International Investment Law, 2nd Edition
		References
	Duncan French and Louis J. Kotzé (Eds.), Sustainable Development Goals - Law, Theory and Implementation
	Armin Steinbach, EU Liability and International Economic Law
		Reference
	Part III: Institutions
	Robert Howse, Hélène Ruiz-Fabri, Geir Ulfstein, Michelle Q. Zang, (Eds.), The Legitimacy of International Trade Courts and Tri...
		References
	Valentina Vadi, Proportionality, Reasonableness and Standards of Review in International Investment Law and Arbitration
		References
	Stephan Griller, Walter Obwexer, and Erich Vranes (Eds.), Mega-Regionals Trade Agreements: CETA, TTIP, and TiSA - New Orientat...
	Part IV: Book Reviews
	Constantine Michalopoulous, Aid, Trade and Development. 50 Years of Globalization (Palgrave Macmillan, 2017, ISBN 978331965860...
		References
	Grading Trump´s China Trade Strategy
		1 Introduction
		2 Overview of US Complaints About China
		3 Detailed Examination of US Complaints
			3.1 Analytical Methodology
			3.2 The 20 Charges Individually Examined
				3.2.1 Forced Technology Transfer
				3.2.2 Chinese Industrial Policies
				3.2.3 Discriminatory or Unjustified Trade Barriers
				3.2.4 Agricultural Import Bans
				3.2.5 Subsidies for Added Industrial Capacity
				3.2.6 Involuntary Licensing Requirements
				3.2.7 Non-transparency
				3.2.8 Improper Trade Remedies
				3.2.9 Data Localization
				3.2.10 China´s Retaliation
				3.2.11 Lack of Market-Oriented Policies
				3.2.12 High Bilateral Trade Deficit
				3.2.13 Unharmonized Tariffs and Taxes
				3.2.14 Belt and Road
				3.2.15 Lax Environmental Standards
				3.2.16 Securing Natural Resources
				3.2.17 Global Misallocation of Resources
				3.2.18 China´s Acquisitions in US
				3.2.19 Corporate Governance Law
				3.2.20 Cyber and Intellectual Property Theft
			3.3 Overall Findings
		4 Conclusion
		References
	The Renegotiation of NAFTA: The ``Most Advanced´´ Free Trade Agreement?
		1 Introduction
		2 The Political and Legal Context
			2.1 Political Discourse
			2.2 Trade Disputes
			2.3 Recent Free Trade Agreements
		3 Exploring Differences Between NAFTA and USMCA
			3.1 Rules of Origin
			3.2 Agriculture
			3.3 Digital Trade
			3.4 Investment
			3.5 Progressive Objectives
			3.6 State-Owned Enterprises and Designated Monopolies
			3.7 Non-Market Economies
			3.8 Dispute Settlement
			3.9 Final Provisions and Side Letters
		4 Conclusion
		References
	The ILO and the New `Common Sense´: Reflections on a Centenary
		1 The New `Common Sense´
		2 The Spirit of Philadelphia
		3 Solidarity and Dignity as Dogmatic Resources
		4 International Labour Protection as Human Rights
		5 Principles and Their Instantiations: An Argument About the Unity of Law
		References
	Challenges to International Investment Law Within the European Union
		1 Introduction
		2 The Achmea Decision
			2.1 Investment Tribunals´ Response to Achmea
			2.2 Domestic Court Decisions Concerning Achmea
			2.3 Member States´ Reactions to Achmea
		3 Awards in Breach of State Aid
		4 Concluding Remarks
	Labour Safeguards of International Financial Institutions: Can They Help to Avoid Violations of ILO Core Labour Standards?
		1 Introduction
		2 The Legal Design of IFI Labour Safeguards
			2.1 Qualified Support for Core Labour Standards: The Content of IFI Labour Safeguards
				2.1.1 Key Actors and Main Standards Covered
				2.1.2 Coherence with ILO Standards?
			2.2 Leaving Borrowers an Exit Option: The Coverage of Labour Safeguards
				2.2.1 Differentiating the Protection of Workers
				2.2.2 Avoiding Compliance by Outsourcing?
		3 Putting IFI Labour Safeguards in Practice
			3.1 The Implementation Mechanisms of Labour Safeguards
				3.1.1 Due Diligence
				3.1.2 Complaint Mechanisms
			3.2 The Potential Impact of Labour Safeguards: Insights from Prior Experiences
				3.2.1 An Overview of the Evidence
				3.2.2 The Case of the Compliance Advisor Ombudsman
		4 Conclusion
		Annex: Table of Cases Filed with the Compliance Advisor/Ombudsman
		References
	Overview of WTO Jurisprudence in 2017
		1 Introduction
		2 Canada: Welded Pipe (Panel Report)
			2.1 Facts of the Case
			2.2 Salient Legal Findings
				2.2.1 Article 5.8 of the ADA: Immediate Termination
				2.2.2 Article 6.10 of the ADA: Multiple Margins of Dumping
				2.2.3 Article 7.1(ii) of the ADA: Provisional Measures on Imports
				2.2.4 Additional Claims Under Articles 1, 7.5, and 9.2 of the ADA, and Article VI:2 of the GATT 1994
				2.2.5 Article 3 of the ADA: The Treatment of Imports from Exporters with de minimis Margins of Dumping for Determining Injury
			2.3 Observations
		3 Russia: Pigs (EU) (Appellate Body Report)
			3.1 Facts of the Case
			3.2 Salient Legal Findings
				3.2.1 Threshold Issue: Whether the Panel Erred in Attributing the EU-Wide Ban to Russia
				3.2.2 Whether the Panel Erred in Finding That Russia´s Terms of Accession to the WTO Did Not Limit Its Assessment of the EU-Wi...
				3.2.3 Findings Under Article 6 of the SPS Agreement
					Whether the Panel Erred in Its Findings Under Article 6.3 of the SPS Agreement
					Whether the Panel Erred in Its Findings Under Article 6.1 of the SPS Agreement
					Whether the Panel Erred in Its Findings Under Article 6.2 of the SPS Agreement
			3.3 Observations
		4 European Union: Poultry Meat (China) (Panel Report)
			4.1 Facts of the Case
			4.2 Salient Legal Findings
				4.2.1 Article XXVIII:1 of the GATT 1994
				4.2.2 Article XXVIII:2 of the GATT 1994 and Understanding on the Interpretation of Article XXVIII
				4.2.3 Article XIII:2 of the GATT 1994
				4.2.4 Article II of the GATT 1994
			4.3 Observations
		5 China: Anti-dumping Measures on Imports of Cellulose Pulp from Canada, (Panel Report)
			5.1 Facts of the Case
			5.2 Salient Legal Findings
				5.2.1 Articles 3.1 and 3.2 of the ADA: Volume of Dumped Imports
				5.2.2 Articles 3.1 and 3.2 of the ADA: Price Effects
				5.2.3 Articles 3.1 and 3.4 of the ADA: Impact of Dumped Imports
				5.2.4 Articles 3.1 and 3.5 of the ADA: Causation and Examination of Other Factors
			5.3 Observations
		6 US: Certain Methodologies and Their Application to Anti-dumping Proceedings Involving China, (Appellate Body Report)
			6.1 Facts of the Case
			6.2 Salient Legal Findings
				6.2.1 Articles 2.4.2 and 17.6(i) of the ADA
				6.2.2 Article 6.8 and Paragraph 7 of Annex II of the ADA
			6.3 Observations
		7 European Union: Anti-dumping Measures on Imports of Certain Fatty Alcohols from Indonesia, (Appellate Body Report)
			7.1 Facts of the Case
				7.1.1 Improper Adjustment of Export Prices: Articles 2.3 and 2.4 of the ADA
				7.1.2 Failure to Disclose Information: Article 6.7 of the ADA
			7.2 Observations
		8 Indonesia: Chicken (Panel Report)
			8.1 Facts of the Case
			8.2 Preliminary Matters: Panel´s Jurisdiction over Amended Measures Adopted After Panel Establishment
			8.3 Salient Legal Findings
				8.3.1 Article XI: 1 of GATT 1994: Positive List Requirement
				8.3.2 Intended Use Requirement
					Article XI:1 of the GATT 1994
					Article III:4 of GATT 1994
				8.3.3 Article 1.3 of the Import Licensing Agreement: Positive List and Intended Use Requirements
				8.3.4 Article XI:1 of the GATT 1994: Application Windows, Validity Periods and Fixed Licence Terms
				8.3.5 Article 8 and Annex C(1)(a) of the SPS Agreement: Undue Delay in the Approval of the Veterinary Health Certificate
			8.4 Comments
		9 Indonesia: Import Licensing Regimes (Appellate Body Report)
			9.1 Facts of the Case
			9.2 Salient Legal Findings
				9.2.1 Order of Analysis: Panel´s Decision to Commence with Article XI:1 of the GATT 1994
				9.2.2 Burden of Proof: Footnote 1 to Article 4.2 of the Agreement on Agriculture
				9.2.3 Operation of Article XI:2(c) of the GATT 1994 Regarding Agricultural Measures
				9.2.4 The Panel´s Analysis Under Article XX of the GATT 1994
			9.3 Observations
		Reference