A Public Statement on the International Investment Regime, signed by a group of forty eight academics from around the world, has added, “We have a shared concern for the harm done to the public welfare by the international investment regime, as currently structured, especially its hampering of the ability of governments to act for their people in response to the concerns of human development and environmental sustainability”. [2] It argues, inter alia, that investment treaty arbitrations are unfair and unbalanced,[3] and that states should withdraw from investment treaties.[4] International investment law has even been described by a distinguished academic as “a law of greed”.[5]

Although perhaps somewhat exaggerated, these critiques are certainly not baseless. Several recent developments, most notably the disputes between tobacco giant Philip-Morris and the governments of Australia and Uruguay, indeed demonstrate how foreign investors can abuse the system of international investment law. But, as previously argued in this blog,[6] it could well be that these critics overlook the possibility that this system can also support sustainable development goals.

An alternative perspective of the ‘regulatory chill’

While the above mentioned critics often claim that investment treaty law restricts governments’ regulatory flexibility and their ability to adopt stricter environmental and social laws, it should be noted that similar ‘restrictions’ can also stop governments from reducing their standards on these very issues. For example, in recent investment arbitration a Canadian investor, who invested in an eco-tourism facility in Barbados, argued that Barbados authorities’ failure to enforce environmental laws and commitments, on which he legitimately relied, led to the pollution of his site.[7] The prospect of paying compensation in such cases can ‘chill’ governments’ will to  lower environmental standards, and thus support environmental objectives.

Similar claims can also be made with respect to climate change policies. Investment in low-carbon technologies, for example, often requires governmental support. This is partly due to market distortions like those resulting from high fossil fuels subsidies.[8] Another reason is the immature state of these technologies that often renders them unprofitable in strictly financial terms. Therefore, without state support many investors may choose other, more profitable alternatives. Indeed in order to promote climate-friendly investment, many states have adopted support schemes so as to cover the existing ‘gap’ between the public need for private investment in this field, and the current unprofitability of these technologies.

Investors rely on these governmental support schemes when deciding whether to invest in new low-carbon technologies. Governments’ ability to ‘fulfill their promises’ of support is therefore crucial for investors. When these promises are not kept after an initial heavy investment has been made, investors’ discontent can be understood. Even more troubling, at least from the public’s point of view, is that ‘un-kept promises’ can also discourage investors from making similar investments in the future.[9]

In light of the above, it can be argued that (to use the Guardian’s words) the existence of such a “legal weapon that gives corporations the edge on government”, may not necessarily be a bad thing. Having the option of claiming compensation in cases of governmental ‘betrayal’ can reduce the risks of relying on governmental promises, and encourage investors to invest in low-carbon technologies.

Recent developments:

Lately this present discussion has become a reality. On November 2011 a group of fourteen foreign investors filed a notice of arbitration against the Spanish government (based on the Energy Charter Treaty), following the latter’s substantive cuts in its feed-in tariffs (“FIT”) scheme. The cut in the FIT scheme was made due to the financial hardships Spain is currently facing.[10] The exact legal arguments raised by the foreign investors in this case are unknown to the author,[11] but a legal brief prepared by a certain leading law firm suggests that they may have relied on the “fair and equitable treatment” and “national treatment” standards of protection, as well as on the protection from expropriation, as stipulated by the Energy Charter Treaty.[12]

The Spanish example, however, reveals also the other side of this story. Spain is currently facing a difficult financial crisis. The solar industry, according to several publications, received 2.6 billion Euros in subsidies in 2010 alone,[13] and it is doubtful whether a state in such a condition should be forced to allocate these amounts to, of all things, renewable energy.

On the other hand, it is also discouraging that when facing financial difficulties, environmental causes are too often the first to be sacrificed. It can also be added that while Spain’s admittedly difficult financial situation should perhaps be considered when resolving this dispute, other, less ‘financially challenged’ states, like the UK, are making similar cuts.

In the author’s view, investment treaty law’s role in such cases is not necessarily negative. It provides assurances that in light of the low priority environmental considerations often receive, especially in times of financial turbulence, environmental ‘promises’ may still be respected. This is important for the prospect of green technologies, and for the future of our planet. This, however, is not to say that the system is flawless. Struggling states such as Spain should be allowed some flexibility when facing economic crises. And as demonstrated by several investment awards decided in the past against Argentina, it is possible that many investment treaties are simply not suitable for dealing with these situations. But, and this is important to remember, the arbitrations against Argentina and the mentioned case against Spain involve financial crises of historical proportions. This may not, usually, be the typical case in future claims.

Conclusion:

The prospects for the UN ‘green-economy’ vision depends on the successful fusion between private commercial interests and public environmental and social goals. Providing the private sector with the ability to efficiently claim compensation from states that do not live up to their environmental commitments, does not conflict with this vision. This is especially true in the case of low-carbon technologies, in which the private sector’s involvement is crucial.

Those criticizing the investment regime should continue to do so. This system, like many others, is not perfect. At the same time the benefits of this system should not be overlooked, especially when the voices calling for its revision grow ever-louder.

[2] Public Statement on the International Investment Regime, 31 August 2010, online: Osgood <http://www.osgoode.yorku.ca/public_statement/documents/Public%20Statement.pdf> [Public Statement].

[3] Public Statement, supra note 10 at para 8.  These critiques mostly claim that investment treaties represent only the commercial interests of foreign investors, and ignore public interests of states.

[4] Public Statement, supra note 10 at para 14.

[5] M. Sornarajah, ‘A Law for Need or a Law for Greed?: Restoring the Lost Law in the International

Law of Foreign Investment’, Int. Environ. Agreements 123 (2006): 329 [Sornarajah, ‘A Law for Need or a Law for Greed?] at 331.

[6] “Environmental exceptions in the future EU investment policy. Perhaps more than meets the eye?”, Legal Frontiers, June 10.

[7] Peter A. Allard v. The Government of Barbados, (Notice of Dispute) 8 September, 2009 online: Graemehall <http://graemehall.com/legal/papers/BIT-Complaint.pdf> [Allard].

[8] Ben Sills, “Fossil Fuel Subsidies Six Times More Than Renewable Energy”,  Bloomberg, 9 November 2011, online: Bloomberg <http://www.bloomberg.com/news/2011-11-09/fossil-fuels-got-more-aid-than-clean-energy-iea.html>.

[9] In a statement made by the UK Solar Trade Association following the U.K. government’s decision to modify its FIT scheme it was argued: “Such deep cuts to the tariff would kill the UK solar industry stone dead.” The UK Renewable Energy Association has added: “The renewables industry is really not confident at all. These changes undermine confidence across all energy-related investments, even CCS [carbon capture and storage] and nuclear, as we need to be confident that the government will honour their commitments and not chop and change.” See Uk Parliament Briefing Paper, Elena Ares, Oliver Hawkins and Paul Bolton, Science and Environmental Section, “Feed-in Tariffs: Solar PV”, online: UK Parliament <www.parliament.uk/briefing-papers/SN06112.pdf> at 14, and Damian Carrington, Feed-in tariff cuts ‘will kill solar industry stone dead’”, The Guardian, 31 October 2011, online: The Guardian <http://www.guardian.co.uk/environment/2011/oct/31/feed-in-tariff-cuts-industry>.

[10] Tim Webb, “Spain’s financial crisis claims another victim: the solar power industry” The Guardian, 30 March 2011, online: The Guardian <http://www.guardian.co.uk/world/2011/mar/30/new-europe-spain-solar-power>. Please note that other states, like the U.K., have also modified their FIT schemes for similar reasons. In the U.K. these measures were legally challenged (successfully, for the moment) by solar industry. See Energy Efficiency News, “High court rules UK government’s solar feed-in-tariff cuts are illegal”, 22 December, 2011, Energy Efficiency News, online: <http://www.energyefficiencynews.com/i/4745/>.

[11] To the best of the author’s knowledge, these have not been published yet.

[12] See a brief prepared by Freshfields Bruckhaus Deringer, “Tariff changes for photovoltaic solar power in Spain” March 2011, online: <http://www.freshfields.com/publications/pdfs/2011/mar11/29871.pdf>.

[13] Tim Webb, “Spain’s financial crisis claims another victim: the solar power industry” The Guardian, 30 March 2011, online: The Guardian <http://www.guardian.co.uk/world/2011/mar/30/new-europe-spain-solar-power>.

The tuna-dolphin disputes revolve around unilateral measures taken by the United States in order to combat the use of purse-seine fishing nets. Purse-seine fishing nets are used for commercial fishing. When used for tuna harvesting, not only tuna but also dolphins (and other species as well) are often trapped, injured, and even killed. It was argued by the United States that due to the use of these nets, the population of dolphins at the ETP was dramatically reduced.

Luckily for the dolphins, two types of U.S. pressure groups did not intend to let them disappear from the waters of the ETP. The first were U.S. fishermen who relied on dolphins for the fishing of tuna. Dolphins often swim above schools of tuna, and as they regularly surface above the water for a breath of air, they serve as an excellent visual indicator of where tuna can be found. The second group of champions to which dolphins owe their gratitude comprise environmental civil society organizations. Dolphins’ excellent reputation developed by generation of TV series and Disney movies probably also did not hurt their campaign.[1]

The pressure applied by these groups was indeed successful. The U.S. first reacted to this pressure with a ban, prohibiting the importation of tuna harvested with purse-seine fishing nets (“non-dolphin-safe tuna”). But as the use of these nets was, and still is prominent among Mexican fisherman, it wasn’t very surprising to find Mexico spearheading the efforts to eliminate this ban. As part of their efforts, Mexico (and other states) invoked the trading system’s dispute settlement mechanism against these U.S. measures. These attempts were relatively successful, as trade dispute settlement panels ordered the United States to drop its ban on non-dolphin-safe tuna.[2]

The use of unilateral trade measures (such as ban on the importation of certain products) in order to ‘convince’ other states to adhere to what locals believe to be ‘right’ and ‘good’, is problematic and regarded by some as ethnocentrism, or cultural imperialism. Think for example on the ways in which many Canadians reacted when the EU decided to ban the importation of Canadian seal products (cute animals, apparently, are an endless source for trade disputes), or its more recent plan to ban Canadian tar-sands oil.[3] What is interesting about these unilateral measures, at least in my view, is how influence flows from one group of interests (environmental interests, for example), to another (economic interests, for example).

More concretely, we can see that some states attempt to influence global environmental issues by applying pressure through the trading system. These attempts highlight the fact that no group of interests is isolated from another. Trade influences the environment, and the environment influences trade. States therefore can use trade in order to affect the environment, and the environment in order to affect trade. International Relations (“IR”) authors define these attempts to influence one system through the use of another as ‘institutional interaction’, i.e. attempts of actors (states, NGOs, etc.) to influence the outcome of one regime (for example, reducing greenhouse gas emissions, which is the goal of climate change treaties), by applying pressure through another institution (for example, unilateral trade measures that affect the trading regime).

Trade, environment and the ways in which influence flows

Influence travels, sometimes even successfully, from the environmental domain into the trading arena. The turtle-shrimps case is one example in which ‘environmental’ influence successfully carried over (through the action of the U.S.) into the trading system. NGOs’ activity is also often mentioned as a vehicle through which influence flows between different regimes (see for example NGOs’ activity at the WTO Ministerial Conference in 1999 (known as “the battle in Seattle”), or during the (failed) OECD negotiations over a multilateral investment agreement).

This route, it should be noted, is a two-way street. An example of how (negative?) influence travels back from international trade motivated groups to affect the outcomes of environmental treaties, can be found in the U.S’s recent WTO challenge of Chinese subsidies granted to local wind power subsidies, which resulted with the elimination of these subsidies.

Critics of the WTO will probably argue that environmentalists’ influence is more likely to be shattered in the trading arena than actually effecting change in that domain. On certain levels they are obviously right. A short review of the ways through which influence travels may demonstrate this point. Influence travels by actors, and actors can act on several levels. Ideally, and most legitimately, actors can influence the trading system through trade negotiations, i.e. states can convince others that environmental considerations are important and should be promoted through trade. But due to the WTO consensus rule (WTO decisions are generally accepted by consensus) and the current negative negotiations atmosphere, it seems improbable that new, urgently needed, environmentally-influenced decisions will be accepted in this manner (for example, regulations concerning subsidies, or environmental goods and services). Influence, therefore, is highly unlikely to travel by actors through trade negotiations.

Another manner in which environmental influence can enter into the trading system is the one mentioned above – through unilateral trade measures applied by certain states that condition access to local markets on the adherence to certain environmental standards. As already mentioned, this approach is considered to be problematic by many as it represents an attempt to impose local standards, which often represent local values and priorities, on foreign states. Furthermore, without getting into too many details, it should be mentioned that under WTO law, states are not allowed to treat differently two similar products which differ only by the way they were made. For example, most will agree that discriminating between two ‘like’ products that differ only in the amount of CO₂ that was emitted during their production, is inconsistent with WTO laws.[4]

Another, less intrusive, way in which influence can travel is in the use of labelling. Labels, according to the online Cambridge dictionary, are “a piece of paper or other material which gives you information about the object it is fixed to”. Examples for labels are ‘fair-trade’, ‘kosher’, ‘eco’, and ‘dolphin-safe’, all of which provide a consumer with information regarding the purchased product that he or she might find important. Labels can be used as ‘conductors’ of influence in more than one way. First, labels can be used as a compulsory requirement for market access. This type of labelling is referred to as ‘mandatory’ labelling. For example, where a specific ‘kosher’ label is required in order to import meat into a state, this is ‘mandatory labelling’. This situation, it should be noted, is in effect no different from the one described in the paragraph above, and should be considered as tantamount to unilateral trade measures.[5]

A second, more interesting, type of labelling is ‘voluntary labelling’. ‘Voluntary labels’ are granted only to those products that follow certain requirements.  But unlike with ‘mandatory labels’, there is no formal barrier which prevents other, non-labelled, products from being sold in local markets. These labels are ‘voluntary’, as producers can decide whether to use them or not. An example of this type of labelling is the variety of ‘fair-trade’ labels available around the world. Indeed in most grocery stores consumers can choose between a variety of ‘fair-trade’ coffees and those brands that do not carry this label. This type of labelling simply provides customers with information about the products they are about to buy. As there is no ‘trade barrier’ imposed by the state, the influence is traveling directly by those consumers who are interested in passing it to traders and producers.

From a trade law perspective, voluntary labelling should be considered as a ‘soft’, non-intrusive, and even desirable ‘conductor’ of influence. It shifts the economic power from the state, which is committed under trade laws to allow market access, to the consumer, whose preferences and ability to choose between competing products is a cornerstone for the capitalist system and are protected both by anti-trust and consumer-protection laws. The battle in this case is no longer between states, and is no longer about trade barriers (as the obligation to allow market access was granted). It is simply between competing producers, whose ability to brand their products, whether through appealing to consumers’ ethics or their desire to dress/drink/act like David Beckham, is their primer motivation.

As explained above, not many routes are currently open for influence to flow from the environmental domain to the world of international trade. This situation is deteriorating as a WTO Dispute Settlement Body (“DSB”) decided recently to impose further difficulties on the transfer of ‘environmental’ influence into the economic domain. The DSB interfered this time with consumers’ ability to choose, their right to be informed, and influence economic actors through their preferences.

The ‘tuna-dolphin’ decision from September 2011

The DSB in its decision from September 2011 arrived at the conclusion that even when the use of a label is completely optional, it shall still be considered as ‘mandatory’ once the conditions for using this label are mandatory, and are regulated by the state. The meaning of the DSB’s decision is that even the use of voluntary labels, if regulated by the state, must be compatible with WTO requirements and can be challenged by other states. Accordingly, in the context of the tuna-dolphin dispute it was decided that conditioning the ‘dolphin-safe’ label with the non-use of seine-purse fishing nets is incompatible with WTO laws. The U.S. should therefore either annul this labelling scheme or face trade sanctions.

This conclusion is problematic from several aspects. Most notably, the DSB adopted a narrative according to which influence originating from consumers, rather than states, is also subjected to trade laws. This approach is justified, according to the DSB, due to the government’s role in deciding and monitoring the criteria for the ‘dolphin-safe’ labels. But the United States did not prevent its citizens from purchasing Mexican tuna; it only made sure that they would know which tuna was, or was not, harvested with purse-seine nets. The state enabled its public to influence, if they wish to do so, the economic sector, and affect the environment through their purchasing habits.

Furthermore, there are obvious advantages to having state-regulated labels.[6] The alternative to state-regulation of labelling is privatized regulation, i.e. leaving labels to be regulated by NGOs, or other private organizations. But the use of private organizations in order to regulate labels is not without faults. First, there are standards of transparency, due-process in decision-making, and a variety of administrative laws and principles to which private organizations are not bound.[7] The economic value of influential labels is incredibly high, and accordingly so will be the pressures applied on the labelling body. The mechanisms imbedded within (certain) governments are better suited to deal with and monitor such pressures. Furthermore, there are also questions of quality assurance. Who is there to “watch the watchdog”?[8] To ensure that these private organizations adhere to high standards of research,[9] monitoring, and decision-making?

Secondly, it should be remembered that these labels often symbolize values and ethics. Privatizing the labelling process, therefore, means privatizing the right to decide on the exact content of these values. While states, politicians and public servants represent citizens and their values, who is it that decides the criteria for what is ‘fair-trade’, for example? What kind of public debate took place within these private organizations in order to establish what ‘fair-trade’ is, and what it should be?

Apparently, if the ‘dolphin-safe’ label would have been produced and monitored by an NGO, this would not have been a ‘trade law’ problem. But why should this change anything? A voluntary ‘label’, as mentioned above, is simply a medium, a transmission tool for providing information. As long as this information is accurate (and there is no doubt that Mexican fishermen are indeed using purse-seine nets), why should a state be banned from passing it on to its citizens? And since when is the provision of accurate information a trade law violation? Since when is it even trade-law related?

The only logical explanation for these questions would have been that both the panel and Mexico believed that this label restricts trade and market access. Otherwise, Mexico would not have bothered to complain in the first place. But labelling, it should be remembered, is aimed to do exactly this; to inform consumers who consider this information to be important, and to allow them to influence international traders and producers to include environmental considerations in their decisions. The whole point of ‘labelling’ is indeed to limit market access and to “discriminate” against certain type of products. The crucial question, however, should have been who is really limiting the market access? Is it the state, or environmentally-conscious consumers?

In my view, the DSB in this case has crossed the line by interfering in the consumer-producer relationship, rather than the state-state relationship it was designed to deal with. The role of the state in this case  was marginal at best. It was aimed at supporting consumers, not blocking trade. The DSB has arrived at its conclusion by focusing on the interpretation of single words, but missed the bigger picture regarding the nature of the state measure, the role of trade laws, and the role of the WTO in general. By doing so, the DSB has limited even further the routes in which influence can travel between the different domains, as it submitted voluntary labelling based on state regulation and monitoring to WTO laws, which in fact are designed to prevent exactly what the labelling was trying to achieve.

The game, however, is not over yet. As this is ‘only’ a panel report, it remains to be seen what the appellate body will rule on these questions. The dissenting opinion in this case indeed leaves some room for optimism. Hopefully, the Appellate Body will give further consideration to these issues and reverse this decision.

[1] Most notably: http://www.youtube.com/watch?v=akyJYeBVbuM

[2] It should be noted that at the time of these decision, trade panels’ reports were de facto not enforceable. For a summary of the cases, see http://www.wto.org/english/tratop_e/envir_e/edis04_e.htm; and http://www.wto.org/english/tratop_e/envir_e/edis05_e.htm.

[3] See online: http://www.guardian.co.uk/environment/2011/oct/04/oil-sands-imports-eu-ban

[4] This topic is disputable and deserves more attention. See interesting discussion in Charles Benoit, “Picking tariff winners: Non-product related PPMs and DSB interpretations of “unconditionally” within Article I:1” (2011) 42(2) Georgetown Journal of International Law  583.

[5] In WTO law, this situation is considered as ‘technical regulation’, and indeed certain WTO agreements pose restriction on ‘mandatory labelling’ (most notably, see Article 2 of the Agreement on Technical Barriers to Trade (“TBT Agreement”).

[6] The author refers in this respect to democratic, non-corrupt states.

[7] for example, the author’s request to receive Greenpeace’s list of donators was denied

[8] Expression borrowed from  Robert C. Blitt, “Who will watch the watchdog?: International Human Rights Nongovernmental Organizations and the case for Regulation” (2004) 10 Buffalo Human Rights Law Review 261

[9] See for example Paul Collier’s well debated criticism of Christian-Aid, Paul Collier, The Bottom Billion (Oxford: Oxford University Press, 2007); See also critique over the outcome of ‘fair-trade’, Andrew Chambers, “Not so fair trade” 12 December 2009, The Guardian, online: <http://www.guardian.co.uk/commentisfree/cif-green/2009/dec/12/fair-trade-fairtrade-kitkat-farmers>

At present, it seems that the EU Parliament aspires to push forward an innovative approach, in line with (and perhaps even further than) policies already applied by countries like Canada, under which exceptions for sustainable development goals are included.[1] This is mostly the result of concerns about “regulatory chill”, which are often mentioned by scholars (and recently also by policy makers)[2] who wish to maintain states’ flexibility to regulate future policies with respect to the protection of the environment, health, human-rights, etc. Indeed, it has been reported that Uruguay intended to relax its proposal for new anti-smoking laws following Philip Morris’ threats of investor-state litigation.[3] Similar concerns seem to have led policy makers and civil society organizations in Australia and New-Zealand to object to the inclusion of the investor-state mechanism in their investment agreements (most notably in the Trans-Pacific Partnership Agreement).[4]

But things are not so simple. The aim of these general exceptions is often to promote sustainable development goals by making states ‘untouchable’ when it comes to the regulation of these important issues. However, the exclusion of such topics from the general standards of protection afforded for foreign investors, can be damaging to the same policies that these same countries are attempting to protect. One interesting example is the case of climate change-friendly technologies.

The development and the transfer of technology for the abatement of climate change can be described as nothing short of crucial. This has been recognised in a line of international agreements, including the 2007 Bali Action Plan, in which technology was mentioned as one of the central issues to be addressed  by the international community (alongside adaptation, mitigation, long-termed cooperative action and finance), and the recent 2010 Cancun Agreements where it was decided to “accelerate action” with respect to technology development and transfer, and to establish the Technology Mechanism, which includes the Technology Executive Committee, the Climate Technology Centre and Network.

As a series of studies and international documents show, without the active involvement of the private sector, sufficient technological development and transfer is unlikely to occur. Unfortunately, the market alone does not supply the private sector with adequate incentives to invest in climate-friendly technologies. The barriers mentioned in this respect include inter alia financial risks, policy risks (including political and regulatory risks) and low returns. The protection offered to foreign investors by international investment agreements and the provision of investor-state arbitration is very important in this respect, as it reduces some of the risk involved in such investment in a foreign country. Indeed investment treaties are designed for this very purpose. Simply put, enforcement of such a protection reduces risks and consequently encourages investment. It can therefore be argued that excluding fields such as the protection of the environment from investment agreements can actually damage the development and transfer of climate-friendly technologies.

But while the reasons for providing strong incentives to the private sector in this respect are clear, there is more to this picture. The climate change challenge is characterised by lack of scientific certainty. What seems a solid solution one day, can be described as a problem soon after.[5] Further, the necessity to apply the best possible technologies coupled with the fast rate at which technologies change, may imply that long-term stability can actually mean unwanted stagnation.

It is clear then, that policy makers are faced with some difficult choices. But while it is possible that the field of international investment law can be in conflict with the promotion of sustainable development goals, it is nevertheless questionable whether the simplistic use of exceptions is the best pro-sustainable development solution for this problem. Perhaps, what is needed is the development of a more sophisticated mechanism that will be able to fully balance this multilayered and complex situation.

[2] Claims brought by foreign investors, if successful, can result in the payment of heavy compensation and costly legal expenses. The ”regulatory chill” refers to the possibility that such expenses ‘chill’ states from applying their legitimate police powers and inhibit the regulation of fields such as the protection of the environment, health, human rights, etc.

[3] See in Rory Carroll, “Uruguay bows to pressure over anti-smoking law amendments”, guardian.co.uk, 27 July 2010, online: The Guardian <http://www.guardian.co.uk/world/2010/jul/27/uruguay-tobacco-smoking-philip-morris>.

[4] See <http://www.iareporter.com/articles/20110414>; and an “Open Letter to the Prime Ministers of Australia and New Zealand” <http://tppwatch.org/news-video-audio/media/letter-nz-australia-pms/>.

[5] See for example, ethical and environmental issues caused by the bio-fuels industry.  See online: BBC <http://www.bbc.co.uk/news/uk-13056862>.

The opening of borders to international activity has also brought about certain illnesses, some of which are not easy to confront. On the environmental front for example, it seems as if fears of losing economic competitiveness inhibit countries like the United States from passing a significant climate change bill. With regard to labour standards, competition for foreign investment may encourage countries to relax their labour laws and to use lower standards as an enticement for foreign economic actors. International economic activity is a complex, multilayered issue, one that touches (and often clashes with) a multitude of global issues.

A somewhat complicated relationship exists between international economic activity of multinational corporations and morality. The different concepts of moral behaviour, the notion of companies as entities that should act according to guidelines of morality (rather than just acting according to laws) and the role of the state as a champion for the public’s morality; all these factors are controversial and contribute to the complexity of the relationship. In the context of international economic law, one should add to this debate concerns of hidden protectionism, i.e. cases in which a state attempts to protect its domestic industry by attributing ‘moral fault’ to foreign economic actors.

In the past, several multinationals have acted in a manner which is considered as immoral to western eyes. Reports of Nike’s ‘sweatshops’ remains until today a symbol for abusive behaviour, in which the possibility to reduce costs outdid western views of what is appropriate. In other, less brutal cases however, the clash between international economic rights and morality is harder to discern. Indeed in recent years two cases relating to this issue of ‘morality’ were adjudicated by the WTO Dispute Settlement Body (“DSB”): US - Measures Affecting the Cross-Border Supply of Gambling and Betting Services[1] in which the United State raised GATS Article XIV(a) – the ‘public morals’ defence – concerning its prohibition of online gambling, and China – Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products[2] in which China raised the ‘public morals’ defence (this time under the GATT), regarding its right to authorise and restrict the distribution of foreign ‘entertainment products’ (i.e. DVDs, books, etc.).

Both of these cases dealt with attempts of multinational corporations to operate in foreign markets (the US market in the first case, the Chinese market in the second), and the consequent refusal of local authorities to allow their activities due to the danger that such an industry poses to its ‘public morals’. In both of these cases it was not so much the companies’ behaviour, but rather the companies’ services and products (gambling and entertainment products) that were considered as a threat to ‘public morals’.

When deciding these cases, the WTO panels clarified that the notion of ‘morals’ is to be defined according to the local “community or nation” standards of morality. ‘Morality’, for the purpose of WTO law, is a subjective, local concept, and is to be determined according to local “cultural, ethical and religious values”. One may ask whether this type of pluralistic determination does not bring WTO panels to an automatic acceptance of any claim of the morality defence.[3] After all, how can a foreign panel of arbitrators dispute a claim based on local values? Should and can trade arbitrators become the judges of such values?[4]

A recent clash between two rising giants, China and Google, presents another advancement in the relationship between multinational corporations and morality. In a nut shell, this dispute regards Google’s decision to shut its Chinese search engine (google.cn), due to the Chinese authorities’ censorship of Google search results. Google’s decision was not portrayed as a business decision, or as a result of cost-benefit calculation, but as nothing less than a human-rights/freedom of speech political move. Sergey Brin, one of Google’s two co-founders demanded U.S. governmental support on this issue, stating “I certainly hope they make it a high priority … Human rights issues deserve equal time to the trade issues that are high priority now,… I hope this gets taken seriously.”[5] He further sources his childhood in communist USSR as a motivation for this move.[6] U.S. officials were fast to adopt Brin’s narrative; Secretary of State Hillary Clinton was quoted by the BBC, saying that companies like Google should refuse to support “politically motivated censorship”.[7]

Google so it seems, is doing what the U.S. or China have attempted to do in the above described trade disputes: It claims that the other party’s morality is just not high enough for its own standards. While such a decision is expected of a sovereign body like a state, it is somewhat surprising to see it coming from a commercial entity. Whose standards of morality does Google promote here? Its shareholders? Probably not.[8] Sergey Brin’s? Possibly. The free world? Who appointed them or asked them to?

I would like to end this entry with two concluding thoughts. First, if the two trade cases presented above (US – Gambling and China – entertainment products) illustrate how states make use of morality in the face of multinational corporations, the Google-China incident shows that multinational corporations can play this game just as well. However, it is not yet clear what this ‘morality’-based narrative will get Google eventually (besides gaining some positive public opinion), and whether this type of ‘soft power’ is effective at all. More experienced players have already advised Google: “You’ve got to decide: do you want to obey the laws of the countries you’re in or not? If not, you may not end up doing business there.”[9]

Furthermore, it is not at all clear whether it is within the interests of multinational corporations to drag morality deeper into the game. While ‘morality’ is a possible defence in trade law, the lacking of such is not yet a valid ground for a challenge. Moreover, raising such a claim could possibly invite public scrutiny of the claimant itself. This kind of attention can do more damage than good.

Second, when it comes to the resolution of disputes, it is not clear how economic tribunals can assess ‘morality’ based claims. In fact, besides accepting whatever ‘morality’ claim that is laid before them, it is not clear what else arbitrators can do.

[2] http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds363_e.htm

[3] Pending, of course, on the fulfillment of the defence’s other conditions.

[4] It is hard however to see how could have the panels ruled in a different manner. Approaching to ‘universal’ values will obviously be overreaching and probably highly controversial

[5] Bobby Johnson & Ian Katz, “Google Co-founder Sergey Brin urges US to act over China web censorship” (24 March 2010) The Guardian, online: <http://www.guardian.co.uk/technology/2010/mar/24/google-china-sergey-brin-censorship>

[6] Ibid. See also Steve Lohr, “Interview: Sergey Brin on Google China Move” (22 March 2010) New York Times, online: <http://bits.blogs.nytimes.com/2010/03/22/interview-sergey-brin-on-googles-china-gambit/>

[7] BBC News, “Hillary Clinton calls on China to probe Google attack”, (21 January 2010) BBC News, online: <http://news.bbc.co.uk/1/hi/8472683.stm>

[8] In 2007 Google’s shareholders rejected a proposal against self-censorship in China. Erik Larkin, “Google Shareholders Vote Against Anti-Censorship Proposal”, (11 May 2007) PC World, online: PC World, <http://www.pcworld.com/article/131745/google_shareholders_vote_against_anticensorship_proposal.html>

[9] Bill Gates, as quoted in Bobbie Johnson & Tania Branigan, “Web censorship in China? Not a problem, says Bill Gates”, (25 January 2010) The Guardian, online: <http://www.guardian.co.uk/technology/2010/jan/25/bill-gates-web-censorship-china?intcmp=239>.

The investor-state dispute resolution process has been a long standing target for critics. Many of these critics concentrate on the lack of transparency demonstrated in the system; Indeed investor-state dispute resolution proceedings are often held in a confidential manner, where not only the public cannot follow or participate in the proceedings, but also, at least on some occasions, viewing the awards granted in these disputes is not permitted. The importance of such a webcast therefore lies first and foremost in the enhanced transparency it provides. It is, after all, only fair that the public be allowed (and able) to follow any legal proceedings in which tax payers’ money is on the line. Furthermore, investment disputes in the past have dealt with important issues such as the supply of drinking water, the enlargement of nature reserves, the disposal of toxic waste and the regulation of polluting gasoline additives. The public’s interest in following these legal proceedings is obvious.

It is important to note however, that as the proverb says, one swallow doesn’t make a summer. First, this is merely one case. Whether it will become a ‘trend’ is yet to be seen. Secondly, the specific webcasted proceedings were governed by the Dominican Republic – Central American Free Trade Agreement (CAFTA-DR), a rather unique agreement[3] in which Article 10.21 stipulates that hearings shall be open to the public. Most investment agreements do not include such provisions. Furthermore, it could also be argued that the novelty of this case is purely technological, as the instruction to conduct open hearings is not new in itself.

There is however, some level of importance in this new development. First, the legal text of the CAFTA-DR (like the text existing in the U.S. and Canada model treaties) is ‘passive’ by nature: the hearings need only be ‘open to the public’. Nothing in this text’s language requires the parties to actively ‘deliver’ the hearings to the public’s homes. An active approach, such as the one presented by the parties to the Pac Rim Cayman dispute, does not only passively permit the public to attend the hearings, but also actively makes the hearings readily accessible to the general public, wherever it may be. The parties’ decision to allow such an active approach could possibly serve as precedence, a creation of a new standard with regard to transparency in investment disputes, one that others may decide to adopt in future disputes.

Secondly, introducing states to such a possibility may lead to the future adoption of ‘active’ transparency obligations in international investment treaties. If the usage of webcasting technology becomes an accepted ‘trend’, receives positive feedback from the public and can be easily (and cheaply) implemented, states may choose to include similar requirements in their future investment treaties.

Thirdly, the use of such technology by international investment tribunals might help to improve the somewhat damaged reputation of the investor-state dispute resolution system. While it is not clear how many people are likely to actually use this newly acquired possibility (it would be interesting to know how many people actually listened to these 12 hours of recorded legal proceedings), having the option to do so remains crucial. As mentioned above, the field of international investment law is under heavy criticism. Many consider it to be a closed, western, commercially oriented system. Some even named it “the law of greed”.[4] Several states have denounced the ICSID convention (Bolivia, Ecuador), while others may intend to do so (Venezuela). Besides its above mentioned effects, the use of online streaming could serve in this respect as a ‘PR tool’, a visible step toward the alleviation of these critiques. The public image of the investor-state dispute resolution system would only gain from such a trend, and so would the legitimacy of this system.

There seems little doubt that adopting the webcasts technology in investment disputes can, at least potentially, bring about some benefits. It is important to note, however, that increasing the system’s publicity could also be used in order to create political pressure upon both arbitrators and parties.[5] State parties, for example, can engage public opinion to bring pressure on arbitrators in environmental cases. This, in the long term, would create unfavourable investment climate.

By webcasting an investment dispute to the open public, the investor-state dispute resolution system is distancing itself from the closed and secretive reputation it has gained. It will be interesting to see the full effects this change will carry – whether this enhanced publicity will be used in order to politicize disputes, whether it will affect the system’s reputation and legitimacy, or whether it will have no influence at all. After all, who in his right mind would like to watch 12 hours of legal proceedings?

[2] Though some technical problems currently exist. See online: ICSID http://icsid.worldbank.org/ICSID/FrontServlet?requestType=CasesRH&actionVal=OpenPage&PageType=AnnouncementsFrame&FromPage=Announcements&pageName=Announcement60

[3] Similar provisions can be found in Article 19 of the Norwegian Draft Model BIT, Article 38 of the Canadian Model BIT, Article 29 of the U.S.A Model BIT.

[4] M. Sornarajah, “A Law for Need or a Law for Greed?: Restoring the Lost Law in the International Law of Foreign Investment” (2006) 123 Int. Environ. Agreements 329.

[5] See concerns made in this respect by Ives Fortier, “Investment Protection and the Rule of Law: Change or Decline?” Lecture given by L. Yves Fortier on March 17th 2009 at the British Institute of International and Comparative Law, online: ICCA <http://www.arbitration-icca.org/media/0/12392785460140/0732_001.pdf>at 15.

Non-Governmental Organizations (“NGOs”)[1] play an increasingly important role in the moulding of new international policies and their influence has grown dramatically in the last couple of decades[2]. The activity of NGOs has also become ever more international in nature,[3] as globalization has both created and revealed international issues which require the attention of the international community. Increasing international awareness of fields like human rights and environment, the establishment of powerful international organizations such as the World Trade Organization (WTO) together with improvements in sectors such as telecommunication and transportation, have all joined together and have turned the activities of international NGOs into living reality. Although not yet fully recognized as subjects of international law[4], NGOs are considered today as new emerging players in the contemporary international legal system[5].

The rising influence of NGOs brings about many questions and debates, mostly concerning democracy and representation. I would however, like to focus on another problem, one which is less of legal nature and more related to narrative, power and appearance. I would like to refer in this post to the fact that NGOs reputation as objective, impartial “watchdogs” may be improperly used by political actors and other agenda driven bodies. Political agendas, in my view, are not “wrong” and should not be excluded from the activity of NGOs. Politics and agendas are a legitimate part of the public sphere, and it would be quite naïve to expect their complete absence when topics such as human rights and environment are on the table. It could however, be very deceiving when one attempts to promote a certain agenda while simultaneously wearing the “NGO costume”, one of allegedly impartial do-gooder, ‘politics aside’ source of information.

Unlike lobby groups, NGOs enjoy certain status and reputation of impartiality. When a certain NGO publishes reports, its ‘non-governmental / neutral’ appearance gives the impression that its interests and motives are non-political and that the benefit of the public as a whole – and that alone – is its sole motivation[6]. A big part of NGOs’ persuasive powers relies on this narrative and consequently reports made by NGOs are often cited as indisputable sources of truth, both by politicians and academics.

But politics can often be found in the activity of NGOs, whether where the organization’s raison d’être is touched by politics, or where the people behind the NGO have driven it into the political sphere[7]. In either case, the NGOs’ appearance of impartiality may be misleading and serve as a cover for politically driven agendas. The United Nations has recognized the danger in such political motivated NGOs and stated in its UN rules that any “politically motivated acts against Member States of the United Nations” may serve as ground for revoking NGOs’ consultative status within the United Nations.[8] The activity of these NGOs are not banned, but their consultative value is recognized as low.

One name that is usually being mentioned in such discussion is that of George Soros, a billionaire, “businessman, philanthropist, and political activist”[9]. Mr Soros has publicly declared that defeating former president George W. Bush was the “central focus of my life,” “a matter of life and death.”[10] Mr Soros supports NGOs heavily, and on some occasions this support has been viewed as politically motivated.[11] When recalling a meeting with representatives of a certain NGO, Mr. Soros was quoted as saying “they were ready to kiss me”.[12] In my view, his potential influence on fund thirsty NGOs can be quite evident. Mr Soros is supporting many different NGOs (including research NGOs) through the Soros Foundations, though for the sake of fairness, it should be added that a highly respected employee of such supported research NGOs claims that Mr Soros has never attempted to influence NGOs research in any manner. It should also be added (inter alia for the sake of my own legal defence) that I do not accuse Mr Soros of any such influence, but rather that I am just trying to explain that politics, agendas and NGOs may be interlinked and that when relying on NGOs findings and reports, one should be aware of such connection. I only argue that we should be entitled to know.

I suggest here a two-folded process. First, I argue that a “fair discloser” process, not unlike the one used for judges and arbitrators, should take place. I contend that NGOs should reveal any appearance of political connections, the professional affiliation of their key members or main donors, lists of donors (including names and sums of money donated), attach a “fair discloser” page on their website, or in short, reveal any information that prima facia may be relevant for the public’s judgement of their findings. NGOs do supply us with their own interpretation of factual events and we, their audience and clients, should be able to apply our best judgement concerning the picture presented to us.

The Second stage I propose here relates to “enforcement”. I argue that there should be some supervisory mechanism that will reveal this prima facia information when such is not voluntarily disclosed. Why should the World Trade Organization (WTO) be subjected to close scrutiny by so many NGOs and Greenpeace to none? This is especially true as NGOs are becoming so powerful. With regard to the identity of the “enforcer”, who will be a better “watchdog” for NGOs activity than the watchdogs themselves? It is my hope than, that objective NGOs will rise up to the challenge and enforce higher standards of transparency.

Nothing in this post is written in order to throw mud in the face of NGOs; rather, the opposite is true. NGOs are important (even crucial) for any sort of development, and their work makes the world a better place to live in. However, I think that the NGO is a new powerful player in the international arena and that we should accordingly give it the attention it deserves.

[2] Vaughn Lowe, International Law (New York: OUP, 2007) [Lowe] at 17; Peter J. Spiro, “Non-Governmental Organizations and Civil Society”, in D. Bodansky, J. Brunnee & E. Hey, The Oxford Handbook of International Environmental Law (New York: OUP, 2007) 771 [Spiro].

[3] Steve Charnovitz, “Non-governmental organizations and international law” (2005) 100 American Journal of International Law 348 [Charnovitz] at 350.

[4] Anthony Aust, Handbook of International Law (Cambridge: CUP, 2005) [Aust] at 14-15. It should be noted that the term “subjects of international law” is changing and States are no longer considered as the only subjects of international law (see in Martin Dixon, International Law (New York: OUP, 2007) 113), and NGOs may join this list of subjects in the future. Some organizations such as the World Health Organization apparently already consider NGOs as subjects of international law, see online: WHO http://www.who.int/trade/distance_learning/gpgh/gpgh7/en/index3.html

[5] Lowe, supra note 2 at 17.

[6] See more on this issue at Robert C. Blitt, “Who will watch the watchdog?: International Human Rights Nongovernmental Organizations and the case for Regulation” (2004) 10 Buffalo Human Rights Law Review 261 [Blitt].

[7] See for example <http://www.nytimes.com/2009/10/20/opinion/20bernstein.html>. See also article and especially readers’ comments on this very tragic episode concerning “Rights and Democracy”: http://www.theglobeandmail.com/news/politics/rights-groups-staff-demand-resignation-of-chair/article1429192/; See also John Bolton, “Should we take global governance seriously?” (2000) 1 Chicago Journal of International Law 205at 211.

[8] Article para 57 (a) of Resolution 1996/31, “Consultative relationship between the United Nations and non-governemtnal organizations”, the UN Economic and Social Council, July 25 1996, online: UN <http://www.un.org/documents/ecosoc/res/1996/eres1996-31.htm>; Charnovitz, supra note 3 at 359.

[9] http://en.wikipedia.org/wiki/George_Soros

[10] http://pqasb.pqarchiver.com/washingtonpost/access/443611991.html?FMT=ABS&FMTS=ABS:FT&date=Nov+11,+2003&author=Laura+Blumenfeld&pub=The+Washington+Post&edition=&startpage=A.03&desc=Soros’s+Deep+Pockets+vs.+Bush;+Financier+Contributes+$5+Million+More+in+Effort+to+Oust+President also available at http://www.aljazeerah.info/News%20archives/2003%20News%20archives/November/13%20n/Soros’s%20Deep%20Pockets%20vs%20Bush%20Financier%20Contributes%20$5%20Million%20More%20in%20Effort%20to%20Oust%20President.htm

[11] See for example http://www.washingtonpost.com/wp-dyn/content/article/2005/08/02/AR2005080201849.html

[12] See Supra note 10.

The conceptual change that international investment law seems to have gone  through has not however reached one very fundamental point. To my great surprise, speakers continually repeated the same old mantra concerning the main objective of investment treaties: the objective of investment treaties, so it was argued, is the protection of investors. This, I would argue, carries the same amount of logic as claiming that the objective of preparing a salad is cutting tomatoes. While it is true that Bilateral Investment Treaties (BITs) are designed to provide a protective and stabile environment for investors, it is also clear that such protection is a tool and not an end in itself.

When raising this point with one of the other conference participants, she simply answered: “it all makes sense, but none of it is written in BITs”. Technically at least, she was right. Most BITs do not specifically approach public interests and focus almost exclusively on the protection of investors. This narrow view has also led arbitrators to ignore public interests in many arbitral awards. Investment arbitrators, after all, are authorised to decide only in accordance with BITs. Referring to public interests when these are absent from BITs may therefore be considered as unlawfully exceeding the arbitrators’ powers.

The reason for the exclusion of public interests from BITs could be the “race to the bottom” phenomenon, in which states try to be as attractive as possible to foreign investors and therefore cannot afford to insist on maintaining large policing powers in BITs. I also heard others claim that the truth is far simpler: that BIT negotiators do not think about the problems that may result from such exclusion and thus neglect to include public considerations in BITs.

To return to the issue with which I started, none of the above can change the fact that BITs’ main objective is not the protection of investors. There is no benefit in the protection of investors just for the sake of protecting them. The protection of foreign investors is merely a tool, used in order to generate benefits, namely jobs, technology transfer, improvement of infrastructure or in short – development. In one of the first attempts to regulate the field of international investment law, The Havana Charter dictated over more than sixty years ago that: “international investment, both public and private, can be of great value in promoting economic development and reconstruction, and consequent social progress”. The Abs-Shawcross Draft Convention from 1959 adopted similar narrative as it envisaged foreign investments as a tool for the promotion of development. This simple essential truth has been forgotten over the years.

I started this post with the presentation of a certain dichotomy: on the one hand, it seems that some level of recognition of the public role of international investment law has been achieved, but on the other hand, people still claim that the main objective of BITs is the protection of investors. I believe that by acknowledging the inherent mistake which lies at the heart of the latter belief, both objectives and recent developments can be reconciled. Indeed lately, a new generation of BITs specifically acknowledge the true objective of BITs and “developmental language” is brought once again to the fore.[2] The Canadian Model FIPA for instance states:

“Recognizing that the promotion and the protection of investments of investors of one Party in the territory of the other Party will be conducive to the stimulation of mutually beneficial business activity, to the development of economic cooperation between them and to the promotion of sustainable development”

By acknowledging the true objective of BITs, arbitrators could include public considerations within their interpretation of investment treaties and thus achieve a more balanced approach, one that cohabits with states’ needs and reflects the recognition that foreign investment effects public interests, alongside those of private investors. Acknowledging development as the true objective of BITs, so I claim, is obvious and should be better reflected within any debate over the field of international investment law.

[1] International Investment Treaty Law and Arbitration: Evolution and Revolution in Substance and Process, Sydney University Faculty of Law, 19-20 February 2010. “

[2] See recent Canadian Model FIPA, Norwegian Model BIT, IISD Model BIT.

The Australian Court decided that international anti-competitive activity which takes place wholly outside of Australia may still influence the Australian market, and thus Australian law may possibly apply. It should be noted that this approach is by no means unique or new, as other domestic antitrust authorities are empowered by law to prosecute international anti-competitive activity.[1] But when examining the above-mentioned tension between the two conflicting forces, domestic regulation and an international problem, a more complex picture is revealed.

On the one hand, it is true that due to the lack of an international governing body or antitrust prosecution authority, the Australian authorities do not have much choice but to try and regulate international anti-competitive activity which affects Australian markets.  On the other hand, such an approach is not without consequences. Leaving the prosecution of international anti-competitive conduct to local antitrust authorities is both inefficient and somewhat inappropriate. First, domestic regulation of international anti-competitive conduct is often focused on domestic interests rather than on the interests of the international community as a whole. It may therefore endorse commercial practices that although beneficial to the local market, are harmful for others (the example of export cartels is one often given in this regard). Furthermore, domestic authorities may find it extremely difficult to investigate anti-competitive activity which occurs in several countries.

Secondly, it is problematic to argue that international enforcement by any single State is appropriate, especially when, for example, such action may be considered as a violation of another state’s sovereignty[2] (or as some describe it, “overregulation”[3]). One State’s standards concerning what is wrong and what is right may not coincide with those of another, and as one prominent author once said: “No one has elected the United States or the European Union [or Australia in this case, AK] to be enforcer for the world”.[4]

Arguably, this is a “lose-lose” situation in which both alternatives may bring about difficulties. The obvious solution to this problem is at least theoretically simple, and can be found in the shape of international regulation. The reality however shows that starting from 1948, almost all attempts made towards the international regulation of this field have either completely failed[5] or ended as non-binding “recommendations”.[6] A broader review of this situation reveals an even sadder picture, as despite efforts made by the European Union, this topic is currently not even being discussed. At the WTO Cancun Ministerial Conference and later at the Doha’s “July decision” this issue was completely removed from the international negotiations table.[7]

The existence of bilateral cooperation agreements indeed helps, but by no means solves the entire problem. International co-operation agreements between domestic competition authorities usually involve the exchange of information, informal connections and as reported by the OECD,[8] “surprise investigations” and raids in recent years. However, it should be noted that the main objective of these agreements is usually the protection of domestic markets, i.e. each State is still concerned only with its own local markets and the State’s operation is usually limited to its own market’s best interests. “International thinking” and governance are therefore still missing from the process.

“I found out that if you are going to win games, you had better be ready to adapt”

– Scotty Bowman, Hockey Legend

The international community is rightfully rushing toward financial globalization; despite popular critiques, there is no doubt that the opening of markets, the increase in cross-border investments and the ensuing financial integration have all brought about great prosperity, including for developing countries (India and China are two incredible examples). But it appears that in the race forward, the introduction of some of the rules which are so necessary for the sustainability of this new globalised environment has been forgotten. The new world requires new rules, and until a proper international policy is established, it seems that the field of international antitrust law will remain some sort of a “wild west”, where each town sets its own laws and hangs its own criminals.

In order to treat an international problem, the world’s nations should establish an international supra-governmental body to develop international policies and conduct international enforcement. That may seem politically unlikely for the moment, but as the exposure of states to international markets increases, the need for proper regulation is becoming more imminent. Hopefully, a proper international action will follow.

[2] Weinrauch, Roland. Competition Law in the WTO: The Rationale for a Framework Agreement (Graz:

Neuer Wissenschafts-Verlag, 2004) [Weinrauch] at 76.

[3] Andrew T. Guzman, “Public Choice And Regulatory Competition” (2002) 90 Geo. L.J. 971 at 973.

[4] Eleanor M. Fox, “International Antitrust and the Doha Dome” (2003) 43 Virginia Journal of International

Law 911 at 924.

[5] See attempts made within the WTO framework.

[6] See attempts made within the UN or OECD frameworks.

[7] WTO, Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, WT/L/579,

August 2004, online: WTO

<http://www.wto.org/english/tratop_e/dda_e/draft_text_gc_dg_31july04_e.htm>

[8] OECD, Hard Core Cartels: Third report on the implementation of the 1998 Council Recommendation

(Paris: OECD 2005) online: OECD <http://www.oecd.org/dataoecd/58/1/35863307.pdf > at 31.