Posts in the category ‘Trade’
Residency Requirement Upheld for Marijuana Cafes in the Netherlands; Case C-137/09
Last year, the European Court of Justice (“ECJ”) released its decision in Case C-137/09, Josemans v. Burgemeester van Maastricht, concerning restrictions on who is permitted to patronize restaurants and cafes which sell marijuana in the Netherlands.[1] While the Netherlands generally prohibits the possession of marijuana, certain establishments are permitted to sell small amounts of the drug so long as they comply with certain regulations. Title III of the Treaty Establishing the European Community (“EC Treaty”) establishes the fundamental right of the free movement of citizens of each Member State throughout the European Union (“EU”), meaning that the Dutch restaurants and cafes which sell marijuana have become a magnet for those living in states where recreational marijuana use is more strictly prohibited.[2] In order to combat the “public nuisance” caused by an influx drug tourists, the municipal council of Maastricht imposed a requirement that cafes selling marijuana only allow Dutch residents to enter their establishments; Marc Michel Josemans, the owner of “Easy Going” coffee shop, brought a suit against the municipal council, claiming that the requirement violated, inter alia, Articles 12, 18 and 49 of the EC Treaty.
Article 12 of the EC Treaty (now Article 18 of the Treaty on the Functioning of the European Union) outlines the general prohibition on Member States enacting laws which discriminate on the basis of nationality. The ECJ has interpreted the non-discrimination provisions of…
Trade v. Health; on Tobacco, Caffeine, and Turkey Tails
Governments around the world often struggle to find an appropriate policy balance between removing barriers to trade while simultaneously ensuring that they enact laws which protect the health of their citizenry. The tension between these two policy goals can often be averted; clarity as to policy objectives will enable a better determination of appropriate legal mechanisms to achieving a government’s goals. A few recent trade law developments highlight the challenges of regulation aimed at promoting health concerns in light of the World Trade Organization (WTO) obligations.
In Australia, the Tobacco Plain Packaging Act 2011 is an innovative piece of legislation which aims at discouraging the use of tobacco products by requiring uniform plainness in packaging.[1] The act would require cigarettes to be sold in packaging which would not allow tobacco companies to use their own labels, and consequentially constrain their ability to market their brand image. The government’s stated goal is to reduce tobacco consumption, particularly among young individuals.
Members of the WTO’s Technical Barriers to Trade (TBT) Committee discussed this piece of legislation at a meeting earlier this month, with over a dozen members voicing formal objections to the act.[2] The objecting states argue that Australia’s evidence of the effectiveness of the proposed act is suspect, and thus unnecessarily restricts trade.[3] It is important to note that many of the objecting states do not export tobacco to Australia, and…
BY Martin Hétu
FILED UNDER
Commercial Law
Corporate Social Responsibility
Human Rights
Intellectual Property
Special Contribution
Trade
L’accès aux médicaments antirétroviraux en contexte de crise de la santé publique et les obstacles posés par le droit international de la propriété intellectuelle
Chaque année, près de 2,7 millions de nouvelles infections au virus de l’immunodéficience humaine (VIH) sont rapportées et près de 2 millions de personnes en meurent (1). Les experts observent toutefois que les pics des nouvelles infections et de la mortalité annuelle sont maintenant derrière nous (1) et que les chiffres montrent une diminution globale de l’incidence du VIH/sida au niveau mondial (2). Un plus grand accès aux médicaments antirétroviraux (ARV) et une baisse de leur prix en faveur des populations des pays en développement (PED) est en grande partie responsable des progrès récents. Les ARV, en plus d’être les médicaments préconisés par les médecins partout dans le monde pour un traitement efficace de la maladie, jouent un important rôle préventif en diminuant notablement les probabilités de transmission du virus (2, 3).
L’accès aux ARV est donc capital pour les PED, dont les populations ont les plus hauts taux d’incidence (4). Il y a près de dix ans, les ARV n’étaient que peu ou pas accessibles aux victimes de la maladie dans les PED, coûtant près de 10 000 $ par année pour chaque patient (5, 6). La société civile ainsi que certains membres de la communauté médicale internationale, outrés par l’attitude des grandes compagnies pharmaceutiques[1], ont donc dû prendre les choses en main afin de modifier l’ordre du jour politique global et réitérer l’importance d’agir contre les ravages que…
U.S. Senate Passes Counter-Productive Countervailing Duties Bill
Last month, the U.S. Senate passed Bill S. 1619, the Currency Exchange Rate Oversight Reform Act of 2011 (“the Act”), which is aimed at penalizing foreign producers in favour of their U.S. domestic counterparts.1 The Act has been introduced but has not yet passed through the House of Representatives. Section 4 of the Act outlines the method by which the Secretary of the Treasury will determine if a foreign currency is “fundamentally misaligned”, and if it makes that determination, sections 10 and 11 provide the mechanism by which the government would be able to impose countervailing duties (CVDs). In general terms, CVDs are a tool, permissible in international trade law, whereby a government is able to impose a duty on imported goods when the exporting country’s government has provided the exporter a subsidy.
China is the obvious target of the Act. Populist politicians in the U.S. in recent years have relied on criticizing China in the hopes of appealing to citizens who believe that the primary cause of high unemployment rates in the U.S. is the migration of manufacturing jobs overseas.2 The problem with the Act, however, is that it fails to comply with the U.S.’s WTO obligations, and will most likely be successfully challenged by China if it ever becomes law. The Act attempts to classify an undervalued currency as a “subsidy” to exporters. The Agreement on Subsidies…
BY Avidan Kent
FILED UNDER
Environment
Public International Law
Sustainable Development
Trade
On tuna, dolphins and all sorts of barriers
Trade lawyers’ interest in tuna and dolphins began in the early 1990s, when Mexico threw the first punch in what later became the long saga (going on 20 years now) known today as the tuna-dolphin disputes. The battleground was (and still is) the waters of the Eastern Tropical Pacific (“ETP”) Ocean, extending from California in the north to Chile in the south and Hawaii in the west. These waters are known for their abundance of sea-life, including numerous types of fish, dolphins, sharks, whales and sea turtles. Where fish are plentiful usually fisheries arise, and economic interests enter the game. This short note is written following the latest of a line of trade disputes between the United States and other states (most notably Mexico) concerning fisheries, morals and influence.
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.…
Domestic Implementations of the UN’s Financial Sanctions against the Libyan Regime
On February 26, 2011, the United Nations Security Council passed Resolution 1970, which authorized, among other measures, an asset freeze against Muammar Gaddafi, his family, and certain members of the Libyan regime.
The Security Council passed the Resolution under Chapter VII of the UN Charter, which allows the Security Council to issue binding decisions to maintain or restore international peace and security. Thus, member states are obliged to take domestic measures to implement the Resolution’s sanctions against the Libyan regime. This post provides a brief overview and comparison of the specific domestic initiatives that Canada, the UK, and the US have taken to implement UNSCR 1970 at a domestic level.
Canada
On February 27, one day after the passage of UNSCR 1970, Canada adopted Regulations Implementing the United Nations Resolution on Libya and Taking Special Economic Measures. The Governor General made these regulations under the authority granted by the Special Economic Measures Act (SEMA). The Special Economic Measures Act grants the Governor General the authority to make regulations to impose sanctions against a foreign state when Canada is obliged to through its membership in an international organization or when there is a threat to international peace and security.
United States
On February 25, one day prior to the passage of UNSCR 1970, Barack Obama issued Executive Order 13556 Blocking Property and Prohibiting Certain Transactions Related to Libya. Although the sanctions…
African Countries and the WTO Dispute Settlement System: strangers in an alien land?
In 1995, the World Trade Organization (WTO) came into existence, introducing some key reforms to the long-standing General Agreement on Tariffs and Trade (GATT) system. The most important reform was the setup of the Dispute Settlement System (DSS). There was now a greater clarity of rules and regulations, binding decisions and an Appellant Body. One would imagine that the highly juridical and legalized system based on equality and strict rules would be somewhat advantageous to African countries (the largest group in the WTO). This has not been the case. In fact, African countries’ involvement in the WTO dispute settlement system in the first decade has been minimal at best. In the first decade (1995-2005) of the DSS, no African country was ever a complainant in a dispute and in only six cases was an African country a respondent. In addition, Egypt is the only African country to have shown initiative and request the establishment of a panel, in the Egypt-Definitive Anti-dumping Measures on Steel Rebar from Turkey case. The one comparatively active area for African states in the DSS is their participation in disputes as third parties. Zimbabwe, Nigeria, Senegal, Cameroon and Cote-d’Ivoire have all participated in this capacity.
The most common reasons propagated for this trend include the low volume of global trade emanating from and to Africa, African countries’ inability to navigate the complicated and expensive DSS, and a lack of expert…
China in Africa: Can Africa’s legal institutions cope?
The classic story is that there was once a large, poor, but resource-rich country emerging from a period of conflict, whose government decided to focus on development and modernization. They began a dialogue with a rich Asian country which had already become a major importer of their oil. This rich Asian country proposed a bargain with the poor nation: in exchange for its natural resources it would receive a line of credit and the ability to import technology, and have companies from the rich nation build infrastructure. Readers may or may not be aware that the poor country with oil is actually China and the rich country is Japan. It is also very much the mutually beneficial dynamic that has come to characterize China’s engagement with many African countries. However, serious questions have been raised regarding China’s role in Africa, and in particular whether African countries have strong enough legal and regulatory institutions to deal with the increased Sino-investment.
Economists project that China will soon become Africa’s largest trading partner with trade figures set to hit a record high of more than $100 billion in 2010. The International Monetary Fund recently predicted that growth for Sub-Saharan Africa, which typically includes 47 countries (excluding North Africa), should reach 5% this year, up from an earlier prediction of 4.5%.[1] In 2011, it said, growth could rise to 5.5%.[2] Increased trade…
Multinational Corporations, International Trade and Morality. “Do No Evil”?
The activity of multinational corporations in the international arena is an important engine of development. It is within the ability of multinational corporations to create jobs, to invest in expensive research, to transfer knowledge and technology around the world and to promote progress in many fields. Indeed the international community support such activities through the regulation of both international trade and investment. These rules are mostly designed to facilitate international economic activity by ensuring easy access to foreign markets and warranting fair treatment to aliens by host states.
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…
Problems with the patchwork quilt? Examining inconsistency in investor-state arbitration
International investment arbitration has evolved dramatically throughout the last two decades.[1] In this time, we have witnessed the birth of investor-state arbitration and the “import[ation] of the commercial arbitration model into the realm of treaty-based investment disputes”.[2] In other words, investors can now bring claims directly against host states through treaty mechanisms such as Chapter 11 of the North American Free Trade Agreement (NAFTA).
Unlike the World Trade Organization’s (WTO) dispute settlement system, however, the substantive and procedural law applicable to investment disputes is not formalized in a manner analogous to the WTO Dispute Settlement Understanding (DSU). Instead, international investment arbitration is a mixed system; one that is fragmented and that “sits uneasily between public international law jurisdictions and domestic judicial systems”.[3]
Perhaps this uncomfortable mélange is a necessary characteristic that ensures the dispute resolution process is “neutral and effective”.[4] The existence of such a “broad network of interrelated rights”, however, creates a “patchwork”.[5] As Susan D. Franck notes:
“[…] decisions about issues with economic and political consequences are resolved in private before different sets of individuals who can and do come to conflicting decisions on the same points of law”.[6]
This patchwork creates uncertainty about the meaning of investment treaty rights in public international law,[7] which is evidenced by inconsistencies in investor-state arbitral jurisprudence[8] – and…
