ABSTRACT
In the midst of a legitimacy crisis in investor-State dispute settlement regime, COVID-19 syndemic may lead States to the perfect storm as a result of the enlargement of the national policy space in order to tackle health, social and economic impacts. Thus, this piece aims to identify measures adopted by Latin American States which may be challenged by foreign investors' claims. It also addresses the protection of national policy space and argues that the roadmap for reshaping the regime should include the following options: 1) moratorium on pending disputes and restriction on future claims related to COVID-19 measures;2) introduction of counterclaims as a general rule;3) reference to right to regulate in investment agreements;4) exclusion of protected areas or policies. © 2023 Universidad Nacional Autonoma de Mexico. All rights reserved.
ABSTRACT
This Article contributes to the discussion about the development of international trade regulation of state interventionism by situating the tensions that exist about the future design of subsidies and state enterprises treaty regulation in the broader context of current systemic challenges to the multilateral trading system. While recent studies have explored the issues of subsidies and state-owned enterprises (SOEs) as one of the most significant in impact among the contemporary challenges to the WTO, there is certainly scope to discuss further such a problem from the broader point of view of the crisis of the multilateral trading system, its systemic challenges and the concomitant increasing politicization of international trade relations. To this end, this Article analyzes the interactions between the lasting decline of the WTO, growing political interferences with international trade flows and the prospects of reforming multilateral trade rules to address its systemic challenges and manage/mitigate newly central problems of the 21st century such as the Covid-19 Pandemic, climate change and the greening of economic production and international trade. The Article argues that existing WTO rules are not adequate to address these challenges and problems. It concludes that, like in the GATT era, it is only the spirit of pragmatism that may provide chances to find alternatives to growing frustration with negotiating inaction and, hence, to reform the system. However, the question remains whether it is possible to find an approach to imagine, remodel and craft multilateral rules that are sensitive to different economic, political, and social choices and able to rebalance the position of all members, large and small, rich and poor.
ABSTRACT
This article assesses the arguments and challenges that are likely to arise should investors file an investor-State dispute settlement (ISDS) claim over measures taken in response to a waiver of obligations relating to intellectual property rights (IPRs) under the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). After providing an overview of the proposed waiver of IPRs for COVID-19 vaccinations and treatments, it examines the jurisprudence relating to IP and investor-State arbitration and the grounds upon which investors would rely to make a case in ISDS and possible State defences. The analysis, which focuses on fair and equitable treatment and expropriation, concludes that it will be difficult for investors to succeed in claiming that measures taken in response to a TRIPS waiver of IPRs breach any substantive protection provision contained in an international investment agreement. States should, however, seek additional security by revisiting existing treaties and adding additional layers of safeguards to ensure legitimate and non-discriminatory measures taken in response to a TRIPS waiver do not lead to investor claims.
ABSTRACT
Unhappy with the rulings of the WTO dispute settlement system, which disproportionately targeted US use of trade remedies, the United States ended the entire system in 2019. There are multiple hurdles to agreeing to new terms of trade remedy use and thus potentially restoring some form of binding dispute settlement. First, a change would affect access to policy flexibility by the now large number of users of trade remedies. Second, although China's exports are the overwhelming target of trade remedies, exporters in other countries increasingly find themselves caught up in trade remedy actions linked to China. Third, critical differences posed by China's economic model may call for new rules for trade remedies, but no consensus on those rules has emerged. Even some of the most promising reforms have practical limitations, create additional challenges, or may be politically unviable.
ABSTRACT
Online platforms regulate and remove large amounts of illegal and harmful content (from content infringing IP rights to Covid-19 disinformation). Art. 18 of the proposed EU Digital Services Act Regulation ("DSA"), the most significant piece of regulation concerning online platforms, proposes a new system of "online courts" that would resolve any content-related disputes between platforms and their users. The paper discusses Art. 18 DSA (more precisely its version proposed by the European Commission, which is currently in the legislative process), the requirements it will place on dispute settlement bodies and the possible impact of these requirements on their operation and accessibility of such proceedings to users. It also briefly analyses the position of online platforms as defendants in content-related disputes and suggests changes to Art. 18 DSA that could be made to remove the identified shortcomings.