International Economic Law eJournal最新文献

{"title":"Navigating the Backlash: Re-integrating WTO and Public International Law?","authors":"Imogen Saunders","doi":"10.2139/ssrn.3675566","DOIUrl":"https://doi.org/10.2139/ssrn.3675566","url":null,"abstract":"The debate about the extent of the interaction between WTO law and public international law has existed for as long as the WTO itself. While WTO case law confirms a willingness of panels and the Appellate Body to embrace interpretative rules of general international law, engagement with non-trade obligations under non-WTO treaties has been more patchy. Nonetheless, the reality of competing international legal obligations on States will continue to grow. Could a deliberate shift to consider non-WTO obligations in WTO disputes help maintain the relevance of the institution?","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-12-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132436482","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"LA ‘NUEVA ARQUITECTURA’ DE LA FISCALIDAD INTERNACIONAL Y PRECIOS DE TRANSFERENCIA: LOS ACUERDOS DE LA OCDE “INCLUSIVE FRAMEWORK”, G-20 Y G-7 (The 'New Architecture' of International Taxation and Transfer Pricing: the OECD 'Inclusive Framework', G-20 and G-7 Agreements)","authors":"Adolfo Martin Jimenez","doi":"10.2139/ssrn.3897891","DOIUrl":"https://doi.org/10.2139/ssrn.3897891","url":null,"abstract":"Spanish Abstract: El 1 de julio de 2021, la OCDE y el Inclusive Framework (\"IF\") publicaron su ya famoso \"Statement on a Two-Pillar Solution to Address the Tax Challenges Arising from the Digitalisation of the Economy\". Si bien tal acuerdo multilateral se ha calificado como histórico, o como el germen de una nueva arquitectura de la fiscalidad internacional, el presente trabajo pone de manifiesto que, sin restar mérito a la labor de la OCDE/IF, el resultado es menos histórico, menos acuerdo y menos multilateral de lo que aparenta y se anuncia. Quizás, lo más llamativo es que incluso si se ejecuta fielmente un acuerdo sobre las líneas del Statement tampoco parece que pueda llevar a la estabilización del sistema de fiscalidad que pretende, es decir, da la impresión de que abre la puerta --de forma muy limitada-- a una mayor tributación de los beneficios empresariales en los países de la fuente y, como acuerdo favorable para los países de residencia de las empresas multinacionales, que limita la soberanía fiscal de un buen número de países, no cerrará probablemente la histórica contienda entre países de fuente y de residencia. Al mismo tiempo, al suponer las nuevas propuestas del Statement un abandono parcial y muy limitado del principio de imposición a precios de mercado, da pie a pensar que el sistema de fiscalidad internacional continuará moviéndose hacia sistemas de reparto proporcional de bases imponibles en el Impuesto sobre Sociedades menos complejos que el 'híbrido' que ahora se pretende ejecutar. English Abstract: On July 1, 2021, the OECD and the Inclusive Framework (\"IF\") published their now famous \"Statement on a Two-Pillar Solution to Address the Tax Challenges Arising from the Digitalisation of the Economy\". While such a multilateral agreement has been described as historic, or as the germ of a new international tax architecture, this paper shows that, without detracting from the work of the OECD/IF, the result is less historic, less agreed and less multilateral than it appears and is advertised. Perhaps most strikingly, even if an agreement along the lines of the Statement is faithfully executed, it does not seem likely to lead to the stabilization of the international tax system it seeks, i.e., it gives the impression that it opens the door - in a very limited way - to greater taxation of business profits in source countries and, as an agreement favorable to the countries of residence of multinational companies, which limits the fiscal sovereignty of a good number of countries too, it will probably not close the historical dispute between source and residence States. At the same time, since the Statement's new proposals imply a partial and very limited abandonment of the arm's-length principle, it gives reason to believe that the international taxation system will continue to move towards less complex systems of formulary apportionment of corporate tax bases than the 'hybrid' system now being proposed.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"8 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130142386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Catalyzing Sustainable Investment","authors":"Paul Rose","doi":"10.2139/ssrn.3885054","DOIUrl":"https://doi.org/10.2139/ssrn.3885054","url":null,"abstract":"Calls for increased focus on ESG issues—and more particularly, on the kind of sustainable investing that will help achieve the U.N.’s Sustainable Development Goals (SDGs)—run up against durable legal rules and norms of profit maximization. Corporate law, and especially Delaware law, remains committed to a shareholder wealth-maximizing orientation, and corporate directors typically can only consider other parties’ interests to the extent that considering such interests can be justified as benefiting the shareholders. Trust law, which governs the behavior of many investment intermediaries, also generally requires a commitment to wealth maximization, as trustees generally may adopt ESG investing only if doing so will benefit the beneficiary by improving risk-adjusted returns. Thus, there is a tension between directors’ and trustees’ obligations under the law and the need to mobilize the trillions of dollars necessary to achieve the Sustainable Development Goals, at least to the extent that such investments sacrifice returns. Private capital will invest in sustainable projects, but only if the projects provide a market-rate risk-adjusted return. To direct capital to critical, sustainable projects, some have called for changes in legal doctrine and governance norms that would allow for greater flexibility in investment decisionmaking, such that fiduciaries could invest in ESG projects even if they do not provide an at-market return. This article describes a different approach: the catalyzation of sustainable investment by governments, using unique advantages that enable sovereign entities to directly invest in sustainable projects and broker sustainable investments by taking on deal risk and reducing transaction costs for other investors. Rather than attempting to reform or re-orient market forces, governments can (and do) use existing market strategies that are successfully applied in private contexts. In other words, rather than expecting investors to sacrifice returns to achieve the SDGs or other public ESG benefits, governments are catalyzing sustainable investment by harnessing a profit-maximizing orientation.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115466299","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Do WTO Commitments Remain Tenable in the Age of Data? Renegotiating the Rules-Based System for the Data-Driven Economy","authors":"Dan Ciuriak","doi":"10.2139/ssrn.3879150","DOIUrl":"https://doi.org/10.2139/ssrn.3879150","url":null,"abstract":"The adaptation of commercial frameworks to the digital environment has been underway for many years. Well-developed e-commerce regimes have already been developed in major regional trade agreements; the WTO is playing catch up - and it is imperative that it do so, both to make available the benefits of e-commerce to the full range of WTO members and for its own credibility. However, even the most advanced regional trade agreements are struggling to keep up with the rapidly evolving system and the main action in developing new norms for the digital economy is in domestic regulatory sandboxes. The most challenging issue facing the WTO is the new geopolitical security divide that has emerged between the United States and China. The WTO Agreement was framed for a unipolar world, in which “inert” goods and services were traded across borders that could be rigorously policed. This framework is challenged on multiple fronts in a multipolar, online world of smart products. Options to move forward include GATT Article XXVIII/GATS Article XXI renegotiation of WTO commitments across the security divide; conditional MFN in areas where parties agree to appropriate protocols to manage the risks in the digital environment; and a new détente agreement to narrow the range of issues subject to the new national security concerns. An up-front, open and low-rhetoric renegotiation seems infinitely preferable to a high-rhetoric acrimonious decoupling.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-07-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132393090","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The EU to the Rescue of the Cuban Economy? the Political Dialogue and Cooperation Agreement (PDCA) and the State of Cuba-EU Economic Relations","authors":"L. Backer, Rafael Velázquez Pérez","doi":"10.2139/ssrn.3844226","DOIUrl":"https://doi.org/10.2139/ssrn.3844226","url":null,"abstract":"The Political Dialogue and Cooperation Agreement (PDCA) between the E.U. and Cuba was an important change in the way that the E.U. sought to engage with developing states. PDCA remains an important milestone for European foreign policy. It has become the template for European engagement with states and a means of projecting European values (either in the form of capacity building or continuous dialogue through trade and structural elements) in trade. Its importance was underlined by the late 2020 negotiations of a similar pact, a “Comprehensive Agreement on Investment,” with the People’s Republic of China. It makes sense, then, to consider the form and substance of Cuba-EU trade through the lens of the PDCA, and that is the object of this paper. The paper is divided into two parts, the first examines the PDCA in detail. In that context it seeks to extract the core bargain the Europe has been willing to strike as the foundation of its trade relationships with states the conduct of which are incompatible with European values and its human rights law. Part 3 then examines the state of trade relations through 2020, and in the shadow of the global pandemic. What appears here is that despite the transformation of driving trade principles, the state of actual trade and investment remains little affected. But that is not what PDCA appears to have bought the E.U. Rather, PDCA is an important element in the project of international normative legalization, that is in the construction of a distinct “common position” grounded in the narratives of the foundational normative principles of liberal democracy, markets and human rights.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"42 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-05-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114757100","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Safeguarding Right to Regulate to Promote Sustainable Development - An Analysis of Foreign Investment Laws of Sri Lanka","authors":"S. Dawood","doi":"10.2139/ssrn.3834941","DOIUrl":"https://doi.org/10.2139/ssrn.3834941","url":null,"abstract":"This study examines the foreign investment laws of Sri Lanka—namely, the BOI Act, BITs and Model BITs—to identify their strengths and weaknesses in terms of promoting responsible FDI and sustainable development.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116297036","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fundamentals of Investor-State Arbitration in Islamic Countries under the OIC Agreement for Promotion, Protection and Guarantee of Investments","authors":"Faisal Daudpota","doi":"10.2139/ssrn.3824003","DOIUrl":"https://doi.org/10.2139/ssrn.3824003","url":null,"abstract":"Investment treaties are meant for promotion and regulation of foreign investments in a country that aspires to secure investment from a foreign governments or foreign private persons. Such treaties provide the necessary legal framework to ensure protection of investments and remedies for concerned parties in case of non-compliance by the investment recipient country. <br><br>At least 25 member countries to Organization of Islamic Cooperation (OIC) have also ratified a multilateral investment treaty, namely: The Agreement for Promotion, Protection and Guarantee of Investments among the OIC Member States (APPGI-OIC Agreement).<br><br>This article provides an overview of the fundamentals to investor-state arbitration under APPGI-OIC Agreement. <br><br>For convenient reading the body of this article has been arranged into six parts as below. The first part serves as an introduction to the built-in arbitration clause of APPGI-OIC Agreement, and the institutional arrangements in the form of the OIC Arbitration Center that has been set up in Istanbul, Turkey; the second part highlights the meanings as to “Investor”, “Investment” “Capital” and “Dispute” as used in APPGI-OIC Agreement.<br><br>The third part analyzes actions or inaction of the Host State that can lead to an arbitration/damages claim from an Investor, and also focuses on the jurisprudence as to most favored nation (MFN) clause in relation to APPGI-OIC Agreement; the fourth part notes the nature of guarantee breaches that can also result in an arbitration/damages claim under APPGI-OIC Agreement; the fifth part discusses the Defenses Available to Host State against monetary damages claims; and the final part six which serves as the conclusion to this article, identifies various advantages for the Host State in exploring settlement negotiations instead of contesting an arbitration claim.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"2012 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128121159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Enunciating the Effect of the Doctrine of Sovereign Immunity of States on International Arbitration","authors":"Edwin Kimani, Peter M. Muriithi","doi":"10.2139/SSRN.3816084","DOIUrl":"https://doi.org/10.2139/SSRN.3816084","url":null,"abstract":"In the 21st Century States continue to be one of the main players in international business transactions. The onerous responsibility of states to provide goods and services to their citizens means that, they are by default involved in enormous commercial transactions and investment ventures. In several of these business transactions involving states for example; states and states, states and organizations, states and private individuals/companies, states overtime have adopted international arbitration as their preferred mode of dispute resolution. This is manifested especially in investment agreements and international commercial transactions involving states. \u0000 \u0000However, under public international law (international personality of states) states enjoy sovereign immunity as international legal persons. Sovereign immunity is a legal doctrine by which the sovereign or the state cannot, commit a legal wrong and is immune from civil suit or criminal prosecution. This has raised the concern as to the extent to which a State involved in international arbitration can invoke the doctrine of sovereign immunity and its impact on international arbitration. Inquisitively this paper asks; Is the doctrine of sovereign immunity a threat to international arbitration? \u0000 \u0000In answering these questions, this paper interrogates how various International Conventions that offer a legal framework for international arbitration have addressed these seminal issues. For example; The Convention on the Settlement of Investment Disputes between States and Nationals that was created to offer a mechanism for resolving investor state disputes.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134590695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"COVID-19 Crisis and Screening of Foreign Direct Investments in EU Privatized Companies","authors":"Thomas Papadopoulos","doi":"10.2139/ssrn.3793048","DOIUrl":"https://doi.org/10.2139/ssrn.3793048","url":null,"abstract":"This article examines how golden shares constitute an effective investment screening mechanism for the protection of EU strategic privatized companies from dubious and hostile foreign direct investments during the COVID-19 crisis. This investment screening is essential in order to secure that a foreign direct investment would not jeopardize the services of general interest offered by these privatized companies during the COVID-19 crisis. On the one hand, lawful golden shares could be used as an effective screening mechanism. On the other hand, unlawful golden shares infringing EU freedom of establishment could continue to screen and to apply to foreign investors from non-EU countries planning to invest in the capital of an EU privatized company.","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"76 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130798340","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Loophole or Fire Alarm? The Consensus Requirement for the Appointment of Appellate Body Members and the Institutional Design of the WTO","authors":"G. Vidigal","doi":"10.2139/SSRN.3775605","DOIUrl":"https://doi.org/10.2139/SSRN.3775605","url":null,"abstract":"The past four years have shown that, in contrast to previous assessments that saw the WTO dispute settlement organs as exercising irresistible authority over the WTO Agreements, a WTO Member can single-handedly derail the functioning of the WTO by obstructing appointments to the Appellate Body. This article investigates the origins and character of this feature of theWTO Agreements and examines possible means to overcome it, arguing that merely appointing seven new Appellate Body members will not be sufficient to the future operation of the dispute settlement system. If Members wish to avoid obstruction of appointments becoming a regularly employed negotiation tactic, they must explicitly establish that this possibility is not an integral feature of the institutional design of the WTO– a fire alarm thatMembers can resort to in case they are dissatisfied with developments within the organization – but an unwarranted loophole in the WTO institutional structure. Among the possible courses of action available to address it, one that is both politically feasible in the short term and unlikely to have its legal effects disputed is a decision, made by consensus by theMembership, to clarify the relationship between the decision-making authority of the Ministerial Conference and the provisions governing appointment of Appellate Body members.\u0000World Trade Organization, Appellate Body, International Dispute Settlement, Institutional Design, Dispute Settlement Body, International Courts","PeriodicalId":378416,"journal":{"name":"International Economic Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-01-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133433205","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}