Showing papers in "Netherlands Yearbook of International Law in 2018"

Prosumers: New Actors in EU Energy Security

Abstract: This chapter critically analyses the new challenges and opportunities that prosumers, as new energy actors, bring to achieving energy security goals in the context of the European Union (EU). Following trends in the EU towards new levels of cooperation in energy governance, decentralisation, and the emergence of a ‘gig’ economy, the energy sector is currently undergoing a large-scale transition. One of its core aspects is the progressive top-down diffusion of potential, competences, and leverage across the energy value chain from states and corporate actors towards prosumers. While this trend creates ample potential for facilitating and improving the EU’s security of supply, as well as fulfilling its climate change targets, several caveats exist. These caveats are not confined within energy security prerogatives; they also extend to the critical management of digital security, which the digitalisation of energy services brings to the fore. Private and public finance should be effectively attracted and directed to infrastructure schemes that will enable a transition from the traditional centralised power network to the decentralised nexus of smart grids. Technology will play a crucial role in facilitating the role of prosumers in the new market in the making.

The Growing Tendency of Including Investment Chapters in PTAs

Abstract: In the context of a rising number of preferential trade agreements (PTAs) that include investment protection provisions traditionally found in bilateral investment treaties (BITs), this chapter has a double purpose. First, based on an empirical analysis of 158 post-North American Free Trade Agreement (NAFTA) PTAs, we conclude that three categories of countries/regional economic integration organisations (REIOs) exist: those that regularly include investment chapters into their PTAs (Japan, the United States, Canada, the Association of Southeast Asian Nations (ASEAN), Australia and the Caribbean Community (CARICOM)), those that are finding their voice in international investment law and increasingly include such chapters (India, China, the European Union and Chile) and those that have an adverse position towards it (Brazil and the Southern Common Market (MERCOSUR)) or defer the inclusion of such provisions to further negotiations (African Plurilaterals, Morocco and South Africa). Second, we look at the drivers behind including/excluding investment protection provisions in/from PTAs. Some drivers will be readily apparent from the data collected for the purpose of answering the first question, while other drivers will need a more detailed discussion. These drivers are: (a) the weaker party accepts/uses templates of more powerful states; (b) states/REIOs wish to pursue more comprehensive and resource-friendly negotiations; (c) states/REIOs want to achieve a more coherent application of international economic law.

From TRIPS to FTAs and Back: Re-Conceptualising the Role of a Multilateral IP Framework in a TRIPS-Plus World

Abstract: International intellectual property (IP) protection is increasingly governed by a network of bilateral and regional treaties. Most of these contain obligations on the protection and enforcement of IP that set significantly higher standards than those of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), commonly referred to as ‘TRIPS-plus’. Human rights bodies, non-governmental organisations (NGOs), and academic commentators often criticise these standards for undermining flexibilities available under TRIPS. Such policy space, however, is critical to design national IP laws in accordance with domestic needs. This chapter makes a case for the continued relevance of the TRIPS Agreement as an overarching, multilateral framework. My argument is based on the role treaty law affords to the object and purpose expressed in Articles 7 and 8 TRIPS. They have not only been recognised as essential for promoting access to medicines in the Doha Declaration on TRIPS and Public Health. As integral objectives and principles of TRIPS, Articles 7 and 8 limit the ability of World Trade Organization (WTO) Members to modify their IP-related treaty obligations inter se. Based on their negotiation history and common understandings expressed by WTO Members, I argue for an enhanced role of TRIPS’ object and purpose as a loose constitutional frame for IP commitments in bilateral and regional treaties.

The UN Guiding Principles on Business and Human Rights in (National) Action: The Dutch Agreement on Sustainable Garment and Textile

Abstract: The regulation of transnational corporations is increasingly a multi-actor and multi-level phenomenon This trend is particularly visible in the garment global value chain Spurred by the collapse of the Rana Plaza building in Bangladesh, a flurry of public and private initiatives addressing responsible production and supply in the global garment industry appeared on the transnational stage The Dutch government played its part by entering into a national Agreement on Sustainable Garment and Textile (‘Agreement’ or ‘Dutch Agreement’) together with industry, labour unions and non-governmental organisations The parties to the Agreement undertake specific commitments connected to responsible business conduct and set up a monitoring mechanism for their enforcement This chapter aims to critically reflect on the Dutch Agreement and the process that led to its conclusion It does so by putting the Agreement in the context of transnational rule-making by several other actors in different fora It reflects on the transnational origin of the obligations contained in the Agreement and illustrates its contribution to the implementation of instruments such as the Organisation for Economic Co-operation and Development (OECD) Due Diligence Guidance for Responsible Supply Chains in the Garment and Footwear Sector and the United Nations (UN) Guiding Principles on Business and Human Rights

Trade in the Digital Era: Prospects and Challenges for an International Single Window Environment

Abstract: During the past decade, countries have increasingly embraced digitization leading to convergence in technologies and industries. However, norm setting in e-commerce has so far been largely domestic, giving rise to a paradox of internal acceptance vis-a-vis external resistance. This chapter introduces the work of various international and regional institutions, with international single window environment as the focal point, to determine whether technological and industrial convergence has been reciprocated by institutional cooperation. The chapter critically evaluates the lawmaking initiatives of regional and international institutions to show that greater institutional cooperation and usage of innovative governance techniques such as recourse/endorsement of private standards in international economic law are the way forward for improving trade regulation in the digital era.

The Development of the US and the EU Preferential Trade Agreement Networks: A Tale of Power and Prestige

Abstract: Within the global economy, the European Union (EU) and the United States (US) are engaged in a form of structural competition in which each uses bilateral, regional and multilateral agreements to protect and advance its own interests. In international trade, the EU and the US have followed a similar pattern involving the selection of the most favourable regulatory venue for the achievement of greater liberalisation. Using the stick of exclusion from and the carrot of inclusion in the preferential access to their respective markets, the two commercial superpowers established their networks of asymmetric preferential trade agreements with selected, economically weaker, politically like-minded countries or groups of countries. The extension of their networks may allow them in the future to establish plurilateral rules of trade involving them and their partners while their alliance would have allowed them to increase their leverage in the future international trade negotiations or even create an EU/US-led trade organisation and marginalize the World Trade Organisation (WTO). Although now a rather distant prospect, such an alliance may not have been that desirable for it may have altered the equilibrium of power between the strongest players of the international trade inducing unsympathetic countries to institutionalise their own alliances, leading to the fragmentation of international trade and jeopardising the existence of the WTO.

Shifting forms and levels of cooperation in international economic law: mapping trends and developments

Abstract: This Volume of the Netherlands Yearbook of International Law explores emerging trends and key developments in international economic law. It examines shifts in the levels of cooperation (from multilateral to plurilateral, regional or bilateral—or vice versa), and shifts in the forms of cooperation (new types of actors and instruments). These trends are analysed both from a conceptual and a practical perspective, with contributions addressing drivers for change, historical perspectives, future developments, and evolutions in specific policy fields. While a focus on international economic law may certainly not tell the whole story in relation to shifts in levels and forms of international cooperation, it does allow for a more detailed analysis of some of the important trends we currently witness. The Netherlands Yearbook of International Law was first published in 1970. It offers a forum for the publication of scholarly articles in a varying thematic area of public international law.

Between Shifts and Continuum in Cooperation: The International Securities Regulatory Regime and its Gradual Evolution

Abstract: The gradual reform of the international financial architecture has markedly accelerated as a result of the global financial crisis (GFC). This chapter discusses structural developments at the international level regarding the regulation of securities markets as one of the sectors of financial regulation. It examines the changing dynamics shaping the international securities regulatory regime and how post-crisis developments are affecting its governance and policy-making processes, highlighting both shifts and continuum in cooperation. The focus is on the International Organization of Securities Commissions (IOSCO) as the recognised global standard-setter for securities regulation and the leading policy forum for securities regulators. Throughout the past decade, the Organisation, comprising governmental regulatory bodies from some 115 jurisdictions, including those of the G-20, has endorsed two subsequent strategic direction reviews. It has undergone important institutional reforms and is working intensively with the G-20 and the Financial Stability Board (FSB) on the global regulatory agenda. The chapter’s original analysis and discussion of how IOSCO currently fares against some selected governance norms proposed in the scholarly literature suggests that institutional inclusiveness and regime effectiveness are complementary and potentially reinforcing. However, it also shows that clarity of function and sharp focus are other necessary elements for regime effectiveness.

The Potential of Transnational Regulations: The Interactions Between Traditional and Non-Traditional Sources of International Economic Law

Abstract: This chapter discusses the challenges and potentialities lying in the interactions between traditional and non-traditional sources of International Economic Law (IEL). To better present such dynamics, a focus lies on the normative dialogues between investment treaties and transnational regulations addressing economically-material topics, in particular human rights and environmental issues. Based on this, five interactions between transnational regulations and IEL treaties are identified, namely coordination and complementarity, normative conflict and concurrence, contribution to the progressive development of law, translation, and the recognition of social demands. These interactions reveal the potentialities emerging from the joint use of transnational regulations and traditional sources of IEL, contributing to bridging the gaps between issues traditionally addressed by IEL and social aspirations. Yet, in order to fulfil this potential, the active participation of several stakeholders in different processes surrounding transnational regulations has to be taken seriously. This chapter argues that in this way, transnational regulations can be seen as a facilitator of empowerment of socially vulnerable actors, fostering the embracement of their perspectives by transnational regulations, and thus also triggering normative interactions between transnational regulations and IEL.

External consultants as actors in european trade and investment policymaking

Abstract: Over the last several years impact assessment studies have become a standard tool in trade and investment policymaking processes. Within the European Union there are two types of studies that examine the impact of trade policies: Impact Assessments (IAs) and Sustainability Impact Assessments (SIAs). Two characteristics of the latter are particularly noteworthy. First, SIAs signal an evolution in the tools employed in the trade and investment policymaking process. They analyse the potential economic, social, human rights, and environmental impacts of ongoing trade negotiations. Second, SIAs are an instrument for cooperation between an enlarged number of actors with an interest in the negotiation process. There are three main players involved in the conduct of SIAs: consultants, stakeholders, and the Commission’s services. SIAs are independent assessments carried out by external consultants during trade negotiations. Consultants should be perceived as policy actors, not true trade policymakers. Furthermore, the actorness of consultants should not be overstated, as several factors lead to a diminished influence of consultants in the policymaking process. Since they are not stakeholders, and much less policymakers, consultants should not be expected to be ‘drivers of change’. The negotiation of trade and investment policies has always been, and will continue to be, an inherently political process.

From the tripartite to the continental free trade areas: Designs, outcomes and implications for african trade and integration

Abstract: The African pursuit of economic development through regional integration has a long history but has had mixed results. The implementation of agreements has not kept pace with political ambition, and deadlines are frequently adjusted. Most of the Regional Economic Communities have significant membership overlap, resulting in duplication and legal uncertainty. Implementation remains a problem, while regional institutions do not enjoy supra-national powers. This chapter discusses the most recent African integration endeavours, the Tripartite Free Trade Area (TFTA) and the African Continental Free Trade Area (AfCFTA). They have a broader coverage and aim at consolidating and expanding existing African regional integration arrangements. Their designs, the outcomes of some of the negotiations, and the context in which they will be implemented are discussed and assessed. These developments shed light on contemporary African trade and integration endeavours and the associated difficulties.

Recognition of sign language under international law : A case study of Dutch sign language in the Netherlands

Abstract: Dutch Sign Language is a standardized language used by deaf and non-deaf people in the Netherlands. The government supports and promotes Dutch Sign Language, but it has not been recognized as an official language in the Netherlands, which is very much desired by the deaf community in the Netherlands. The Convention on the Rights of Persons with Disabilities, which was ratified by the Netherlands in 2016, gave a new impetus to the supporters of recognition of Dutch Sign Language, and the same year a bill was proposed by two members of the lower house of the Dutch Parliament. National sign languages have been officially recognized by other European states, but the Netherlands holds that a formal recognition of Dutch Sign Language is not necessary. Therefore, a closer examination of the Convention on the Rights of Persons with Disabilities might shed some light on the question of the recognition of a national sign language.

International Regulatory Cooperation in the Field of Sanitary and Phytosanitary Measures: Drawing Multilateral Lessons from the Regional Dimension

Abstract: Managing economic globalisation, so as to facilitate trade without diminishing food safety or the protection of human, animal, and plant health, has become one of the greatest global challenges. In-depth coordination among national regulators and policies is crucial for the management and avoidance of health and safety risks, but also for avoiding unnecessary obstacles to international trade flows. The chapter examines and compares the role of different methods for achieving regulatory cooperation in the context of sanitary and phytosanitary (SPS) measures at both the international and regional levels. It analyses the successes of, and challenges relating to, SPS regulatory cooperation at the multilateral level and in particular the role of the World Trade Organization (WTO) SPS Committee. These efforts are matched to regional cooperative attempts, notably the ambition of recent mega-regional trade agreements. Thereafter, the chapter enquires into the possibility for multilaterising the lessons learnt from these regional regulatory convergence initiatives in an effort to advance cooperation at the WTO level.