Category: International Trade Law

The US, China, and Case 311/18 on Standard Contractual Clauses

By Peter Swire

On July 9, the Court of Justice for the European Union (CJEU) held eight hours of oral argument in hearing case C-311/18, on whether US surveillance practices violate the fundamental rights of EU citizens.  This case could potentially rupture the mechanisms that allow personal data to flow across the Atlantic. Should the Court so decide, it would soon be illegal for companies and services we use every day to transfer personal data from the EU to the US.  Such a determination, however, may result in an absurdity; EU citizens’ data could not travel to the US for fear of intrusive surveillance, but could flow unimpeded to China, a nation with surveillance practices ripped from the pages of a dystopian science fiction novel. Continue reading

The Road that divided the EU: Italy joins China’s Belt and Road Initiative

By Femke van der Eijk and Angela Pandita Gunavardana

China’s global influence has grown dramatically in recent years. Its Belt and Road Initiative (BRI) is an important manifestation of this rise. On 23 March 2019 Italy, the first G7 country, formally joined the BRI, which has caused significant tensions within the EU. This was the wake-up call for the EU, which prompted it to reconsider its policies towards the Asian superpower.

To BRI, or not to BRI?

The BRI is a transcontinental endeavour, launched in 2013, which is centred around infrastructure investment and aims at promoting projects that foster regional cooperation, development, and connectivity. Continue reading

Neues aus dem Elfenbeinturm: June 2019

Conference “The protection of economic, social and cultural rights in the age of exits”

The Hague, 21-22 November 2019. Deadline for abstract submissions: 30 June 2019.

Workshop “Judicial and extra-judicial challenges in the EU multi- and cross-level administrative framework”

Maastricht University Brussels Campus, 8-9 July 2019. Registration necessary.

Workshop “EU Trade Agreements and the Duty to Respect Human Rights Abroad”

Asser Institute, The Hague, 11 December 2019. Deadline for abstract submissions: 15 July 2019.

Conference “Constitutional interpretation in European populist regimes ‒ new methods or old tools for new purposes?”

Budapest, 5-6 December 2019. Deadline for abstract submissions: 31 July 2019.

Autonomy and Opinion 1/17 – a matter of coherence?

By Francisco de Abreu Duarte

On the 30th of April this year, the CJEU handed down its highly anticipated Opinion 1/17 on the compatibility of the CETA agreement with EU law. As Ankersmit details in his blogpost, the request for an opinion had been part of a widely known quarrel within Belgian internal politics, with Wallonia demanding the Belgium government to expressly consult the Court of Justice of the European Union (CJEU) on the legal merits of that agreement. Respecting that decision from its regional parliament, Belgium asked the CJEU, among other things, whether such an agreement was compatible with the principle of autonomy of the EU.

I will circumscribe this post to the analysis of the precise question of autonomy and leave out many of the other troubling questions such as the ones raised by Schepel’s in his previous post. The argument I put forth is as simple as it is controversial: autonomy, due to its abstract characteristics, is often subject to power injections leading to incoherent interpretations depending on the subject-matter at hand.

Let us see how autonomy has been interpreted before Opinion 1/17 and then analyze it in that light. Continue reading

“Global Britain” Adopts the EU’s Normative Approach to New Trade Agreements

 By Sterre van Campen and Rebecca Poort

As for now, the United Kingdom will leave the European Union on 31 October 2019, unless a withdrawal agreement is ratified before this date. The UK aims to sign “continuity” agreements with third countries to replace existing agreements with the EU before Brexit to avoid disruptions in trade flows. With smaller market leverage and under political pressure to deliver results, there would be an incentive for the UK to adopt an approach that is more lenient than the EU’s in its negotiations of post-Brexit trade agreements. There have been reports of requests from non-EU trade partners for the UK to lower its human rights standards and to soften its food standards once it is out of the EU. However, there are indications that the UK will stick to a normative approach comparable to the EU’s when it comes to development cooperation and environmental standards, as can be seen in the UK’s first continuity agreement with a group of Eastern and Southern African States,. In this post, we argue that despite the pressures, the UK does not diverge from the normative approach that the EU takes in its post-Brexit trade agreements. Continue reading

A Parallel Universe: Advocate General Bot in Opinion 1/17

By Harm Schepel

Introduction

All is clear, then: CETA’s Investment Chapter is perfectly compatible with EU Law. According to Advocate General Bot, the agreement is wholly separate from the normative (as opposed to the factual) universe of EU law, and merely protects readily identifiable ‘foreigners’ investing in the EU in the same way as it protects readily identifiable ‘European’ investors in foreign lands. From what we know of the hearing, the Advocate General provides not much more than a useful summary of the talking points offered by the Council, the Commission and the vast majority of the 12 intervening Member States, remarkably united in a bid to save the EU’s new external trade and investment policy. Clearly, the pressure on the Court to follow suit will be enormous. And yet. It is true, CETA builds strong fences to make good neighbors. But let spring be the mischief in me: CETA cannot wall out what EU Law walls in.[i]

Continue reading

AG Bot in Opinion 1/17. The autonomy of the EU legal order v. the reasons why the CETA ICS might be needed

By Szilárd Gáspár-Szilágyi

  1. Background

The EU’s exercise of its post-Lisbon competences over foreign direct investment (FDI) has been anything but smooth. In Opinion 2/15 the CJEU clarified the EU and Member State competences over the EU’s new generation free trade and investment agreements, resulting in the splitting of the EU‑Singapore agreement into a separate trade and investment agreement. Then, in Achmea the Court found investor-state arbitration (ITA) clauses under intra-EU BITs to be incompatible with EU law, which will result in the termination of almost 200 intra-EU BITs and the non-enforcement of ITA awards rendered under them within the EU. Now, everyone is anxiously awaiting the outcome of Opinion 1/17 – requested by Belgium under the insistencies of Wallonia – and whether the Investment Court System (ICS) under CETA is compatible with EU law. This opinion will not only affect the entry into force and conclusion of the trade and investment agreements with Canada, Singapore, Vietnam and Mexico, but it will have broader implications for the multilateral ISDS reform process and the EU’s investment policy.

Therefore, Advocate General Bot’s extensive opinion delivered on 29 January 2019 (first commentaries here and here) in which it found the CETA ICS to be compatible with EU law deserves scrutiny. I will only focus on the AG’s arguments concerning the exclusive jurisdiction of the Court of Justice over the definitive interpretation of EU Law. In a separate post, Harm Schepel will focus on the AG’s arguments on non‑discrimination. Continue reading

Case C-244/17 – Commission v Council: the centre of gravity test revisited in the context of Article 218 (9) TFEU

By Pieter Jan Kuijper

Introduction

Case C-244/17 – Commission v Council (PCA with Kazakhstan) is one of the most recent cases in the long list of external relations cases and Opinions decided by the Court (in most cases in its Grand Chamber composition) since the entry into force of the Lisbon Treaty (beginning with Dai-Ichi Sankyo, Case C – 414/11).  These cases have covered many aspects of the horizontal balance of competences between the political institutions of the Union, as well as the vertical distribution of powers between the Union and its Member States, in the field of the external relations of the Union.

Inevitably sometimes both aspects are touched upon, as in the present case. On the one hand, there is the question of which institutions play, or should play, a role in the decision-making under Article 218(9); on the other hand questions arise which methods of decision-making should be followed, unanimity or qualified majority voting; whether this should be determined by which legal bases such decisions should be taken and which method should be used to select such legal bases. The first question seems – and is – simple at first sight, but raises an important question about democratic legitimacy. The second question seems very complicated, but – after reflection – can be easily decided on the basis of existing precedents. Continue reading

Neues aus dem Elfenbeinturm: November 2018

RENFORCE Conference “Regulation and Enforcement in the EU: Challenges, Trends and Prospects”

University of Utrecht, 22-23 November 2018. (Free) registration necessary.

Call for Papers: Journal of International Economic Law Special Issue on Trade Wars

Deadline for proposal submissions: 30 November 2018.

Conference «Die Krise des demokratischen Rechtsstaats im 21. Jahrhundert»

University of Salzburg, 24-26 April 2019. Deadline for abstract submissions: 1 December 2018.

10th Anniversary CLEER Conference – EU external relations: Tackling global challenges?

T.M.C. Asser Instituut, 6-7 December 2018. Registration necessary.

Seminar “Assessing European Union Better Regulation”

Radboud University, 18 December 2018. (Free) registration necessary.

Conference “It takes two to tango. The preliminary reference dance between the Court of Justice of the European Union and national courts”

Radboud University, 14 June 2019. Deadline for abstract submissions: 1 January 2019.

Call for Papers: Trade, Law and Development Special Issue on Trade Facilitation

Deadline for submissions:15 February 2019.

Workshop “Law and Language in EU and International Law”

University of Fribourg, 17 May 2019. (Free) registration necessary.

Neues aus dem Elfenbeinturm: August 2018

Workshop “Engaging with Domestic Law in International Adjudication: Factfinding or Transnational Law-Making?”

University of Amsterdam, 27 February-1 March 2019. Deadline for abstract submissions: 15 September 2018.

2019 ESIL Research Forum “The rule of law in international and domestic contexts: synergies and challenges”

University of Göttingen, 4-5 April 2019. Deadline for abstract submissions: 30 September 2018.

Conference “Global Politics and EU Free Trade Policy”

Brussels, 10-11 December 2018. Deadline for abstract submissions: 6 October 2018.

#TILT Young Academics Colloquium “What’s #Trending in International and EU Law?”

University of Verona, 23-24 May 2019. Deadline for abstract submissions: 15 October 2018.

Call for submissions: Trade, Law & Development

Deadline for submissions: 15 October 2018.

Nuremberg Forum 2018 “20th Anniversary of the Rome Statute: Law, Justice and Politics”

Nuremberg, 19-20 October 2018. Registration necessary.

Don’t Lead with Your Chin! If Member States continue with the ratification of CETA, they violate European Union law

By Christina Eckes

 After last week’s Achmea ruling of the Court of Justice (CJEU) Member States can no longer legally go ahead with ratifying CETA – the mixed Free Trade Agreement that the EU and its Member States agreed with Canada. Achmea casts serious doubts on the legality of CETA’s investment chapter, which allows investors from one Party to submit to an arbitral tribunal a claim that the other Party has breached an obligation under CETA. By simply going ahead with the ratification, they violate the principle of loyalty under European Union law.

On 6 March, the CJEU declared in its Achmea ruling that the investor-state-dispute-settlement (ISDS) mechanism in the bilateral investment treaty between the Netherlands and Slovakia (NL-SK-BIT) as incompatible with EU law. A request by Belgium is pending before the CJEU asking for clarification on the legality of the new Investor Court System in CETA (Opinion 1/17). Achmea is a clear indication that the CJEU in Opinion 1/17 is likely to find also the Investor Court System in CETA problematic for the autonomy of EU law.

No general obligation exists for Member States to halt national ratification of mixed agreements when their compatibility with EU is questioned before the CJEU. Yet, CETA is different. The clear indication of incompatibility in Achmea imposes an obligation on national Parliaments to halt the CETA ratification process and wait for Opinion 1/17. Continue reading

Neues aus dem Elfenbeinturm: January 2018

Call for papers: Workshop “Information Sharing and European Agencies: Novel Frontiers”

European University Institute, 23 May 2018. Deadline for submissions: 15 February 2018.

Call for Papers: “Challenges to EU Law and Governance in the Member States”

European University Institute, 8 June 2018. Deadline for submissions: 18 February.

Call for papers: Special Issue “Revisiting WTO’s Role in Global Governance”

Trade, Law and Development. Deadline for submissions: 28 February 2018.

Call for Papers: PhD Colloquium “Regulating New Technologies in Uncertain Times”

Tilburg University, 14 June 2018. Deadline for submissions: 28 February 2018.

Call for Papers: “Geography and Legal Culture on the International Bench”

Leiden University, The Hague Campus, 17-18 May 2018. Deadline for submissions: 28 February 2018.

Neues aus dem Elfenbeinturm: December 2017

Conference “Constitutional Challenges in the EMU: the New Instruments of European Economic Governance”

Brussels, 29-30 March 2018. Deadline for abstract submissions: 15 January 2018.

International Electoral Observers Training

European Inter-University Centre for Human Rights and Democratisation, Venice, 19-24 March 2018. Deadline for registration: 15 February 2018.

Conference “Economic Constitutionalism: Mapping its Contours in European and Global Governance”

European University Institute, 14-15 June 2018. Deadline for abstract submissions: 28 February 2018.

Conference “Upgrading Trade and Services in EU and International Economic Law”

Radboud University, Nijmegen, 15 June 2018. Deadline for abstract submissions: 16 March 2018.

Call for papers: Utrecht Journal of International and European Law

Deadline for submissions: 9 April 2018.

Case C-600/14, Germany v Council (OTIF). More Clarity over Facultative ‘Mixity’?

By Hannes Lenk and Szilárd Gáspár-Szilágyi

  1. Setting the context

Opinion 2/15 on the division of requisite competences between the Union and its Member States for the conclusion of the EU-Singapore FTA has most certainly caused a flurry of academic discussions. Amongst the various topics discussed, two come to mind that are important for this short analysis. First, did the CJEU intend with its reasoning to effectively abolish ‘facultative mixity’ and ‘facultative EU-only’ agreements? (see here, here and here). Second, by placing almost all aspects of the EU-Singapore FTA under exclusive EU competences, with the exception of ISDS and non-direct foreign investment, did the Court of Justice implicitly determine the future of EU trade and investment policy? (see here, here and here). In other words, with a Commission that is determined to prioritize EU-only agreements, is the conclusion of mixed investment agreements in parallel to exclusive trade agreements a logical consequence of Opinion 2/15? Continue reading

POMFR: L. Ankersmit, Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order (Cambridge: CUP, 2017)

By Thomas Horsley

Green Trade and Fair Trade in and with the EU: Process-based Measures within the EU Legal Order, by Laurens Ankersmit (Cambridge, Cambridge University Press, 2017, ISBN 9781107191228); 294 pp.; £85.00

This monograph examines the position of ‘process-based measures’ within the EU legal order. PBMs (also known as ‘process and production method’ rules) are characterised as public and private initiatives that, in the context of international trade, seek to address environmental and social concerns that arise externally; in other words, beyond the territory of the regulating state. Examples include, bans on the importation and sale of cosmetics tested on animals; national and regional product labelling schemes; and private initiatives such as Fairtrade and the Marine Stewardship Council certification programme. Continue reading

Neues aus dem Elfenbeinturm: October 2017

Call for Papers : Workshop on Challenges and Opportunities for EU Parliamentary Democracy – Brexit and beyond

Maastricht University, 18-19 January 2018. Deadline for abstract submissions : 20 October 2017.

Workshop « The Political and Legal Theory of International Courts and Tribunals »

University of Oslo, 18-19 June 2018. Deadline for abstract submissions : 1 November 2017.

Workshop: « Resolving the Tensions between EU Trade and Non-Trade Objectives: Actors, Norms, and Processes »

Utrecht University, 10 November 2017. Deadline for registration: 3 November 2017.

Conference « The future of free movement in stormy times »

The Hague University of Applied Sciences, 21 November 2017. Deadline for (free) registration: 13 November 2017.

Call for Participants : European Law Moot Court 2017-2018

Deadline for team registrations : 15 November 2017.

Call for Papers: « The neglected methodologies of international law »

University of Leicester, 31 January 2018. Deadline for abstract submissions: 15 November 2017.

Call for nominations: International Society for Public Law Book Prize

Deadline for nominations: 31 December 2017.

Call for Papers : ESIL Annual Conference « International Law and Universality »

University of Manchester, 13-15 September 2018. Deadline for abstract submissions : 31 January 2018.

Neues aus dem Elfenbeinturm: July 2017

Brussels Summer School on EU competition law

Brussels, 4-9 September 2017. (Paid) registration required.

Conference « Metamorphosis of the European Economic Constitution »

University of Luxembourg, 21-22 September 2017. Registration required.

Conference « Protecting European Union Values: Breaches of Article 2 TEU and Their Consequences »

University of Warsaw, 14-15 September 2017. (Free) registration required.

Seminar : « The EU FTAs : Do you really want to know ? A dialogue on transparency »

King’s College London, 14 July 2017. (Free) registration required.

Call for papers : Special issue on European Law

Utrecht Journal of International and European Law. Deadline for submissions : 25 August 2017.

Call for papers : Comparative Constitutional Law and Administrative Law Quarterly

Deadline for submissions : 1 September 2017.

Call for papers: European Data Protection Law Review 2017 Young Scholars Award

Deadline for submissions: 15 October 2017.

Opinion 2/15: Maybe it is time for the EU to conclude separate trade and investment agreements

By Szilárd Gáspár-Szilágyi

Opinion 2/15 is already causing quite a stir in legal academia. While some take an EU law perspective, others look at it from the perspective of investment law or public international law. In this short post I will not focus on purely legal issues. Instead, I will look at the Opinion’s effects on the EU’s investment policy and propose a change in the Commission’s approach to the negotiation of international economic agreements. Continue reading

Neues aus dem Elfenbeinturm: June 2017

Call for papers “The Process of European Integration between Limits and Antinomies: Citizenship, Immigration and National Identities”

Review “Freedom, Security & Justice: European Legal Studies”. Deadline for abstract submissions: 30 June 2017.

Call for expressions of interest – Members of the Scientific Committee of the Fundamental Rights Agency

Vienna. Deadline for applications: 7 July 2017.

Workshop on “Current and Future Challenges of EU Agencification”

Brussels, 20 September 2017. Deadline for abstract submissions: 7 July 2017.

EJLS 10th Anniversary Conference Call for Papers “60 Years of European Integration: Reflections from Young Legal Scholars”

European University Institute, 16 November 2017. Deadline for abstract submissions: 15 July 2017.

Call for submissions “Trade, Law and Development”

Deadline for submissions: 20 September 2017.

Opinion 2/15: Adding some spice to the trade & environment debate

By Laurens Ankersmit

Opinion 2/15 might keep legal scholars, practitioners, and policy-makers busy for the foreseeable future. Many aspects of the ruling deserve comment and further discussion (see already for starters the blogposts here, here, here, here, here, and here) and I would like to follow up my previous post with some comments on an intriguing paragraph of the Opinion: paragraph 161 on the possible suspension of the agreement for a breach of one of its ‘sustainable development’ provisions. The ECJ’s statements here touch upon a long-standing debate whether labour and environmental provisions in trade and investment agreements should be enforceable. The ECJ found that Parties could indeed (partially) suspend or even terminate the agreement for breaches of such provisions. Practicalities aside, this finding is certainly a positive step from a social and environmental point of view. Continue reading