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New Zealand Yearbook of International Law. Volume 17, 2019
The 'New Zealand Yearbook of International Law' is an annual, internationally refereed publication intended to stand as a reference point for legal materials and critical commentary on issues of international law. The Yearbook also serves as a valuable tool in the determination of trends, state practice and policies in the development of international law in New Zealand, the Pacific region, the Southern Ocean and Antarctica and to generate scholarship in those fields. In this regard the Yearbook contains an annual ?Year-in-Review? of developments in international law of particular interest to New Zealand as well as a dedicated section on the South Pacific.00This Yearbook covers the period 1 January 2019 to 31 December 2019.
BOOK
INDIRECT EXPROPRIATION AND THE PROTECTION OF PUBLIC INTERESTS
This article analyses what is widely known as the police powers exemption found in modern international investment agreements, with a focus on mega-regional trade and investment agreements. It explores its legal nature and requirements, the burden of proof and issues of compensation. In an attempt to curb (indirect) expropriation claims, the exemption carves out non-discriminatory regulatory measures from the scope of indirect expropriation and in such situations no compensation needs to be paid. It follows that, as a rule, foreign investors are not protected against the adverse economic effects of regulatory measures. The key question addressed is whether host States can increase the level of protection given to public welfare objectives through the use of this exemption without having to compensate investors for the measures taken. The article argues that, under the proportionality test embodied in the exemption, States can provide the level of protection that they desire without incurring a risk of liability as regards expropriation claims.
Journal Article
International Investment Law, Rule of Law, and Democracy: When the Solution Is Part of the Problem
It has become fashionable to attack the international investment system, even for former advocates such as the United States Trade Representative. This Article demonstrates a way forward of how the system may be saved—but not the way its proponents propagate. Because of the uncertainty of an economic justification, a rule of law legitimation is mostly advanced in defense of the international investment system. However, in an investment context, even the rule of law can be too much of a good thing, namely when in conflict with democracy. The Article elaborates how best to reconcile investment protection, rule of law, and democratic government, and concludes that only a thin understanding of the rule of law is acceptable on the international plane from the vantage point of democratic theory. Following from this, the Article advocates for a re-calibration of the standard of review and identifies proportionality testing as the setting screw of choice.
Journal Article
Does Investor-State Dispute Settlement Discriminate Against Nationals?
This Article answers the question of whether investor-state dispute settlement (“ISDS”) discriminates against nationals by providing foreign investors with an extra avenue to challenge state measures. The complaint that ISDS is discriminatory as a matter of principle has surfaced before several European constitutional courts—including the German Federal Constitutional Court and the European Court of Justice—in connection with the ratification of the Comprehensive Economic and Trade Agreement between Canada and the European Union (“CETA”). This Article rejects this complaint. The Federal Constitutional Court was able to leave the question of discrimination open in the applications for a preliminary injunction to stop ratification. It will have to take a stand, however, in the principal proceedings. If the Court were to side with the applicants, it would sound the death knell not only for the CETA in its present form, but also for the multilateral investment court system promoted by the European Union and, in particular, Germany. The point made by the applicants in the CETA complaint is not only of importance in a European constitutional law context. Whether ISDS is per se discriminatory is a fundamental issue which requires answering before any reform steps in relation to ISDS are addressed.
Journal Article
Protection Against Unfair Competition in the WTO TRIPS Agreement
In The Protection Against Unfair Competition in the WTO TRIPS Agreement, Christian Riffel offers an account of the potential which Article 10bis of the Paris Convention has for the world trading system. In particular, the author explores what hard law obligations emerge from it.
eBook
The Protection against Unfair Competition in the WTO TRIPS Agreement
Protection Against Unfair Competition in the WTO TRIPS Agreement: The Scope and Prospects of Article 10bis of the Paris Convention for the Protection of Industrial Property -- Copyright -- Dedication -- Contents -- Preface -- Acknowledgments -- Abbreviations -- Table of Cases -- Source Guide -- Table of Documents -- 1 Introduction -- I Description of the Problem -- II Interpretation of WTO Provisions -- III Course of the Legal Analysis -- 2 Article 10bis and the WTO -- I Article 2.1 of the TRIPS Agreement -- A Incorporation of Article 10bis of the Paris Convention (1967) -- B Static Reference -- II Article 10bis(1) and (2) of the Paris Convention (1967) -- A General Issues -- B Act of Competition -- C Practices in Industrial or Commercial Matters -- D Honesty Standard -- 3 Article 10bis and Core Labour Standards -- I Breach of Law as an Act of Unfair Competition -- A Qualification of the Breached Law -- B Conclusion: Juridical-Economic Standard -- II Enforcement of Core Labour Standards by Article 10bis of the Paris Convention -- A Mandatory Nature of Core Labour Standards -- B Competition and Trade Relatedness of Core Labour Standards -- C Enforcement of Core Labour Standards -- III Conclusions -- 4 Article 10bis and Traditional Knowledge -- I Introduction -- A Description of the Problem -- B The Traditional Knowledge Debate -- II Contract-Based Protection -- III Protection by Article 39 of the TRIPS Agreement -- A Elements of Article 39.2(a) through (c) of the TRIPS Agreement -- B Conclusions -- IV Protection by Article 10bis of the Paris Convention -- A General Matters -- B Misappropriation as an Act of Unfair Competition -- C Defensive Protection -- V Conclusions -- 5: Article 10bis and the European Union -- I Introduction -- II Requirements Relating to the Norm -- III Constitutional Requirements -- IV Requirements Relating to the Treaty
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