International economic law

China and the World Trade Organization: The First Decade

by Lisa Toohey

International and Comparative Law Quarterly (2011), 60: 788-798

By the end of 2011, China will have been a member of the World Trade Organization (the WTO) for a decade. While China... more By the end of 2011, China will have been a member of the World Trade Organization (the WTO) for a decade. While China has undergone dramatic changes to implement commitments contained in its Protocol of Accession, debate continues as to whether China has adequately complied with its obligations under the WTO Agreements in both letter and spirit. Some of this debate remains in the political arena, where China is censured over such issues as currency controls and or equality of access for foreign firms like Google; however, it is in the legal arena, and specifically within the WTO's Dispute Settlement Body, that some of the most controversial issues are raised, both against and by China.  This paper  analyses China's record of disputes in the WTO since its accession in 2001.

The Relevance of Public International Law in Arbitrations concerning International Economic Development Agreements An Appraisal of some Fundamental Aspects

by (Munir) A F M Maniruzzaman

Journal of World Investment and Trade

The purpose of this article is to appraise certain fundamental aspects of international economic development... more The purpose of this article is to appraise certain fundamental aspects of international economic development agreements (EDAs)1 in the light of recent developments and their relevance to public international law. They merit consideration afresh as they are very often confronted in international arbitrations which involve a State, a State enterprise or both and which raise various issues. A public international lawyer cannot afford to ignore the importance of understanding them in the real world while dealing with the arbitration of international disputes arising out of EDAs.

International investment disputes, nationality and corporate veil: some insights from Tokios Tokelés and TSA Spectrum de Argentina.

by Antoine Martin

Article 25 of the ICSID Convention limits the jurisdiction of the Centre to legal disputes arising directly out of an... more Article 25 of the ICSID Convention limits the jurisdiction of the Centre to legal disputes arising directly out of an investment between a contracting state and a ‘national’ of another contracting state. Treaty protection, that is, is conditioned by the recognition of the ‘foreign’ nature of an investment, by way of either a place of incorporation or a control test. In practice, arbitrators recently had to elaborate on the significance of ‘nationality’ and to establish what constitutes a ‘foreign’ investment. Arbitral tribunals have had to consider cases opposing host-states to their own nationals as well as to foreign investors who allegedly did not have the nationality of the other Contracting Party. This comment compares facts and corporate structures in Tokios Tokelés v. Ukraine and TSA Spectrum v. Argentina Republic as well as the differences in BIT provisions explaining the tribunals’ respective findings. Two questions are also considered. First, does ICSID arbitrators’ jurisdiction encompass lifting the corporate veil in the absence of an explicit authorisation to do so in the Convention? Second, notwithstanding ‘BIT-shopping’ discussions which overall remain policy-oriented, should the real source of authority of the investment be looked for in claims opposing states to their own nationals?

Avoidance Techniques: State Related Defences in International Antitrust Cases

by Marek Martyniszyn

CCP Working Paper 11-2

Despite its economic significance, competition law still remains fragmented, lacking an international framework... more Despite its economic significance, competition law still remains fragmented, lacking an international framework allowing for dispute settlement. This, together with the growing importance of non-free-market economies in world trade require us to re-consider and re-evaluate the possibilities of bringing an antitrust suit against a foreign state. If the level playing field on the global marketplace is to be achieved, the possibility of hiding behind the bulwark of state sovereignty should be minimised. States should not be free to act in an anti-competitive way, but at present the legal framework seems ill-equipped to handle such challenges.
This paper deals with the defences available in litigation concerning transnational anti-competitive agreements involving or implicating foreign states. Four important legal doctrines are analysed: non-justiciability (political question doctrine), state immunity, act of state doctrine and foreign state compulsion. The paper addresses also the general problem of applicability of competition laws to a foreign state as such. This is a tale about repetitive unsuccessful efforts to sue OPEC and recent attempts in the US to deal with export cartels of Chinese state-owned enterprises.

TRIPS Agreement and Economic Development: Implications and Challenges for Least-Developed Countries like Bangladesh

by Dr Mohammad Towhidul Islam

[2010] (2) Nordic Journal of Commercial Law 1-48

The article claims that the TRIPS standard-setting i.e. strengthening IPRS in agriculture and pharmaceuticals caries... more The article claims that the TRIPS standard-setting i.e. strengthening IPRS in agriculture and pharmaceuticals caries mixed economic prospects and concerns for an agriculture-prone and densely populated least developed country (LDC) like Bangladesh. With the lack of R&D due to low income, the standard-setting does not help the country to fulfil subsistence needs or promote economic development through innovations. However, exception clauses and special and differential treatment in terms of compliance deadline and technology transfer promises carry economic development prospects for the country which is already known as promising finished product manufacturer by reverse-engineering existing seeds and pharmaceuticals. During the TRIPS transition period and afterwards, such privileged position of the country is likely to serve both the ends of meeting survival needs and making economic progress with the supply of reverse-engineered products to home and abroad. However, to capitalize such privileges, Bangladesh needs to streamline its existing IPRs legislations especially in defining patentable inventions with rigid qualifying clauses, broadening the extent of compulsory licensing and sticking with the TRIPS by adopting flexible interpretation and not going beyond the TRIPS. And the TRIPS needs to be more specific on technology transfer arrangements, which are currently ‘best endeavour’ nature objective and principles.

TRIPS Agreement and Public Health: Implications and Challenges for Bangladesh

by Dr Mohammad Towhidul Islam

International Trade Law and Regulation (Sweet & Maxwell: London) Volume 17, Issue 1 2011

With the TRIPS patenting in pharmaceuticals and restricting compulsory licensing, there appears patent monopoly... more With the TRIPS patenting in pharmaceuticals and restricting compulsory licensing, there appears patent monopoly through control over pharmaceuticals, which ensures royalties for patent rights therein. However, the patent rights that control the use and supply of pharmaceuticals create barriers to the access to pharmaceuticals for LDCs. As an LDC, Bangladesh is likely to face the same consequences in protecting public health interests. Nevertheless, the extended compliance deadline temporarily exempts it from patenting pharmaceuticals. This flexibility offers the country that has a thriving pharmaceutical manufacturing base a big opportunity to copy patented drugs for domestic consumption at affordable prices and their exports to other markets especially LDCs. In addition, the TRIPS allows the country to make parallel imports from other markets where drugs are cheaper or allows exports of generics made out of the patented medicines under compulsory licensing. However, the existing intellectual property laws in the country do not support them. Such issues give rise to huge implications among pharmaceutical stakeholders in regard to the price of medicines, their access in protecting public health, and market share of pharmaceutical industries in manufacturing and trading medicines. Given the existing circumstances and in absence of any further negotiation or arrangement as regards the TRIPS, a least developed country like Bangladesh needs to update its legislations in order to maximise the TRIPS flexibilities in copying medicines and supplying them at competitive prices. At the same time, it needs to join international coalition asking for further extension of the compliance deadline since the circumstances upon which the extension is agreed upon still exist and then for negotiation to generate a common fund to subsidise medicines for meeting public health needs.

Protection of Public Interests Through a Human Rights Framework in the TRIPS Agreement: Realities and Challenges

by Dr Mohammad Towhidul Islam

Journal of Intellectual Property Law & Practice, Vol. 4, No. 8, pp. 573-582

Proponents of the TRIPS Agreement hold that IP rights qualify as human rights since they have moral standing and... more Proponents of the TRIPS Agreement hold that IP rights qualify as human rights since they have moral standing and developmental value to assist the enjoyment of other rights. However, the author argues that IP rights take on protectionist trade implications and monopolistic ownership traits because of their inclusion in the developed country dominated-TRIPS Agreement. Such features lead IP rights to clash with the principle of free trade and comparative advantage. This conflict encourages monopolization and restricts comparative advantages of developing and least developed countries in reverse engineering of knowledge products. As a consequence, developing and least developed countries lag behind in fulfilling their developmental needs or protecting public interests in agriculture, health, biodiversity, economic developments, etc. This raises concerns regarding a broad range of human rights including right to health and life, right to food, right to education, privacy and expression, indigenous people's rights, and so on. For the protection of public interests, this article recommends the establishment of a human rights framework in the TRIPS Agreement by incorporating a human rights reference for IP protection.

IMPLICATIONS OF THE TRIPS AGREEMENT IN BANGLADESH: PROSPECTS AND CONCERNS

by Dr Mohammad Towhidul Islam

Macquarie Journal of Business Law (2009) Vol 6

This article contains a theoretical analysis of the TRIPS implications and challenges in the most important fields of... more This article contains a theoretical analysis of the TRIPS implications and challenges in the most important fields of agriculture, access to medicines, and above all economic development insofar as the developmental needs of developing and least developed countries are concerned. On taking experiences from other developing and least developed countries, this study concentrates particularly on the TRIPS implications and challenges in Bangladesh.

The Place of Economic Partnership Agreements In Kenya's Trade Arena: Assessing the Concept of Globalisation and Good Governance

by JILL JUMA