JIEl, 3/2007 (septembrie)

 

Sumarul revistei, precum si articolele le gasiti aici.

Numarul este dedicat, in cea mai mare parte, viitorului dreptului international economic, avand in vedere cei 10 ani de aparitie ai revistei.

Ne-au retinut atentia:

Ernst-Ulrich Petersmann, Multilevel Judicial Governance of International Trade Requires a Common Conception of Rule of Law and Justice

Since the establishment of the Permanent Court of International Justice in 1922, governments have consented to, and actively used, an ever larger number of international and transnational courts, quasi-judicial dispute settlement bodies and ad hoc arbitral tribunals for the settlement of disputes over the interpretation and application of rules of international law. Such judicial clarification of disputed interpretations of incomplete, intergovernmental agreements reduces not only the negotiation costs of governments by delegating the clarification of contested facts and legal claims to independent third-party adjudication. Judicial decision-making at intergovernmental, transnational, national and private levels also supplements rule-making and offers citizens judicial remedies for defending their rights and interests. Modern international economic law increasingly complements intergovernmental, legislative, and administrative governance by multilevel ‘judicial governance’ so as to protect rule of law more effectively for the benefit of citizens (Section I). This contribution criticizes the one-sidedly power-oriented perceptions of WTO law as ‘international law among states’ (Section II) and the related perceptions of international judges as dependent agents of states (Section III). Civil society, parliaments and democratic governments should encourage national and international judges to cooperate in their legal task of interpreting citizen-oriented international economic law ‘in conformity with principles of justice and international law’, as explicitly prescribed in the Vienna Convention on the Law of Treaties (VCLT). The legal coherence of multilevel judicial governance depends on protecting principles of procedural as well as substantive justice and a common conception of ‘rule of law’ not only in intergovernmental relations among states, but also vis-à-vis their citizens engaged in, and benefiting from, international trade (Sections IV–VIII).

Joel P. Trachtman, Regulatory Jurisdiction and the WTO

The WTO is not explicitly concerned with the problem of regulatory jurisdiction in connection with prudential regulation (as opposed to industrial policy regulation). However, as the WTO has addressed increasingly complex regulatory barriers to trade, it has developed several devices that have the implicit effect of allocating regulatory jurisdiction among states.This article reviews a few illustrative cases in WTO law, including Helms–Burton, Shrimp, and Gambling. This review suggests how these cases may be understood as dealing with allocation of regulatory jurisdiction. Negative integration rules such as national treatment or proportionality may serve as devices applied by tribunals for allocation of regulatory authority. The WTO has very limited rules of positive integration—whereby states either harmonize regulation or agree on more specific allocations of regulatory authority, such as mutual recognition. However, it has developed a modest degree of capacity to engage in positive regulation, or to refer to positive integration rules developed in other contexts, such as Codex Alimentarius. Finally, this article examines theoretical bases for allocating and reallocating regulatory jurisdiction in order to establish a framework by which to analyse the role of the WTO in this context.

David J. Gerber, Competition Law and the WTO: Rethinking the Relationship

              This essay identifies obstacles to the inclusion of a competition law regime in the WTO and suggests changes that are likely to be necessary if competition law is to become an effective part of the WTO. Two obstacles have impeded inclusion of competition law in the WTO’s legal regime and are likely to continue to do so. They are (i) a lack of confidence that the norms, practices and procedures of the WTO rest on a robust conception of community and (ii) uncertainty and concern about what form of competition law might be included and what its role in the WTO would be. In order to reduce the first of these obstacles, the institutions and members of the WTO will need to develop a conception of community that engenders widespread confidence in the WTO’s basic modes of operation. Eliminating the second obstacle would require clarification of the kind of competition law that would be acceptable within the WTO, and this, in turn, is likely to require development of a form of competition law that is specifically designed for the WTO and that can elicit the long-term support of all categories of members. The essay suggests that the competition law issue is intricately interwoven with the future of the WTO. The changes that would be necessary to introduce and successfully implement competition law in the WTO are to a large extent the same as those that the institution will need to make if it is to enrich its role as an institution.