Legal Issues of Economic Integration, Volume 43, Issue 3

Legal Issues of Economic Integration, A More Coherent Project

Monday, August 1, 2016

Legal Issues of Economic Integration, Legal Problems of Future Sanitary and Phytosanitary Co-operation between ASEAN and the ‘Three-Sisters’

Monday, August 1, 2016

Changes generated by the Association of Southeast Asian Nations (ASEAN)’s decisions made in the sanitary and phytosanitary (SPS) area cannot all be considered as ‘developments’. Some of them, provoked by protectionist measures, may be regarded as ‘regressions’ because they produce negative effects (anti-development), which could thwart the effective protection of public health under regional frameworks, and a fortiori the integration process towards ASEAN 2025. This article highlights the potential of the Codex Alimentarius Commission, the World Animal Health Organization and the Secretariat of the International Plant Protection Convention, collectively called the ‘three-sisters’, to play their role as promoters of change in Southeast Asia. The analysis underlines the possibility of deepening future co-operation between ASEAN, on its own behalf, and the ‘three-sisters’ through conclusion of legal instruments. It aims to answer mainly two questions. First, what is the type of interactions between ASEAN and the ‘three-sisters’? Second, what are ASEAN’s relevant rules related to the conclusion of international agreements with such entities – what strengths and gaps? From the ‘New Haven’ perspective, the article suggests new perceptions vis-à-vis some conditioning factors for the success of more extensive SPS co-operation (e. g. ill-defined ASEAN’s legal personality and strong influence from political organs in the negotiation and decision-making process).

  • Content Type Journal Article
  • Part of Volume 43, Issue 3
  • Authors
    • Thitirat Wongkaew, Second Secretary, Department of ASEAN Affairs, Ministry of Foreign Affairs, Kingdom of Thailand; Ph.D.
  • Journal Legal Issues of Economic Integration
  • Online ISSN 1566-6573
  • Print ISSN 1566-6573

Legal Issues of Economic Integration, Ubiquitous Uncertainty: The Overlap between Trade in Services and Foreign Investment in the GATS and EU RTAs

Monday, August 1, 2016

At both the multilateral and bilateral level, the existence of conceptual and regulatory overlaps between trade in services and investment is evident. The extent of these (evolving) overlaps is, however, rarely clear-cut. By examining the services and investment provisions in the General Agreement on Trade in Services (GATS) and several European Union (EU) regional trade agreements (RTAs), this article sheds light on the entanglement of these two domains of international economic law. At the multilateral level, the relationship between investment and services supplied under the GATS seems relatively settled: assuming that investment is ‘foreign’ and ‘for the purpose of supplying a service’, services supplied through GATS Mode 3 entirely fall under the notion of investment, while services supplied through GATS Mode 4 partially do so. At the bilateral level, however, EU RTAs have irrevocably abandoned the classical GATS approach: GATS Modes 1 and 2 are merged into one mode of cross-border supply of services and the definitions of ‘commercial presence’ and ‘temporary presence’ are broadened to non-services sectors. Despite these commonalities, the regulation of services supplied through ‘commercial presence’ in EU RTAs remains unsettled. How should the technical issue of regulatory gaps and overlaps between trade in services and investment created by international trade agreements, bringing along legal uncertainty, inconsistency and unpredictability be dealt with?

  • Content Type Journal Article
  • Part of Volume 43, Issue 3
  • Authors
    • Sidonie Descheemaeker, Sidonie Descheemaeker is currently an associate, international trade at Van Bael & Bellis (Brussels).
  • Journal Legal Issues of Economic Integration
  • Online ISSN 1566-6573
  • Print ISSN 1566-6573

Legal Issues of Economic Integration, On Similarities and Differences of the European Union and Eurasian Economic Union Legal Orders: Is There the ‘Eurasian Economic Union Acquis’?

Monday, August 1, 2016

This contribution is devoted to the study of legal order of the Eurasian Economic Union (EAEU). It is done through the analysis of similarities and differences of the EAEU legal order with those of the European Union (EU). It is argued that the notion ‘EU acquis’ has been extended beyond the EU and has been exported to legal orders of other international organizations. It poses the question whether the notion ‘acquis’ can have the same meaning within the legal order of the EAEU. On the one hand, some institutional similarities between the EAEU and the EU as well as the dynamic nature of the EAEU legal order give us a ground to apply the notion ‘acquis’ with regard to the EAEU in order to describe the political and legal heritage of the integration projects within the post- Soviet area. On the other hand, considerable differences between the EU and the EAEU legal systems (different degrees of supranationality, weak role of the Court of the Eurasian Economic Union, and strictly normative understanding of the definition of the ‘Union Law’ in the EAEU Treaty) bring into question the relevance of the notion of the ‘EAEU acquis’. Analysis of the notion ‘EAEU acquis’ encourages a discussion about the necessity to revisit its narrow scope towards inclusion of fundamental concepts of common values, founding principles like rule of law and non-discrimination and direct effect.

  • Content Type Journal Article
  • Part of Volume 43, Issue 3
  • Authors
    • Roman Petrov, Jean Monnet Chair in EU Law at the National University of Kyiv-Mohyla Academy, Ukraine.
    • Paul Kalinichenko, Chair in EU Law at the Kutafin Moscow State Law University, Russian Federation.
  • Journal Legal Issues of Economic Integration
  • Online ISSN 1566-6573
  • Print ISSN 1566-6573

Legal Issues of Economic Integration, The Visnapuu Case: The Narrow Interpretation of Article 37 TFEU and the Consequent Failure in the Application of the ‘Certain Selling Arrangements’ Doctrine: European Court of Justice, Fifth Chamber, 12 November 2015, C-198/2014, Valev Visnapuu v. Kihlakunnansyyttäjä, Suomen valtio – Tullihallitus

Monday, August 1, 2016

In Visnapuu the Court of Justice held, inter alia, that a Finnish measure governing the exceptions to the monopolist’s exclusive rights was separable from the operation of the monopoly. Therefore, the Court assessed it in the light of Article 34 Treaty on the Functioning of the European Union (TFEU) instead of Article 37 TFEU. It is worth noticing the remarkably narrow interpretation of Article 37 TFEU and its consequences on the application of Article 34 TFEU where a monopoly is at stake. In particular, in such circumstances, some concerns arise with respect to the suitability of the paragraph 16 proviso of Keck.

  • Content Type Journal Article
  • Part of Volume 43, Issue 3
  • Authors
    • Lucio Di Cicco, LLM, University of Amsterdam, Amsterdam Law School.
  • Journal Legal Issues of Economic Integration
  • Online ISSN 1566-6573
  • Print ISSN 1566-6573

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