2015 Research Activities

  • May 4: Ruth Nichols (New Zealand Ministry of Foreign Affairs and Trade)

    Competition Policy in International Trade

    Ruth Nichols (New Zealand Ministry of Foreign Affairs and Trade)

    Increasingly international trade agreements are seen as a mechanism to ensure that firms do not suffer from anti-competitive practices when operating in third countries and investors' interests are protected both within and across borders.  Anti-competitive practices act not only as a barrier to trade liberalisation, but also to the development of domestic industries – for instance, as they struggle to overcome the anti-competitive effects of international mergers and acquisitions on their own markets.

    While preserving the sovereign rights of each party to the agreement to develop, set, administer and enforce its own competition laws and policies, competition provisions in international trade agreements encourage robust competition law within the parties' domestic jurisdictions, cooperation between parties' competition authorities, transparency of competition authorities' regulations and decisions, and procedural fairness in enforcement proceedings.

    In this seminar Ruth will explore New Zealand's approach to competition provisions in free trade agreements. Participants will be encouraged to debate some of the key issues in developing competition provisions in international trade agreements, such as global value chains and the needs of developing countries.

  • May 19: Professor Hsu Hua Chou (National Taipei University of Business)

    The Changing Global Economic Order and Taiwan: the cases of TiSA and ANZTEC

    Professor Hsu Hua Chou (National Taipei University of Business)

    The stalemate in the WTO Doha Round negotiations and the proliferation of heavy preferential agreements outside the WTO have contributed to rapid change in the WTO-centered global economic order. There are victims of such change, Taiwan is a noteworthy one among them. However, Taiwan may have opportunities to make WTO more functional in trade liberalization on the one hand, and join more effective FTAs on the other, so as to mitigate its own perils as well as contribute to global trade governance.

    In this presentation Professor Chou will discuss two central cases facing Taiwan to illuminate its opportunities and challenges. The first case is about greater use of plurilateral agreement under the WTO, with special reference to the Trade in Services Agreement (TiSA). I would argue that the path of plurilateral agreements has to be taken seriously and that TiSA has to be seen as a variant of critical mass of plurilalteral agreements. A plurilateral agreement like TiSA is a real world product which may offer a path to walk out of stalemate and "move on" trade agenda that is at core of WTO regime and global trade governance. Further, it may serve as a way to mitigate erosion of multilateral trading system caused by preferential agreements proliferation in recent years. Taiwan's participation in TiSA will be evaluated. Its opportunities and challenges to play a bigger role in negotiating TiSA and promoting greater use of the plurilateral agreements, for itself and for better global trade governance, will be explored.

    The second case is about regulatory transparency in the FTA signed by Taiwan and New Zealand (ANZTEC) in 2013. This agreement has unusually important politico-economic implications for Taiwan's future participation in high quality FTAs, including TPP. And aspects of transparency and regulatory cooperation play a central part.  Professor Chou will explore evolving WTO norm of transparency as context and compare ANZTEC, APEC Model Chapter, and selected FTAs in Asia Pacific region to clarify significant features of ANZTEC in regulatory transparency and to identify some implications.

  • May 20: Professor Douglas Arner (University of Hong Kong)

    The Asian Infrastructure Investment Bank: Outlook and Implications

    Professor Douglas Arner (University of Hong Kong)

    The Asian Infrastructure Investment Bank (AIIB) will be a new multilateral development bank, proposed and led by China. As of April 2015 there are 57 Prospective Founding Members including 14 members of the Group of 20, but notably not the US or Japan. In this seminar Professor Arner will consider the global context of the AIIB and implications for other MDBs such as the World Bank and the Asian Development Bank. Professor Arner will also consider China's various international financial initiatives and China's position in the global economic order.

  • May 22: Mr Richard Braddock (Lexbridge: Public International Lawyers)

    The minimum standard of treatment? The right to regulate vs investor protection

    Mr Richard Braddock (Lexbridge: Public International Lawyers)

    Along with the protection against expropriation, the obligations of fair and equitable treatment and the minimum standard of treatment are the focus of the greatest concerns about the impact of investor-state dispute settlement on the regulatory autonomy of states.   In this presentation Mr Braddock will review some of the approaches which states have taken to clarify and limit the extent of these obligations in recent agreements and how these provisions have been interpreted and applied by investment tribunals, including the recent and controversial NAFTA case of Clayton & Bilcon v Canada.

  • June 16: Lucian Cernat (Chief Trade Economist at European Commission)

    Mega-FTAs, Globalisation and Technological Change: What trade rules for the 21st century?

    Lucian Cernat (Chief Trade Economist at European Commission)

    In recent years the world has witnessed a series of major technological breakthroughs, with huge potential and economic implications. However, while the economic opportunities of 3D printing, big data, robotics, and biotech are clear, the question which remains is what do such advancements mean for global trade and investment rules? Several 'mega-FTAs' (TTIP, TPP) are in the making, as well as other major trade deals. What role can such 'mega-FTAs' play in shaping our common economic future? How will these 'mega-FTAs' impact on the current WTO agenda?

  • July 7: Professor Bryan Mercurio (CUHK)

    Re-designing ASEAN Trade in Services: Liberalisation through Integration (with familiar characteristics)

    Professor Bryan Mercurio (CUHK)

    This presentation will review and analyse efforts of the Association of Southeast Asian Nations (ASEAN) to enhance and integrate its internal trade relations as well as its external trade relations in regards to trade in services. While ASEAN has had a framework agreement on services in place for some time, it is currently in the process of upgrading and (potentially) significantly liberalizing trade in services as part of its plans for an ASEAN Economic Community (AEC) in 2016. The objective of the AEC is deeper integration, but much work remains to be done both in terms of legal architecture and political will. At the same time, ASEAN continues to negotiate comprehensive trade agreements with regional and other partners. Without a clear negotiating objective and united leadership, the resulting economic gains will be unequally dispersed throughout the member states. The ASEAN is at a cross-road – it has the potential to be a fully integrated community, regional leader and global player or it could continue as disjointed network which never quite reaches its potential. The re-negotiation of its trade in services agreement and positions it takes in other trade negotiations will provide a useful test of its resolve to become the former rather than remain the latter.

  • July 9: Professor Dr Geert van Calster (Leuven)

    TTIP's Giant sucking sound? Deep integration, trade and regulatory standards

    Professor Dr Geert van Calster (Leuven)

    We have got to stop sending jobs overseas. It's pretty simple: If you're paying $12, $13, $14 an hour for factory workers and you can move your factory South of the border, pay a dollar an hour for labor,...have no health care - that's the most expensive single element in making a car - have no environmental controls, no pollution controls and no retirement, and you don't care about anything but making money, there will be a giant sucking sound going south.     ...when [Mexico's] jobs come up from a dollar an hour to six dollars an hour, and ours go down to six dollars an hour, and then it's levelled again. But in the meantime, you've wrecked the country with these kinds of deals.

    Ross Perot, 1992 Second Presidential Debate

    The economic impact of trade agreements is clear, even if their precise economic impact often leads to debate, especially in the short term. The identification and maturing of comparative advantage can be very brutal. What is true for economic impact is much more so for regulatory autonomy. Scholarship and case-law abound on the way in which various trade agreements try to come to grip with States' insistence they should be able to prioritise regulatory concerns over free trade.

    The Transatlantic Trade and Investment Partnership - TTIP, currently being negotiated between the EU and the US, lifts the debate to a new level. Teams on both sides have publicly declared that TTIP is to be a platform for true regulatory convergence between both blocs. 'Simply' negotiating tariff reductions is not an option. Suspicion especially in the EU is that convergence will lead to the EU's perceived stricter standards in particular in food safety and environmental protection, being sacrificed in the process of levelling the regulatory playing field. Geert will address the perceived gap, and the likelihood that TTIP will act in the ways suggested. He will also explore the role the WTO can /could /should play in the debate.

  • July 23: Professor Lawrence O Gostin (Georgetown Law)

    Reforming the World Health Organization: Learning the Lessons of Ebola

    Professor Lawrence O Gostin (Georgetown Law)

    The West African Ebola epidemic caused more than ten thousand deaths (including 500 healthcare workers), more than all the combined deaths from SARS, MERS, H5N1 and H7N9 avian flu. Global governance for health during the epidemic has been deeply criticized for the delays, lack of coordination, and insufficient resources. It has also highlighted the deep problems caused by fragile health systems. The Ebola epidemic has become a pivotal moment for the World Health Organization, spurring its need for fundamental reform. This public lecture will search for the lessons learned from Ebola, as well as the appropriate roles for international organizations such as the WHO, World Bank, and United Nations Security Council. Ebola has transformed the way the international community thinks about epidemic diseases. What will the global future look like, particularly for the World Health Organization?

  • August 13: Matthew Hodgson, Counsel (Allen and Overy, HK)

    The Relevance of Domestic Law to Foreign Investment Protection

    Matthew Hodgson, Counsel (Allen and Overy, HK)

    Public international law and domestic law both play an important role in investment treaty arbitration. Yet the interaction between domestic law and international law is still not fully settled.

    Both international law and domestic law apply when determining whether an investor has made an investment capable of being protected by an investment treaty.  Investment treaties typically define an "investment" as any kind of asset.  However, it is domestic law that determines if proprietary rights were acquired and the scope of such rights.  The extent to which domestic law applies is unsettled (for example, in the event of a conflict between the definition of asset in the treaty and the property rights recognised in domestic law) and can make or break an investor's claim.

    Similarly, breaches of domestic law by an investor – whether initially when making an investment or during the lifetime of the investment – often have important consequences in an investor-State arbitration.  It is clear that serious breaches such as fraud and corruption which go to the formation of the investment can vitiate an investor's claim.  It is less clear whether and to what extent: (1) fraud in the operation of an investment or (2) less serious breaches of domestic law by an investor will affect an investor's claim; and (3) a State can be estopped from objecting to such breaches of which its officials had knowledge.

  • September 30: Professor Julien Chaisse (CUHK)

    Investor-State Arbitration in International Tax Dispute Resolution - A Cut Above Dedicated Tax Dispute Resolution

    Professor Julien Chaisse (CUHK)

    This Seminar focuses on the impact of the international law of foreign investment on tax issues with a view to assessing the interactions between the two regimes and identifying potential signs of convergence. The last decade has witnessed a dramatic surge of investment disputes between foreign investors and host country governments. The new phenomenon of investment arbitration has brought about a number of decisions from different arbitral fora in the sector of tax, contributing to the formation of a jurisprudence that is elucidating the meaning of key provisions and contributing to the emergence of global economic regulation for tax matters. Importantly, several disputes have resulted in significant compensation being paid by host states to foreign investors for breaching investment treaty commitments by imposing tax measures. The details of these disputes show that there are a number of principles which have proven decisive to justify the claims of the taxpayers, namely, protection against expropriation, fair and equitable treatment, full protection and security, non-discrimination, the idea of an umbrella clause, and the notion of performance requirements. These investment principles indirectly constitute part of the international regime of tax matters.

  • October 21: Dr Yane Svetiev (European University Institute (Florence) & Bocconi (Milan))

    EU Law as a Platform for Building Transnational Markets as Social Institutions

    Dr Yane Svetiev (European University Institute (Florence) & Bocconi (Milan))

    Darkening clouds over Europe have triggered more intense questioning of many fundamentals of the EU integration project even by the EU's once ardent supporters. The purposive focus of EU legislation on building – and stimulating competition in – the internal market is said to create a "market rationality" straight-jacket that excessively constrains national policy-making sensitive to local context or specific policy concerns, particularly in areas where social and even expressive policy goals are very salient. An alternative account provided by a number of authors is that EU legal integration over the past two decades increasingly discloses and formalizes an experimentalist governance architecture.2 Such an architecture allows (and even promotes) policy innovation to respond to local context or policy preferences in return for formal obligations of reporting, peer review, and monitoring of the effects of such interventions.

    Dr Svetiev in this seminar will adopt an experimentalist governance perspective, to argue that the suggestion that EU economic regulation follows a "market rationality" tends to obscure, rather than reveal, the broader underlying transformative pressures on national law and regulation. It also tends to conceal the role that EU integration can play in coping with such pressures to help the Member States in building markets as social institutions through problem-solving and error-corrections. It draws on examples from fields such as electronic communications, energy and financial services and shows how experimentalist EU law can offer both a platform and a template for building transnational markets consistent with a broad set of normative commitments.

  • November 6: GELN Conference

    Finance in Asia: Regulating Regional Markets

    Topics:

    Regional Financial Architecture

    China and the Regional Financial Architecture

    Regional Financial Integration: Liberalisation Mechanisms

    The Challenges of Regulating Regional Markets

  • November 13: GELN Workshop

    TPP Revealed

    At this one-day workshop, following immediately after the release of the agreed treaty text on 5 November, experts will present their analysis of the Trans-Pacific Partnership (TPP) on key issues of interest to the legal profession and their clients.

    The TPP is the biggest trade and investment deal in 20 years, covering countries that represent more than 40% of global GDP. Approximately one third of Australia's total goods and services exports go to the other TPP countries (Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam). This 'new generation', '21st century' agreement differs from all existing agreements, not only because of its wide membership in terms of geography and levels of development, but also because of the breadth and depth of its provisions, covering some areas not previously addressed, such as 'regulatory coherence', and imposing enforceable standards in relation to labour and the environment for the first time in an agreement of this kind. Importantly, the TPP also contains investor-state dispute settlement (ISDS) provisions, increasing the protection given to Australian investors abroad and foreign investors in Australia.