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Principles of International Economic Law, 2nd Edition by Herdegen, Matthias (22nd September 2016)

Part I Contents, History, and Structure of International Economic Law, I The Law of International Economic Relations: Contents and Structure

From: Principles of International Economic Law (2nd Edition)

Matthias Herdegen

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 06 December 2019

Subject(s):
Competition — Intellectual property — International investment law — Goods — Environmental disputes

(p. 3) The Law of International Economic Relations

Contents and Structure

1.  Understanding and Contents of International Economic Law

The notion ‘International Economic Law’ encompasses a complex architecture of rules governing international economic relations and transboundary economic conduct by States, international organizations, and private actors. The term essentially refers to the regulation of cross-border transactions in goods, services, and capital, monetary relations and the international protection of intellectual property. To some extent, it also addresses the movement of companies and natural persons as well as aspects of international competition.

Although there is consensus on the core subjects, the content of ‘international economic law’ remains controversial and leaves room for subjectively coloured choices.1 A narrow concept of ‘international economic law’ only refers to the segment of public international law directly governing economic relations between States or international organizations, focusing on world trade law, international investment law, and international monetary law.2 A broader understanding also reflects the role of private actors or hybrid entities administering public goods of major relevance to the international community, like ICANN (Internet Corporation for Assigned Names and Numbers) and more adequately pays tribute to the interplay between international and domestic law in a transboundary economic context. This understanding of international economic law includes the norms of public international law addressing cross-border activities of private undertakings by international agreements as well as issues of jurisdiction of States and the hotly debated ‘extraterritorial’ legislation.

(p. 4) This book follows a broad understanding of ‘international economic law’,3 that is an understanding not just as the part of public international law addressing the economic order, but rather as the law of international economic relations. Thus, the book also covers the basic elements of what is termed ‘international (transnational) business law’4 or ‘international commercial law’.5 It includes legal standards for international undertakings and activities as to human rights, transparency (ban on corruption), environmental protection, labour conditions, or the prohibition on trade with certain arms or other potentially harmful goods.

Several reasons support the inclusion of rules addressing private undertakings and individuals. A concept restricted to the rules governing the relations between States would provide a most fragmentary understanding of the modern order of economic relations and would fully ignore many sets of rules essential to the status of private actors engaged in transnational activities. International law itself pays more and more attention to economic rights and freedoms of individuals and other private actors, in treaties on human rights or in agreements on investment protection. The Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) provides for arbitration and conciliation between States and foreign investors. For the purposes of dispute settlement, the Convention places a foreign investor and the host State on the same footing, once both parties have accepted the jurisdiction of ICSID. From this perspective, ICSID is a most innovative step in the field of investment protection similar to the individual complaint created by the European Convention on Human Rights.

Many rules for international transactions or the settlement of commercial disputes are laid down in international treaties such as the UN Convention on Contracts for the International Sale of Goods (CISG) or the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Often cooperation among administrative authorities results in international rules for companies which become law by harmonized legislation in many or even most States. Thus, the Basel Committee on Banking Supervision, an important forum of G20 members and some other countries on banking supervision, has adopted non-binding standards for the resilience of the banking sector, in particular for the adequate capital of internationally active banks and liquidity risk management (‘Basel Accords’),6 which are implemented by domestic laws. Some kind of soft convergence is being reached in the area of accounting standards.

Economic realities should also be considered. Quite a number of multinational corporations have an economic (and often political) weight comparable, if not (p. 5) superior, to many States.7 The quest of developing countries for foreign investment and access to technology often places multinational corporations on a negotiating level vis-à-vis States in context with conditions for investment and the grant of concessions. Some companies even succeeded in having contracts with foreign States ‘internationalized’ (ie governed by international law instead of national law), thus placing the contract out of reach of unilateral intervention by their State counterpart.

International law also develops binding standards and ‘soft law’ (codes of conduct) for multilateral corporations. From the view of multinational corporations and other private actors with transboundary economic activities, international rules and national law must be read together.

2.  The Interaction between International and Domestic Law

The interplay between national and international law shapes the international economic order in many ways. Public international law conditions the exercise of regulatory powers in the domestic sphere. Fundamental principles common to most municipal systems like the principle of good faith or the ban on corruption may give rise to ‘general principles of law recognized by civilized nations’ in terms of Article 38(1)(c) of the Statute of the International Court of Justice and thus emerge as principles of public international law.

In World Duty Free Ltd v Kenya, the arbitral tribunal held that:

In light of domestic laws and international conventions relating to corruption, and in light of the decisions taken in this matter by courts and arbitral tribunals, this Tribunal is convinced that bribery is contrary to the international public policy of most, if not all, States or, to use another formula, to transnational public policy. Thus, claims based on contracts of corruption or on contracts obtained by corruption cannot be upheld by this Arbitral Tribunal.8

Resolutions of the UN Security Council under Chapter VII of the Charter of the United Nations (UN Charter) like a trade embargo under Article 41 of the UN Charter or individual sanctions against persons or entities supposedly implicated in international terrorism must be implemented by national legislation.

Article 48 of the UN Charter provides:

  1. 1.  The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine.

  2. 2.  Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.

(p. 6) Thus, it is only through national legislation (or EU legislation) that UN measures evoke individual rights and obligations.

The implementation of resolutions of the UN Security Council shows how different layers of international and national legal rules may interact, giving rise to certain complexity. In the European Union, the competent EU organs decide within the Common Foreign and Security Policy (Article 28 TEU), and then within the Common Commercial Policy (Article 215 TFEU) or within the framework of the rules on the freedom of capital movements (Article 75 TFEU) on the implementation of UN sanctions. In addition, EU Member States may enact parallel restrictions and sanction violations under their criminal law. Finally, human rights standards guaranteeing individual freedoms, for example the European Convention on Human Rights, may call for consideration. Thus in Bosphorus v Ireland, the European Court of Human Rights ruled on the conformity with the European Human Rights Convention of an embargo measure against a Serbian aircraft, leased by a Turkish airline and seized by the Irish authorities under an EU regulation which, in turn, implemented sanctions imposed by the UN Security Council.9 Persons targeted by individual or ‘smart’ sanctions under anti-terror resolutions of the Security Council repeatedly brought complaints against implementing measures before the European Court of Human Rights.10 In the case of Kadi and Al Barakaat, the European Court of Justice examined restrictions of property against supposed accomplices of international terrorism based on resolutions of the UN Security Council in the light of EU fundamental rights (which are strongly inspired by the European Convention on Human Rights).11

In international investment law, arbitral tribunals will apply relevant agreements and the national law of the host State as far as appropriate. Under the ICSID Convention, for example, arbitral tribunals will apply national law (usually the law of the host State) and ‘such rules of international law as may be applicable’ (Article 42(1)).

National law often refers to international standards. Under the US Alien Tort Claims Act of 1789 (ATCA or ATS),12 ‘the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. Many actions brought in the United States against multinational corporations for violations of human rights committed abroad were based on the ATCA. The recent decision of the US Supreme Court in Kiobel has dramatically reduced the scope of claims covered by jurisdiction under the ATCA.13

(p. 7) National law may provide that courts have to refuse the application or recognition of acts of foreign States, for example expropriations, if they are inconsistent with international law. Some States incorporate international law or at least parts of it into domestic law.14 On the other hand, international law in many ways supports domestic law. Thus, treaties on investment protection may require foreign investors to comply with the law of the host States (‘conformity clause’).15

In the Fraport case,16 an international arbitral tribunal denied investment protection to a German enterprise on the grounds that it had blatantly disrespected the limitation on the foreign share in domestic companies in the airport sector under the laws of the Philippines. Conversely, ‘umbrella clauses’ in investment treaties oblige host States to honour commitments under their own national laws.17

3.  The Interaction of Different National Laws

In many disputes it is decisive which national law a court chooses to apply (eg on a contract between a US citizen and a British corporation to be performed in Panama), its own domestic law or foreign law. This choice is governed by the forum State’s rules on the conflict of laws.

The ‘extraterritorial’ reach of national legislation is one of the controversial issues of international economic law.18 It refers to the application of one State’s rules to activities undertaken abroad or to the status of persons or things situated in another State.

In the Sensor case,19 the Dutch subsidiary of a US firm relied on an export prohibition of the US administration (directed against a gas-pipeline deal between European States and the Soviet Union) in order to refuse compliance with a contract on the delivery of certain material finally destined for the Soviet Union. A Dutch court refused to apply the US regulation and enforced the contract under Dutch law.

In principle, States are free to apply or not the laws of other countries which serve the respective country’s economic and/or political interests, like the prohibition of the export of goods attributed to a State’s cultural heritage or of its natural resources (such as the exportation of archaeological materials, tribal masks, or species of animals and plants). However, under the Articles of Agreement of the International (p. 8) Monetary Fund, States must give effect to currency exchange restrictions of other members:

Exchange contracts which involve the currency of any member and which are contrary to the exchange control regulations of that member maintained or imposed consistently with this Agreement shall be unenforceable in the territories of any member. In addition, members may, by mutual accord, cooperate in measures for the purpose of making the exchange control regulations of either member more effective, provided that such measures and regulations are consistent with this Agreement.20

4.  Main Areas of International Economic Law

The core areas of international economic law are international trade law, the law of regional economic integration, and other bi- or multilateral trade agreements, international investment law and international monetary law. It also comprises areas related to trade and investment such as international commercial arbitration, double taxation agreements, and international intellectual or industrial property law as well as international competition law. Advanced integration of economies as achieved in the European Union will require a regime for the movement of persons, including free establishment, and finally, common antitrust rules.

(a)  International trade law

The international agreements on the exchange of goods and services across borders are based on the reciprocal character of the respective rights and obligations of the parties and aim at achieving mutual benefits for all of them.21 The World Trade Organization (WTO) provides the institutional basis for global trade relations and is built on pre-existing structures under the General Agreement on Tariffs and Trade (GATT 1947). Its principal objectives are to reduce existing trade barriers and to expand international trade, raise the standard of living, attain sustainable development, and secure an adequate share in the growth of international trade for developing countries (WTO Agreement, preamble). The institutional system of the WTO administers a number of trade agreements. The GATT (1947 and 1994) is the basic legal instrument for substantially reducing tariffs and other barriers to trade in goods and for eliminating discriminatory treatment. General exceptions allow for restrictive measures for the protection of enumerated public interests such as public morals or health. Specific exceptions, inter alia, relate to the protection of domestic producers against unforeseen serious harm arising from imports and trade concessions (safeguards). The WTO Agreement on the Application of Sanitary and (p. 9) Phytosanitary Measures (SPS Agreement) and the Agreement on Technical Barriers to Trade (TBT Agreement) complement the GATT rules. Other WTO agreements establish a special regime for the agricultural sector (Agreement on Agriculture) or address subsidies, antidumping measures, trade-related aspects of intellectual property (TRIPS), trade-related investment measures (TRIMs), and government procurement. The General Agreement on Trade in Services (GATS) integrates services into the WTO system.

(b)  Regional economic law and free trade agreements

Bi- and multilateral free trade agreements and other forms of regional economic law overlap with WTO law. These agreements range from free trade areas over custom unions to more ambitious forms of regional economic integration.22 Among them, the system of the European Union has reached a unique level of economic and political integration. WTO law permits preferential trade agreements, if covering ‘substantially all the trade’ (see Article XXIV: 4 and 8 of the GATT). The North American Free Trade Area (NAFTA), the Association of South East Asian Nations (ASEAN), the Asia-Pacific Economic Cooperation (APEC), the Andean Community of Nations (CAN), and the Common Market of the South (MERCOSUR) stand out as examples of regional economic agreements. The European Union has negotiated the Comprehensive Economic and Trade Agreement with Canada (CETA). In 2016, twelve States of the Pacific Rim, among them the United States, Canada, Australia, and Mexico, signed the Trans-Pacific Partnership Agreement (TPP). Amid much controversy, the negotiations of the Transatlantic Trade and Investment Partnership (TTIP) between the United States and the European Union are still ongoing.

(c)  International antitrust and competition law

International antitrust and competition law governs the interplay of domestic competition and antitrust rules concerning the issue of transboundary undertakings.23 WTO law (GATS) contains rudimentary rules sanctioning the abuse of regulatory powers and practices restraining competition.24 In the absence of a truly international regime for competition, the establishment and application of competition rules lie with the individual domestic bodies. International agreements, (p. 10) for example between the European Union and the United States, provide for mutual assistance and cooperation among competition authorities.

(d)  International investment law

International investment law covers the promotion of foreign investments and their protection against undue interferences by the host State.25 Establishing a favourable investment climate is now recognized as a cornerstone of economic development.26 The main sources of international investment law are bilateral investment treaties and, rising in number, preferential trade agreements or treaties for specific sectors with an investment protection regime like the Energy Charter Treaty. By establishing standards for legal stability, predictability of State action, adequate protection, and due process, particularly through the guarantees of ‘fair and equitable treatment’ and ‘full protection and security’, international investment law has intense repercussions on the legal system of the host State and enhances the rule of law. Arbitral decisions nowadays consider respect for the integrity of the law of the host State as ‘a critical part of development and a concern of international investment law’.27 Recent treaty practice tends to defer widely to legitimate political choices, leaving considerably more room for national standards concerning environment, health, or labour conditions.

(e)  International monetary law

An important sector of international economic law covers monetary relations.28 The Statute of the International Monetary Fund (IMF) provides rules for the surveillance of currency arrangements and assistance to Member States in case of balance of payment deficits. Among monetary unions and monetary zones, the European Economic and Monetary Union with its European System of Central Banks has reached an unparalleled degree of monetary and fiscal integration for (p. 11) the Members of the Eurozone.29 Nevertheless, the insufficient convergence of economic and excessive fiscal deficits has caused a rift within the Eurozone.

(f)  Intellectual property law

A number of treaties address the protection of intellectual property (copyright, design protection, patents including for example bio-patents on DNA-sequences, new trademarks, topographies of integrated circuits).30 In WTO law, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) marks a significant step towards universal standards of efficient protection. Salient issues are the protection of ‘bio-patents’ (eg newly ‘designed’ varieties of Broccoli31) and restraints on the exercise of patents and similar rights under competition law.32

(g)  International commercial law

The international law governing commercial transactions between private actors is traditionally placed on the periphery of international economic law. It is, however, of considerable relevance for today’s international economic relations.33 International agreements like the United Nations Convention on Contracts for the International Sale of Goods (CISG)34 are directed at the harmonization of substantive law. Transboundary e-commerce increases the need for uniform rules. Another area of international commercial law covers the settlement of disputes, in particular international arbitration,35 which often extends to disputes between States and foreign corporations (eg arbitration under the UNCITRAL Rules).

5.  The Relationship between International Economic Law and Economic Rationality

To some extent, any legal order will refer to rationality, in economic as well as in other contexts.36 The modern international economic order aims at activating (p. 12) market forces and private initiative by eliminating barriers to trade and to the flow of capital. It also fosters a positive investment climate.

Still, the whole international law focuses less on economic rationality and economic incentives, but on the respect for the human person and its autonomy as well as on States’ responsibility for welfare and social balance. The basic tenets of international law do not allow to subordinate the individual to economic priorities and to regulate rights and duties of individuals according to economic efficiency. Human rights, internationally recognized social standards, and the constitutional underpinnings of the human person in the modern Rechtsstaat do not allow an understanding of the legal order as an instrument merely serving economic rationality. On the contrary, the concept of the human person underlying and characterizing the legal order directs the normative framework for economic relations. This primacy of the normative vision of the individual also conditions the relation between economic analysis and the legal order.37 Thus, it is not the idea of the homo economicus, but rather the legal rules for individual freedom and social standards, as well as the control of economic power that establish the framework for the economic order, on the domestic as well as on the international level. In the same vein, it is not the agenda for liberalization or investment protection that conditions human rights and their enjoyment. Quite the contrary, human rights standards establish the framework for economic choices.

Select Bibliography

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Footnotes:

1  See S Charnovitz, ‘What is International Economic Law?’ (2011) 14 J Int’l Econ L 3.

2  D Carreau and B Juillard, Droit international économique (5th edn, Librairie générale de droit et de jurisprudence 2013); WJ Davey and JH Jackson, ‘The Future of International Economic Law’ (2007) 10 J Int’l Econ L 439; R Dolzer, ‘Die Wirtschaft im Völkerrecht’ in W Graf Vitzthum (ed), Völkerrecht (6th edn, De Gruyter 2013) 491; AT Guzman and JHB Pauwelyn, International Trade Law (2nd edn, Aspen Publishers 2012); M Herdegen, ‘International Economic Law’ in R Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012) vol V, 777; JH Jackson, The World Trading System (2nd edn, MIT Press 1997); AF Lowenfeld, International Economic Law (2nd edn, OUP 2008); I Seidl-Hohenveldern, International Economic Law (3rd edn, Kluwer Law International 1999).

3  H Kronke, W Melis, and AK Schnyder (eds), Handbuch Internationales Wirtschaftsrecht (Schmidt 2005).

4  R Folsom, M Gordon, JA Spanogle, P Fitzgerald, and MP Van Alstine, International Business Transactions (11th edn, Aspen Publishers 2012).

5  R Goode, H Kronke, E McKendrick, and J Wool, Transnational Commercial Law (2nd edn, OUP 2012).

6  For an analysis see S Rutova and T Volkheimer, ‘Revisiting the Basel Accords: Lessons Learned from the Credit Crisis’ (2011) 19 U Miami Bus L Rev 83.

7  See Ch III.8.

8  World Duty Free Co Ltd v Kenya, ICSID Case No ARB/00/7 (Award) (2007) 46 ILM 339 para 157.

9  ECtHR Bosphorus Hava Yollari Turizm v Ireland App no 45036/98 (30 June 2005).

10  ECtHR Al-Dulimi and Management Inc v Switzerland App no 5809/08 (26 November 2013), confirmed by the Grand Chamber judgment of 21 June 2016.

11  ECJ Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the EU and Commission of the EC (ECJ Judgment) [2008] ECR I-6351 paras 280ff.

12  See Ch VII and Ch X.3(d).

13  US Supreme Court Kiobel v Royal Dutch Petroleum Co 133 S.Ct. 1659 (2013) 13; see Ch VII.

14  See MN Shaw, International Law (7th edn, CUP 2014) 99.

15  See Ch XXXIV.3(b).

16  Fraport AG Frankfurt Airport Services Worldwide v Republic of the Philippines, ICSID Case No ARB/03/25 (Award 2007) paras 300ff; the award was annulled in 2010 for procedural reasons; nevertheless, the award may still be considered an important contribution to international investment law.

17  See Ch XXXIV.4(f).

18  See Ch VI.6–8.

19  District Court at The Hague Compagnie Européenne des Pétroles SA v Sensor Nederland BV (1983) 22 ILM 66; see AV Lowe, ‘International Law Issues Arising in the “Pipeline Dispute”: The British Position’ (1984) 27 GYIL 54; DF Vagts, ‘The Pipeline Controversy: An American Viewpoint’ (1984) 27 GYIL 38.

20  Article VIII(2)(b) Articles of Agreement of the International Monetary Fund.

21  D Bethlehem et al, The Oxford Handbook of International Trade Law (OUP 2009); AT Guzman and JHB Pauwelyn, International Trade Law (2nd edn, Aspen Publishers 2012); AF Lowenfeld, International Economic Law (2nd edn, OUP 2008).

22  S Norberg, ‘The Agreement on a European Economic Area’ (1992) 29 CML Rev 1171; TA O’Keefe, Latin American and Caribbean Trade Agreements (Brill Academic Publishers 2009); A Toledano Laredo, ‘The EEA Agreement: An Overall View’ (1992) 29 CML Rev 1199; M Toscano Franca Filho, L Lixinski, and M Belen Olmos Giupponi (eds), The Law of Mercosur (Hart Publishing 2010); J Vervaele, ‘Mercosur and Regional Integration in South America’ (2005) 54 ICLQ 387.

23  EM Fox, ‘Towards World Antitrust and Market Access’ (1997) 91 AJIL 1; C Noonan, The Emerging Principles of International Competition Law (OUP 2008).

24  See WTO, Mexico: Measures Affecting Telecommunication Services—Report of the Panel (2000) WT/DS204/R paras 7.224ff.

25  See Ch XXXIV.4.

26  See RD Bishop, J Crawford, and WM Reisman, Foreign Investment Disputes (Aspen Publishers 2005); R Dolzer, M Herdegen, and B Vogel, Foreign Investment (Konrad Adenauer Stiftung 2006); R Dolzer and C Schreuer, Principles of International Investment Law (2nd edn, OUP 2012); C Dugan et al, Investor-State Arbitration (Oceana Publications Inc 2008); C McLachlan, L Shore, and M Weiniger, International Investment Arbitration (OUP 2007); P Muchlinsky, F Ortino, and C Schreuer, The Oxford Handbook of International Investment Law (OUP 2008); A Reinisch, Standards of Investment Protection (OUP 2008); M Sornarajah, The International Law of Foreign Investment (3rd edn, CUP 2010).

27  Fraport AG Frankfurt Airport Services Worldwide v Republic of the Philippines, ICSID Case No ARB/03/25 (Award 2007) para 402.

28  MS Copelovitch, The International Monetary Fund in the Global Economy: Banks, Bonds, and Bailouts (CUP 2010); M Giovanoli (ed), International Monetary Law (OUP 2000); M Giovanoli, ‘The Reform of the International Financial Architecture after the Global Crisis’ (2009) 42 Int’l L & Pol 81; M Giovanoli, International Monetary Law and Financial Law, The Global Crisis (OUP 2011); H Hahn and U Häde, Währungsrecht (2nd edn, CH Beck 2010); C Proctor, Mann on the Legal Aspect of Money (7th edn, OUP 2012).

29  See Part VI.

30  See Ch XVIII.4(b).

31  See the decisions G2/07 and G1/08 (‘Broccoli/Tomatoes’, 9 December 2010) as well as most recently the decisions G2/12 and G2/13 (‘Broccoli/Tomatoes’, 25 March 2015) of the Enlarged Board of Appeal of the European Patent Office.

32  F Abbott, T Cottier, and F Gurry, The International Intellectual Property System (Aspen Publishers 1999); T Cottier and P Véron, Concise International and European IP Law (2nd edn, Kluwer Law International 2011); C Correa, Trade Related Aspects of Intellectual Property Rights (Alphascript Publishing 2007); D Gervais, Intellectual Property, Trade and Development (2nd edn, OUP 2014); PW Grubb and PR Thomsen, Patents for Chemicals, Pharmaceuticals and Biotechnology (5th edn, OUP 2010); LR Helfer, KJ Alter, and MF Guerzovich, ‘Islands of Effective International Adjudication: Constructing an Intellectual Property Rule of Law in the Andean Community’ (2009) 103 AJIL 1.

33  For an overview of the topic see M Bridge, The International Sale of Goods (3rd edn, OUP 2013); R Goode, H Kronke, E McKendrick, and J Wool, Transnational Commercial Law (2nd edn, OUP 2012); C Murray, Schmitthoff‘s Export Trade (12th edn, Sweet & Maxwell 2011).

34  See Ch XXIV.3.

35  See Ch X.2.

36  M Herdegen, Staat und Rationalität (Ferdinand Schöningh 2010).

37  K Mathis, Efficiency Instead of Justice?: Searching for the Philosophical Foundations of the Economic Analysis of Law (Springer 2011); EJ Mestmäcker, A Legal Theory without Law: Posner v Hayek on Economic Analysis of Law (Mohr Siebeck 2007); RA Posner, Economic Analysis of Law (9th edn, Aspen Publishers 2014); SAB Schropp, Trade Policy Flexibility and Enforcement in the WTO: A Law and Economics Analysis (CUP 2014); S Shavell, Foundations of Economic Analysis of Law (Harvard University Press 2004).