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12383 results in International Trade Law

Page 288 of 620

  • 1 - The silent revolution

  • from PART I - Context: the enclosure of the seas
  • Thomas Cottier, Universität Bern, Switzerland
  • Book:
    Equitable Principles of Maritime Boundary Delimitation
    Published online:
    05 May 2015
    Print publication:
    30 April 2015, pp 45-66

  • Summary

    The partition of the seas

    Since the end of World War II, the law of the sea has changed profoundly. Nations began to claim jurisdiction over marine resources and to enclose parts of the globe by the end of the 1940s. Within a relatively short period of time, the traditional doctrine of ‘freedom of the high seas’ lost ground, both with regard to natural resources from the sea and seabed and for communication purposes; yet freedom of the high seas continues to prevail in principle, and freedom of navigation for ships and flight paths for aeroplanes remain unimpaired. A complex, dualistic scheme of both national and supranational jurisdiction over the non-living and living resources in the seas emerged and has continued to develop. The seas have been divided not only among different nations, but also among different and partially overlapping zones and legal regimes, with divisions now going far beyond the traditional 3-mile territorial limit of national coastal waters. The enclosure movement of the seas evolved through three successive generations of jurisdictional zones: the continental shelf; the exclusive economic zone (EEZ); and the Area. Chapter 2 will describe the first and second of these zones in more detail, while a discussion of the third follows below. The gradual extension of the territorial sea up to 12 nm and the controversial expansion of the contiguous zone are beyond the scope of this book.

    Long before the great majority of newly independent countries, both developing and least developed, began gaining influence in international affairs, the legal concept of the continental shelf emerged in the 1950s. Under this concept, the coastal states were entitled to appropriate mineral resources found in the seabed of the shallow waters of the shelves. Oil and gas were the major resources that benefited these privileged states. The outer limit of the concept was not limited and followed the feasibility of technological exploitation.

  • 9 - Conceptual issues and the context of equity

  • from PART III - Delimitation based on equity
  • Thomas Cottier, Universität Bern, Switzerland
  • Book:
    Equitable Principles of Maritime Boundary Delimitation
    Published online:
    05 May 2015
    Print publication:
    30 April 2015, pp 440-514

  • Summary

    The conceptual task

    A. The quest for equitable standards

    The fundamental rule of delimitation, essentially based on equity, is a legal concept. It is meant to provide an approach to maritime boundary delimitation in general public international law that is different from delimitation ex aequo et bono. Chapter 8 demonstrates that it is a rule of judge-made law which was eventually incorporated into the positive law of the Convention on the Law of the Sea. The courts have emphasized the legal quality being the essence of delimitation by equity in the present context of maritime boundary delimitation. Yet, the fundamental rule merely offers a starting point. Inherently, the substance of it – delimitation in accordance with equitable principles taking into account all relevant circumstances in order to achieve an equitable result – has to be defined and shaped in more concrete terms in order to qualify as a legally operational concept. In turn, equitable standards (encompassing equitable principles, circumstances, criteria and factors) need to be defined. The mutual relationship of such standards needs clarification. A proper methodology has to be developed in order to apply such standards under the facts of each particular case.

    Indeed, the long-term viability and efficiency of the still fragile, judge-made rule of equity fully depends, as a legal concept, upon whether it brings about a number of defined and settled normative and operational standards capable of reducing overly broad discretion and subjectivism to an optimal degree, whatever their form, terminology and normative levels. Comparable to the evolution of equity in English law, the fundamental rule needs to develop into operational standards. Likewise, in international maritime boundary law, it has to achieve a stage of maturity where it effectively provides guidance in diplomatic negotiations and shows qualities of increased predictability in judicial settlements. A discussion of the evolution and sources of the zones and the fundamental rule shows that the law of delimitation cannot merely rely upon broad notions of justice, fairness and good faith.

Dispute Settlement Reports 2013
  • Volume 1, Pages 1–468
  • Corporate Author World Trade Organization
  • Published online:
    13 December 2017
    Print publication:
    30 April 2015
  • The Dispute Settlement Reports of the World Trade Organization (WTO) include Panel and Appellate Body reports, as well as arbitration awards, in disputes concerning the rights and obligations of WTO members under the provisions of the Marrakesh Agreement Establishing the World Trade Organization. These are the WTO authorized and paginated reports in English. An essential addition to the library of all practising and academic trade lawyers and needed by students worldwide taking courses in international economic or trade law. DSR 2013: Volumes 1 and 2 together report on Canada - Certain Measures Affecting the Renewable Energy Generation Sector / Canada - Measures Relating to the Feed-in Tariff Program (WT/DS412, WT/DS426).

  • China - Countervailing and Anti-Dumping Duties on Grain Oriented Flat-Rolled Electrical Steel from the United States (WT/DS414/2): Award of the Arbitrator

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2013
    Published online:
    12 December 2017
    Print publication:
    30 April 2015, pp 1495-1500

  • Summary

    Arbitration under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes

    WT/DS414/2

    Circulated to Members on 3 May 2013

    Request for the Establishment of a Panel by the United States

    The following communication, dated 11 February 2011, from the delegation of the United States to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

    On September 15, 2010, the United States Government requested consultations with China pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), Article XXII:1 of the General Agreement on Tariffs and Trade 1994 (“GATT 1994”), Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (“AD Agreement”), and Article 30 of the Agreement on Subsidies and Countervailing Measures (“SCM Agreement”). The United States and China held such consultations on November 1, 2010. Unfortunately these consultations did not resolve the dispute.

    The United States considers that certain measures of the Government of the People's Republic of China (“China”) are inconsistent with China's commitments and obligations under the GATT 1994, the AD Agreement, and the SCM Agreement. The measures impose countervailing duties and antidumping duties on grain oriented flat-rolled electrical steel (“GOES”) from the United States, and are set forth in Ministry of Commerce of the People's Republic of China (“MOFCOM”) Notice No. 21 [2010], including its annexes.

    These measures appear to be inconsistent with the following provisions of the AD Agreement, SCM Agreement, and GATT 1994:

    Initiation of the Investigation

    1. Articles 11.2 and 11.3 of the SCM Agreement, because:

  • (a) The application for a countervailing duty investigation failed to contain information reasonably available to the applicant regarding the existence of a financial contribution, a benefit, or specificity for several of the alleged subsidy programs; and

  • 11 - The methodology of judicial boundary delimitation

  • from PART III - Delimitation based on equity
  • Thomas Cottier, Universität Bern, Switzerland
  • Book:
    Equitable Principles of Maritime Boundary Delimitation
    Published online:
    05 May 2015
    Print publication:
    30 April 2015, pp 602-644

  • Summary

    Competing schools of jurisprudence

    A. Introduction

    The essence and virtue of any legal concept and process, consisting of a principled and reasoned approach to problems of life, is no different in maritime boundary delimitation and the allocation of marine space from any other field of the law. In Chapter 10, a principled approach was considered to be an essential requirement for satisfying legitimate expectations, political predictability and acceptance of results. Abstract approaches by the courts to this effect have evolved over the last fifty years through a pendulum development and a process of trial and error – away from an emphasis on rule-orientation and towards result-orientation, then backagain to delimitation primarily based on equitable principles, and finally towards a combination of a result-oriented and a rule-oriented approach emphasizing the method of equidistance and taking into account special circumstances and proportionality on the basis of a three-step approach with equitable principles largely operating in the background. Whatever the practical differences of these various approaches and the submitted return to an approach based upon equitable principles in this book, there is no disagreement that delimitation based upon equity pursues the ambition of being a legal and rule-based concept, relying upon principles and relevant circumstances, the specification of which should result in an overall equitable apportionment.Whether delimitation based on the rule of equity is in fact a legal operation, or one of ex aequo et bono settlement in disguise, much depends on the methodology and the consistency with which it is applied in a particular case. By and large, the results of cases so far have implicitly complied with the requirements of equitable solutions under the standards of political predictability and legitimate expectations, and the compromises achieved have been equitable in that sense. They were all politically accepted. But, all too often, they have not been achieved in a sufficiently principled manner.

Equitable Principles of Maritime Boundary Delimitation
  • The Quest for Distributive Justice in International Law
  • Thomas Cottier
  • Published online:
    05 May 2015
    Print publication:
    30 April 2015
  • Equity emerged as a powerful symbol of aspired redistribution in international relations. Operationally, it has had limited impact in the Westphalian system of nation states - except for maritime boundary delimitations. This book deals with the role of equity in international law, and offers a detailed case study on maritime boundary delimitation in the context of the enclosure movement in the law of the sea. It assesses treaty law and the impact of the United Nations Convention on the Law of the Sea. It depicts the process of trial and error in the extensive case law of the International Court of Justice and arbitral tribunals and expounds the underlying principles and factors informing the methodology both in adjudication and negotiations. Unlike other books, the main focus is on equity and its implications for legal methodology, in particular offering further guidance in the field of international economic law.

  • 12 - The role of equity in negotiations

  • from PART III - Delimitation based on equity
  • Thomas Cottier, Universität Bern, Switzerland
  • Book:
    Equitable Principles of Maritime Boundary Delimitation
    Published online:
    05 May 2015
    Print publication:
    30 April 2015, pp 645-690

  • Summary

    Introduction

    The prime and most frequent and cost-effective mode of settling maritime boundaries, as in any other business in international relations, is and remains diplomatic negotiations. Most boundaries have and will be successfully settled this way. Chapter 5 reflects the account of state practice and the many agreements achieved over more than half a century of long-distance maritime boundary delimitation. There are far more agreements than settlements by courts. In the sample period alone from 1942 to 1992 (Appendix I), 120 maritime boundaries were settled by agreement while merely 20 cases (16.6 per cent) reached the courts and arbitration in that period. Judicial and costly third party settlement is by all means a subsidiary remedy. It applies in protracted cases where negotiations failed to settle the matter in the negotiating process.

    The question thus arises whether and to what extent the legal framework based upon the fundamental rule of equity and the methodology developed in judicial settlement is, or ought to be, relevant and guiding the process of negotiations. The question is of general interest in assessing the role of equity in international law and diplomacy. Recourse to equity and equitable principles is essentially a judge-made concept, developed for the purpose of deciding complex and protracted cases. Balancing a variety of principles and factors, while excluding others, with a blind and impartial view, is not necessarily suitable for the diplomatic process. It requires authoritative decision-making in the very end – a feature absent in the process of negotiations and the quest for agreement and consent. It may be argued that the diplomatic process is not primarily interested in law and legal arguments. It focuses on interests and shows little concern for theory. Thus, governments are mainly interested in resource allocation, rather than maritime space, the principle object and reference point for judicial settlement.

  • China - Anti-Dumping and Countervailing Duty Measures on Broiler Products from the United States (WT/DS427): Report of the Panel

  • Corporate Author World Trade Organization
  • Book:
    Dispute Settlement Reports 2013
    Published online:
    12 December 2017
    Print publication:
    30 April 2015, pp 1041-1494

  • Summary

    INTRODUCTION

    On 20 September 2011, the United States requested consultations with China pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (“DSU”), Article XXIII:1 of the General Agreement on Tariffs and Trade of 1994 (the “GATT 1994”), Article 30 of the Agreement on Subsidies and Countervailing Measures (the “SCM Agreement”) (to the extent that Article 30 incorporates Article XXIII of the GATT 1994), and Article 17.3 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the “Anti- Dumping Agreement”) with respect to China's measures imposing anti-dumping duties and countervailing duties on broiler products from the United States, as set forth in Ministry of Commerce of the People's Republic of China (“MOFCOM”) Notice No. 8 [2010], Notice No. 26 [2010], Notice No. 51 [2010], and Notice No. 52 [2010], including any and all annexes. Pursuant to this request, the United States and China held consultations on 28 October 2011. The consultations failed to resolve the dispute.

    On 8 December 2011, the United States requested, pursuant to Article 6 of the DSU, Article 17.4 of the Anti-Dumping Agreement, and Article 30 of the SCM Agreement, that the Dispute Settlement Body (“DSB”) establish a panel to examine this matter.

    At its meeting on 20 January 2012, the DSB established a panel pursuant to the request of the United States in document WT/DS427/2, in accordance with Article 6 of the DSU.

    The Panel's terms of reference are the following:

    To examine, in the light of the relevant provisions of the covered agreements cited by the parties to the dispute, the matter referred to the DSB by the United States in document WT/DS427/2 and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements.

  • 2 - The new maritime zones: evolution and legal foundations

  • from PART I - Context: the enclosure of the seas
  • Thomas Cottier, Universität Bern, Switzerland
  • Book:
    Equitable Principles of Maritime Boundary Delimitation
    Published online:
    05 May 2015
    Print publication:
    30 April 2015, pp 67-129

  • Summary

    Horizontally shared zones and quasi-territoriality

    Before turning to the subject of maritime boundary delimitation properly speaking and the core functions of equity, it seems appropriate to describe and analyse the scope and legal nature of the new zones of the continental shelf and the exclusive economic zone (EEZ) which the silent revolution brought about. Description, development and a legal analysis will be of importance to subsequent discussions of the boundary problem, since equitable principles and the operation of delimitation are influenced by the very foundations, the purpose and the legal nature of the two zones involved. No further discussion of the law of the Area will be provided except those aspects relating to seaward maritime boundary delimitation. The following discussion therefore excludes zones which the United Nations Convention on the Law of the Sea (LOS Convention) placed under supranational jurisdiction but which are in actual fact mainly used on the basis of mutually agreed appropriation of the resources by mining states.

    Though different in many respects, the new zones of the continental shelf and the EEZ show important conceptual similarities. Unlike the territorial sea, they constitute zones of partial jurisdiction. This jurisdiction is limited to specific resources and activities. States have exclusive rights to these particular resources from the outset. As a result, these resources can no longer be understood in the traditional terms of res communis or res nullius, as being open to appropriation on the basis of free access or acquisition under effective and continuous control. At the same time, the exercise of these exclusive rights has to be reconciled with rights shared by other subjects and exercised within the same region, which requires a careful balance of interests. Since the zones are related to specific resources, they do not reflect the established territorial concepts of full sovereignty typical for terra firma.

Page 288 of 620