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Ernst-ulrich Petersmann - One of the best experts on this subject based on the ideXlab platform.
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german and european ordo liberalism and constitutionalism in the post war development of international Economic Law
Social Science Research Network, 2020Co-Authors: Ernst-ulrich PetersmannAbstract:This contribution discusses the regulatory approaches of German-speaking countries to the design of European and international Economic Law since World War II. The US initiatives for the 1944 Bretton Woods Agreements and the 1947 General Agreement on Tariffs and Trade were driven by neo-liberal, multilateral approaches prioritizing rules-based liberalization of market access barriers, deregulation, privatization and ‘financialization’ of markets as spontaneous information, coordination and sanctioning mechanisms enabling private Economic actors to pursue their Economic self-interests. By contrast, the post-war German and European ordo-liberalism and the ‘Virginia School’ of ‘Law and Economics’ perceived markets as legal constructs, which cannot maximize general consumer welfare without legal limitations of ‘market failures’, ‘governance failures’ and ‘constitutional failures’. The federalism and constitutional protection of common market freedoms inside Austria, Germany and Switzerland contributed to their promotion of ordo-liberal, constitutional approaches also in their external Economic policies aimed at creating and progressively developing Europe’s micro-Economic ‘common market constitution’ not only inside the European Union, but also in the broader ‘European Economic Area’, the European Free Trade Area and the EU’s common commercial policies. The worldwide WTO legal and dispute settlement system was influenced both by neo-liberal US initiatives as well as by ordoliberal European proposals (e.g. for the design of the WTO dispute settlement system). The current US assault on the WTO Appellate Body system is driven by neo-liberal interest group politics and hegemonic mercantilism by the US Trump administration.
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how to reconcile health Law and Economic Law with human rights administration of justice in tobacco control disputes
Asian Journal of Wto & International Health Law and Policy, 2015Co-Authors: Ernst-ulrich PetersmannAbstract:Tobacco companies and tobacco exporting WTO members have initiated an increasing number of disputes in national, regional and worldwide jurisdictions and investor-state arbitrations challenging the legal consistency of tobacco control measures — such as Australia’s “Tobacco Plain Packaging” legislation and regulations — with international trade, investment and intellectual property Law. The defendant countries and non-governmental organizations tend to justify tobacco-control measures by invoking public health provisions in international Economic Law (IEL), domestic constitutional Laws, public health legislation, human rights Law and the World Health Organization (WHO) Framework Convention on Tobacco Control (FCTC) ratified by 177 UN member states. This article begins by asking how the fragmented systems of multilevel health, Economic and human rights Law and governance should be interpreted and coordinated in order to promote their mutual legal coherence. It then explores how multilevel courts should “administer justice” in tobacco control disputes with due regard to their diverse national and international jurisdictions, applicable Laws and methods of legal interpretation. The article concludes that multilevel judicial administration of justice in tobacco control disputes requires judicial cooperation in applying “constitutional methodologies” (e.g. regarding “balancing” of competing rights, proportionality of restrictions, reasonable judicial justifications promoting “public reason”), mutually “consistent interpretations” (e.g. based on the “integration principle” limiting legal “fragmentation”) and “judicial comity” (e.g. regarding rule of Law, respecting “margins of appreciation”, protecting “access to justice”) so as to avoid incoherent judgments. The main lesson from more than 2500 years of legal and political experiences — e.g. since the ancient Constitution of Athens (500 BC) — with collective protection of “public goods” (res publica) demanded by citizens remains the need for limiting abuses of power through multilevel “republican constitutionalism” providing for legal, judicial and democratic accountability mechanisms.
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constituting limiting regulating and justifying multilevel governance of interdependent public goods methodological problems of international Economic Law research
2013Co-Authors: Ernst-ulrich PetersmannAbstract:This contribution discusses legal and methodological problems of multilevel governance of the international trading, development, environmental and legal systems from the perspective of “public goods theories” and related legal theories. The state-centred, power-oriented governance practices in worldwide organizations fail to protect effectively human rights, transnational rule of Law and other international public goods for the benefit of citizens. Their criticism by civil society, democratic parliaments and courts of justice prompts increasing opposition to non-inclusive, intergovernmental rule-making, as in the case of the 2011 Anti-Counterfeiting Trade Agreement rejected by the European Parliament. The “democracy deficits” and morally often unjustified power politics underlying “Westphalian intergovernmentalism” weaken the overall coherence of multilevel regulation of interdependent public goods that interact “horizontally” (e.g., the monetary, trading, development, environmental and related legal systems) as well as “vertically” (e.g., in case of “aggregate public goods” composed of local, national, regional and worldwide public goods). The “laboratory” of European multilevel governance offers lessons for reforming worldwide governance institutions dominated by executives. The integration of nation states into an interdependent, globalized world requires a multilevel integration Law in order to protect transnational public goods more effectively. Legal and constitutional theories need to be integrated into public goods research and must promote stronger legal, judicial and democratic accountability of intergovernmental rule-making vis-a-vis citizens on the basis of “cosmopolitan constitutionalism” evaluating the legitimacy of national legal systems also in terms of their contribution to protecting cosmopolitan rights and transnational public goods.
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international Economic Law in the 21st century constitutional pluralism and multilevel governance of interdependent public goods
2012Co-Authors: Ernst-ulrich PetersmannAbstract:Introduction and Overview: The Crisis of International Economic Law I How Should International Economic Law be Designed in Order to Protect 'Interdependent Public Goods' More Effectively? II The Emergence of Cosmopolitan IEL Based on Respect for 'Constitutional Pluralism' III 'Civilizing' and 'Constitutionalizing' IEL Requires Cosmopolitan Restraints of Public and Private Power IV Legal and Political Strategies for Making Multilevel Economic Regulation Consistent with Human Rights V Regulating the 'Tragedy of the Commons' and 'Interdependent Public Goods' Requires Transnational Rule of Law VI Transnational Rule of Law Must be Justified by an 'Overlapping Consensus' on Principles of Justice VII The Need for Constitutional Reforms of the Law of International Organizations: The Example of the World Trading System VIII From 'Constitutional Nationalism' to Multilevel Judicial Protection of Cosmopolitan Rights in IEL Conclusions and Research Agenda for IEL in the Twenty-First Century
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international Economic Law public reason and multilevel governance of interdependent public goods
Journal of International Economic Law, 2011Co-Authors: Ernst-ulrich PetersmannAbstract:Is ineffective protection of international public goods, and thereby also of interrelated national public goods, the inevitable fate of humanity? The negative answer to this question in Section II argues that ineffective protection of public goods is mainly due to a lack of adequate theories, rules, and institutions for overcoming the collective action problems in multilevel governance of interdependent public goods. Section III reviews the competing conceptions of 'international Economic Law' (IEL) such as public international Law approaches, multilevel Economic Law approaches, 'global administrative Law' (GAL) approaches, 'conflicts Law approaches', and 'multilevel constitutional approaches'. Section IV argues that--similar to the experience that 'national public goods' can be supplied democratically only in a framework of constitutional, legislative, administrative, and judicial rules and procedures supported by domestic citizens--multilevel governance of 'international public goods' requires a multilevel constitutional framework for multilevel rule-making and judicial protection of rule of Law and constitutional rights supported by domestic citizens as 'primary' legal subjects of IEL. Section V concludes that multilevel governance of interdependent public goods must no longer be designed only as 'foreign policy', but also as part of 'multilevel constitutionalism' necessary for protecting common, reasonable self-interests of all citizens and states. Oxford University Press 2011, all rights reserved, Oxford University Press.
Krishna Shorewala - One of the best experts on this subject based on the ideXlab platform.
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financial crisis international relations and international Economic Laws
Social Science Research Network, 2011Co-Authors: Krishna ShorewalaAbstract:The 2008 Financial Crisis has affected nearly every aspect of every economy in the world in some way or another. In a short span of time, its causes and consequences have been analyzed in great detail. However, while plenty has been written about its impact on domestic systems, its impact on international Economic Law is yet to receive the same kind of attention. This paper discusses the impact of the Crisis on the larger framework of international relations. It then examines the effect these changes have on key ongoing debates in international Economic Law particularly the much delayed Doha Development Agenda and the regulation of Sovereign Wealth Funds.
Chios Carmody - One of the best experts on this subject based on the ideXlab platform.
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fairness in international Economic Law and relations
Social Science Research Network, 2012Co-Authors: Chios CarmodyAbstract:The idea of fairness is a recurrent one in international Economic Law and relations. By and large, however, commentators have failed to provide a structured understanding for this vital concept or explain its reflection in legal rules. This article proposes a theory of fairness as part of a broader theory of justice, suggesting that fairness is a part, but not the whole, of justice. Rather, justice may be thought of as a combination of equality plus fairness (i.e. justice = equality fairness), with the proviso that in any complex system of legal rules, equality must be greater than, or conceptually prior to, fairness (i.e. equality > fairness). Equality and fairness together constitute a 'nested opposition' that legal rules constantly oscillate between. In the latter half of this article a look is taken at how these conceptual relationships are expressed in two regimes of international Economic Law: trade and investment.
Arie Reich - One of the best experts on this subject based on the ideXlab platform.
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bilateralism versus multilateralism in international Economic Law applying the principle of subsidiarity
University of Toronto Law Journal, 2010Co-Authors: Arie ReichAbstract:This article proposes a different perspective on the problem of bilateralism versus multilateralism than has been offered in the literature to date. The author proposes to look at the problem through the prism of the subsidiarity principle. While this principle has mainly been used in the context of allocation of authority between various levels of government in federal or quasi-federal systems of government, it is here proposed to use it in the analysis of the various layers of international Economic Law and in relation to the choice of bilateral, regional, or plurilateral regimes over multilateral ones. Such an analysis can provide both a normative criterion and an explanatory tool in relation to the reality of booming bilateralism. The objective of the article is to develop parameters analogous to those used in the federalist discourse but adapted to the subject matter of international Economic Law. These parameters incorporate both the efficiency and the political/ethical rationales of the subsidiarit...
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bilateralism versus multilateralism in international Economic Law applying the principle of subsidiarity
Social Science Research Network, 2009Co-Authors: Arie ReichAbstract:This paper proposes a different perspective on the problem of bilateralism versus multilateralism than what has been offered in the literature to date. It proposes to look at the problem through the prism of the Subsidiarity principle. While this principle has mainly been used in the context of allocation of authority between various levels of government in federal or quasi-federal systems of government, I propose to use it in the analysis of the various layers of international Economic Law and in relation to the choice of bilateral, regional or plurilateral regimes over multilateral ones. Such an analysis can provide both a normative criterion as well as an explanatory tool in relation to the reality of booming bilateralism. The objective of the paper is to develop parameters analogous to those used in the federalist discourse but adapted to the subject matter of international Economic Law. These parameters incorporate both the efficiency and the political/ethical rationales of the Subsidiarity principle. In particular, it dictates that actions should be taken on less centralistic levels, closer to the point of action, where measures more precisely targeted and more closely attuned to the needs of the parties involved may be taken. Through this perspective, just as well-functioning provincial and local governments may serve as building blocks for a leaner, better functioning and more democratic central government, bilateral and regional regimes may serve as important building blocks for a leaner, better functioning and more democratic multilateral organization.
Laisa Branco Almeida - One of the best experts on this subject based on the ideXlab platform.
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the international Economic Law and conservation of marine resources in the area an analysis over the wto coercive measures
Social Science Research Network, 2018Co-Authors: Laisa Branco AlmeidaAbstract:The present article intends to analyze the adoption of World Trade Organization’s coercive measures against restrictions on domestic production or consumption of natural resources extracted from the “Area” by a third state that contravened international standards on its conservation policy. Firstly, The Article will analyze the dispute settlement system that exists today in international Economic Law, focusing on the Dispute Settlement procedure institute in 1994 by the WTO vis-a-vis its member states and the sanctions imposed and the Organization’s regulatory powers. In turn, given the current international legal system of the sea linked to the so-called “Area” in the UNCLOS, and how the United Nations throughout committee sections and supplementary regulatory frameworks intended to insert General Agreement on Tariffs and Trade (GATT)’s principles in UNCLOS’s context. Finally, a parallel is established between measures of Economic coercion that discriminate against imported products, in order to encourage the conservation of marine resources, adopted by Article XX of the GATT, linked to the protection granted by the Law of the Sea to the Area, through analysis of cases judged by the WTO dispute settlement system.
