The global financial regulatory system and the rule of law : An appraisal of the regulatory process under Basel III

The efficacy of the existing international financial regulation and adoption of an institutionalised form of regulation are among the global financial governance issues which have been well addressed by scholars in the field. The less investigated but directly related and worth considering issue is the impact of the contemporary global financial governance system on fundamental values like the rule of law. This article examines this less explored yet worth investigating issue with a focus on Basel III, namely, how far does the regulatory process under Basel III, as it stands today, inhibit or foster the rule of law. Soft law, informal groups of this regulatory network and the regulatory process are analyzed in the light of the relevant elements of the rule of law. The article shows that the accountability deficit and lack of inclusive governance in the Basel III regulatory system have inhibited the advancement of the rule of law which should have been fostered to build legitimacy in this regulatory system

International economic law and disintegration: Beware the schmittean moment

In his influential book, Straight Talk on Trade, Dani Rodrik provides a cogent critique of the existing international economic order and concludes as follows: 'So, I accept that nation-states are a source of disintegration for the global economy.' This article critically engages with the idea that the nation-state is a legitimate force of disintegration of the international economic order, with particular attention to trade and investment agreements. In times of raising authoritarianism, it is crucial to reflect on someof the limits of the nation-state and on the necessity to develop alternative paradigms for integrating economies and societies. Against this background, this article posits that we should beware of the risk of a 'Schmittean moment'. This term is used to refer to a major shift toward an ideal of unfettered national sovereignty as the chief paradigm to re-orient the international (economic) order. Under such ideal, any international normative benchmark is brushed away by an allegedly more intellectually honest 'political' dimension, which can find its realization only in the decisionist state. To understand the risk of a 'Schmitteanmoment' it is important to recognize that themove towardmore nation-state is partly animated by some legitimate concerns over the existing international legal order, such as those underpinning the analysis by Dani Rodrik. This article articulates a twofold critique of the idea that an expansion of national sovereignty is going to achieve a better socio-economic world order per se. The first critique is internal, showing that the nation-state does not possess intrinsic characteristics to facilitate democracy, equality, and sustainability. The second is external and focuses on the necessity to look reflexively at the goals of the system of international economic law, to re-imagine it as capable to address questions of inequality and environmental degradation

International Economic Law and Disintegration: Beware the Schmittean Moment

In his influential book, Straight Talk on Trade, Dani Rodrik provides a cogent critique of the existing international economic order and concludes as follows: ‘So, I accept that nation-states are a source of disintegration for the global economy.’ This article critically engages with the idea that the nation-state is a legitimate force of disintegration of the international economic order, with particular attention to trade and investment agreements. Intimes of raising authoritarianism, it is crucialto reflect on some ofthe limits of the nation-state and on the necessity to develop alternative paradigms for integrating economies and societies. Against this background, this article posits that we should beware of the risk of a ‘Schmittean moment’. This term is used to refer to a major shift toward an ideal of unfettered national sovereignty as the chief paradigm to re-orient the international (economic) order. Under such ideal, any international normative benchmark is brushed away by an allegedly more intellectually honest ‘political’ dimension, which can find its realization only in the decisionist state. To understand the risk of a ‘Schmittean moment’ it is important to recognize that the move toward more nation-state is partly animated by some legitimate concerns over the existing international legal order, such as those underpinning the analysis by Dani Rodrik. This article articulates a twofold critique of the idea that an expansion of national sovereignty is going to achieve a better socio-economic world order per se. The first critique is internal, showing that the nation-state does not possess intrinsic characteristicsto facilitate democracy, equality, and sustainability. The second is external and focuses on the necessity to look reflexively at the goals of the system of international economic law, to re-imagine it as capable to address questions of inequality and environmental degradation

Justice for All? Protecting the Public Interest in Investment Treaties

Investment arbitration has come increasingly under fire because of its design flaws. There is an emerging consensus that investment treaty arbitration not only falls short of ensuring a sufficient degree of transparency of arbitral proceedings and impartiality of arbitrators, but also that its institutional architecture is unjustifiably asymmetric, entrusting foreign investors with significant rights while no protection is afforded to the host states’ constituencies. In response to these criticisms, several states have attempted in recent years to reform the rules governing investor-state arbitration. A perusal of recently concluded international investment agreements, however, reveals that the reform efforts so far have focused on the first two shortcomings. Very little, instead, has been done with regard to the asymmetric character of the system. This Essay seeks to specifically address this flaw, by placing the rights of investment-affected people on par with those of investors. To do this, we seek to display the viable alternatives to the currently predominant—and flawed—model of investment dispute settlement. We start by outlining the features of the investor-state dispute settlement system that lie at the root of the system’s legitimacy crisis. In particular, relying on a burgeoning body of scholarship, we expose the inadequacy of private order dispute settlement mechanisms in dealing with mainly public law disputes. Bearing this in mind, we contend that future reform efforts should reckon with the rights and interests of the individuals and groups of individuals who are likely to be affected by the investment operations. In other words, States can only remove the asymmetric character of the system by endowing this category of individuals with substantive and procedural rights. We also argue that international investment agreements should go beyond their traditional protective function by aiming to keep investors’ conduct in check. We opine that such agreements should also clearly establish investors’ obligations to safeguard the wide range of noninvestment interests implicated in investment operations. This Essay envisages three innovative models for the solution of investment disputes and presents a comparative analysis of alternative scenarios. The first suggests the abandonment of investment arbitration in favor of soft-law grievance mechanisms. The second envisages arbitration for both investors and investment-affected parties. The third proposal is a networked system where arbitration is coupled with grievance mechanisms for investment-affected individuals. In short, we submit that future treaties should either completely ditch the ISDS system or undertake a major overhaul of the system. Each proposal has its limits and promises. We conclude that, in spite of their limits, any of these proposals would offer a superior alternative to the dramatic deficiencies of the current system and future research should be directed to further articulate the contours of our proposals

Like Oil and Water: The Politics of (Not) Assessing Glyphosate Concentrations in Aquatic Ecosystems

Abstract Since the International Agency on Cancer Research’s monograph found glyphosate to be a likely carcinogen, the regulatory focus on the chemical has centred on this determinative criterion for regulatory action. Yet, other pertinent factors, such as the effects of glyphosate on fresh and ground water and ensuing effects on biodiversity, have received less attention as legitimate rationales for regulating the chemical. This underrepresentation prevents a wider policy discussion on the environmental and human health effects of the chemical and fails to disrupt assumptions of path-dependently continuing on agriculture’s chemical treadmill. To avoid ad hoc post hoc chemical regulation, we assess four areas of chemical regulatory oversight in Europe with regard to glyphosate affecting water: (1) the undue emphasis on in laboratorio versus in situ testing; (2) assessing single chemicals (isolated glyphosate) versus admixtures (glyphosate plus surfactants and adjuvants) that are used in practice; (3) the tendency to downplay harms to non-human life; and (4) the lack of policy coherence in the existing regulatory framework. Focusing on European Union regulation of pesticide and water policy affecting aquatic environments, we conclude that issues of measurement and priority have become highly politicised in both science and policy, requiring preventative, precautionary frameworks utilising plural forms of measurement. Abstract Since the International Agency on Cancer Research’s monograph found glyphosate to be a likely carcinogen, the regulatory focus on the chemical has centred on this determinative criterion for regulatory action. Yet, other pertinent factors, such as the effects of glyphosate on fresh and ground water and ensuing effects on biodiversity, have received less attention as legitimate rationales for regulating the chemical. This underrepresentation prevents a wider policy discussion on the environmental and human health effects of the chemical and fails to disrupt assumptions of path-dependently continuing on agriculture’s chemical treadmill. To avoid ad hoc post hoc chemical regulation, we assess four areas of chemical regulatory oversight in Europe with regard to glyphosate affecting water: (1) the undue emphasis on in laboratorio versus in situ testing; (2) assessing single chemicals (isolated glyphosate) versus admixtures (glyphosate plus surfactants and adjuvants) that are used in practice; (3) the tendency to downplay harms to non-human life; and (4) the lack of policy coherence in the existing regulatory framework. Focusing on European Union regulation of pesticide and water policy affecting aquatic environments, we conclude that issues of measurement and priority have become highly politicised in both science and policy, requiring preventative, precautionary frameworks utilising plural forms of measurement

Emissions Trading and the Polluter-Pays Principle : do Polluters Pay under Grandfathering?

Emissions trading is becoming increasingly popular in environmental law. Allowances to trade emissions can either be auctioned off or handed out free of charge by means of grandfathering. Although grandfathering is frequently used in emissions trading schemes, it is a popular view in the economic and legal literature that grandfathering is inconsistent with the polluter-pays principle. We come to a different, more nuanced view. The question of whether polluters pay under grandfathering depends on how the polluter-pays principle is interpreted. We present a taxonomy of interpretations. Based on an efficiency interpretation of the principle, consistency is demonstrated by emphasizing the economic impact of the opportunity costs of gratis allowances and the lump sum nature of the subsidy that is inherent to grandfathering. Inconsistency can only be claimed based on an equity interpretation of the polluter-pays principle. Allocating allowances free of charge means that polluting firms receive a capital gift making their shareholders richer, which may be perceived as unfair. We draw two conclusions. First, contrary to what some have claimed, grandfathering is compatible with an efficiency interpretation of the polluter-pays principle. Second, only auctioning is consistent with an extended form of this principle. Auctioning ensures not only that pollution costs are internalized (efficiency), but also that producers buy their allowances before they pass on those costs to consumers (equity)

Introduction: Contemporary Food Regulatory Regimes and the Challenges Ahead

Food is one of the fundamental elements of human life: it guarantees survival, it can dispense death and, above all, as Marcel Proust reminds us, it is deeply connected to our own ‘essence’, having the power of blessing men with ‘exquisite pleasure’ and ‘all-powerful joy’. Given the exceptional nature of the regulated matter, regulating food transcends its own domain, mirroring some of the most crucial challenges of regulating contemporary societies. This short introduction to the issue of Erasmus Law Review on ‘food regulatory regimes and the challenges ahead’ identifies two interlinked challenges for contemporary ‘food regulators’: the first is how national and regional regulators can best deal with the increasingly globalised nature of food production and the second is how to create consistency and harmony in a highly fragmented regulatory space. The four contributions to this issue all deal with these two challenges, albeit in different ways

Is CETA Keeping up with the Promise? Interpreting Certain Provisions Relating to Biotechnology

The picture of a Trojan horse, wrapped in banners reading STOP CETA, best portrays the fears underpinning the public opposition to the Comprehensive Economic and Trade Agreement with Canada (CETA). The main suspicion is that the technical jargon of the economic transatlantic deal, hailed as beneficial for EU consumers, could insidiously be used to attack public policy, health, safety, and environment regulation. Just like the horse used by the Greeks to destroy the city of Troy, CETA could be used to unleash a new wave of neoliberal policies that would erode environmental and social regulation. Next to the widely publicized issues related to the adoption of an Investment Court (which is perceived as a risk to democracy), other parts of CETA have been stigmatized for being perilous. CETA provisions explicitly relating to the field of biotechnology have generated these concerns. Critics have read into these provisions an attempt to upset the precautionary European regulatory choices in this field, which - it is worth recalling - has always been a highly divisive issue in transatlantic relations. This article aims at clarifying the implications of CETA for the regulation of biotechnology, and more particularly sheds light on the question of whether the concerns that CETA will lead to a lowering of the European standards are justified. The international rules on treaty interpretation are used as the main analytical lenses to critically analyse and decipher the CETA text and, accordingly, to answer the central research question. The legal framework for interpreting salient CETA provisions in the field of biotechnology will be presented and applied so as to clarify how certain provisions should be interpreted. Critics may be surprised of the progressive potential of the rules on treaty interpretation