Beyond history and boundaries: rethinking the past in the present of international economic law

History and boundaries are the foundations of international economic law (IEL) as a professional and intellectual field. History is often told to support a wide variety of present projects, norms and ideas by appealing to the past. Boundary is a technique frequently used to map and defend an exclusive domain for applying the IEL expertise to a broad range of programmes, rules and theories. This article first describes how history and boundaries interact to produce a ‘traditional’ view of IEL’s past and present place in the world economy. This interaction plays a central role in structuring how international lawyers assert the authority and legitimacy of IEL in global economic governance. It then argues that the commitments of the traditional approach to Anglocentrism and Modernism limit lawyers’ ability to understand and solve the present-day issues, since it produces lessons only in support of the dominant programmes, norms and ideas under contestation. Consequently, it constrains, instead of empowers, lawyers’ imagination. Building on this critique, the article outlines an alternative approach devised to rethink the IEL field and, more importantly, which past or new projects, norms and theories do or do not count (or should or should not count) as part of it. It concludes with reflections on how we might go about reimagining IEL in response to the contemporary challenges to global economic governance

Law and lawyers in the making of regional trade regimes: the rise and fall of legal doctrines on the international trade law and governance of South-North regionalism

My research inquires into the role of law and lawyers in global governance, trade regionalism and economic development. The central question is why contemporary regional trade agreements (RTAs) between developed and developing countries (South-North) are typically described in international law literature as the expression of a relatively uniform model of legal arrangements – when significant political and economic factors suggest otherwise. Indeed, these RTAs are homogeneously characterised as inter-state agreements devised to promote trade liberalisation. This common-sense understanding assumes lightly that free trade is the primary policy of RTA-partners. It also ignores the relevance of their economic differences and the effects of these imbalances over policy preferences and bargaining power. My doctoral thesis explains how South-North regional trade regimes came to be conceived as the expression of a single, dominant model. It focuses primarily on the work of lawyers in making and governing these RTAs. It is, accordingly, an important premise that legal thinking and practices play a pivotal role in envisaging, constructing, and managing RTA, and that this role is not well understood. It is through modes of legal governance – mainly legal doctrines and dispute settlement mechanisms – that trade policies and disputes are framed as legal issues, to which legal norms and ideas are applied, and solutions are devised. Specifically, legal doctrines on trade regionalism attempt to affect the disciplinary understanding by providing an ideal model for RTAs. Thus, legal doctrines are strategically employed to shape, at some fundamental level, the way RTAs are thought, constructed and governed under the World Trade Organisation. My thesis accounts for the rise and fall of one of the legal doctrines on the international law of South-North RTAs. It postulates that three distinct legal doctrines were produced to structure decision-making over these RTAs between 1947 and 1985. It suggests that their influence achieved its zenith in the 1970s, but was followed by a sharp decline shortly afterwards. By the late-1980s they were marginalised by the emergence of a legal doctrine, which has dominate legal expertise ever since. This thesis argues, therefore, that this new legal doctrine has empowered lawyers to shape the existing South-North trade relations. Conversely, it has also operated as a disciplinary grip, arguably preventing lawyers from engaging in devising innovative solutions for present-day problems

From the open-source software to the informational challenge: Law and freemdom in network societies

O presente trabalho se propõe a investigar, a partir do questionamento de Yochai Benkler, as virtudes da arquitetura de direitos de propriedade intelectual em face das transformações introduzidas pela revolução da tecnologia da informação. Examinam-se os reflexos da emergente cultural livre sobre os fundamentos dogmáticos da ordem jurídica. Nesse particular, a noção de direito subjetivo e de contrato de licença de software são confrontados com o desafio informático, visando a determinar a capacidade desses tradicionais institutos jurídicos de prover um espaço institucional suficiente e adequado para o desenvolvimento da sociedade informacional.This paper aims to discuss, from the questioning presented by Yochai Benkler, the virtues of the intellectual property rights framework in light of the transformations introduced by the information technology revolution. It examines the impact of the emerging free culture on the dogmatic fundamentals of the legal order. In this particular, the concept of subjective right and of software license agreement are faced with the informatic challenge, aiming at determine the ability of these traditional legal institutions to provide an enough and adequate institutional space for the development of the information society

Reducing the environmental impact of surgery on a global scale: systematic review and co-prioritization with healthcare workers in 132 countries

Abstract Background Healthcare cannot achieve net-zero carbon without addressing operating theatres. The aim of this study was to prioritize feasible interventions to reduce the environmental impact of operating theatres. Methods This study adopted a four-phase Delphi consensus co-prioritization methodology. In phase 1, a systematic review of published interventions and global consultation of perioperative healthcare professionals were used to longlist interventions. In phase 2, iterative thematic analysis consolidated comparable interventions into a shortlist. In phase 3, the shortlist was co-prioritized based on patient and clinician views on acceptability, feasibility, and safety. In phase 4, ranked lists of interventions were presented by their relevance to high-income countries and low–middle-income countries. Results In phase 1, 43 interventions were identified, which had low uptake in practice according to 3042 professionals globally. In phase 2, a shortlist of 15 intervention domains was generated. In phase 3, interventions were deemed acceptable for more than 90 per cent of patients except for reducing general anaesthesia (84 per cent) and re-sterilization of ‘single-use’ consumables (86 per cent). In phase 4, the top three shortlisted interventions for high-income countries were: introducing recycling; reducing use of anaesthetic gases; and appropriate clinical waste processing. In phase 4, the top three shortlisted interventions for low–middle-income countries were: introducing reusable surgical devices; reducing use of consumables; and reducing the use of general anaesthesia. Conclusion This is a step toward environmentally sustainable operating environments with actionable interventions applicable to both high– and low–middle–income countries

The most-favored-nation clause in the international economic order: on inquiry into the legal discourse of article I:1 of GATT

Como produto da prática mercantil, a cláusula da nação mais favorecida (CNMF) é um fenômeno jurídico complexo. Enquanto sua estrutura variante não é passível de padronização, por se adaptar às necessidades da sociedade internacional em cada momento histórico, seu núcleo funcional permanece imutável. Na ordem econômica internacional, a descentralização do poder político provoca desconfianças nos agentes econômicos, resultando em um permanente estado de guarda e competitividade predatória. Para assegurar maior estabilidade às expectativas normativas, os Estados celebram tratados, a fim de alterar tais percepções, conferindo durabilidade às relações econômicas internacionais. Resultado da configuração contemporânea da governança econômica internacional, a Organização Mundial do Comércio (OMC) simboliza a consolidação das expectativas normativas dos atores internacionais em torno do sistema multilateral de comércio (SMC). A OMC tem a função de consolidar o SMC, garantindo a posição de autoridade para corrigir as numerosas lacunas e antinomias jurídicas e reforçar a eficácia social, mediante a atuação de seu Órgão de Solução de Controvérsias (OSC). O SMC é um ordenamento jurídico, com lógica própria e princípios e regras específicos, que disciplina o mercado globalizado, cuja origem remonta à celebração do Acordo Geral sobre Tarifas e Comércio (GATT) em 1947. Prevista no artigo I:1 do GATT, a CNMF positiva o princípio da não discriminação, tendo por finalidade sistêmica desempenhar um papel dinâmico e integrado, ao: (i) assegurar transparência e dispersão de conhecimento; (ii) promover a cooperação internacional, a fim de eliminar ou reduzir, reciprocamente, as barreiras às trocas comerciais; (iii) vedar as práticas e instrumentos discriminatórios e protecionistas, tendo por função estender, automática, multilateral e incondicionalmente, as vantagens concedidas; e (iv) conservar as expectativas normativas, mediante a incorporação dos compromissos negociados ao SMC. Contudo, a proliferação de acordos preferenciais de comércio e de medidas protecionistas e discriminatórias pelos Estados-membros tem ameaçado o SMC de desautorização. Por recorrerem a exceções válidas à CNMF, esses fenômenos permitem a formação de relações discriminatórias e protecionistas, o que impacta negativamente as expectativas normativas dos agentes econômicos, ameaçando a função unificadora de sentido da CNMF, cujo resultado é a erosão da ideia de livre-mercado mundial. As reiteradas quebras de expectativas implicam problemas de coesão e eficácia normativa ao SMC, os quais são denominados desafios sistêmicos. Com efeito, o SMC sofre um processo de desestruturação, causado pela tensionada interação das dimensões ideacional e fática. Isso exige um controle de legalidade e de licitude dos atos jurídicos e das práticas dos Estados-membros. Em face desses desafios sistêmicos, a dissertação verifica se o artigo I:1 permanece como regra determinante para a decidibilidade do OSC. Para responder adequadamente, empregam-se os métodos analítico, hermenêutico e argumentativo, com um enfoque essencialmente dogmático, dentro de um ângulo crítico zetético. Ao fim da investigação, constata-se que a CNMF vem se consolidando como regra determinante para a construção do discurso jurídico-decisório pelo OSC. A confirmação jurisprudencial da imperatividade e da eficácia normativa do artigo I:1 reverbera reflexamente sobre os desafios sistêmicos, tendo o poderoso efeito de simbolizar a preferibilidade da incidência da CNMF sobre as relações econômicas internacionais.As a product of commercial practice, the most-favored-nation clause (\"MFN\") is a complex legal phenomenon. While its variable structure is not subject to standardization, since it adapts to the needs of international society in each historical moment, its functional core remains unchanged. In the international economic order, the decentralization of political power leads to distrust of the economic agents, resulting in a permanent state of awareness and predatory competition. To ensure greater stability to the normative expectations, States enter into treaties in order to change such perceptions, providing durability to international economic relations. Result of the contemporary configuration of international economic governance, the World Trade Organization (\"WTO\") symbolizes the consolidation of the normative expectations of international actors around the multilateral trading system (\"MTS\"). The WTO has the mission of consolidating the MTS, ensuring a position of authority to correct the many shortcomings and antinomies of law and strengthen the social effectiveness through its Dispute Settlement Body (\"DSB\"). The MTS is a legal system, with its own logic and specific principles and rules, which regulates the globalized market, and has its origins in the General Agreement on Tariffs and Trade (GATT) in 1947. Set forth in Article I:1 of the GATT, the MFN establishes the principle of non-discrimination and has the systemic purpose of playing an integrated and dynamic role as it: (i) ensures transparency and dissemination of knowl edge,(ii) promotes international cooperation, by eliminating or reducing reciprocal barriers to trade, (iii) deters discriminatory and protectionist practices and instruments, being its function to extend, automatically, multilaterally and unconditionally, the benefits provided, and (iv) maintains the normative expectations, through the incorporation of negotiated concessions to the MTS. However, the proliferation of preferential trade agreements and protectionist and discriminatory measures by the member states has threatened the MTS of disempowerment. By resorting to MFNs valid exceptions, these phenomena allow the formation of discriminatory and protectionist relationships, which negatively impacts the normative expectations of economic agents, and threatening the harmonizing function of MFN; the result of which is the erosion of the global free market idea. Repeated breaches of expectations result in problems of cohesion and normative effectiveness of the MTS, which are called systemic challenges. Indeed, the MTS undergoes a process of disintegration, caused by the tensioned interaction of ideational and factual dimensions. This requires a control of legality and legitimacy of legal acts and practices of the member States. Given these systemic challenges, the dissertation verifies if Article I:1 remains the rule for determining the decidability of the DSB. In order to properly answer that, analytical, hermeneutic and argumentative methods are employed, with a primarily dogmatic focus, within a zetetic critical angle. By the end of the investigation, its stated that the MFN is becoming the consolidated rule for determining the construction of the legal and decision making discourse of the DSB. The confirmation from case law of the imperative nature and of the normative effectiveness of Article I:1 reverberates reflexively on the systemic challenges, having the powerful effect of symbolizing the desirability of MFN impact on international economic relations

Evaluation of a quality improvement intervention to reduce anastomotic leak following right colectomy (EAGLE): pragmatic, batched stepped-wedge, cluster-randomized trial in 64 countries

Background Anastomotic leak affects 8 per cent of patients after right colectomy with a 10-fold increased risk of postoperative death. The EAGLE study aimed to develop and test whether an international, standardized quality improvement intervention could reduce anastomotic leaks. Methods The internationally intended protocol, iteratively co-developed by a multistage Delphi process, comprised an online educational module introducing risk stratification, an intraoperative checklist, and harmonized surgical techniques. Clusters (hospital teams) were randomized to one of three arms with varied sequences of intervention/data collection by a derived stepped-wedge batch design (at least 18 hospital teams per batch). Patients were blinded to the study allocation. Low- and middle-income country enrolment was encouraged. The primary outcome (assessed by intention to treat) was anastomotic leak rate, and subgroup analyses by module completion (at least 80 per cent of surgeons, high engagement; less than 50 per cent, low engagement) were preplanned. Results A total 355 hospital teams registered, with 332 from 64 countries (39.2 per cent low and middle income) included in the final analysis. The online modules were completed by half of the surgeons (2143 of 4411). The primary analysis included 3039 of the 3268 patients recruited (206 patients had no anastomosis and 23 were lost to follow-up), with anastomotic leaks arising before and after the intervention in 10.1 and 9.6 per cent respectively (adjusted OR 0.87, 95 per cent c.i. 0.59 to 1.30; P = 0.498). The proportion of surgeons completing the educational modules was an influence: the leak rate decreased from 12.2 per cent (61 of 500) before intervention to 5.1 per cent (24 of 473) after intervention in high-engagement centres (adjusted OR 0.36, 0.20 to 0.64; P < 0.001), but this was not observed in low-engagement hospitals (8.3 per cent (59 of 714) and 13.8 per cent (61 of 443) respectively; adjusted OR 2.09, 1.31 to 3.31). Conclusion Completion of globally available digital training by engaged teams can alter anastomotic leak rates. Registration number: NCT04270721 (http://www.clinicaltrials.gov)

Global economic burden of unmet surgical need for appendicitis

Background There is a substantial gap in provision of adequate surgical care in many low- and middle-income countries. This study aimed to identify the economic burden of unmet surgical need for the common condition of appendicitis. Methods Data on the incidence of appendicitis from 170 countries and two different approaches were used to estimate numbers of patients who do not receive surgery: as a fixed proportion of the total unmet surgical need per country (approach 1); and based on country income status (approach 2). Indirect costs with current levels of access and local quality, and those if quality were at the standards of high-income countries, were estimated. A human capital approach was applied, focusing on the economic burden resulting from premature death and absenteeism. Results Excess mortality was 4185 per 100 000 cases of appendicitis using approach 1 and 3448 per 100 000 using approach 2. The economic burden of continuing current levels of access and local quality was US $92 492 million using approach 1 and$73 141 million using approach 2. The economic burden of not providing surgical care to the standards of high-income countries was $95 004 million using approach 1 and$75 666 million using approach 2. The largest share of these costs resulted from premature death (97.7 per cent) and lack of access (97.0 per cent) in contrast to lack of quality. Conclusion For a comparatively non-complex emergency condition such as appendicitis, increasing access to care should be prioritized. Although improving quality of care should not be neglected, increasing provision of care at current standards could reduce societal costs substantially

Global economic burden of unmet surgical need for appendicitis

Background There is a substantial gap in provision of adequate surgical care in many low- and middle-income countries. This study aimed to identify the economic burden of unmet surgical need for the common condition of appendicitis. Methods Data on the incidence of appendicitis from 170 countries and two different approaches were used to estimate numbers of patients who do not receive surgery: as a fixed proportion of the total unmet surgical need per country (approach 1); and based on country income status (approach 2). Indirect costs with current levels of access and local quality, and those if quality were at the standards of high-income countries, were estimated. A human capital approach was applied, focusing on the economic burden resulting from premature death and absenteeism. Results Excess mortality was 4185 per 100 000 cases of appendicitis using approach 1 and 3448 per 100 000 using approach 2. The economic burden of continuing current levels of access and local quality was US $92 492 million using approach 1 and$73 141 million using approach 2. The economic burden of not providing surgical care to the standards of high-income countries was $95 004 million using approach 1 and$75 666 million using approach 2. The largest share of these costs resulted from premature death (97.7 per cent) and lack of access (97.0 per cent) in contrast to lack of quality. Conclusion For a comparatively non-complex emergency condition such as appendicitis, increasing access to care should be prioritized. Although improving quality of care should not be neglected, increasing provision of care at current standards could reduce societal costs substantially