Common concern and the legitimacy of the WTO in dealing with climate change

The research handbook on climate change and trade law discusses some of the most important challenges regarding conflicting interests at the intersection of trade, climate change and investment. The insightful chapters map from both regional and global perspectives the state of affairs in such diverse areas as: carbon credits and taxes, sustainable standard-setting, and trade in ‘green’ goods and services. This timely book redefines the interrelationship of trade and climate change for future scholarship and offers specific suggestions for much-needed research in topics such as energy, carbon taxes and credits, food, standardisation, and investment

Promoting Green Electricity through Differentiated Electricity Tax Schemes

Cross-border trade in electricity is rapidly expanding as a result of technical innovations, economic and geopolitical developments, and the ongoing decarbonisation of the electricity sector in response to climate change. The expansion of electricity networks and the integration of increasing shares of renewable energy (RE) electricity into the grid have made long-distance electricity flows both feasible and desirable. Drawing on the work of experts in trade and energy law and policy, and offering novel, multidisciplinary perspectives on the rapidly evolving landscape shaping international trade in electricity, this book examines the most important challenges - technical, economic, legal and policy-related - posed by long-distance and sustainable electricity trade. The book explores the regulatory implications of the policy instruments aimed at supporting RE electricity and considers how best to promote greater overall coherence in international electricity governance

Promoting Green Electricity through Differentiated Electricity Tax Schemes

Cross-border trade in electricity is rapidly expanding as a result of technical innovations, economic and geopolitical developments, and the ongoing decarbonisation of the electricity sector in response to climate change. The expansion of electricity networks and the integration of increasing shares of renewable energy (RE) electricity into the grid have made long-distance electricity flows both feasible and desirable. Drawing on the work of experts in trade and energy law and policy, and offering novel, multidisciplinary perspectives on the rapidly evolving landscape shaping international trade in electricity, this book examines the most important challenges - technical, economic, legal and policy-related - posed by long-distance and sustainable electricity trade. The book explores the regulatory implications of the policy instruments aimed at supporting RE electricity and considers how best to promote greater overall coherence in international electricity governance

The Jurisprudence of the World Trade Organization 2014

In 2014, the Dispute Settlement Body (DSB) of the World Trade Organization (WTO) adopted seven panel reports and six Appellate Body rulings. Two of the cases relate to anti-dumping measures. Three cases, comprising five complaints, are of particular interest and these are summarized and discussed below. China – Rare Earths further refines the relationship between protocols of accession and the general provisions of WTO agreements, in particular the exceptions of Article XX GATT. Recourse to that provision is no longer excluded but depends on a careful case-by-case analysis. While China failed to comply with the conditions for export restrictions, the case reiterates the problem of insufficiently developed disciplines on export restrictions on strategic minerals and other commodities in WTO law. EC – Seals Products is a landmark case for two reasons. Firstly, it limits the application of the Agreement on Technical Barriers to Trade (TBT Agreement) resulting henceforth in a narrow reading of technical regulations. Normative rules prescribing conditions for importation are to be dealt with under the rules of the General Agreement on Tariffs and Trade (GATT) instead. Secondly, the ruling permits recourse to public morals in justifying import restrictions essentially on the basis of process and production methods (PPMs). Meanwhile, the more detailed implications for extraterritorial application of such rules and for the concept of PPMs remain open as these key issues were not raised by the parties to the case. Peru – Agricultural Products adds to the interpretation of the Agreement on Agriculture (AoA), but most importantly, it confirms the existing segregation of WTO law and the law of free trade agreements. The case is of particular importance for Switzerland in its relations with the European Union (EU). The case raises, but does not fully answer, the question whether in a bilateral agreement, Switzerland or the EU can, as a matter of WTO law, lawfully waive their right of lodging complaints against each other under WTO law within the scope of their bilateral agreement, for example the Agreement on Agriculture where such a clause exists

The Principle of Proportionality in International Law: Foundations and Variations

Originally based upon the principle of equity, proportionality is predominantly used in the field of human rights protection, the use of force and countermeasures, humanitarian law, maritime boundary law, trade law and investment protection. The article finds that components of proportionality are shared and variably applied in these areas. The main challenge relates to weighing and balancing of interests in judicial review, reflecting upon the varied status and authority of international tribunals. The article submits that proportionality or necessity in terms of assessing the relationship of means and end, seeking least intrusive measures, is well-established and qualifies as a self-standing rule of customary international law. It should be termed strict proportionality. However, The Principle of Proportionality in International Law 629 Journal of World Investment & Trade 18 (2017) 628–672 the component of weighing and balancing interests amounts to a general principle of law and applies in context. It informs the interpretation of the law at hand and is subject to varying standards of review

CO2 Levies and Tariffs on Imported Electricity: Assessing the Compatibility of Options with WTO Law, EU Law and the Free TradeAgreement Switzerland–EEC

The study examines three options for ways in which a more level playing field between domestic and imported electricity can be achieved. Under the first option, an electricity tax is linked to the source of electricity, targeting fossil fuel electricity generation. The second option foresees the application of a tax on imported fossil fuel electricity, based on the CO2 content of the electricity. Under the third option, Switzerland uses import tariffs as an instrument to tax imported fossil fuel electricity. Finally, the study addresses the possibility of taxing imported electricity from nuclear power. The study finds that under WTO law, EU law and the Switzerland–EEC 1972 FTA, it is unlikely that a differential electricity tax will have to be readjusted for imported EU electricity in order to take into account the costs incurred by EU electricity producers subject to the EU ETS. Furthermore, taxing imported nuclear electricity requires a comprehensive differentiated electricity tax imposed equally on domestic and imported nuclear electricity, both under WTO law and under the Switzerland–EEC 1972 FTA. Moreover, the study examines the possibility to introduce an import tariff on electricity from fossil fuels or nuclear power. This scenario would require deconsolidation of Swiss tariffs for electricity bound at zero per cent based on production methods according to Art. XXVIII GATT. However, under the Switzerland–EEC 1972 FTA as well as under EU law, imposition of any tariffs on the import of electricity is prohibited and cannot be justified without revoking the Free Trade Agreement. In any case, the implementation of differentiated taxation creates practical problems in all constellations discussed. Currently EU GOs do not contain the necessary information for tracing the exact CO2 footprint of electricity from fossil fuels, and do not distinguish fossil electricity from nuclear electricity. This issue could be taken up in bilateral negotiations with the EU

The Jurisprudence of the World Trade Organization in 2015

A comprehensive overview of the jurisprudence of the World Trade Organization (WTO) in 2015 would clearly exceed the space the editors of this journal have kindly reserved for this annual effort: in 2015, eleven Appellate Body reports and nine panel reports were circulated. In addition, arbitrators issued three decisions as to the reasonable period of time for compliance under Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) and issued two decisions regarding suspension of concessions under Article 22.6 DSU. These numbers are indicative of the ongoing interest of the membership in the WTO’s dispute settlement mechanism, which, regrettably, is not matched by the use of the WTO as negotiating forum. Thus, we do not aim to paint a comprehensive picture of what has been noteworthy in 2015 in the world of WTO dispute settlement. Rather, we submit a (highly subjective) selection of what we consider particularly interesting reports of both the Appellate Body and the panels. This year, we present at some length three Appellate Body reports, dealing, inter alia, with the relationship between free trade agreements (FTAs) and WTO law, the relevance of the general law on treaties for the interpretation of WTO law (Peru – Agricultural Products) and the thorny issue of interpreting Article 2.1 and 2.2 of the Agreement on Technical Barriers to Trade (TBT) raised in the Article 21.5 DSU procedures in the context of two seminal TBT disputes (US – Tuna II and US – COOL). The two panel reports selected deal with the law of the GATS and the Agreement on the Application of Sanitary and Phytosanitary Measures: both explore particularly relevant issues, such as the conditions for the use of the prudential exception in GATS and the conditions, under which sanitary and phytosanitary measures can be used as precaution against what seems, on the basis of available pertinent information a threat to life or health of humans, flora and fauna. The Appellate Body and panel reports we did not report in detail deal with core issues of WTO law, including anti-dumping law, safeguard measures, quantitative restrictions, discrimination under GATT, the role of standards in international trade, agricultural trade and other legal issues that would merit further discussion. A case in point is India – Agricultural Products; there, the Appellate Body dealt for the first time with Article 6 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS). This provision contains a concretization of the principle of proportionality: Members undertake to adapt the measures they take against threats emanating from imported agricultural goods to the conditions prevailing in the pertinent region. In the following, we start with the introduction to the Appellate Body’s efforts to bring closure to a dispute between two trading partners from Latin America