Free trade as a force of political stability? The case of mainland China and Hong Kong

Is free trade a force of political stability? This article argues that, while political stability could be a cause, it is not always a consequence of free trade. To test this argument, the article analyses the political causes and consequences of the external and internal trade liberalisation initiatives of Mainland China and Hong Kong through a selection of their current and proposed free trade agreements and free trade zones, namely, the Mainland and Hong Kong Closer Economic Partnership Arrangement, China-Japan-Korea Free Trade Agreement, Hong Kong Free Port, and China (Shanghai) Pilot Free Trade Zone. Together, these initiatives comprise a uniquely outlier case study on individual customs territories in a common state jurisdiction with contrary political economies. This article concludes that the effectiveness of free trade as a force of political stability is, by and large, more of a perception than a reality

Preferential trade agreements and the World Trade Organization: developments to the dispute settlement understanding

© 2017 Kluwer Law International BV, The Netherlands. On 21 March 2016, at the 9th Annual Update on World Trade Organization (WTO) Dispute Settlement, former Chairman of the Special Session of the Dispute Settlement Body (DSB), Ambassador Ronald Saborío Soto, spoke on the Dispute Settlement Understanding (DSU) negotiations in light of recent dispute settlement experience. He expressed that changes to the DSU ought to promote the future efficiency and effectiveness of the WTO as a dispute settlement system. The proliferation of Preferential Trade Agreements (PTAs) has been a recurrent curiosity for the WTO, with provisions often competing and overlapping. Earlier work studying these interactions emphasizes uncertainty in the application of non-WTO law, including PTAs, to WTO disputes and highlights the WTO's implicit claim to supremacy. The purpose of this article is to critically analyse the state-of-play of negotiations on improvements and clarifications of the DSU in addressing PTAs. It examines whether current DSU proposals meet the DSB's intended objectives and suggests solutions where problematic uncertainties remain. The article concludes that PTAs have not been sufficiently regarded by negotiators and that more express measures are required in the DSU to clarify such uncertainties and harmonize with PTAs in order to preserve the WTO's future legitimacy

The European Constitution: past and future

Does Europe need a Constitution? This is the question that has attracted the attention of observers of the European scene, especially lawyers and political scientists, ever since the debate over Giscard d'Estaing's draft Constitution revived public interest in the European project. The general consensus is that the European Union needs a Constitution because it does not have one in the yes sense of the term. This paper will evaluate whether or not the living Constitution upon which the Union is based, the product of the interaction between the Treaties and the case-law, meets the functional and formal criteria that are understood to universally define Constitutions in a politico-democratic context

A European Saving Test for Section 92 of the Australian Constitution

This article celebrates the recent decision of the High Court of Australia in Betfair Pty Ltd v Western Australia to revise the uniquely Australian concept of abridged proportionality that frames the Cole v Whitfield saving test for section 92 of the Australian Constitution. The critique that the article makes of abridged proportionality takes the form of a comparisonwith the continental European concept of robust proportionality. The comparison reveals that, unlike robust proportionality, abridged proportionality poses a twofold risk: one, that the test might save laws or measures that have a discriminatory effect on interstate trade and commerce if they have a purpose that is not protectionist; and, two, that thetest might not save laws or measures that, in effect, legitimately regulate interstate trade and commerce if they have a purpose that is indeed protectionist. Thus, the article argues that abridged proportionality cannot preserve the Australian common market with the same level of strength that robust proportionality has. In conclusion, the article celebrates the fact that, since Betfair Pty Ltd v Western Australia, the High Court of Australia is now free to analyse not only the purpose but also the effect of any law or measure under challenge when it considers future cases on section 92

Drivers and difficulties in the economic relationship between Australia and the European Union: from conflict to cooperation

Economic relations between Australia and the European Union (EU) have always been strong, but they have not always been easy. They have been difficult for Australia because it associated the EU with the loss of the UK preferential export market on its entry into the then European Economic Community. And because Australia associated the EU with the original Common Agricultural Policy, which combined subsidies for agricultural production and high agricultural tariffs to make Australian agricultural exports not competitive. They have been difficult for the EU also. Australia developed a biosecurity system to protect its agricultural sector: quarantine requirements and food safety standards made the importation of EU plant and animal products too costly. Yet Australia and the EU need each other. The EU, which is Australia’s largest services trade and investment partner, supplies the business services that drive a knowledge economy and provides the credit to finance economic development. Correspondingly, the EU needs Australia both as a commercial base in Asia and as a reliable energy supplier. This article analyses the drivers and difficulties in the economic relationship between Australia and the EU as they start negotiations for a free trade agreement

Challenges and opportunities of the China – Gulf Cooperation Council Free Trade Agreement

The free trade agreement between China and the Gulf Cooperation Council (“the GCC”) currently under negotiation is due to become China’s first comprehensive trade and investment agreement with a supranational customs union. The article explores the challenges and opportunities of the proposed China-GCC Free Trade Agreement. It proposes tailor-made recommendations according to the specific interests of both parties

Article 158(3) of the Hong Kong Basic Law and the Preliminary Reference Procedure of the European Union

This Article analyses the preliminary reference procedure under Article 158(3) of the Hong Kong Basic Law and its transplantation from Article 267 of the Treaty on the Functioning of the European Union. Preliminary reference procedures require courts of finalappeal to refer certain questions of law to a higher legal authority for determination before they can give judgement. This Article argues that this area of Hong Kong constitutional law is underdeveloped, due in large part to the unwillingness of the Hong Kong judiciary to respect the interests of the national legislature. An examination of the preliminary reference procedure, as practiced in the E.U., makes clear that the constitutional order in Hong Kong must do more tobalance regional and national interests. To that end, this Article recommends several reforms: 1) to eliminate the existing jurisprudence regarding Article 158(3) of the Basic Law; 2) to adopt E.U.-style doctrines of judicial economy, including irrelevant question, acte éclairé, and acte clair; 3) to adopt a doctrine of sincere cooperation, so as to increase the quality and quantity of judicial references; and 4) to modernize the concept of Hong Kong law to a hybrid system of common law and Chinese law

China (Shanghai) Pilot Free Trade Zone investor-state dispute settlement : an uncertain experiment

The China (Shanghai) Pilot Free Trade Zone (PFTZ) is the first free trade zone of the People’s Republic of China (PRC). It seeks to reform the national economy and open it up to foreign investment. This article argues that the suite of legal instruments that establish the PFTZ – the Framework Plan, the Negative List, the Decision, and the Management Method – are legally uncertain and that their legal uncertainty could cause disputes between PFTZ investors and the PRC. To address the problem of legal uncertainty, the article proposes, first, the adoption of a rational connection to the PFTZ as the test for jurisdiction of the PFTZ Court and the PFTZ Court of Arbitration; secondly, the enactment of the Negative List and the Decision as laws in order to clarify their legal status; and, thirdly, a reform of the PFTZ dispute settlement mechanism under the Management Method into an arbitral system