EU Law - WTO Flashcards
Articles 2 Technical Barriers to Trade Agreement
Focuses on regulation not ‘more trade-restrictive than necessary to fulfil a legitimate objective’
CETA
EU-Canada Comprehensive Economic Trade Agreement
TTIP
Transatlantic Trade and Investment Partnership
Annex 2 EU Reformed Approach
Elaborate rules on independence and ethics of proposed new investment court system
Function of appeals tribunal under EU reformed approach
Deal with interpretation and application of law, and when first instance court said to have made a manifest error in appreciation of the facts
Who called the appellate body in the dispute settlement of WTO the ‘World Trade Court’?
Eeckhout
Article 3(2) EU Reformed Approach
Fair and equitable treatment exhaustive list will be set out
EU exclusive competence in common external trade policy
Article 207 TFEU
What is an issue with the Tecmed judgment?
Ad infinitum - M can never legislate
EU hormones case general
Growth hormones cattle
How do ISDS lack consistency?
Interpretative autonomy, especially considering lack of appeals mechanism
How did Antigua try to hit back in Antigua-US WTO Dispute over Gambling, despite weakness of Article 22(2)
Refused to comply with intellectual property law
What are the two agreements made in the EU under new competence given by Lisbon Treaty under Article 207 TFEU?
CETA and TTIP
Vattenfall I general
Coal-fired power
Article 207 TFEU
EU exclusive competence in common external trade policy
What is indirect expropriation?
Equivalent effect through substantial deprivation of fundamental attributes of investment property
What could the EU Reformed Approach be the first steps towards?
‘International Investment Court’ concluded under international multilateral agreement in future
What is the WTO the successor and expander of?
GATT
TTIP current standing
Negotiations still ongoing, to resume soon - then need to confirm with US
What will enforcement of TTIP and CETA be through?
ISDS
Phillip Morris v Australia judgment
ISDS declined jurisdiction - moved to Hong Kong specifically to challenge
How are CETA and TTIP different from other EU trade agreements?
Additional chapter conferring rights on investors
Tecmed v Mexico judgment
Investors need to know of rules/regulations governing their investments beforehands
What is the second form of dispute settlement at international level?
Investor State Dispute Settlement
How can the influence of EU in shaping WTO be seen most obviously?
Similarities between Articles 34 - 36 TFEU and Articles 2 Technical Barriers to Trade Agreement
How does Decision 94/800 show no intention for WTO to have DE?
Agreement not susceptible to being directly invoked
How much was the cost of litigation in Phillip Morris v Australia?
$50 million Australian dollars
Article 5 EU Reformed Approach
Non-discriminatory measures designed to protect legitimate objectives are not indirect expropriations
Example of AG in a case supporting DE of WTO to make it easier to challenge EU law?
Cosmas AG in Affish
What is the new investment court system proposed by the EU?
New permanent tribunal of first instance and appeals tribunal
What case shows that Article 22(2) is weak if Member in question is very small?
Antigua-US WTO Dispute over Gambling
What were the three reasons given for no DE of WTO in Portugal v Council?
Legislative/executive discretion, reciprocity and preamble to Decision 94/800
Tecmed v Mexico general
Landfill permit
In what three ways is the position of the Council and Commission against DE of WTO reflected?
Schedule of Commitments under GATS, Council Decision 94/800 and Portugal v Council
What was the damages given Antigua-US WTO Dispute over Gambling, but never paid?
$21 million
Name the three main rights under CETA to investors
No discrimination, fair and equitable treatment and prohibition on direct/indirect expropriation
What test does Articles 2 Technical Barriers to Trade Agreement echo?
Least trade-restrictive means test (e.g. Com v Denmark)
For what three reasons was there outcry over ISDS?
Lack legitimacy, lack consistency and threatens State regulatory autonomy
What source referred to ISDS as the ‘obscure legal system that lets corporations sue countries’?
Guardian
EC - Seal Products outcome
Won on a small point so EU COULD adjust to conform
What is the reciprocity argument in Portugal v Council?
Disuniform application of WTO
What is the legislative/executive discretion argument in Portugal v Council?
WTO system lets Members tolerate concession suspension - DE would remove this
CETA current standing
Negotiations concluded, pending entry into force
What case showed no DE of WTO?
Portugal v Council
Antigua-US WTO Dispute over Gambling general
Licensed online gambling
What Chapter of CETA covers different investments and rights?
Chapter 10
Council Decision 94/800
Adopting multilateral negotiation creating WTO
Trademark plain-packaging
Phillip Morris v Australia
EU hormones case outcome
EU refused to comply, so US imposed high trade tariffs on imports from EU to US
What would the right to regulate under the EU reformed approach be?
Parties can regulate if necessary to achieve legitimate objectives, even if threatens to undermine investor’s returns
How do ISDS threaten Statute regulatory autonomy?
Fear corporations will always be successful, and that Members will fear the costs of defending the cases, creating a regulatory ‘chilling effect’
Cosmas AG in Affish
Supports DE of WTO to make it easier to challenge EU law
Schedule of Commitments under GATS
Introductory notes rights and obligations from GATS lack self-executing effect and no direct rights
Phillip Morris v Australia general
Trademark plain-packaging
What AG in Portugal v Council found Decision 94/800 preamble irrelevant for DE?
AG Saggio
Article 22(2) WTO
Lets ‘winner’ of a dispute suspend trade concessions
What kind of appeals to the appellate body in dispute settlement of WTO hear?
Appeals on points of law
International Fruit Growers Company
No DE of GATT
How is the arbitral tribunal in ISDS comprised?
Three people - one from each, then ideally agreement but frequently intervention
What kind of system is the dispute settlement?
Intergovernmental - Members can challenge each other but not individuals/corporations
How do ISDS lack legitimacy?
Lack of transparency, no assured independence and closed system
What is the original case showing no direct effect of WTO-similar law?
International Fruit Growers Company
How was the multilateral negotiation creating WTO adopted in EU?
Council Decision 94/800
Composition of first instance court under EU reformed approach
50 members, 6-year term renewable twice and qualified to hold judicial position in their own country
What is direct expropriation?
Investment nationalised or otherwise expropriated without compensation
How did the Lisbon Treaty expand Article 207 TFEU
Includes foreign direct investment
In what four ways does the EU seek to reform ISDS?
Right to regulate for Members, clearer definition of key terms, transparency and new investment court system
Why did AG Saggio find preamble to Decision 94/800 irrelevant?
Council cannot interfere with Treaty provisions - agreements are binding or within jurisdiction of CJEU
Article 18(4) EU Reformed Approach
Guarantee access to documents and let interested 3rds intervene
What kind of negotiation was WTO the outcome of?
Multilateral negotiation
Vattenfall I speculated outcome
Germany imposed less demanding standard to settle
