This article examines international legal challenges in natural resource investments in the natural resource sector, focusing on joint venture requirements imposed on foreign investors through a case study of a Chinese enterprise's investment dispute in Chile's mining requirements, umbrella clauses, and procedural hurdles such as "fork-in-the-road", "attribution", and disputing parties' qualification issues in international investment arbitration-using doctrinal and comparative treaty interpretation, while assessing whether Most-Favored-Nation treatment clauses (MFN) can address protection gaps. The study evaluates investment arbitration's effectiveness in resolving such disputes and provides tailored recommendations for investors and host states. It clarifies misconceptions about resource nationalism and geopolitical autonomy with treaty protections. The goal is to promote a stable,predictable investment environment by transforming an adversarial resource control relationship into a balanced legal framework.
This study examines whether Koreas' export controls and foreign investment restrictions under the Industrial Technology Protection Act and the National High-Tech Strategic Industries Act can be justified under the General Agreement on Tariffs and Trade (hereinafter "GATT") Article XXIs' national security exception. Based on World Trade Organization (hereinafter "WTO") rulings, it finds that measures driven by economic or political motives may lack legal legitimacy. The study calls for advanced assessments to determine the national security implications of technology leakage, along with inter-ministerial cooperation systems and the establishment of expert legal review bodies to ensure procedural consistency and compliance with international norms.
Transparency is a cornerstone of the stability and predictability of the World Trade Organization (hereinafter "WTO") multilateral trading system, warranting greater emphasis in ongoing WTO reform efforts, and this article emphasizes the analysis from the perspective of information supply. For instance, both key transparency mechanisms-the notification mechanism and the Trade Policy Review Mechanism (hereinafter "TPRM")-suffer from similar deficiencies. Some members have a poor track record in fulfilling notification obligations, while the TPRM often lacks sufficient information to provide meaningful assessments. Despite these shortcomings, current proposals on transparency remain fragmented, with debates primarily focused on strengthening notification obligations while largely overlooking the TPRM. Given the interdependence and complementary nature of these two mechanisms, a more inclusive approach to enhancing transparency could offer a viable pathway forward. In addition, it is helpful to distinguish between self-reporting and other-reporting to address existing deficiencies in a comprehensive manner.
States' regulation of cross-border data transfer is a necessary response to the complex risks to their national security in the digital era. However, these regulations can also adversely affect the protection of foreign investments. The proliferation of such regulations is accelerating, through both various domestic laws and international investment treaties. Concurrently, there is a trend to abuse the national security exception within these regulations. To counteract this potential for abuse, both host states and international investment tribunals have roles to play in curbing such misuse. Clear clarifications and guidance within domestic laws and regulations, the establishment of review standards for tribunals, and the implementation of procedural mechanisms can all contribute to achieving a more nuanced balance between the protection of data and the regulatory rights of states.
Within the context of World Trade Organization (hereinafter "WTO") e-commerce negotiations, significant divergences in positions and governance models among various jurisdictions hinder the advancement of algorithmic governance issues, making it difficult to reach a multilateral consensus. This situation highlights the need to analyse the differences and connections between algorithmic transparency and information disclosure. The former focuses on the comprehensibility of algorithmic logic, while the latter emphasises transmitting information to specific entities. While they are complementary, they have distinct priorities. Besides, in-depth research shows that the insufficient participation of developing countries in negotiations on this issue stems from multiple factors, including imperfect domestic governance systems, limited technical capabilities, and a lack of influence in the decision-making process. Nevertheless, it is essential that developing countries participate in order to promote fair, transparent and sustainable global digital trade. The aim of this article is to systematically analyse the aforementioned issues and propose specific pathways to enable the effective participation of developing countries in algorithmic governance within WTO e-commerce negotiations. This will provide theoretical and practical references for the development of a more reasonable global digital trade rule system.
Investor-state arbitration has long been criticized as an asymmetric mechanism that disproportionately favours private investors at the expense of host states. Consequently, scholars have advocated for the promotion of counterclaims in investor-state arbitration, aiming to address the asymmetry of the system. However, counterclaims remain constrained by restrictive arbitral practices. Thus, explicit counterclaim provisions in international investment agreements (hereinafter `IIAs") have been proposed and incorporated into several recent IIAs and model bilateral investment treaties (hereinafter `BITs"). This article critically analyses counterclaim-related provisions across more than 3,000 IIAs and model BITs. It highlights the practical challenges surrounding counterclaims in investor-state arbitration, arguing that treaty practices have yet to provide a comprehensive framework for the successful application of counterclaims. This article provides recommendations for future treaty reforms, with a focus on the Draft Provision on Counterclaims currently under discussion within the United Nations Commission on International Trade Laws' Working Group III.
It is approaching three decades since the establishment of the World Trade Organization (hereinafter "WTO"), whose founding aim, liberalization, has allowed it to successfully change the pattern of trading among its Members, exerting a profound impact on the global economic and political environment. Owing to the creation of the General Agreement on Tariffs and Trade (GATT) in 1948 and the inception of its successor, the WTO, in 1995, the world's merchandise exports and imports have experienced tremendous growth. Even so, during the course of lowering barriers and encouraging trade, this robust system has also provided a "safety valve" mechanism to its Members, so as to protect their national interests against any "unfair" competition or "unforeseen development" accompanying that trade liberalization. This "safety valve" (hereinafter "SV"), consisting of Anti-dumping, Anti-subsidy, and Safeguard measures, entitles Members to legitimately adopt protective remedies against the negative impact of foreign importation. Unfortunately, however, it has also become a problem itself. In particular, empirical evidence documenting the increasing use of "SV" measures (hereinafter "SVM") has resulted in a growing number of disputes being brought before the Dispute Settlement Body (DSB) of the WTO. Under this circumstance, WTO Members adopted different strategies to impose their own SVMs against the others or to cooperate/counterattack when facing investigations initiated by their counterparties. While academia has devoted decades of attention to this tangled warfare in terms of SVM, previous empirical analyses have primarily focused on a single type of SVM and have been limited to a case-by-case basis, failing to provide an overview of all SVMs from a longitudinal perspective. Furthermore, despite the widespread acknowledgement and application of quantitative research methods by scholars across various disciplines in the past decades, there have been limited quantitative studies in this area, with a few exceptions from purely economic perspectives. In light of these circumstances, this study intended to explore the overall situation of the global SVM application over the past twenty-five years and whether a deeper understanding of the SV mechanism can be obtained from a global/macro level through the application of quantitative approaches. To achieve this, this study initially collected all SVM investigations initiated by the WTO Members from 1995 to 2020, constructing a database that focuses on key components of a typical SVM investigation, such as players, products, duration, etc., so as to obtain a comprehensive understanding on the global application of SV measures from chronological and categorical angles. In addition, this study employed various quantitative research techniques to analyze the database extensively, identifying trends of the global SVM application during 1995-2020, and revealing the interrelationships between imposing members, targeted products, types of SVM, and days of measure in force. Furthermore, an SVM network was established, accompanied by an exploration of key players and essential features within the network. Based on these findings, this study offered perspectives on the related implications and proposed feasible ways to alleviate the current tangled SVM warfare in a vicious circle.
Free trade agreements (hereinafter "FTA") are vital to foster trade liberalization and investment facilitation across the territories of the contracting parties. Meanwhile, trade remedies become more critical as a legitimate means for the contracting parties to employ so as to protect their domestic industries. The problem, however, is that FTAs are different when it comes to trade remedy rules and procedures. As a result, having participated in FTAs, many countries now have fragmented rules and procedures for their trading partners depending on the contents of the FTAs, and accordingly, their domestic legal instruments on trade remedies are also fragmented. Frequently, FTA-specific rules and procedures are incorporated into the domestic legal system through guidance or regulation issued by administrative agencies rather than statutes by the legislature. This phenomenon of the fragmentation of trade remedy rules and procedures because of multiple FTA provisions and sprouting non-statute legal instruments is causing new challenges for many countries, particularly for developing countries with fewer human and financial resources. Vietnam has experienced the same situation. The challenges that Vietnam has encountered and the approaches Vietnam has taken to overcome them will provide important lessons for other countries.
In trade law and practice, anti-dumping measures are the most widely used tool in counteracting government-caused distortions in trade. The primary value of anti-dumping measures in this regard is to alleviate negative trade effects on importing countries and cushion the multilateral trading system against regime frictions. For antidumping measures to serve this role, a mechanism to identify and assess government-caused distortions in business operations and net out their distorted domestic prices is pivotal. However, the conventional legal basis for this mechanism is now in limbo. The article presents the "ordinary course of trade" (hereinafter "OCT") test as an alternative framework. The article contends that the OCT test permits assessing the normality and commerciality of stateowned enterprises and transactions, taking into account governmentgranted competitive advantages and state interference. It offers importing countries a reasonable means to reject the skewed sales without identifying their home country's market as distorted ex ante, hence having particular merits in mitigating regime conflicts.
Repercussions of the COVID-19 pandemic have been alleged to be attributed to the failure of the World Health Organization (hereinafter "WHO") and states to employ the precautionary principle. In this vein, there have been calls for the precautionary principle to be included in the 2005 International Health Regulations (hereinafter "IHR"). Notwithstanding, the precautionary principle has been a subject of controversy. But what is the precautionary principle? Is it true that the precautionary principle is contrary to the object and purpose of global health law? Why did states invoke the precautionary principle? Can and how can the precautionary principle make any meaningful contribution to global health law? This paper argues that the precautionary principle is a general principle of international law, with no exception concerning global health law. However, global health law takes a restrictive approach to the precautionary principle, which is not in line with the approach of other fields of international and supranational law (hereinafter "international law"). Interestingly, global health law does not offer as much protection to health as other fields of international law. Thus, the precautionary principle and broadly international law have implications for and can contribute meaningfully to the global health project.
Both the European Union (hereinafter "EU") and China reject Investor-State Dispute Settlement (hereinafter "ISDS") mechanisms in their internal market integration, but exhibit a positive stance toward ISDS reform in their external relations with third countries. However, the fate of bilateral investment treaties (hereinafter "BITs") within China is distinct from that of intra-EU BITs. While most EU Member States terminated their intra-EU BITs, China maintains its BIT-styled Mainland and Macao Closer Economic Partnership Arrangement Investment Agreement and Mainland and Hong Kong Closer Economic Partnership Arrangement Investment Agreement (hereinafter "CEPA Investment Agreements") which omit the ISDS clauses. While BITs carving out ISDS clauses do have some value in both the EU context and the Chinese context, the divergent path of China can be principally attributed to its unique "one country, two systems" framework, which limits the tools available for integration and allows the continued application of an "international law model" of integration. Chinas' distinct tradition and emphasis on the rule of law further influence its approach. Nonetheless, the implementation flaws of Chinas' CEPA Investment Agreements are more obvious when compared to the EU, due to the absence of comparable control mechanisms. Following the enactment of the Foreign Investment Law of the Peoples' Republic of China (hereinafter "Foreign Investment Law"), the role of the CEPA Investment Agreements in facilitating cross-border investment requires reevaluation. Given the executive-led system of China, investment facilitation could be a suitable approach to protect and promote cross-border investments within the country.
The COVID-19 has been going on for more than three years now and the impact on global trade has been catastrophic. Nowadays, in the face of the normalization of the pandemic, some countries have in fact gradually found viable ways to balance the health of their citizens with economic recovery, and the global economy is expected to be rebuilt. But this picture of a trade-off between public health and economic and trade development was virtually non-existent at the beginning of the outbreak, and even long afterwards. Faced with the ravages of the pandemic, many countries adopted a series of measures that excessively restricted trade. While these measures may have had the effect of "isolating" the pandemic for a short period of time, the impact on trade and the economy can be enormous and ultimately detrimental to the prevention and control of the pandemic. Article 43 Regulations") specifically provides for a mechanism of "additional health measures" to regulate the use of excessive trade-restrictive measures by States Parties. However, past practice in dealing with infectious diseases has shown that States Parties have often breached this provision. Affected States Parties also prefer to apply the SPS Agreement to seek redress from the WTO dispute settlement mechanism rather than using the corresponding provisions of the Regulation. Why does the existing Article 43 not prevent Member States from taking excessive measures? Why has the "additional health measures" mechanism been "left out"? How can countries properly use their "autonomy" to adopt "additional health measures"? In order to effectively prevent countries from taking excessive trade-restrictive measures and to maximize the balance between trade and health during outbreaks of infectious diseases, this paper will reflect on and examine the issues related to the "additional health measures" mechanism in the light of the current situation of the spread of the COVID-19. The first chapter analyses the normative and application dilemmas of the "additional health measures" mechanism; the second chapter explores the causes of the dilemmas of the "additional health measures" mechanism; and finally, some thoughts on improving the mechanism of "additional health measures" are presented.
This article delves into the efficacy of general public policy exceptions within International Investment Agreements (hereinafter "IIAs") against the backdrop of the unprecedented global health crisis precipitated by the COVID-19 pandemic. By empirically surveying the use of general public policy exceptions in IIAs, the research highlights a discernible trend towards the incorporation of such exceptions in new-generation IIAs, aimed at reconciling investment protection with the host states' regulatory autonomy for public welfare. However, the examination of arbitral jurisprudence reveals the tribunals' challenges in coherently and effectively applying these exceptions, often resulting in outcomes that diverge from the contracting states' expectations and the objectives underlying these treaty innovations. This analysis is particularly important and timely in the context of the COVID-19 crisis, where the potential surge in investor-state disputes arising from pandemic- related regulatory measures poses pressing questions about the efficacy and scope of general public policy exceptions. However, the prevailing uncertainties in arbitral interpretations may cast a significant shadow on the prospective utility of these exceptions. In light of these challenges, this article calls for a holistic reform of IIAs and a recalibration of arbitral practice, advocating for enhanced engagement with World Trade Organization jurisprudence and the provision of explicit clarifications within IIAs to ensure that general public policy exceptions fulfil their intended purpose.
Legal reforms and policy adjustments relating to energy transition have triggered mass claims of investment arbitration. During long-standing disputes, the anti-enforcement actions taken by Spain against renewable energy awards seem to be infinite loops, backed by the European Union (hereinafter "EU") on intraEU and state aid grounds. To assess their legality and impacts from the perspectives of interim measures under international law, Spains' anti-enforcement injunction procedures are less likely to meet legal conditions. They can cause judicial diseconomy and a risk of discrediting the investment arbitration system. Spains' argument on the application of EU law further carried a risk of violating international law by extraterritorial application, retroactive application and confusing compensation for investment In order to solve the enforcement dilemma of renewable energy awards, this article recommends settlement negotiations between Spain and the affected investors. To prevent the occurrence of similar "loops" in the long term, policy makers of investment arbitration rules may consider incorporating anti-abuse rules on anti-enforcement injunction by setting up strict prerequisites and minimizing the possibility of granting it on the presumption of bad faith and additional conditions.
In the context of global climate governance, the Investor-State Dispute Settlement (hereinafter "ISDS") mechanism has become a pivotal platform for dealing with climate change issues. There is an increasing practice for international climate change law (hereinafter "ICCL") to be incorporated into international investment arbitrations. It may be invoked by host states, non-disputing parties and foreign investors in order to advance the legitimacy of states ' measures, to interpret investment treaty standards, or to evaluate the impact of climate change on investments. However, as a result of both internal and external deficiencies in the ISDS mechanism, uncertainty surrounds the application of ICCL to investment arbitration. To address the deficiencies, this article proposes to align ISDS with climate objectives, based on four aspects. They include incorporating climate change provisions into international investment treaties, broadening the application of sustainable development provisions, applying ICCL through systematic interpretation, and adhering to the principle of mutual supportiveness.
How do different bureaucratic designs affect international trade dispute patterns in the World Trade Organization (WTO)? While previous research has explored various determinants of trade policies and the role of bureaucracy in policy formulations, the effects of the bureaucratic structure of trade agencies on formal trade litigations have not yet been addressed. We hypothesize that when the commerce and industry ministry (hereinafter "CI ministry") oversees trade policies, it pursues more aggressive trade dispute strategies, compared to when the foreign affairs ministry (hereinafter "FA ministry") is in charge. Meanwhile, we expect independent trade agencies to behave similarly as foreign affairs ministries in terms of trade dispute strategies. We examine the trade disputes raised between G20 countries and test the effect of trade bureaucracy structure on the level of aggressiveness pursued by the complainant country. Our results show that when the CI ministry oversees trade policies, trade disputes are more likely to be extended to a higher level of conflict resolution. FA ministry and an independent agency do not show any statistical difference.
In the context of international investment law, the question of whether data should be classified as investment has sparked intense debate. China plays a significant role in the digital economy wave, both as an active investor and an important recipient of digital investment, and its influence cannot be underestimated. At the same time, data-related regulatory measures have a profound impact on the direction of data-driven investment. In light of this, this article focuses on Chinas' relentless efforts to build cross-border data investment rules. The article details the continuous work process that China has promoted to align its own concept of investment with international norms. It delves into the framework system of Chinas' international investment agreements and conducts an in-depth theoretical analysis and exploration of data as a unique form of investment. It also comprehensively examines the pioneering operational methods and crucial strategic steps that China has taken in the process of formulating data-driven investment rules. These efforts cover several key aspects, such as vigorously strengthening the domestic institutional framework for cross-border data investment, meticulously improving the structure and content of the international investment agreement system, and actively promoting international cooperation and exchanges in related fields.
This paper examines the regulatory challenges and opportunities of artificial intelligence (hereinafter "AI") in the context of the World Trade Organization (hereinafter "WTO") framework. AI is a disruptive technology that has profound implications for international trade and global governance. However, the current WTO rules and agreements, such as the General Agreement on Tariffs and Trade, the General Agreement on Trade in Services, and the Agreement on Technical Barriers to Trade (TBT), are not well-equipped to deal with the complex and dynamic nature of AI and its applications. The paper argues that AI poses a serious challenge to the traditional dichotomy of goods and services, which is the basis of the WTO classification and regulation of trade. The paper also explores the potential of AI to enhance trade cooperation and innovation, especially in the areas of digital economy, e-commerce, and technical standards. The paper analyzes the existing and proposed agreements that aim to address the trade-related aspects of AI, such as the Digital Economy Partnership Agreement (DEPA), the Joint Statement on E-Commerce, and the Trade and Technology Council (TTC). The paper evaluates the strengths and weaknesses of these agreements and proposes some recommendations for developing a more comprehensive and harmonized approach to AI regulation under the WTO framework. The paper concludes that AI is a game-changer for international trade and requires a flexible and adaptable regulatory framework that balances the interests and values of different stakeholders.
Facing a proliferation of safeguards in the renewable energy sector, the World Trade Organization (hereinafter "WTO") is in a dilemma of legality and legitimacy to make a balance between respecting a Member's right to use safeguards as a legal defense and preventing such measures from being abused to undermine legitimate environmental sustainability interests. On the one hand, the WTO safeguard mechanism provides necessary flexibility on a nondiscriminatory basis for trade remedies. On the other hand, as an exceptional remedy, the flexibility of safeguards should be limited only to the extent necessary for trade remedies. Therefore, the dilemma is that too much flexibility may lead to the abuse of such a measure and departure from trade remedies. Moreover, against other Members' green industrial policies, the use of safeguards may have negative implications for environmental protection and sustainable development. To get out of the dilemma, the article offers recommendations in two dimensions. Inside the WTO, a balanced approach could limit the flexibility of safeguards in the renewable energy sector and the sustainable development principle should be taken into consideration through the interpretation and application of safeguard rules. Outside the WTO, even for the protection of domestic renewable energy industries, safeguard measures cannot be applied against the objective of sustainable development.
