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International Journal of Public Law and Policy (4 papers in press)
Special Issue on: International Economic Law in Times of Popular Distrust Challenges and Responses
Conceptualising the complexity-reducing role of societal trust in transnational economic regulationTowards an interdisciplinary research methodology by Jens Hillebrand Pohl Abstract: Trust in the international economic legal order has been associated with an historic global expansion of trade and investment. That trust is at constant, if not imminent, risk of erosion, and may even, in the perception of some, already be in the process of erosion. The interaction between trust and the notion of complexity may hold the key to understanding that process, whether actual or potential. On the premise of that interaction, an evolutionary interpretation of the transnational regulation of economic privatepublic relationships as a complex adaptive system may indicate whether and how trust in this context should be restored. The paper sketches the contours of an interdisciplinary research agenda aimed at exploring and investigating the proposition that an evolutionary interpretation of complexity in transnational economic relations may help to situate and explain that complexity and, thereby, to better understand the practical importance of trust in transnational economic regulation. Keywords: socio–legal method; complexity; trust; evolutionary game theory; transnational economic regulation.
MIND THE COMPLIANCE GAP: MANAGING TRUSTWORTHY PARTNERSHIPS FOR SUSTAINABLE DEVELOPMENT IN THE EUROPEAN UNIONS FREE TRADE AGREEMENTS by Iveta Alexovicova, Denise Prevost Abstract: Recent years have seen intensified interest in the labour and environment provisions in the EUs FTAs. The question has arisen whether the incorporation of trade and sustainable development (TSD) chapters in the EUs FTAs deliver on their promise of using the EUs trade power to effectively promote the protection of the environment and improved working conditions in third countries. In particular, the compliance gap between the TSD provisions and their implementation has come to the forefront of the debate. Concerns have been raised that the EUs promotional approach based on dialogue and cooperation is less effective that the sanctions-based approach followed by the US and Canada. This article examines the mechanisms for compliance in the TSD chapters in recent EU FTAs against the background of two recent Commission documents and assesses the proposals for improvement. It argues that, to be effective, and thereby gain the trust of civil society, the EUs promotional approach must be supported by effective mechanisms for transparency, institutionalised dialogue and accountability. Keywords: EU; free trade agreements; trade and sustainable development; environmental and labour standards; enforceability; compliance mechanisms; promotional approach; managerial approach; sanctions.
Effective, Justifiable, Necessary: The Panels Assessment of Australias Tobacco Plain Packaging Measures by Elli Zachari Abstract: A key challenge facing the World Trade Organisation (WTO) today is the rapidly eroding trust in the trade liberalising values it embodies. Among other criticisms, its rules have long been perceived as constraining the ability of national governments to intervene in economic practices to advance important societal goals, such as public health. Refuting this popular belief, Australias successful defence of its tobacco plain packaging (TPP) measures in a recent WTO dispute stands as a welcome reaffirmation of the WTOs capacity to adequately balance trade obligations with Members right to regulate. This paper examines the Panels findings in the TPP dispute in relation to two provisions of the WTO Agreements which reflect a balance between trade and non-trade values; Article 2.2 of the Agreement on Technical Barriers to Trade (TBT Agreement or TBT) and Article 20 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement or TRIPS). Keywords: tobacco plain packaging; WTO; TRIPS Agreement; TBT Agreement; trademarks.
Patent boxes and the erosion of trust in trade and in governance by Esperanza Buitrago Abstract: Patent boxes spawned trust concerns in trade but also in governance given the migration of enterprises and of intellectual property assets only for tax reasons. The G-20 and the OECD reacted with soft law measures introducing the nexus to R&D (the proportional expenses related to it) as a standard to restore trust in governance (as a requirement for governments issuing post-BEPS patent boxes and IP regimes) and substantial activities as a standard to restore trust in enterprises engaged in the IP trade. The new standards apply the rationale of input incentives to the back end of the innovation chain. The crucial question is whether the solutions found are appropriate and suitable to restore trust without hindering innovation and entrepreneurship. This research paper shows a number of difficulties and shortages related to the standards approved, to the impact of soft law in the implementation, peer review and monitoring of IP regimes after BEPS Action 5 and, the consequences from a multidisciplinary and interdisciplinary approach. By looking into the microeconomic analysis justifying the change and the adoption of the new standards, I make evident the limitations of a pure disciplinary tax approach. Although my work highlights a number of aspects that have not been considered or even misunderstood, further multidisciplinary, interdisciplinary and empirical research is needed to undertake the challenge of encouraging the flows of knowledge and of capital as well as of restoring trust without hindering innovation. Keywords: patent boxes; output incentives; input incentives; IP regimes; nexus approach; modified nexus approach; research and development; intellectual capital; tax competition.