No description available.

This is a legal impact study. Its concern is the effectiveness of WTO law and its focus is the compliance behaviour of developing countries. Article XVI:4 of the WTO Agreement provides: "Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the annexed Agreements" In the light of this overarching compliance obligation, this thesis examines the behavioural impact of WTO law, and investigates the preconditions for its effectiveness. In doing so, the experiences of two developing countries - South Africa and Nigeria - are considered. Through extensive research conducted both in these countries and in Geneva, involving thorough examination and analysis of national legislation and case law, WTO obligations and jurisprudence, archival materials and other documentary evidence, as well as interview data, this thesis gives systematic and detailed accounts of the compliance experiences of both countries, and identifies the sources of their behaviour. The research revealed that South Africa substantially complied with its WTO obligations, although there were areas of obvious non-compliance and areas where compliance was unclear. Nigeria, on the other hand, was in substantial non- compliance, with no WTO implementation legislation introduced to date. The research showed that WTO law did not have independent compliance pull. Its effectiveness depended on a combination of legal and non-legal factors. One important shaping factor was ownership or endogenous preference. It was clear that ex ante preference for any agreement induced better ex post compliance with it, and vice versa. Domestic-level structures and processes also had strong explanatory powers, as did market considerations. The main contribution of this thesis has been to add to the understanding of the factors that influence developing countries' compliance with WTO law, and, therefore, of the conditions under which WTO law is likely to be effective in many of these countries.

This thesis analyses the legitimacy of the WTO dispute settlement system, especially in the context of disputes involving questions concerning environmental protection. It argues that since the early 1990s, such disputes have posed important challenges to the legitimacy of the WTO. From the legal point of view, they have fuelled a lively doctrinal debate on fragmentation of international law and the role of non-WTO norms in the WTO dispute resolution mechanism. The thesis conceives legitimacy as a notion consisting of various interlinked components, including social, substantive, formal and procedural ones, and analyses the operation of the WTO dispute settlement system in light of these criteria. It shows that the compulsory but materially restricted jurisdiction of the WTO dispute settlement limits its ability to solve disputes involving non-trade interests and legal norms. The dissertation argues, however, that some of the ensuing problems could be remedied if the WTO dispute settlement system approached international environmental law in a more constructive, consistent and transparent manner. Turning to the formal and procedural elements of legitimacy, the thesis conceives the situation of the WTO dispute settlement system as a dilemma between the pressure to improve substantive legitimacy by considering environmental norms and interests, and the need to observe the limits of its judicial function. It explores tensions at the boundary between the WTO and its Member States, arguing that only limited potential exists to enhance the authority of the WTO dispute settlement through 'importing' substantive legitimacy. Finally, the dissertation highlights institutional and systemic problems arising from fragmentation of international law. Using the relationship between the WTO and the international climate change regime as an example, it concludes that the WTO dispute settlement system's legitimacy challenge involves two dimensions. Certain unexploited potential exists to improve the situation through the judicial techniques at the disposal of the WTO dispute settlement system. However, the more profound and systemic problems are incapable of solution by the WTO dispute settlement system or even by WTO negotiators alone. Instead, they would require broader international efforts.

This research examines access to water and medicines in Ghana in the context of two World Trade Organisation (WTO) agreements: the General Agreement on Trade in Services (GATS) and the Trade Related Aspects of Intellectual Property Rights (TRIPS). The key argument is that while the GATS and TRIPS agreements aim to promote economic and social development through trade liberalisation, developing countries such as Ghana lacks the negotiation, technical and financial capacity to take full advantage of such potential benefits that the WTO agreements offer. In addition, the World Bank (WB) and the International Monetary Fund (IMF) play influential roles in the context of access to water and medicines by prescribing various strategies to help Ghana target the socio-economic development of the people. However, this research shows that the Structural Adjustment Programmes (SAPs) do not promote Ghana’s human right obligations and fail to effectively benefit the poor people. Also, this study shows that due to limited resources and infrastructures, Ghana is unable to negotiate favourable loan agreements to transform her home-grown water and medicines industries. The other relevant actor in the water and medicines sector is the multinational companies which operate several investment projects in Ghana. This study shows that the profit- oriented focus of these companies fail to effectively promote the socio-economic wellbeing of Ghanaians. In conclusion, this research offered three key suggestions. First, constitutional right to water and medicines along with strong procedural rights is likely to improve access to water and medicines in Ghana. Second, Public-Private Partnership (PPP) has been proposed as an alternative strategy to help promote effective access to water and medicines. Third, human dignity in respect of access to water and medicines can be promoted in Ghana if the government shows the political will to initiate legislative reforms in consonance with its international obligations, and supported by a judiciary system that is sensitive to the values of human rights by eschewing corrupt practices.

This thesis explores the content and implications of Neoclassical Price Theory (NPT) for monopolization enforcement, as applied to predatory pricing, tying, and bundled discounts in both the United States and the European Union. When considering the foundations to monopolization enforcement, many authors have found distinct schools of antitrust thought, each featuring distinguishable legal and economic principles.1 Such principles support varying degrees of monopolization enforcement, with a ratchet effect upwards from Chicago, to Harvard, to Post-Chicago. I attempt to demonstrate a superseding claim, namely that the economic and legal principles embodied in NPT have influenced, above all other considerations, the development of predation, tying, and bundling law in both jurisdictions. Courts have constructed and altered that law from the following core concepts of NPT: rationality, competition, efficiency, and the rule of law. I further set-out to prove that NPT by itself does not support low levels of monopolization enforcement, or any particular level. Rather, it identifies the most relevant economic factors that determine price levels, efficiency, and consumer welfare more generally. This thesis is timely because it assesses both the theoretical and practical validity of NPT at a juncture in history when the EU Commission has issued a Guidance Paper on monopolization enforcement drawn principally from its precepts,2 and when the judiciary in both jurisdictions is considering expanding, or has expanded, cost tests to other price-based abuses.

The aim of this research is to assess an emerging public-law concern: the review of the administrative actions of a host state in investment arbitration. This research examines the extent to which the principles of domestic administrative law can be used as a legal reference for investment arbitrators to address and resolve the legal issues presented in regulatory disputes that are resolved by means of investor-state treaty arbitrations (ISTAs). In arriving at an answer to this particular question, two factors are considered: (i) the use of administrative law principles as a part of the unitised nature of the law that governs the ‘state of law’ of any democratic society; and (ii) the current crisis of legitimacy that the investor-state treaty arbitration system is facing.The thesis begins with a comparative analysis of the French and British administrative legal systems as representatives of the two most important legal traditions of the Western world (civil law and common law, respectively). This comparison identifies the common institutions and principles that are domestically used by host states to determine the legal and regulatory relationship between private actors and their public administrations (i.e., the state). It continues with conceptual and critical assessments of international investment treaties (IITs) and ISTAs, respectively, and identifies and analyzes the legal principles that have been developed in the international arena and have been used to settle international (regulatory) disputes between host states and private investors/actors. Additionally, this thesis continues with an arbitral practice review to identify the factual statements that arbitral tribunals have included in their arbitral awards and which can be framed within the scope of the main principles of administrative law previously identified. This is achieved by taking into consideration one of the main features of the current investor-state arbitration system which is the use of this mechanism to settle regulatory disputes at an international level. This latter feature is considered to be (i) analogous to domestic administrative adjudication that provides (ii) legal mechanisms to resolve regulatory disputes between host states and private individuals when (iii) the public authority of the host state is compromised. Finally, this thesis reflects upon the current investor-state arbitration system and identifies the current political, international and academic concerns that are affecting the legitimacy of this arbitral system.Given the analogy between the public law functions of the ISTA mechanism and the domestic administrative review mechanisms, both parallel levels of state regulatory review have been designed to protect private individuals from the unlawful or arbitrary conduct of the (host) state. The investment arbitration system has been designed as a temporary forum to provide private individuals with a special tool to challenge the domestic rights and privileges of the host state at the international level. This particular point shows, amongst other aspects, that investment arbitrators are arbitrators of law rather than arbitrators of equity since they are mainly required to assess the domestic regulation of the host state in accordance with the international standards of treatment contained in an IIT and in accordance with the applicable law chosen by the IIT’s contracting parties in order to determine the state’s international responsibility.This study finds that neither Bilateral Investment Treaties (BITs), the International Centre for Settlement of Investment Disputes (ICSID) nor the Arbitration Rules of the United Nations Commission on International Trade Law (UNCINTRAL) impedes or prevents investment arbitrators from applying some principles of domestic (administrative) law to ISTAs when domestic regulatory issues are at stake. A guideline as to what domestic (administrative) law principles should be applied to international regulatory investor-state disputes in conjunction with some international investment obligations has not been adequately studied in international law. Hence, the application of these principles to international regulatory disputes has been left to the discretion of investment arbitrators.Finally, due to the current concerns and questions surrounding the current arbitral system, it could be affirmed that now is the right time to initiate the practice of referring to these domestic (administrative) law principles in international regulatory disputes. Conversely, the reluctance of investment arbitrators to refer to this particular source of law can be regarded, in the long-term, as a contribution to the current crisis of legitimacy that the international investment arbitration system is facing.

The proliferation of small arms and light weapons (SALW) [about 700 million in circulation] has been causing deplorable security and other concerns of international law. SALW are the primary tools of violations/abuses of humanitarian principles by states, rebels, terrorists and criminals many consider them as the real weapons of mass destruction [พMD] of our time [about half a million deaths annually]. The unrestricted international transfers of SALW by states [99 states and 1000 companies involved in manufacturing and supply] is one of the major contributory and/or aggravating factor to the crises they are the main source of the illicit trafficking in small arms, and therefore deserves prime attention. This thesis has dealt with questions of definition, manufacturing, trade/transfers, and some issues of state responsibility. Whilst a wide approach has been adopted to define SALW, the focus of the research has been on conventional small arms, in particular military-style weapons. There seems no substantive restriction upon small arms manufacture, although there are evolving norms to that effect. Issues of definition and manufacturing have been examined as a background to the main issue. The core legal problem tackled in the thesis is whether or not the law of arms control and other relevant norms of international law provide substantive restrictions upon the transfer of small arms by states, as a response to the crisis, with emphasise on supply-side of the issue. Some studies and publicists submitted that there are no rules of international law applicable to these transactions, save Security Council arms embargoes. The thesis will challenge this assertion from the perspective of the application of the norms of international peace and security, non-intervention, humanitarian and human rights laws, and/or evolved relevant customary rules of arms control relating to these norms. It will be argued that the international order has acquired applicable arms control and other existing obligations and restrictions, upon such transactions. Whilst the application of the aforementioned norms of international law to the problem has been fairly examined, the practices of the international community at all levels, including the position of prominent NGOs and publicists on the subject, have been particularly considered in the light of sources of international law and analogous legal regimes. The details of the legal standards are subject to the progressive development of international law; however, their violations may lead to the weapon supplier, recipient or other states’ primary responsibility. Finally, findings and recommendations of the thesis have highlighted the achievements and challenges of the international community and the legal measures that must be taken to arrest the illegal small arms transfer and their atrocious consequences.

This research, entitled The Evolution of a Regulatory Framework for E-commerce: Metamorphosis of Traditional Contract Principles, is set against the background of the general question whether there is the need for a whole new legal structure for contract formation in the on line environment, or if the existing traditional laws of contract are sufficient by adapting the current provisions to cyber space. In the first chapter, the research examines the context of e-contract, laying a foundation for the analysis of the legal framework through which electronic business transactions are conducted. The research covers matters such as the rudimentary use of the prefix e as an attempt to translate commerce from its traditional form to its cyber-based equivalent. This chapter also explores a description of the technological infrastructure for various avenues of e-commerce. Chapter Two provides a functional definition of the law of e-commerce. From the proposal that the virtual world is completely devoid of law to the view that it is too strictly regulated, this chapter examines whether or not there can be a legal mechanism for governing businesses online - as distinct from the general law of contract - what that mechanism might be, and the efficacy of any such law. In Chapter Three a model of a virtual contract formed by the use of electronic media is examined. This model of contract formation is aided by importing the rules of traditional contract into the virtual shop. The contract rules are tested for relevance and applicability in the online environment. Chapter Four deals with a crucial feature of many online contracts: 'standard forms'. It answers the question whether there is anything significantly different from the day-to-day standard form paper contracts when these contracts are formed and/or executed online. In Chapter Five the concept of a separate legal personality for automated agents is discussed. There is an analogous review of the creation of personality from other non-human v legal persons. Signature and other authenticating means as key to contract formation, though not necessarily ingredients for determining validity, are discussed. In Chapter Six the research explores the relevance and increased use of authentication features like pin numbers, biometrics and e-signatures, particularly the legal aspects of electronic signatures (statutory requirements, practical problems with their use, and case law response to the use of electronic signatures). Finally the work turns to the core issues surrounding complex e-commerce transactions: choosing a forum for the adjudication of disputes. The work, while dealing with keys aspects of contract, moves from the traditional contract form to contracts in the virtual environment, and questions the applicability of the existing law, then proposes an approach specific to the uniqueness of the online market.

No description available.

Genetically modified organisms (GMOs) have been heavily traded across borders since their first commercialisation in 1996, despite the fierce global debates on their benefits and risks. International trade in GMOs are regulated mainly through the WTO Agreements and the Cartagena Protocol on Biosafety (the Protocol) at the international level. The treaties are not necessarily always consistent with one another. Their relationship also serves as a specific example of the much debated potentially conflicting relationship between trade and environment, and the particular phenomenon of the fragmentation of international law that sows the seed for conflict of international norms. Against this background, it is pertinent to ask if there really is the potential for conflicts between the treaties. Also, how do the general international rules on conflict of norms apply to the specific relationship between the treaties? In addition, if necessary, how best might conflicts between international treaties be dealt with or avoided in general? This thesis starts by looking at the substances of the treaties and finds that there exists the real potential for conflict. It then examines the general international rules on conflict resolution techniques, tests them on the potentially conflicting relationship between the WTO Agreements and the Protocol, and finds that existing rules could not provide definitive solutions where conflicts between the treaties arise. It is a central argument of this thesis that conflicts between the treaties should be proactively avoided rather than resolved when disputes actually arise. More generally, with the aim of achieving sustainable development and the defragmentation of international law, the principle of systemic integration is set out as a tool which is generally used by international judicial bodies for viewing international law as a whole, as well as a viable means for avoiding conflicts between international norms. The thesis then sketches the theoretical underpinnings of the principle of systemic integration, including the principles of mutual supportiveness, good faith, cooperation, and harmonisation, and argues that the principles that lie behind systemic integration are capable of driving integration at other levels, including institutional and domestic levels. The thesis also includes an original empirical research undertaken in the form of interviews with state and international organisation representatives, which reaffirms and provides empirical evidence for the doctrinal arguments in this thesis.