The WTO Dispute Settlement System: Just another Victim on the Road to Tomorrow’s GATT? – Markus Wagner and Weihuan Zhou

The current dispute over the future of international trade (oftentimes referred to as a “trade war”) has moved the WTO from an obscure field of research into the public spotlight. These discussions centre on the economic relationship between China and the US. However, another significant battle is playing out over the future of WTO dispute settlement.

The central question that remains unanswered – and which we are trying to uncover in this post – is why the US has embarked on a process which pits itself against the very large majority of the WTO membership (see only here, here and here) and which has the potential to end WTO dispute settlement. Before the WTO Dispute Settlement Body, the US has complained about (1) individuals who are no longer formally members of the Appellate Body (“AB”) continuing to adjudicate disputes; (2) non-adherence to the 90-day deadline for issuing AB reports; (3) the use of obiter dicta in AB reports; (4) the AB’s misapplication of the standard of review; (5) AB reports having precedential effect; and (6) AB interpretations and decisions having amounted to judicial overreach.

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Ownership, Restitution of Nazi-looted Art and International Law: David Cassirer et al. v Thyssen-Bornemisza Collection Foundation – Benjamin Teng

Camille Pissarro’s Rue Staint-Honoré, Après Midi, Effet de Pluie

On 30 April 2019, the United States District Court for the Central District of California (“DCCDC”) delivered Findings of Fact and Conclusions of Law in David Cassirer et al. v Thyssen-Bornemisza Collection Foundation (Cassirer). The case was remanded to the DCCDC by the Ninth Circuit after an appeal of the DCCDC’s first instance decision, which found in favour of Thyssen-Bornemisza Collection Foundation (TBC).

The plaintiffs, the Cassirers, sought restitution of a painting, Rue Saint-Honoré, Après Midi, Effet de Pluie (Rue Saint-Honoré), which was wrongfully dispossessed of one of their ancestors by the Nazi regime. The defendant, TBC, possessed the painting. TBC is an agency or instrumentality of the Kingdom of Spain. In precis, the DCCDC ruled that it could not order the restitution sought as TBC had acquired ownership of the painting under Spain’s laws of acquisitive prescription (the civil law equivalent of adverse possession).

The case involves both public and private international law, and it produces an instinctively unsatisfactory ruling. In doing so, it illustrates how inadequate the law is vis-à-vis the international restitution of Nazi-looted art, of which there are an estimated 650,000 pieces scattered around the world. This article discusses that aspect of the case.

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Upcoming Event – “The Future of International Dispute Settlement” – 27 June 2019

The Future of International Dispute Settlement will bring together practitioners and academics to assess cutting-edge issues of international law emerging in relation to the peaceful settlement of international disputes. Speakers will examine the recent developments and future prospects for dispute settlement with regards to the practice of international courts, international criminal law, law of the sea, trade, investment, commercial arbitration and climate change.

The program is now available by clicking here.

Registration is now open at Eventbrite.

Afternoon tea will be provided, with drinks and canapés to follow.

The event will be hosted on Thursday 27 June 2019 from 1:00 pm to 6:30 pm at Luna Park, Sydney.

4.5 hours CPD are available for practitioners.

ICC Appeals Chamber resurrects controversial customary international law argument to find Al-Bashir has no immunity before international courts – Keilin Anderson

Last Monday the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment on the question of Omar Al-Bashir’s immunity from prosecution for international crimes. In addition to the majority judgment, four Judges penned a Joint Concurring Opinion. A joint dissenting opinion from two Judges is yet to be published.

The decision has already been described in early commentary as ‘stunning’ ‘deeply misguided’ and ‘extremely controversial’.

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Book Launch – “Crimes Against Humanity in the 21st Century” – 15 May 2019

The Australian Branch of the International Law Association is proud to sponsor an event to launch a new book by Dr Robert Dubler SC and Matthew Kalyk entitled Crimes Against Humanity in the 21st Century: Law, Practice and Threats to International Peace and Security.

The event will take place at the Sydney office of Herbert Smith Freehills on Wednesday, 15 May 2019 from 5:30pm.

Guest speakers include Professor Gillian Triggs and The Hon Michael Kirby AC, as well as Dr Christopher Ward SC, President of the Australian Branch.

Further information on this event, including details for registration, is available in this flyer.

International Disputes and the Right to a Clean Environment: The Significance of Jam et al v. International Finance Corp in South-East Asia — Tudor Filaret

The decision rendered in Jam et al v. International Finance Corp has removed the blanket immunity that international organisations like the World Bank had previously enjoyed, where they were immune to claims in United States courts for commercial activities.  This decision represents a development that is in lockstep with the growing accountability of States and investors which cause damage to the environment.

This article gives an overview of what the case was about and outlines the significance of this decision for the Asia region. The author then places Jam et al in the context of the trend where international courts and arbitral tribunals have expanded accountability for States and investors which cause damage to the environment. 

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The Art of Law in the International Community or How To Prevent A Killer Robot Apocalypse – Mary Ellen O’Connell

“The conference title for the Sydney Biennial Meeting of the International Law Association was well chosen: “International Law in Challenging Times”. Humanity is facing extraordinary challenges of major violence, environmental decline, human rights abuse, and economic privation. Our ILA committees are seeking remedies through international law as one of the few tools humanity commonly shares. But there seems to be a widespread preference for violence and the use of military force over international law. Untold sums are poured into armed conflict and weapons research, including on fully autonomous robotic weapons, a truly inhuman weapon. International law needs to attract adherence. Military strategists have Sun Tzu’s The Art of War to inspire them. We need The Art of Law.”

These words commenced Professor Mary Ellen O’Connell’s keynote at the International Law Association’s 2018 Conference Dinner in Sydney. Professor O’Connell’s full remarks are available for download here.

Call for Submissions – Melbourne Journal of International Law

The Editors of the Melbourne Journal of International Law (‘MJIL’) are now inviting submissions for volume 20(2). The deadline for submissions is July 1, 2019.

MJIL is a peer-reviewed academic journal based at the University of Melbourne and publishes innovative scholarly research and critical examination of issues in international law. Submissions and inquiries should be directed to law-mjil@unimelb.edu.au. For more information, please visit https://law.unimelb.edu.au/mjil#submissions

Law Council of Australia – ILS International Law and Practice Course 2019

The Law Council of Australia is inviting students and practitioners with an interest in international law to attend the ILS International Law and Practice Course 2019. The course consists of a series of 10 monthly lectures, the first of which will be held on 15 March 2019 on the topic of EU law. Details of the subsequent lectures are set out below.

The Law Council is offering ILA members a special reduced registration fee of $250 for the 10-lecture course (in lieu of $300).

For information on registration and other enquiries, click here. To join the ILA and take advantage of the reduced registration fee, click here.

The WHO Framework Convention on Tobacco Control in the WTO Panel’s decision in Australia – Plain Packaging – Suzanne Zhou

In June 2018, the World Trade Organization (WTO) Panel in Australia – Plain Packaging affirmed that Australia’s tobacco plain packaging laws are consistent with its WTO obligations. The law and its accompanying regulations prohibit the use of colours, imagery, logos, fonts, scents, textures, pack shapes and promotional text (other than brand and variant name and consumer information) on tobacco packaging.

The Panel rejected claims by Cuba, the Dominican Republic, Honduras and Indonesia that Australia’s tobacco plain packaging laws violated the World Trade Organization’s Agreement on Technical Barriers to Trade (TBT) and Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and General Agreement on Tariffs and Trade (GATT). It found that plain packaging is ‘apt to, and does, contribute’ to the goal of reducing tobacco use and exposure to tobacco smoke, and that it is not more trade-restrictive than necessary to protect public health under article 2.2 of the TBT, nor does it infringe on any relevant intellectual property protections under TRIPS.

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