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

09/07/201909/07/2019 Editors Analysis, Articles

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.

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

11/06/201925/08/2019 Editors Articles

Camille Pissarro’s *Rue Saint-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.

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

15/05/201915/05/2019 Editors Analysis, Articles 1 Comment

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’.

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

19/04/201905/05/2019 Editors Articles

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.

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

26/03/201926/03/2019 Editors Articles

“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.

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

27/02/201927/02/2019 Editors Articles 1 Comment

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.

Call for Submissions – ILA Reporter

22/02/201925/03/2019 Editors Articles

The ILA Reporter (ilareporter.org.au) is the official blog of the Australian Branch of the International Law Association (ILA). The ILA was founded in Brussels in 1873. It has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies. The ILA Reporter provides analysis, commentary and discussion on issues in public and private international law which have bearing on Australia and the wider region.

The ILA Reporter accepts articles on a rolling basis from academics, legal practitioners, and students. This is a great opportunity to be published by a well-respected non-government organisation with a wide readership.

The ILA Reporter accepts analytical articles, book reviews, case analysis, and recounts of recent events in the field of international law. It is preferable that articles have a connection with Australia. We are flexible as to the length of the article – anywhere between 400 and 2,000 words is ideal – and multi-part articles may be submitted. Articles must follow the citation guide, which is available here.

Please contact the Editors, Molly Thomas and Evan Ritli, at editor@ilareporter.org.au with your proposal or completed article, or any queries you may have.

The Exponential Growth of Space Activities: Challenges for Space Law in the Coming Decades – Steven Freeland

07/02/201907/02/2019 Editors Articles

On 4 October 1957, a Soviet space object, Sputnik I, was launched and subsequently orbited the earth over 1,400 times during the following three-month period. This milestone heralded the dawn of the space age, the space race (initially between the Soviet Union and the United States), and the legal regulation of the use and exploration of outer space.

Ecosystem-Based Fisheries Management in International Fisheries Law and Its Implementation in Bangladesh – Abdullah Al Arif

31/01/201931/01/2019 Editors Articles

Sustainable management of marine fisheries is a complex, multi-dimensional and multi-stakeholder process that entails sustainable use of marine living resources and conservation of marine biodiversity. Legislative, policy and institutional frameworks play a crucial role in conservation and management of fish stocks at all levels of governance—global, regional, national and local. Like many parts of the world, fisheries resources in the marine waters of Bangladesh are not sustainably managed.

Reciprocal Recognition and Enforcement of Foreign Judgments in China: Breakthrough and Trend – Associate Professor Jeanne Huang

25/01/201925/01/2019 Editors Analysis, Articles, Opinion

Chinese Civil Procedure Law (CPL) provides that foreign judgments can be recognised and enforced according to reciprocity if no treaty is applicable. However, although Chinese judgments have been recognised and enforced in many countries without a treaty, China had never reciprocated before 2016.^[1]Since 2016, Chinese courts unprecedentedly recognised and enforced foreign monetary judgments based on de facto reciprocity. This spurs rich literature with mixed views about the future direction of reciprocity-based judicial recognition and enforcement (JRE) in China.^[2] This post aims to add to the current debate from two aspects. First, it tries to answer the doubts in contemporary literature about whether the two foreign judgments recognised and enforced in 2016 and 2017 are fortuitous. Second, it addresses the question of what the trend of the Chinese reciprocity-based JRE law might be.