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Jane Marriott

Abstract

This paper examines Justice Scalia’s approach to campaign finance adjudication, in particular his skepticism of legislative motive. Three distinct strands of skepticism are identified: power-grabbing, incumbent-bracing and speech-preventing. As regards democracy Justice Scalia is identified as being caught in definitional dilemma whereby his campaign finance jurisprudence appears to serve a particular vision of democracy, which is, itself, the identifiable creature of his approach to constitutional adjudication. Ultimately, it is argued that, whilst a liberal dose of mistrust of government might well be warranted in cases concerning the devices of democracy, in the task of scrutinising campaign finance regulation and reform, a strong argument emerges for suspicion of judicial motives too since there is as much danger to democracy posed by the tenured fox as by the incumbent one.

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Jess Bravin

Open access

Maria Panezi

Abstract

The proliferation of Preferential Trade Agreements (PTAs) and Regional Trade Agreements (RTAs) has given rise to significant debate on the need to measure, understand and possibly regulate the impact these agreements have on the multilateral trading system under the umbrella of the World Trade Organization (WTO). This article will discuss the two Doha Transparency Mechanisms (legal transparency) regarding regional trade agreements, as they appear in two General Council decisions from 2006 and 2010. I will argue based on a closer look and a consistent interpretation of Paragraph 10 of the Doha Ministerial Declaration that there is another type of transparency that is relevant to the discussion on PTAs/RTAs, namely “internal transparency.” “Internal transparency stricto sensu” highlights the significance of trust in the WTO institutional processes, such as negotiations, decision-making, dispute settlement and trade monitoring that the representatives of developing member states should have in order for the WTO system to function productively. “Internal transparency lato sensu” is introduced in this article as an extension to include any decision-making deficits, exclusionary and asymmetrical outcomes specifically in the area of unchecked Preferential Trade Agreement proliferation. Instead of a conclusion, the article offers some proposals for more a meaningful progress in the WTO with respect to PTAs/RTAs The proposals aim at raising the profile of both legal and internal of transparency and posit that raising the profile of one will inevitably lead in improvements in the other.

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Christian Pitschas

Abstract

The European Union (EU) and the United States are currently negotiating a free-trade agreement, the so-called Transatlantic Trade and Investment Partnership (TTIP). These negotiations have to be seen in perspective, since a number of other - bilateral and plurilateral - trade deals are being pursued at the same time. All these negotiations point to a worrisome aspect: the World Trade Organisation’s failure to come to a meaningful agreement in the Doha-round negotiations, in terms of market access, new rules and development. Like the Trans-Pacific Partnership (TPP), TTIP would stand out among the crowd of trade agreements because of the sheer volume of trade and investment flows across the Atlantic and the declared intention to boost regulatory cooperation and compatibility which is expected to bring the bulk of TTIP’s economic benefits. However, the prospect of concluding such a transatlantic agreement raises many concerns; the public in the European Union and the United States fears that TTIP could undermine existing levels of protection in areas such as health and the environment and impinge on either side’s “right to regulate”. Moreover, questions are being posed as to what TTIP would mean for the multilateral trading system and how it would affect third countries, especially developing countries. Against this backdrop, this article addresses the following issues in relation to TTIP: the vision underlying the negotiations; the European Commission’s negotiating mandate; the structure of the negotiations and their state of play; the Union’s competence for concluding TTIP and whether it is shared with EU Member States; and finally TTIP’s impact on the multilateral trading system and developing countries.

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Tania Voon and Elizabeth Sheargold

Abstract

This article provides an overview of the recently concluded Trans-Pacific Partnership Agreement (TPP), a treaty the parties have described as comprehensive and ambitious, yet also representing a balance of competing interests. The article focuses on the TPP’s chapters relating to investment, services, intellectual property and regulatory coherence, each of which provides insight into the motivations that drove the conclusion of the TPP and the negotiating dynamics that determined its final content. In areas such as investment, the TPP takes a more balanced approach than many earlier agreements, providing greater safeguards for the regulatory autonomy of states while still embodying core protections for foreign investors. In relation to intellectual property and services, the TPP goes beyond earlier agreements in several key respects, such as preventing the imposition of local presence requirements for service providers or requiring longer copyright terms than those demanded by other international treaties. The TPP chapter on regulatory coherence is one of the most novel features of the treaty, as regulatory coherence is not frequently included in earlier trade agreements, demonstrating the increased focus of states on addressing regulatory barriers to trade and investment. While all of these elements of the TPP are interesting in their own right, given the number and size of the parties involved in the agreement, they also provide valuable guidance about the direction of other ongoing and future preferential trade agreement negotiations, such as the proposed Transatlantic Trade and Investment Partnership (TTIP) and Trade in Services Agreement (TiSA).

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Phoenix X. F. Cai

Abstract

This article posits a new taxonomy and framework for assessing regulatory coherence in the new generation of mega-regional, cross-cutting free trade agreements. Using the Trans-Pacific Partnership as the primary example, this article situates the rise of regulatory coherence within the current trade landscape, provides clear definitions of regulatory coherence, and argues that the real engine of regulatory coherence lies in the work of international standard setting organizations. This work has been little examined in the current literature. The article provides a detailed examination of the mechanics by which the Trans-Pacific Partnership promotes regulatory standardization and concludes with some normative implications and calls for future research.

Open access

Raimundas Jurka and Jolanta Zajančkauskienė

Abstract

The issue of international cooperation in criminal matters has interested legal theorists and practitioners for decades. In this area of law there are certain challenges that can only be tackled by using the joint efforts of the States, which is different from the national law of the States. For this reason, certain principles of law are specific for international cooperation, and on the basis of these principles States provide legal assistance requests to each other or else create preconditions to ensure the efficient and unimpeded criminal proceedings. It is true that the principles of mutual legal assistance and recognition, and the influence of their alternation are not identical to all segments of international cooperation, including the development of the evidence law in the European Union.

With regard to the evidence and their admissibility in Member States of the European Union, it should be noted that this issue is still relevant, because the biggest concern of some Member States is the admissibility of evidence, when evidence is collected in one State and the admissibility of them is assessed in the other State. It would seem like a more formalized “concern”, but basically it is a quite significant impulse for searching of new legal instruments in the European Union, which would be able not only ensure the acceptability (admissibility) of evidence that was collected in the foreign State in accordance with the relevant procedural form, and in the court of the State which obtained this evidence, but also the sovereignty of the State, the authenticity of the national law, and the respect for the legal culture and traditions of this State.

The authors discuss the development of the law of evidence, the separate legal segments of this law, and their strengths and weaknesses in the article. Despite the fact that the effective mechanisms of evidence movement among Member States appear in modern European Union criminal justice, the latest legal instruments lack the clarity and certainty of certain procedural legal guarantees in the context of human rights protection.

Open access

Haydn Davies

Abstract

The proliferation of bilateral investment treaties and investment chapters in trade megatreaties and the associated increase in the preference of investors for investor-state dispute settlement has given rise to concerns that the regulatory sovereignty of both developed and developing states might be compromised. In response to these concerns many trade agreements (including the recently concluded Comprehensive Economic Trade Agreement between the European Union (EU) and Canada) have incorporated provisions designed to protect the regulatory sovereignty of nation states, especially in relation to labour standards, public health, phytosanitary and environmental protection. This paper examines the nature and scope of environmental protection measures in investment chapters and attempts to analyse the extent to which these measures will, in practice, prevent challenges by investors seeking to chill or prevent environmental regulations which might threaten their investments. The analysis concentrates particularly on measures based on the precautionary principle and uses the current EU restrictions on neonicotinoid pesticides as a case study. The paper concludes that the measures included in investment chapters designed to prevent such challenges by investors will not necessarily achieve the desired level of protection for environmental regulatory sovereignty.

Open access

David A. Gantz

Abstract

This introduction explores the historical changes in the trade policies of the United States (U.S.), namely, the shift from the support of multilateral rules to the embracement of regional trade agreements and provides an overview of the political and economic considerations behind the conclusion of the major U.S. free trade agreements.