International Economic Law Notes

International Economic Law

  • Encompasses private international commerce rules, global trading and monetary systems, and principles for international development and investment.

International Commercial Law

  • Derived from medieval lex mercatoria and lex maritima.
  • Developed through UNCITRAL, Hague Conference, and Unidroit.
  • The Hague Conference focuses on international protection of children, family, property, legal co-operation/litigation, and commercial/finance law.
  • NGOs like ICC and CMI influence rules.
  • CISG (1980 U.N. Convention on Contracts for the International Sale of Goods):
    • Facilitates transactions with default rules.
    • Modeled after UCC Article 2 but differs (e.g., no statute of frauds requirement).
    • Prioritizes subjective intent in contract interpretation.
    • More closely follows the mirror image rule.
    • Preempts UCC unless parties opt out.
  • International commercial arbitration resolves disputes, often using institutions like ICC International Court of Arbitration.
  • Parties prefer arbitration for privacy and control, despite limited discovery and appellate review.
  • Contracts should specify arbitral institution, procedural rules, and substantive law.
  • UNCITRAL Arbitration Rules set procedural due process standards.
  • The 1958 New York Convention enforces arbitral awards, though some reservations limit its force.
  • Domestic courts may refuse awards based on public policy or due process failures.

International Trade and Monetary Law

  • Aims for trade and monetary liberalization.
  • States compete via tariffs, quotas, and restrictions.
  • FCN Treaties extend “national treatment” and trade benefits based on reciprocity and mutuality.
  • BITs regulate foreign direct investment, especially in developing countries and include investor-state arbitration.
  • The global depression of the 1930s was caused by trade protectionism.
  • Bretton Woods Conference (1944) established IMF and World Bank.
  • ITO was politically unacceptable, leading to GATT.
  • Uruguay Round (1994) created WTO.
  • WTO's substantive trade rules largely identical to GATT.
  • GATT/WTO includes universal MFN clause.
  • Doha Round (launched in 2001) addresses tariffs, quotas, subsidies, and trade barriers.
  • GATT Article I ensures trade equality.
  • Article XI bans quotas, with exceptions.
  • “Special and Differential Treatment” for developed and developing countries.
  • Disputes over dumping and subsidies are contentious.
  • WTO allows customs unions and free trade areas (e.g., EU, USMCA, MERCOSUR).
  • The service economy initiatives include the General Agreement on Trade in Services (GATS).
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) protects IP rights.
  • 2001 Doha Declaration supports TRIPS interpretation for public health.
  • The WTO addresses agriculture via the Agreement on Agriculture (1995), regulating market access by tariffs.
  • WTO dispute settlement panels resolve trade disputes, with an appellate review process.
  • The WTO’s Appellate Body is currently unable to function because the US blocked appointments.
  • GATT Article XX(b) provides an exception for non-discriminatory measures to protect human, animal or plant life or health.
  • Article 2 of the Agreement on Technical Barriers to Trade (TBT) says measures must not be “more trade-restrictive than necessary to fulfil a legitimate objective.”
  • GATT Article XXI allows actions necessary for the protection of essential security interests.

International Development and Investment

  • Aims to raise living standards globally.
  • Developed States don't regard themselves as being under an international legal obligation to transfer wealth to less developed States.
  • International development agreements include bilateral aid, multilateral schemes, import preferences, and technology transfers.
  • U.N. agencies (e.g., UNDP), transnational corporations, and OECD contribute to development efforts.
  • The World Bank focuses on lending to developing countries for infrastructure.
  • World Bank Group includes IBRD, IFC, and IDA.
  • The World Bank created an Inspection Panel in 1993.
  • Compensation standards for expropriation have shifted, now resembling the “prompt, adequate, and effective” standard.
  • Investment guarantees, like political risk insurance, protect against nationalization and inconvertibility.
  • ICSID provides a forum for resolving investment disputes.
  • BITs include Investor-State Dispute Settlement (ISDS) clauses, sparking controversy.
  • UNCITRAL Rules and U.N. Convention promote transparency in investor-state arbitration.