International Trade and the Protection of the Environment

by Baughen; Simon

• ISBN13: 9780415448109
• ISBN10: 0415448107
• Edition: 1st
• Format: Nonspecific Binding
• Copyright: 2007-12-03
• Publisher: Routledge-Caven

Summary

Analyzing globalization and the increasing tension it has caused between the goals of free trade and environmental protection, International Trade and the Protection of the Environment provides a comprehensive and detailed legal analysis, both at the national and international level of what looks set to become the new legal order of the twenty-first Century. This book as the questions does the treatment of ?measures tantamount to expropriation? have the capacity to lead to a ?regulatory chill? on environmental protection and what are the possibilities for claims before the UK courts that are based on alleged violations of international law? The author offers: an informed and critical commentary on the continuing controversy on GMO products, in particular on the recent WTO award in the EC-Biotech dispute a comparison of the treatment of the expropriation under NAFTA and bilateral investment treaties with position under article one of thefirst protocol of the European convention on human rights an analysis of the human rights dimension to claims for environmental damage against multi-national corporations, focusing particularly on claims in the US under the Alien Trot Claims Act 1789. Incisive and current, this text is a valuable tool for postgraduate law students studying international and commercial law.

Author Biography

Simon Baughen, a former practitioner in shipping law, is a Reader in law at the University of Bristol

Table of Contents

Preface	p. xiii
Acknowledgements	p. xv
Table of Cases, Awards and Reports	p. xvii
Table of Abbreviations	p. xxix
Introduction	p. 1
Trade and environment within the GATT	p. 11
Article I. Most-favoured-nation treatment	p. 15
Article III. National treatment	p. 15
Article III.2. Internal taxes and charges	p. 17
Article III.4. 'Laws, regulations and requirements'	p. 21
Article XI. Quantitative restrictions on imports	p. 26
Article XX	p. 27
US-Reformulated Gasoline	p. 29
US-Shrimp/turtle	p. 32
EC-Asbestos	p. 36
Article XXIII:1(b)	p. 38
The WTO agreements and MEAs	p. 40
Jurisdictional overlap	p. 41
Substantive conflict	p. 42
The WTO side agreements (1). The TBT and SPS Agreements	p. 47
The TBT Agreement	p. 47
The SPS Agreement	p. 53
EC-Beef Hormones	p. 57
Australia-Salmon	p. 62
Japan Varietals	p. 64
Genetically modified organisms and the WTO agreements	p. 67
The Cartagena Protocol	p. 70
Regulation of GMOs within the EU	p. 73
EC-Biotech	p. 77
The aftermath of the decision	p. 86
Conclusion	p. 89
Jurisdictional overlap between the WTO agreements and MEAs	p. 89
Jurisdictional overlap between the WTO agreements	p. 91
The ability of members to base environmental regulation on PPM criteria	p. 92
The evidential threshold applicable to the justification of measures on grounds of health or environmental protection	p. 93
The administrative obligations imposed on members in designing and implementing measures	p. 96
The WTO side agreements (2). GATS, TRIMS and TRIPS	p. 97
GATS	p. 97
Article VI. Domestic regulation	p. 100
Article XVI. Market access	p. 103
Article XVII. National treatment	p. 104
General exceptions	p. 105
TRIMS	p. 106
The TRIPS Agreement. The impact of IP rights on environmental protection	p. 107
Farmers' rights	p. 111
Traditional knowledge	p. 116
Pharmaceuticals	p. 122
Trade and the environment within the EC	p. 129
Quantitative restrictions on imports and exports. Articles 28 and 29	p. 132
Harmonisation and national measures. The general principles	p. 137
Article 95. Internal market harmonisation	p. 139
Article 175. Environmental harmonisation	p. 142
The two justifications for violating Arts 28 and 29	p. 146
Article 30	p. 146
The 'rule of reason' and mandatory requirements	p. 147
Proportionality	p. 148
Distinctly and indistinctly applicable measures	p. 151
Exira territoriality	p. 153
MEAs and the EC	p. 155
Conclusion	p. 157
Investor protection and environmental regulation (1). Customary international law and the European Convention on Human Rights	p. 161
Customary international law on expropriation	p. 165
Defining expropriation	p. 166
What property can be subject to an expropriation?	p. 172
Causation	p. 173
Assessing the quantum of an expropriation claim	p. 174
The European Convention on Human Rights. Article 1 of the First Protocol	p. 180
'Deprivation of possessions" claims	p. 182
'Control of use' claims	p. 185
Investor protection and environmental regulation (2). NAFTA, Chapter Eleven	p. 189
Threshold issues of definition	p. 194
Articles 1102 and 1103 - National treatment and most-favoured-nation principles	p. 202
Treatment in accordance with international law - Article 1105	p. 207
Initial interpretations of Art 1105	p. 208
The Free Trade Commission's interpretation of Art 1105	p. 211
Subsequent interpretations of Art 1105	p. 211
Performance requirements-Article 1106	p. 215
Article 1110. Expropriation	p. 216
What constitutes expropriation or a measure 'tantamount to expropriation'?	p. 217
Exceptions to Chapter Eleven obligations	p. 224
Article 1114. Environmental measures	p. 224
Article 1112	p. 226
Article 103	p. 227
6.4 Article 104	p. 227
Quantum	p. 227
Recent US responses to NAFTA jurisprudence	p. 229
Conclusion	p. 230
Multinational corporations and environmental liability (1). US litigation: jurisdictional issues	p. 235
Establishing jurisdiction over the defendant	p. 237
Forum non conveniens	p. 240
Identifying an available alternative forum	p. 241
Balancing the private interest and public interest factors	p. 244
Forum non conveniens and environmental claims	p. 245
Forum non conveniens and human rights claims	p. 248
Other grounds for declining jurisdiction	p. 253
Foreign sovereign immunity	p. 253
Indispensible parties	p. 254
Act of state	p. 254
Political question	p. 256
Comity	p. 258
Multinational corporations and environmental liability (2). US litigation: substantive law	p. 259
Claims under the ATCA	p. 259
Environmental claims and ATCA	p. 262
Private actor liability under international law	p. 266
Private actor liability under s 1983	p. 272
Other statutory avenues for human rights claims	p. 275
Torture Victims Protection Act 1991	p. 275
USC, s 1331	p. 275
Racketeer Influenced and Corrupt Organisations Act	p. 276
Tort claims	p. 277
Alter ego	p. 277
Agency	p. 279
Single economic entity	p. 282
Direct liability	p. 282
The chain of attribution in the Unocal litigation	p. 285
Applicable law	p. 290
Actions against multinational corporations before English courts	p. 293
Establishing jurisdiction	p. 293
Declining jurisdiction	p. 294
Forum non conveniens	p. 294
Act of state	p. 296
Sovereign immunity	p. 296
Tort liability	p. 298
Derivative liability. 'Piercing the veil'	p. 298
Derivative liability. Agency	p. 301
Direct liability	p. 302
How would the English courts have dealt with the Bhopal disaster?	p. 309
'Soft law' international instruments and direct liability	p. 310
Civil liability in respect of violations of customary international law	p. 314
Applicable law	p. 318
Conclusion	p. 319
Alternative approaches to transnational pollution	p. 323
International regulation of ship-source pollution	p. 324
MARPOL	p. 324
Enforcement jurisdiction under international law	p. 326
Civil liability conventions on oil pollution	p. 329
Liability regime	p. 330
Recoverable damage	p. 334
Jurisdiction	p. 337
Compulsory insurance	p. 339
Other international civil liability conventions	p. 339
EC Environmental Liability Directive 20004	p. 342
Conclusion	p. 347
Index	p. 349
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