The course

1. The course • Two main books, additional recommended reading • Treaty collection, Global and European Treaties • Web pages • http://www.wto.org/ • http://ita.law.uvic.ca/, http://icsid.worldbank.org/ICSID/Index.jsp, http://www.unctadxi.org/templates/DocSearch____779.aspx • As much discussion and interaction as possible • Work in groups • Prepare for next lesson • Each lesson: brief introduction to the topic and subsequent discussion – prepare cases, exercises and questions! • Mock exam

2. The development of IEL • The core of IEL: trade in goods, trade in services, foreign direct investment • Bilateral -> multilateral, 1920-40 • UN: ECOSOC: Bretton Woods and Havana • Five main tracks • IMF and the World Bank (IBRD) • Havana Charter (ITO) -> GATT -> WTO • Regional economic integration • Bilateral investment treaties -> economic co-operation and multilateralism(?) • Bilateral tax treaties -> co-ordination through OECD • Effects of the financial crisis?

3. The nature of IEL • Bilateral -> multilateral? • Differentiated development • Do we see a set-back of multilateralism? • Contractual -> law-making (constitutional)? • The purpose of IEL: interests of domestic actors -> peace, sustainable development, poverty reduction? • Issues addressed: border measures -> domestic measures • Special treatment of categories of goods and states? • The emergence of ”trade and …” issues: globalization • Institutional development: enforcement and dispute settlement • Participation (Russia) • Progressive development • The ”bicycle hypothesis”

4. Functions of the WTO • Art. III of the WTO Agreement • Implementation • Negotiations • Settlement of disputes • Trade policy review • Coordinate global economic policy with relevant institutions • + Assistance to developing countries • Rules concerning: • Goods • Services • Investment • Public market intervention • Subsidies • Public procurement • Intellectual property rights • Private market intervention • Dumping • Competition

5. Basic substantive rules • Non-discrimination • MFN and national treatment • Market access • Border measures (tariffs, import and export restrictions, border control) • ”Unfair trade” • Creating and maintaining a ”level playing field” (subsidies, dumping, public procurement?) • Harmonisation of domestic measures • Trade facilitation (technical barriers to trade, facilitation of procedures, IPR) • ”Trade and …” rules

6. Sources of law in the WTO • Supremacy of the WTO Agreement (art. XIV:3) • GATT 1947 and GATT 1994 • The supremacy of the other agreements of Annex 1A over GATT – lex specialis (General interpretative note to Annex 1A) • ”Interpretative Notes”, ”Understandings” and footnotes • What is the ”context” for the purpose of agreements under the WTO? • What is ”agreement” and ”subsequent practice” in the context of the WTO? • Relationship to other agreements of international law

7. Institutions and procedure • Main bodies of the WTO • Ministerial Council • General Council (also working as Dispute Settlement Body) • Councils for goods, services and IPR • Secretary General – ”Green Room meetings” • Decision-making • Tradition of consensus, but majority vote is available (art. IX-X of the WTO Agreement) • Amendments – art. X:1 – rounds of negotiation • Interpretation – art. IX:2 • Waivers – art. IX:4 • Use of ”soft law” • Implementation and dispute settlement • Notifications, Trade Policy Review Mechanism, dispute settlement with possibility of appeal

8. Membership of the WTO • 153 members • Major country not yet a member: Russia • The EC as a member • How to become a member – accession? • Art. XII of the WTO Agreement • Working Party on Accession • WTO ”acquis” • Algeria 22 years and counting! Russia 16 years • China’s remaining ”market economy” hurdle • Only trade related obstacles? • Observers • Non-members, IGOs and NGOs in the WTO – art. 5

9. WTO and domestic law • Duty to ensure conformity with the WTO agreements, art. XIV:4 • VCLT art. 27 vs. GATT art. XXIV:12 • The issue ”nullification or impairment of benefits”, GATT art. XXIII • The position of WTO law in domestic law • Depends on domestic law – dualism/monism • For dualist countries: The doctrine of ”treaty-consistent interpretation” • For monist countries: Are provisions under the WTO ”self-executing” (the issue of direct effect)? • Provisions denying self-executing status, e.g. the US • Provisions giving procedural rights to private parties

10. Financial issues and funding • International Monetary Fund • Stability in international financial markets • Prerequisite for international trade and investment • Taken on broader responsibilities – help to developing countries in financial trouble • World Bank – “IBRD” • Funding of projects • Link to aid agencies and to environmental agreements • The 1965 ICSID Convention (International Centre for the Settlement of Investment Disputes) • World Bank Inspection Panel • Voting rules of the organisations • The role of law in the organisations

11. International investment law • A tri-partite area of law • Host state • Home state • Investor (+ affected third parties) • Complex legal situation • Treaty obligations and customary international law • Domestic legislation • Investor – state agreements • Investor – investor agreements • Unilateral statements • Grey area • International law / domestic law • Private law / public law

12. General background • Historic development • Commercial treaties – 1770s (FCN – friendship, commerce and navigation • Bilateral investment treaties – 1950s • Capital export -> economic integration • Regional economic integration agreements and economic cooperation agreements • Multilateral – the Energy Charter Treaty and the Multilateral Agreement on Investment • Institutional setting • “Investment” – broad definition • Establishment vs. investment protection • Dispute settlement – private parties