Journal of International Trade Law and Policy

vLex
Publisher:
Emerald Group Publishing Limited
Publication date:
2011-12-21
ISBN:
1477-0024

Issue Number

Latest documents

  • Reassessing the transition from paper to electronic bills of lading: regulatory impediments and prospective reforms in Nigeria’s maritime sector

    Purpose: The purpose of this paper is to re-evaluate the legal barriers surrounding the implementation of electronic billing systems and to propose potential reforms aimed at facilitating their efficient and widespread adoption in Nigeria. Since the 16th century, bills of lading have been integral to global trade, evolving in response to the practical exigencies and technological advancements of their respective eras. Despite their historical significance, the traditional paper-based bill of lading has increasingly been recognised as a hindrance to contemporary maritime commerce. The inherent vulnerabilities of physical documents such as susceptibility to damage and the logistical delays associated with their manual transfer have underscored the inefficiencies of this conventional system. These limitations have catalysed the development of electronic bills of lading (e-bills of lading) as a digital counterpart, a transition particularly pertinent within Nigeria’s maritime sector. Nevertheless, the adoption of e-bills of lading has engendered considerable apprehension, largely due to uncertainties surrounding their legal validity and operational efficacy. Design/methodology/approach: This paper conducts a comprehensive desk-based study to examine the historical evolution and current concerns surrounding e-bills of lading as a substitute for traditional paper forms. Findings: Specifically, the paper advocates for the enactment of clear and robust legislation that would grant e-bills of lading the same legal status as their paper counterparts. Originality/value: This paper offers an original contribution to the academic and legal discourse on the subject, providing a novel analysis of the regulatory gaps while proposing practical recommendations for the effective adoption of e-bills of lading in Nigeria’s maritime industry.

  • Evaluating the influence of information and communication technology and the BRICS in South African trade dynamics: a gravity model approach

    Purpose: This study aims to assess how South African membership to the Brazil, Russia, India, China and South Africa (BRICS) has influenced its traded sector. It also evaluated information and communication technology (ICT) as an instrument for enhancing bilateral trade. Design/methodology/approach: ICT was captured from three perspectives: mobile technology, internet usage and fixed telephones. It was integrated into an augmented gravity equation as a trade cost. The study covered 27 years and 181 South African trading partners. Estimation was done using the Poisson pseudo maximum likelihood estimation technique and the implementation of exporter-year and importer-year fixed effects. Findings: It was revealed that mobile phone and fixed telephone subscriptions improve import and export by 4.66% and 1.79%, respectively, while the internet penetration rate negates export and import by 13.4% and 5.89%, respectively. However, it further demonstrates that the internet penetration rate and fixed telephone subscription reduced the negative impact of distance by 7.26% and 1.15% for export. ICT performed better when South Africa only traded with the BRICS countries. The report also shows an encouraging BRICS effect on South African bilateral trade with the bloc. Practical implications: The study highlights that BRICS membership significantly boosts South Africa’s bilateral trade, which encourages new African memberships, while also emphasising the role of ICT in mitigating the negative impact of distance. Policymakers should enhance mobile phone and fixed telephone infrastructures to improve imports and exports, respectively, and strategically manage internet penetration to maximise the benefits of BRICS economic cooperation. Originality/value: The study evaluated the influence of South Africa’s BRICS membership and how ICT variables interact with distance to mitigate its effects on trade. This provides a nuanced understanding of ICT’s unique impact on South Africa’s bilateral trade, offering valuable insights for policymakers to enhance trade performance and leverage BRICS economic cooperation effectively.

  • Revisiting Indonesia halal tourism policy in light of GATS

    Purpose: As a growth industry in the international tourism segment market, halal tourism domestic policy should align with General Agreement on Trade in Services (GATS) as an international trade in services regulation. This paper aims to examine Indonesia’s halal tourism policy and its intersection with obligations as a member state of the World Trade Organization (WTO). Particularly in balancing Indonesia’s international obligation and the right to regulate. Design/methodology/approach: The present study uses normative legal research by analysing legal materials, primarily GATS and Indonesia’s halal tourism policy. By using this methodology, this paper seeks the normative ideal domestic approach that aligns with Indonesia’s international obligations within GATS. Findings: Regional regulations primarily govern the halal tourism policy in Indonesia. The critical substance of the regulation is the mandatory halal certification for the implementation of halal tourism. This obligation may be incompatible with Indonesia’s commitment to liberalise the tourism sector under the GATS. The current legal framework gives rise to a lack of consistency in its application despite its adherence to the halal tourism standards established by the MUI. At the same time, the provincial and regent authorities lacked the authority to do so. The authors argue that halal tourism policy shall be promulgated in the national-level policy to settle this issue. This measure is necessary to mitigate conflicts between prevailing norms and Indonesia’s international commitments within GATS. Therefore, Indonesia can uphold both its international obligations and national interests. Originality/value: This paper presents a novelty contribution by highlighting the absence of prior research examining Indonesia’s adherence to its international commitments under the GATS in formulating domestic legislation on halal tourism. To close this gap, this study suggests that national legislation governing halal tourism should consider international obligations in the tourism sector under the GATS.

  • Bilateral investment treaties and investors’ social accountability: the law and praxis in South Asia

    Purpose: International investment law governs matters related to transnational investments. The extensive reach of transnational corporations (TNCs) has granted them substantial economic, political and social influence, often intertwining them with public interest issues and implications in human rights violations. This paper aims to explore the profound influence exerted by TNCs in today’s globalized world and its implications for human rights and social responsibility within the framework of international investment law. Particularly, it acknowledges the vulnerability of economically weak South Asian states and cites past instances such as the Bhopal gas tragedy in India and the Rana Plaza disaster in Bangladesh as egregious violations of human rights. Focusing on South Asian bilateral investment treaties (BITs), this paper aims to examine the scope of investors’ social accountability. Design/methodology/approach: This research engages with doctrinal and analytical methods in traversing through primary and secondary sources. It would parse the arbitral tribunals’ jurisprudence for their discussion on the inclusion of social accountability obligations within international investment agreements (IIAs). Further, it engages in a quantitative analysis related to the nature of the social accountability-related obligation of the corporation within South Asian BITs. Findings: The findings reveal a glaring absence of the law on investors’ social accountability and the need for enhanced regulatory mechanisms to address the escalating influence of TNCs on human and social rights. The absence of a robust legal framework, coupled with the asymmetric nature of international investment law, granting investors greater rights and leverage compared to states, exacerbates this challenge. The phenomenon of “regulatory chill” inhibits states from effectively enforcing regulatory measures aimed at protecting human rights and the environment. Furthermore, the broad interpretation of clauses such as “fair and equitable treatment” by investment tribunals often undermines states’ ability to implement measures in the public interest. While international organizations such as the UNCTAD and the UNCITRAL Working Group III are actively discussing reforms to IIAs, the existing guidelines addressing investors’ social accountability are woefully lacking in the content as well as the method of their integration with international human rights law. The findings underscore the imperative for South Asian nations, the subject of this research’s empirical analysis, to adopt a comprehensive approach involving both domestic law reforms to promote corporate social accountability and active pursuit of negotiations for the inclusion of binding social obligations for investors within IIAs. Practical Implications: This research, drawing upon international law developments, offers suggestions for incorporation of social accountability provisions via relevant domestic law reform. The research could be viewed as a prelude for mapping the legal developments in the area of investors’ social accountability within investment agreements, as well as investment contracts, drawing guidance from international law instruments. Originality/Value: To the best of the authors’ knowledge, no other study analysed the scope of investors’ social accountability in South Asian BITs.

  • A shadowy negotiation involving dams and its fiscal and legal implications: a Portuguese case study

    Purpose: This paper aims to explore the intricate and controversial sale of six hydroelectric dams in the Douro hydrographic basin by Energias de Portugal (EDP), a prominent Portuguese energy company, to a French Consortium – ENGIE. The transaction, completed at the end of 2020, has sparked significant debate and scrutiny within the Portuguese legal and fiscal spheres due to its corporate and budgetary manoeuvres. The crux of the controversy lies in the complex corporate restructuring strategies used by EDP and the acquiring consortium to execute this transaction. These strategies, aimed at achieving tax neutrality, effectively circumvented the traditional tax liabilities typically associated with large-scale asset transfers. The paper delves into the legal intricacies of this operation, scrutinising the application of taxes such as stamp duty, corporate income tax, value added tax and property transfer tax, which were, in theory, applicable to the transaction. Furthermore, this study examines the broader implications of the deal, particularly concerning the principle of tax neutrality in corporate restructurings, the enforcement of anti-abuse clauses and the economic substance over legal form doctrine. Design/methodology/approach: This study is based on secondary data supported by publicly reported evidence. Findings: This case study highlights the challenges in taxing corporate transactions in the modern financial landscape and reflects these corporate manoeuvres' societal and ethical considerations. Originality/value: Through an analysis of legal frameworks, corporate strategies and tax policies, this paper provides a comprehensive understanding of the transaction and its implications, offering insights valuable to legal professionals, policymakers and scholars in corporate law, taxation and business ethics.

  • Negotiations on food security at the WTO: a never-ending story?

    Purpose: The purpose is to chart the negotiations on the issue of food security which was identified as a non-trade concern by the Agreement on Agriculture (AOA) and how developing Members of the World Trade Organisation (WTO) suggested that that concern should be addressed. Design/methodology/approach: The history of negotiations at the WTO is examined through the lens of official documents submitted during various phases of negotiations since 1996 beginning with the Analysis and Information Exchange process to the Doha Round up to the latest Ministerial Conference in Abu Dhabi in February 2024. Findings: The negotiations have yet to complete despite beginning over 20 years ago. The focus moved since 2008 to look at specific issues which were addressed at a number of Ministerial Conferences but the latest of these indicate that an answer can only be found in the re-negotiation of the AOA as a whole. Research limitations/implications: By focusing on official documents, the rich literature on food security has not been addressed. Practical implications: The piece concludes by looking at issues which need to be resolved ahead of agreement on overall reform and suggests solutions for example in the area of safeguards and public stockholding for food security purposes. Originality/value: The focus almost exclusively on official (and public) documents during the discussion is noteworthy. It also confirms that the WTO is not really that different from its predecessor - the GATT - which took nearly 50 years to reach AOA.

  • US technological statecraft towards China

    Purpose: This study aims to define a “technological statecraft” concept to distinguish tech-based measures/sanctions from an array of economic measures ranging from restrictions of rare earth elements and natural gas supplies to asset freezes under the wider portfolio of economic statecraft. This concept is practically intended to reveal the USA’s “logic of choice” in its employment of technology as an efficient instrument to deal with China in the context of the great power rivalry. Design/methodology/approach: This study follows David A. Baldwin’s statecraft definition and conceptualization methodology, which relies on “means” rather than “ends.” In addition to Baldwin and as an incremental contribution to his economic statecraft analysis, this study also combines national political economy with statecraft analysis with a particular focus on the utilization of technological measures against China during the Trump administration. Findings: The US rationale for choosing technology, namely, emerging and foundational technologies, in its rivalry against China is caused at least by two factors: the nature of the external challenge and the characteristics of the US innovation model based largely on radical innovations. To deal with China, the USA practically distinguished the role of advanced technology and followed a grammer of technological statecraft as depicted in the promulgated legal texts during the Trump administration. Originality/value: Despite a growing volume of literature on economic statecraft and technological competition, studies focusing on countries’ “logic of choice” with regard to why and under what conditions they choose financial, technological or commodity-based sanctions/measures/controls are lacking. Inspired from Baldwin’s account on the “logic of choice” from among alternative statecrafts (i.e. diplomacy, military, economic statecraft, and propaganda). This study will contribute to the literature with a clear lens to demonstrate the “logic of choice” from among a variety of economic statecraft measures in the case of the US technological statecraft toward China.

  • Is South Asia the missing bloc in world trade? An analysis of South Asian FTAs’ compatibility with WTO rules

    Purpose: South Asia is a region urgently seeking development, although it has failed in regional integration. It is the second least integrated region regarding the number of Free Trade Agreements (FTAs) and can thus be recognised as a missing bloc in the global multilateral system. This study aims to focus on South Asian FTAs and explores the problems of the inter-relations and compatibility between the systemic and regional trade systems. Design/methodology/approach: The study proposes a framework to benchmark the compatibility of South Asian FTAs with WTO rules. Primary data from 2000 to 2020, including descriptive analyses of reports, legal text of the FTAs, official documents and factual presentations, have been collected and analysed through thematic analysis using the proposed framework. Findings: The study finds that, although South Asian FTAs meet most of the WTO requirements, they are not progressing toward facilitating and promoting trade. Data from 2000 to 2020 show us that South Asian FTAs have not significantly impacted trade between themselves. The study argues that, although South Asian FTAs fulfil some benchmarks, they show only a lukewarm interest in contributing to the international trading system as building blocs. It is therefore recommended that the case of South Asian trade liberalisation must be understood contextually and be given careful and exclusive attention by the WTO. Originality/value: As such, this study is the first to claim that South Asian FTAs are not fully compatible with the WTO rules. They remain a missing regional bloc in the multilateral system, rather than a building bloc or a stumbling bloc, delaying the region’s opportunity to develop as a region and within the larger system.

  • Guest editorial: Food (in)security and international law
  • The impact of climate change on the right to access to food within the East African Community

    Purpose: This study aims at navigating the effects of climate change on the right to access to food within the East African Community region, using the case study of Uganda. Design/methodology/approach: The author used doctrinal review of different policies and strategies that have been developed and implemented by the EAC to address the growing patterns of food insecurity and climate change. Findings: Findings show that besides climate change, there are other factors that have played a major role in contributing to food insecurity in the region such as the impact of the ongoing Russia–Ukraine war, absence of food storage reserves/banks, scarring effects of the COVID 19 pandemic, inadequate implementation of agricultural policies on climate change, high post-harvest losses and food waste amongst others. Originality/value: This research paper is the author’s sole writing and has never been submitted for publication in any journal.

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