• Journal of International Trade Law and Policy

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

Latest documents

  • Competition law enforcement in Hong Kong SAR and in Ireland: similar and atypical

    Purpose
 This paper aims to understand the emergence, operation and evolution of judge-centred models for the enforcement of competition law in Ireland and in Hong Kong SAR. The public enforcement model in Hong Kong chimes with the Irish regime where competence to adjudicate on competition law violations and to impose sanctions is intentionally reserved exclusively to judges. This design choice renders the Irish and Hong Kong regimes both similar to each other and atypical on the global stage, where in many jurisdictions an administrative competition agency investigates suspected infringements, makes determinations of infringements and may penalise infringers.
 Design/methodology/approach
 This paper starts by detailing the current competition law architecture in each jurisdiction. Then, it examines closely the discourse (expressed in consultations, experts’ reports and Parliamentary documents) in the lengthy period preceding their introduction. This approach aims, firstly, to understand why judicial models were chosen over more familiar administrative ones and, secondly, to unearth any similar concerns which had a bearing on the choice of atypical design. Next, it analyses some implications of the judicial model in operation for, firstly, parties; secondly, the administrative competition agencies; and, thirdly, the evolution of competition law.
 Findings
 It finds the existence of similar concerns surrounding due process/separation of power arose in each jurisdiction. Other similar strands include a sluggish political appetite which delayed reform. Each jurisdiction actively sought to inform itself about international experience but did not feel obliged to copy the enforcement dimension even where substantive prohibitions were persuasive.
 Research limitations/implications
 It shines a light on the independent response by two small Common Law jurisdictions, which does not converge with popular administrative international models of competition law enforcement.
 Practical implications
 It is hoped that the decades-long experience in Ireland may interest those involved in Hong Kong competition law, which is at a comparatively fledgling stage of development.
 Originality/value
 This is an original research and appears to be the first paper exploring the atypical approaches taken in Hong Kong SAR and Ireland to designing locally suited regimes for the enforcement of competition law.

  • Brexit and the EU–UK free trade agreement: dos and don’ts when drafting rules of origin

    Purpose
 The purpose of this paper is to highlight the pros and cons of different models of the European Union (EU)-style Rules of Origin (RoO) that could be chosen by negotiators for a future UK-EU Free Trade Agreement (FTA). It will also underline the impact that any choice would have on economic operators and certain criteria that should be evaluated before taking any decisions on the adoption of RoO.
 Design/methodology/approach
 The paper will describe three different RoO models that could be chosen by negotiators. For each of them, it analyses the pros and cons and the impact on economic operators.
 Findings
 The choice of a RoO would have an impact on future EU-UK trade relations. It will affect the utilization rate of the FTA as well as investment (and divestment) corporate strategies in the UK and EU.
 Originality/value
 The paper introduces different criteria to evaluate the impact of RoO that should be taken into consideration by negotiators. It emphasizes that RoO should be simple, predictable, coherent, IT compatible and easily adaptable.

  • Advancing labour mobility in trade agreements. The lost opportunity in the Trans-Pacific Partnership

    Purpose
 Labour mobility is increasingly recognized as an important component of a globalized international trading system. This paper aims to examine the role of temporary entry commitments in international trade agreements toward facilitating global labour mobility.
 Design/methodology/approach
 This paper traces three decades of temporary entry provisions in international trade agreements signed by the USA and Canada, beginning with their bilateral Canada-US Free Trade Agreement and culminating in the Trans-Pacific Partnership (TPP).
 Findings
 The paper finds that while many countries have continued to liberalize their temporary entry commitments in various trade agreements, the USA has reversed course in the previous decade, hampering international progress. Meanwhile, Canada has pursued ever greater labour mobility provisions with most of its trading partners.
 Practical implications
 The unique roles played by the USA, Canada and other trading partners in advancing a coherent international labour mobility agenda are considered. To continue to advance labour mobility in trade agreements moving forward, policy alternatives to the “all” or “nothing” approaches pursued by Canada and the USA are suggested.
 Originality/value
 To the author’s knowledge, this paper is the first to formally evaluate labour mobility in the TPP and the only paper to outline the evolution of temporary entry in the US vs Canadian trade agreements over three decades.

  • The effects of trade liberalization on skill acquisition: a systematic review

    Purpose
 The benefits of trade liberalization on upskilling and skill-based wage premiums for high-skilled workers have recently been questioned in policy circles, in part because of rising income inequality and populist movements in developed economies such as the USA. The purpose of this paper is to determine the effects of trade liberalization on the relative supply and demand for skills.
 Design/methodology/approach
 Through the systematic review of the literature on trade and skill acquisition, this paper isolates a total of 25 articles published over the past two decades.
 Findings
 Key findings demonstrate the importance of the relative development of the trading partner, with more developed countries experiencing higher upskilling, while less developed countries experience deskilling. Technology, geographic level of analysis, sector and gender were also found to be important influences on human capital acquisition associated with international trade.
 Originality/value
 Overall, the authors find support for the idea that trade with developing countries places pressure on low-skill jobs in developed countries but increases the demand for educated workers. The implications of shifts in skills for public policy-making and in terms of the skill premium on wages are discussed.

  • Do EU and US GSPs matter for the cotton and textiles products exports of Pakistan?

    Purpose
 This study aims to estimate and compare the effect of EU and US GSP schemes on the cotton and textile sectors of Pakistan.
 Design/methodology/approach
 The analysis used data from 2003 to 2014 for all the 14 categories of cotton and textile products at two-digit using HS commodity classification. Effects of the EU and US GSPs are estimated using a gravity trade model.
 Findings
 Both the concessions are statistically significant determinants of wadding and nonwoven special yarn, articles of apparel-knitted, articles of apparel-not-knitted and made-up textiles sectors. In the rest of the sectors, the results are a mix. Among these, EU GSP is a statistically significant determinant of wool and animal hair and manmade filaments yarn exports, while the US GSP is important for the exports of cotton yarn and woven fabrics, manmade staple fibers, carpets, impregnated fiber and knitted or crocheted fabrics.
 Originality/value
 The research contributes in two major ways. First, it estimates the effects of EU and US GSPs on the textile sector of Pakistan while controlling for the effect of tariffs. Second, the study tests joint hypotheses about the role of EU and US GSPs in the cotton and textile products exports of Pakistan.

  • Using dispute settlement partnerships for capacity building. Bangladesh’s triumphant experience at WTO DSU

    Purpose
 World Trade Organisation grants rights to its members, and WTO Dispute Settlement Understanding (DSU) provides a rule-oriented consultative and judicial mechanism to protect these rights in cases of WTO-incompatible trade infringements. However, the DSU participation benefits come at a cost. These costs are acutely formidable for least developing countries (LDCs) which have small market size and trading stakes. No LDC has ever filed a WTO compliant, with the only exception of India-Battery dispute filed by Bangladesh against India. This paper aims to look at the experience of how Bangladesh - so far the only LDC member that has filed a formal WTO complaint - persuaded India to withdraw anti-dumping duties India had imposed on the import of acid battery from Bangladesh.
 Design/methodology/approach
 The investigation is grounded on practically informed findings gathered through authors’ work experience and several semi-structured interviews and discussions which the authors have conducted with government representatives from Bangladesh, government and industry representatives from other developing countries, trade lawyers and officials based in Geneva and Brussels, and civil society organisations.
 Findings
 The discussion provides a sound indication of the participation impediments that LDCs can face at WTO DSU and the ways in which such challenges can be overcome with the help of resources available at the domestic level. It also exemplifies how domestic laws and practices can respond to international legal instruments and impact the performance of an LDC at an international adjudicatory forum.
 Originality/value
 Except one book chapter and a working paper, there is no literature available on this matter. This investigation is grounded on practically informed findings gathered with the help of original empirical research conducted by the authors.

  • Trading with India: some current impediments for Pakistan

    Purpose
 This study aims to examine the possible gains and challenges for the enhancement of bilateral trade ties between India and Pakistan. It is interested specifically in analyzing and deliberating an attempt to identify the key challenges and bottlenecks in cross-border trade.
 Design/methodology/approach
 This paper offers in-depth case study of trade between India and Pakistan using time-series data and through various stake holders' interviews. As further discussed in the paper, the data investigation and interviews highlight impediments in India-Pakistan trade from trade policy to other policies involved in this process.
 Findings
 Based on time series data and stakeholders’ interviews, the study concludes that poor trade logistics and abysmal transport infrastructure, high tariffs and non-tariff measures, lengthy customary procedures, heavy import duties, port restrictions, lack of appropriate storage facilities, strict visa regime, financial transaction barriers and lack of telecommunication facilities are the major challenges in the way of regional trade.
 Originality/value
 The study proposes some key reforms and policy measures to boost the formal trade to minimize the trade obstacles such as public-private partnerships and inclusion of private sector in a joint trade commission to strength the business relations between the two countries.

  • The Portuguese intellectual property box: issues in designing investment incentives

    Purpose
 The purpose of this paper is to discuss tax and accounting issues related to the evolution of the intellectual property box in Portugal and present a preliminary view of its impact. In 2014, Portugal adopted an Intellectual Property (IP) box, exempting from corporate taxation half of the gross revenue obtained from selling IP rights. In 2016, the country adopted a new IP regime, in line with BEPS’ recommendations, with stricter rules for exempting income. The “modified nexus approach”, recommended by the OECD, was the cornerstone of legal changes. The research questions addressed in this paper are as follows: was the Portuguese IP box, set up in 2014, internationally competitive in terms of the scope of qualifying assets and the tax rate when compared to other EU countries? Could its legal design induce potential corporate tax avoidance? Does the new IP box framework reduce avoidance opportunities and does it increase tax and accounting complexity for companies and tax auditors?
 Design/methodology/approach
 The methodology used in this paper is based on the legal research method combined with a case study analysis of the IP box in Portugal. The economic motivation for legal changes, the interaction between the tax authorities and the policy makers in the wake of BEPS’ recommendations, and the economic crisis that Portugal faced, influenced legislative options. A multidisciplinary approach is required to analyse the IP box modifications, and the methodology follows this line of enquiry.
 Findings
 The author concludes that the 2014 IP box was not competitive in terms of the scope of qualifying assets and the tax rate. However, it could be a potential tool for tax avoidance, mainly linked to transfer pricing strategies. Legal changes, introduced in 2016, by enacting stricter rules for granting tax benefits, fit a worldwide trend of restraining profit shifting opportunities linked to intangibles. The new framework clearly impacts tax and accounting complexity, for companies and tax auditors. Preliminary data, for 2014 and 2015, show a negligible impact of the IP box on corporate taxation.
 Practical implications
 The “modified nexus approach” is not a definitive panacea for fighting tax avoidance. Multinationals may move resources (e.g. highly specialized persons) to entities that are developing IP, curtailing the restriction associated with acquiring services from related parties. Tax authorities may fight these schemes, but face a challenging task. The grandfathering option and new accounting choices related to expense allocation are delicate issues. Not all countries adopted BEPS’ recommendations at the same time, which may impact international profit shifting activities and increase tax authorities’ costs to control them. The paper also provides preliminary and exploratory evidence that IP boxes, per se, do not suddenly raise the R&D activity of firms.
 Originality/value
 The analysis highlights legal, accounting and economic issues in dealing with changes in investment incentives and can or may be a useful remainder for countries in the process of setting up, or amending, IP boxes.

  • Articles 51 and 54 of the Jordanian Arbitration Act

    Purpose
 On two different occasions, the Jordanian Constitutional Court has ruled that Articles 51 and 54 of the Jordanian Arbitration Act no. 31 of the year 2001 are unconstitutional and null. In view of this, this paper aims to attempt to give the reader a brief preview of the Jordanian Arbitration Act, the Jordanian Constitution and the Jordanian Constitutional Court. It also highlights and critically analyzes the Jordanian Constitutional Court two decisions pertaining to the Arbitration Act and its special implications in this regard from the perspective of arbitration law and the distinct characteristics embedded in it.
 Design/methodology/approach
 To examine how effective is the approach followed by the Constitutional Court in ruling the unconstitutionality of the aforementioned Articles, this work makes use of the primary and secondary data available in this regard as the main method to complete such an examination. By critically analyzing and comparing the various data contained in these sources, this work identifies the problems associated with such decisions.
 Findings
 This work submits that while the Constitutional Court has rested its rulings largely on constitutional principles, concerns arising from the Arbitration Act perspective have not been dealt with adequately by the Court. Furthermore, it argues that while the principles of the constitution shall be respected, the distinct characteristics of the arbitration law warrant a more careful approach than actually followed by the Court.
 Originality/value
 Taking into consideration the importance of arbitration as an alternative mean for dispute resolution, the Jordanian legislator has addressed the application of arbitration as early as the year 1953. However, while the Constitutional Court’s questionable approach to the aforementioned articles would necessarily hinder the use of arbitration, no comprehensive scholarly work has either examined such approach or addressed its implications. Accordingly, this work derives its originality and value from being the first of its kind to examine and address such a matter.

  • Reimagining transnational validity under the CISG. A gateway to “homeward trend” interpretations

    Purpose
 The aims and objectives of the United Nations Convention on Contracts for the International Sale of Goods (CISG) have been defeated by the intrusion of domestic laws of different contracting states in the interpretation of the provisions of this Convention. One of the most abused channels of this un-uniform interpretation is through art 4 of the CISG, which excludes the matters of validity and property from the Convention’s jurisdiction. This paper, therefore, aims to critically analyze the dangers of unsystematic reliance on the domestic laws in the interpretation of art 4 of the CISG on matters involving transnational validity and property.
 Design/methodology/approach
 The paper will use doctrinal methodology with critical and analytical approaches. The paper will incisively study the doctrines, theories and principles of law associated with validity of commercial contracts and the implications of exclusion of the doctrine of “validity” under the CISG.
 Findings
 The findings and contribution to knowledge will be by way of canvassing for a uniform transnational validity doctrine that will streamline and position the CISG to serve as a uniform international commercial convention.
 Originality/value
 This paper adopted a conceptual approach. Even though the paper ventilated the views of many writers on the issue of application of the doctrine of validity under the CISG, the paper, however, carved its own niche by making original recommendations on how to create a uniform validity jurisprudence under the CISG.

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