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Mona Paulsen
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Friend-shoring. Secretary Yellen’s remarks of April 13, 2022 spoke of “friend-shoring” – a commitment to work with countries that “have strong adherence to a set of norms and values about how to operate in the global economy and about how... Continue reading
As Ben Heath (Temple) raised the link between the preamble and the questions on Twitter, I'll add the preamble to the 1982 decision and link to the document. I did think of this, but still wonder the possible implications of the decision. --- Considering that the exceptions envisaged in Article XXI of the General Agreement constitute an important element for safeguarding the rights of contracting parties when they consider that reasons of security are involved; Noting that recourse to Article XXI could constitute, in certain circumstances, an element of disruption and uncertainty for international trade and affect benefits accruing to contracting parties under the General Agreement; Recognizing that in taking action in terms of the exceptions provided in Article XXI of the General Agreement, contracting parties should take into consideration the interests of third parties which may be affected; That until such time as the CONTRACTING PARTIES may decide to make a formal interpretation of Article XXI it is appropriate to set procedural guidelines for its application; --- Document: https://www.wto.org/gatt_docs/English/SULPDF/91000212.pdf
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In 1982, the contracting parties adopted a Ministerial Declaration to take seriously the consideration of 'non-economic' trade measures. On 30 November 1982, the contracting parties adopted the Decision Concerning Article XXI of the General Agreement (the 1982 Decision) which set... Continue reading
With the release of the latest US submission in United States-Origin Marking Requirement (DS597), it is worth thinking about one of the open questions of the GATT security exceptions in today’s climate – what does it mean to take action... Continue reading
Hi Todd, Thanks for your comments, always appreciated. I think it makes a big difference whether states anticipated i) the application of FET in an investment dispute, and ii) claims of compensation by private investors for breaches of FET. Based on my archival review, I would say that there was no expectation in either circumstance. There was a limited acknowledgment by the US in their post-1950 FCN treaties that there could be extreme circumstances where a contracting state could complain about possible FET breaches, but there was never any discussion as to whether compensation would attach. While not speaking directly of FET, in 1952, the State Department rejected a proposal to attach compensation to a proscription of ‘unreasonable’ measures, explaining that the US would not pay compensation for all ‘losses’ which a government may cause. Put simple, I saw no evidence that the US foresaw an FET clause as leading to a heavily-used basis for complaint (whether inter-State or investor-State), but I think that’s where the clause is today. In contrast, Japan raised serious concerns with the clause, and that is why the US-Japan FCN treaty does not contain an Article I commitment to fair or equitable treatment. We’ve seen an explosion of elements of FET over the past thirty or so years. Certainty, the advent of ISA and the hundreds of cases involving FET claims have seen the FET clause grow away from its original purposes. If that’s the case, governments should think about that evolution and consider what the value of FET is in investment treaties going forward.
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Apr 24, 2016