Markus Krajewski

European yearbook of international economic law 2017

Volume 7 of the EYIEL focusses on critical perspectives of international economic law. Recent protests against free trade agreements such as the Transatlantic Trade and Investment Partnership (TTIP) remind us that international economic law has always been a politically and legally contested field. This volume collects critical contributions on trade, investment, financial and other subfields of international economic law from scholars who have shaped this debate for many years. The critical contributions to this volume are challenged and sometimes rejected by commentators who have been invited to be “critical with the critics”. The result is a unique collection of critical essays accompanied by alternative and competing views on some of the most fundamental topics of international economic law. In its section on regional developments, EYIEL 7 addresses recent megaregional and plurilateral trade and investment agreements and negotiations. Short insights on various aspects of the Transpacific Partnership (TPP) and its sister TTIP are complemented with comments on other developments, including the African Tripartite FTA und the negotiations on a plurilateral Trade in Services Agreement (TiSA). Further sections address recent WTO and investment case law as well as recent developments concerning the IMF, UNCTAD and the WCO. The volume closes with reviews of recent books in international economic law.

Public Services in Bilateral Free Trade Agreements of the EU

The impact of international trade agreements on public services has been a controversial subject for a number of years already. Generally, the obligations of trade agreements limit the ability of governments to choose freely between different regulatory instruments and techniques for the organisation and provision of services considered to be essential for the general public such as network communications, energy and water distribution, education, health and social services. With their focus on market access and competition, liberalisation commitments in trade agreements put domestic policy makers under the pressure to consider only measures which are in conformity with these agreements (“regulatory chill” effect) and effectively bind governments to the current level of liberalisation which makes a review and reconsideration of liberalisation measures difficult (“lock-in” effect).These issues have recently become subject of renewed attention as the EU is currently negotiating bilateral trade agreements with a number of strategic trading partners. The EU Commission would like to abandon the traditional model of safeguarding regulatory space for public services which was applied for the first time in the GATS context. This model is based on a horizontal limitation clause for “public utilities”.The paper reviews different ways of reducing the impact of trade agreements on public services and assesses their potentials and limitations. The study analyses approaches used in the GATS and NAFTA contexts as well as in free trade agreements of the EU and other countries. As a result of this analysis the paper concludes that existing models are deficient as they do not adequately reflect the dynamic nature and necessary regulatory flexibility for public services. The paper therefore proposes two reform options which could be further discussed and studied. The first is based on the current logic of trade agreements while the second is more-fare reaching and suggests a simplified procedure for the modification of specific commitments.

Should Judges Be Front-Runners? The ICJ, State Immunity and the Protection of Fundamental Human Rights

The present essay critically analyses the ICJ’s ruling in Jurisdictional Immunities of the State (Germany v. Italy). To contextualize the Court’s judgment the essay begins with a brief reflection on the law of state immunity and recalls the historical and factual background of the case. The essay then discusses the ICJ’s analysis of the claims of the parties. The main focus is not a challenge of the conclusions of the Court based on a positivist approach to customary international law. Instead, it is argued that faced with a methodological challenge and an institutional dilemma concerning the determination of customary international law, the Court opted for an approach which did not serve the progressive development of international law well.

Public Services Exemptions in EU Free Trade and Investment Agreements

This chapter analyses the various approaches used in free trade agreements to safeguard regulatory space for the provision, financing and organisation of public services. It focuses on agreements signed by the EU including texts of recently negotiated agreements and drafts of agreements under negotiation. After a brief overview of the current state-of-affairs of existing free trade agreements of the EU and of current negotiations the chapter explains why the obligations of free trade agreements may potentially conflict with the special function of the provision and organisation of public services. The main part of the chapter is devoted to the development and explanation of an analytical framework concerning the various exemptions and clauses which allows an assessment of the impact of a particular free trade agreement independently of a specific existing model. Based on this analytical framework, the current approach of the EU regarding public service exemptions in free trade agreements is assessed. The chapter concludes with some reform proposals.

Modalities for Investment Protection and Investor-State Dispute Settlement (ISDS) in TTIP from a Trade Union Perspective

The study discusses the impact of an investment protection chapter with Investor-State-Dispute-Settlement in the proposed transatlantic Trade and Investment Partnership (TTIP) on social and labour regulation and the autonomy of the social partners in regulating these matters through collective agreements.

The Impact of International Investment Agreements on Energy Regulation

International energy law and international investment law share much of a common history: Some of the first expropriation cases which were adjudicated by arbitration tribunals on the basis of international law concerned the expropriation of foreign investments relating to the production of oil. Tensions and disputes between energy investors and host state governments continued to remain on the agenda of investment arbitration tribunals throughout the decades and form a prominent part of the case law of these judicial bodies. More than a third of all investment disputes adjudicated under ICSID can be classified as energy-related disputes.

Universal Service Provisions in International Agreements of the EU: From Derogation to Obligation?

The EU is aware that international trade agreements such as the WTO and the GATS may affect the internal EU response to trade in public services and the Commission has publicly stated that international trade agreements should not impede the EU capability to pursue its policies on public services. Markus Krajewski adopts a different approach and asks the question: to what extent can the international agreements signed by the EC/EU reflect, or even advance, a positive understanding of public services? This is an important perspective now that the Treaty of Lisbon 2009 places external relations policy in a larger value, and principle, driven framework. Krajewski also examines the role of the WTO and in particular the GATS. The telecom sector is the focus of attention because telecom provides an important model for liberalisation and the development of universal service obligations which are mirrored in other sectors opened up to competition. Two case studies follow, first the EC–Chile bilateral association agreement and second, the EU–CARIFORUM Economic Partnership Agreement which is of particular interest in that it contains positive universal service obligations. Krajewski also examines a number of agreements which are currently under discussion to determine if there is an emerging trend to include and define PSO and USO in the external agreements of the EU. Underlying this approach is a quest to determine whether in its external role the EU is continuing internal trends of seeing public services not only as exemptions and derogations from EU law, but also as a positive requirement.

Patient Mobility Beyond Calais: Health Services Under WTO Law

In 2003, British citizen Yvonne Watts of Bedford travelled to Calais in France for hip surgery. She did so because she did not want to wait until this treatment was offered to her in Britain according to waiting list policy of the National Health Service (NHS). Upon her return, Mrs Watts claimed reimbursement of the costs of her treatment in Calais from the NHS, which was refused.

Liberalizing Trade in Energy Services and Domestic Regulation: New Approaches in Mega-Regionals?

In light of recent negotiations on mega-regional trade agreements this chapter analyses if and how such agreements approach the liberalization and regulation of energy services. In particular it discusses how liberalization commitments can be reconciled with regulatory principles and rules. In this regard, the chapter addresses the Transatlantic Trade and Investment Partnership (TTIP), the Comprehensive Economic and Trade Agreement (CETA) and the Energy Charter Treaty as a special case of a mega-regional agreement. It is shown that mega-regionals have failed so far to deliver better and fairer results concerning energy services. As a consequence, renewed efforts to negotiate an agreement on energy in the multilateral trade system are called for.

Publications on International Economic Law 2013–2014

This chapter shall provide an overview of publications in the field of international economic law during 2013 and 2014. This selection cannot and does not claim to be complete but it gives an impression of the diversity and variety of topics shaping the large body of international economic law and its recent developments.