European Yearbook of International Economic Law

Advisory Board Armin von Bogdandy Thomas Cottier Stefan Griller Armin Hatje Meinhard Hilf John H. Jackson Horst G. Krenzler Ernst-Ulrich Petersmann Rudolf Streinz . Christoph Herrmann l Jo¨rg Philipp Terhechte Editors

European Yearbook of International Economic Law 2011 Editors Professor Dr. Christoph Herrmann, LL.M. Dr. Jo¨rg Philipp Terhechte Chair for Constitutional and Assistant Professor of Law Administrative Law, Department of European Law European Law, European and Faculty of Law International Economic Law Hamburg University Passau University Rothenbaum chanssee 33 94030 Passau 20148 Hamburg Germany Germany [email protected] [email protected]

ISBN 978-3-642-14431-8 e-ISBN 978-3-642-14432-5 DOI 10.1007/978-3-642-14432-5 Springer Heidelberg Dordrecht London New York

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Part I of Volume 2 of the European Yearbook of International Economic Law (EYIEL) has as a new feature of EYIEL two special focuses. Whereas the first special focus concentrates on the relationship between the “sovereign” state and the global economy, the second deals with the interaction of climate change and international economic law. Taking into account the variety of topics in international economic law and thus its demands for concentration, the next issues of EYIEL will further pursue this “focus-approach”. Therefore, Volume 3 (2012) will place emphasis on the focus “Ten Years of China’s WTO Membership” and “Global Energy Markets and international economic law”. We are glad, Karl M. Meessen, a distinguished scholar in international law, agreed to contribute in EYIEL 2 with a distinguished essay dealing with “Governmental Decision-Making in the Global Economy”. Other topics in conjunction with the relationship between the “sovereign” state and the global economy cover complex questions on the regulation of Sovereign Wealth Funds and the role of global financial institutions. Along with some contributions in EYIEL 1, we have hopefully succeeded in providing a detailed analysis of some important questions concerning the global economic crisis which has mutated into a crisis of the European Economic and Monetary Union during the last months. The problem of climate change represents an increasingly relevant topic in the context of international economic law. In recent years a discussion on “greening” the WTO treaties aroused, deeply influencing practice and research in that field. In these days, this discussion is not solely confined to WTO law but covers all fields of international economic law. The outcome of the 2009 United Nations Climate Change Conference in Copenhagen demonstrated how difficult it still is to achieve any progress in this area. Against this background, EYIEL 2 deals with various topics in this field, e.g. relating to the problem of carbon capture and storage, biofuels under WTO law, climate labelling and WTO, environmental services and GATS and, finally, the European Union competences in the field of international environmental law.

v vi Editorial

Part II (Regional Integration), as usual, is devoted to selected questions of regional economic integration. In view of the European Union, the competences in the ﬁeld of regional trade agreements are once again at the centre of important debates. Other contributions are concerned with current developments in Middle East and Africa (MENA), the future options of regional economic integration in North and South America, and the latest tendencies in Asia (especially ASEAN). Finally, Part III (International Economic Institutions) contains an exhaustive analysis of the reform of the G 8 (now G 20) and a recent landmark decision by the Appellate Body of the WTO, in addition to an outlook on the future of the Doha Development Agenda of the WTO. Once again, we are indebted to a great number of people, ﬁrst and foremost to our contributors. The collaboration with Springer and especially with Dr. Brigitte Reschke, was – again – very positive and fruitful. We have to extend our thanks to the members of the EYIEL Advisory Board, too. Lastly, we would like to thank our academic and student assistants at the Universities of Hamburg and Passau for their invaluable support in handling the manuscripts and proofs in a very professional manner.

Passau/Hamburg Christoph Herrmann May 2010 Jo¨rg Philipp Terhechte Contents

Part I Topics

Special Focus I: The State and the Global Economy

Distinguished Essay: Governmental Decision-Making in the World Economy ...... 3 Karl M. Meessen

Central Bank Challenges in the Global Economy ...... 19 Fabian Amtenbrink

An International Normative Framework for Sovereign Wealth Funds? ...... 43 Ludwig Gramlich

Sovereign Wealth Funds: Market Investors or “Imperialist Capitalists”? The European Response to Direct Investment by Non-EU State-Controlled Entities ...... 79 Heike Schweitzer

The Role of the IMF as a Global Financial Authority ...... 121 Rosa M. Lastra

No Ado About Nothing: Obama’s Trade Policies After 1 Year ...... 137 Andreas Falke

Special Focus II: Climate Change and International Economic Law

Carbon Capture and Storage from the Perspective of International Law ...... 151 Alexander Proelss and Kerstin Gu¨ssow

vii viii Contents

Biofuels and WTO Law ...... 169 Wolfgang Weiß

Climate Labelling and the WTO: The 2010 EU Ecolabelling Programme as a Test Case Under WTO Law ...... 205 Erich Vranes

Environmental Services and the General Agreement on Trade in Services (GATS): Legal Issues and Negotiating Stakes at the WTO ...... 239 Mireille Cossy

European Union Competences and Actions in International Environment Law: Recent Developments and Current Challenges ...... 265 Kirstyn Inglis

Part II Regional Integration

The European Union and Regional Trade Agreements: A Case Study of the EU-Korea FTA ...... 297 Colin M. Brown

MENA: The Question of Palestinian Observership and Accession to the WTO ...... 309 Tomer Broude

Integration and Disintegration in North America: The Rise and Fall of International Economic Law in One Region ...... 327 Stephen Clarkson

African Regional Economic Integration: Is the Paradigm Relevant and Appropriate? ...... 345 Colin McCarthy

Regional Integration in Latin America: Some Lessons of 50 Years of Experience ...... 369 Fe´lix Pen˜a

Report on the ASEAN Economic Cooperation and Integration ...... 375 Prasit Aekaputra Contents ix

Part III International Economic Institutions

From the G8 to the G20: Reforming the Global Economic Governance System ...... 389 Claudia Schmucker and Katharina Gnath

The Doha Development Agenda at a Crossroads: What Are the Remaining Obstacles to the Conclusion of the Round: Part II? ...... 403 Edwini Kessie

WTO Dispute Settlement – The Establishment of ‘Binding Guidance’ by the Appellate Body in US Stainless Steel and Recent Dispute Settlement Rulings ...... 417 Andreas Krallmann

Part IV Book Reviews

Rudolf Dolzer, Christoph Schreuer, Principles of International Investment Law ...... 449 Marc Bungenberg

Daniel Wu¨ger and Thomas Cottier, Genetic Engineering and the World Trade System ...... 453 Hans-Georg Dederer

Simon Lester and Bryan Mercurio with Arwel Dawies and Kara Leitner, World Trade Law: Text, Materials and Commentary ...... 473 Markus Krajewski

Ru¨diger Wolfrum, Peter-Tobias Stoll and Clemens Feina¨ugle, WTO: Trade in Services, Max Planck Commentaries on World Trade Law, Vol. 6 ...... 477 Christoph Ohler

Part V Materials

Opinion of Advocate General Kokott Delivered on 26 March 2009 ...... 483 Juliane Kokott . Contributors

Prasit Aekaputra is Professor of International Law and International Economic Law at Thammasat University in Bangkok, Thailand. He graduated from the Faculty of Law of Thammasat University in 1974 and obtained his doctoral degree in international law with first class honours from Paris II, France in 1986. Prasit has been Professor of Law at Thammasat University since 1996. In 2001, he has nominated as legal advisor of the Minister of Foreign Affairs of Thailand and for the WTO Appellate Body. His main fields of research are international law, law of treaties, law of the sea, and international economic law. At present, he is head of the International Law Department of Thammasat University. Fabian Amtenbrink holds the chair of European Union law at the Erasmus School of Law (Erasmus University Rotterdam). He is also Visiting Professor at the College of Europe (Bruges). Having studied law at the Free University of Berlin (Germany), he obtained a doctorate in law with distinction (Ph.D.) from the University of Groningen (Netherlands). He is also qualified to practice law in Germany. His academic writings focus on institutional and constitutional aspects of the EU, European economic and monetary integration and legal aspects of central banking. He has presented numerous papers and guest lectures among others at the Univer- sities of Cambridge and Oxford, the Bocconi University, as well as at the Interna- tional Monetary Fund, the Bank of England and the Bank of Botswana. Tomer Broude is Senior Lecturer at the Hebrew University of Jerusalem (Faculty of Law and Department of International Relations), From 2008 to 2009, he was Visiting Professor at Georgetown University Law Center and Johns Hopkins Uni- versity’s School of Advanced International Studies in Washington, DC. Tomer’s main field of research is public international law with a focus on international economic law and especially international trade and the WTO. He is Co-Chair of the International Economic Law Interest Group of the American Society of Inter- national Law, a member of the Executive Council of the Society of International Economic Law and a member of the Committee on the Law of Sustainable Development of the International Law Association.

xi xii Contributors

Colin Brown is a lawyer in Unit F.2 (Legal Aspects of Trade Policy) of the Directorate General for Trade of the European Commission where he works on trade and energy and trade and environment issues as well as international procurement issues. He advises on bilateral trade negotiations and co-ordinates DG TRADE’s legal work on bilateral negotiations. Colin is also responsible for institutional issues, including the roll-out of the changes to EU trade policy brought about by the Lisbon Treaty. Before joining DG Trade in October 2006 he served for 6 years for the Legal Service of the European Commission. Previously, he worked on trade law issues in private practice in Brussels. Colin has been chair of the Legal Advisory Committee of the Energy Charter Treaty since January 2004. He is visiting lecturer in WTO law at the Universite´ Catholique de Louvain, Belgium. He holds an LL.B. (first class Honours) from the Faculty of Law of the University of Edinburgh, Scotland (1996), a Diploma in International Relations from the Bologna Center of the School of Advanced International Studies (SAIS), Johns Hopkins University, Bologna, Italy (1997) and an LL.M. in European Law from the College of Europe, Bruges (1998). He is a member of the New York Bar. Marc Bungenberg is Professor for Public Law and European Law at the University of Siegen. He studied law in Hanover and Lausanne (LL.M. 1995). Marc received his doctorate in law at the University of Hanover (1999) and his Habilitation at the Friedrich Schiller University Jena (2006). His main fields of research are European and international economic law (in particular common commercial policy of the EU, state aid law, public procurement and international investment law). Stephen Clarkson is Professor of Political Science at the University of Toronto. He studied at the University of Toronto, Oxford University (as a Rhodes’ Scholar), and the Sorbonne. Clarkson’s primary research and teaching focus on Canada’s integration in North America. He has authored numerous books, among them Does North America Exist? Governing the Continent after NAFTA and 9/11 (2008) which analyzes the political economy of North America as a world region. His most recent publication, written with Stepan Wood of Osgoode Hall Law School, A Perilous Imbalance: The GlobalizationofCanadianLawandGover- nance (2010), assesses the dilemmas involved in Canada’s engagement in global governance. Clarkson has been elected Fellow of the Royal Society of Canada and is a Senior Fellow at the Centre for International Governance Innovation in Waterloo. Mireille Cossy graduated in law at the Universities of Lausanne and Geneva (Switzerland). She works for the Trade in Services Division of the World Trade Organization, where her areas of specialization include the sectors of environmental, energy and health services. Mireille joined the WTO in 1995, in the Trade and Environment Division and worked on various aspects of the interrelationship between trade and the environment. She acted as secretary to various WTO dispute panels and WTO bodies. From 1993 to 1995, she carried out humanitarian missions with the International Committee of the Red Cross. From 1989 to 1993, Mireille Contributors xiii worked for the Swiss Ministry of Economic Affairs and participated in the Uruguay Round multilateral trade negotiations. Hans-Georg Dederer studied law in Tu¨bingen and Konstanz. In 1998, he received his doctorate in law (Bonn) and in 2003 his Habilitation (Bonn). Since 2009, he is Professor of Constitutional and Administrative Law, Public International Law, European and International Economic Law at the University of Passau. His fields of research include constitutional law (human dignity, property), biotechnology law (agro-biotechnology, embryo protection, stem cell research) and public international law (WTO law, environmental law). Andreas Falke is Professor of International Studies at School of Business and Economics of the University of Erlangen-Nuremberg. A political scientist by training, he was educated at the University of Goettingen, where he received his Ph.D. and Habilitation, University of Miami and St. Louis University. In 1988/1989 he was Kennedy Memorial Fellow at Harvard University, and various times a visiting scholar at the Brookings Institution. From 1992 to 2002 he worked as Principal Economic Specialist at the American Embassy in Bonn/Berlin. He spe- cializes in trade policy, the politics of globalization, the relationship between trade and climate change, transatlantic relations and American politics generally. He is also director of the German-American Institute in Nuremberg. Katharina Gnath is a Ph.D.-student at the Berlin Graduate School for Transna- tional Studies, a joint programme of the Free University Berlin, the Hertie School of Governance and the Social Science Research Center Berlin (WZB). She holds a BA in Philosophy, Politics and Economics from the University of Oxford and an MSc in European Politics and Governance from the London School of Economics. Katharina is an Associate Fellow of the German Council on Foreign Relations’ (DGAP) Globalization and World Economy Programme. Ludwig Gramlich is Professor for Public Law and Public Economic Law at Chemnitz University of Technology since 1992. He received his doctorate in law (1978) and his Habilitation from the University of Wu¨rzburg (1983). His main fields of research are legal issues of networks and infrastructure (in particular telecommunications, postal affairs, banking and monetary law). Kerstin Gu¨ssow is research associate at the Walther-Schu¨cking-Institute for Inter- national Law at the Christian Albrechts University at Kiel and Ph.D. candidate participating in the framework of the Integrated School of Ocean Sciences. She is a member of the Kiel Cluster of Excellence “The Future Ocean” funded by the German Research Foundation, in which experts from various fields of specialisation concentrate their competences on ocean related issues. Kirstyn Inglis is Post-doc Research Fellow (FWO) with the European Institute of Ghent University and teaches European and Comparative Environmental Law in the LL.M. Programme in European Law there. Having qualified as a solicitor in 1990 Kirstyn first worked with leading British law firms and then as a consultant with Brussels based consultancies specialising in environmental and agri-food law. xiv Contributors

With the European Institute since 1998, alongside her academic activities, she has provided technical assistance to third countries on processes and preparations generally for accession to the European Union and in the ﬁeld of agri-food and environment law. Her most recent book is entitled: Evolving practice in EU Enlargement: with case studies in agri-food and environment law (2010). Edwini Kessie is Counsellor in the Council and Trade Negotiations Committee Division of the WTO. He holds a Doctorate Degree in Law from the University of Technology, Sydney, Australia, a Masters’ Degrees in Law from the University of Toronto and the University of Brussels and a Bachelor’s Degree in Law from the University of Ghana. He is admitted as a solicitor of the Supreme Courts of England and Wales, New South Wales, Australia and Ghana. He is also a part-time lecturer in international trade law at the World Trade Institute (Berne), the University of Technology (Sydney) and at the Universities of Pretoria and Western Cape in South Africa. His principal areas of interest are dispute settlement, trade and development and legal aspects of international trade. Juliane Kokott has been Advocate General at the Court of Justice ever since October 2003. Juliane studied Law at the Universities of Bonn and Geneva. She holds a master degree in laws (American University, Washington D.C.), a doctorate in laws from the University of Heidelberg (1985) and a Doctor of Judicial Science from Harvard Law School (1990). Following a visiting professorship at the Univer- sity of California, Berkeley (1991), she was professor of German and foreign public law, international law and European law at the Universities of Augsburg (1992), Heidelberg (1993) and Du¨sseldorf (1994). In 1999, Juliane was appointed professor of international law, international business law and European law at the University of St Gallen, director of the Insitute for European and International Business Law (2000) and the deputy director of the Master of Business Law programme (2001). The Federal Government appointed her as deputy judge to the Court of Conciliation and Arbitration of the Organisation for Security and Cooperation in Europe (OSCE) as well as deputy chairperson of the German Advisory Council on Global Change (WBGU) in 1996. Besides her academic positions, Juliane has been deputy judge for the Federal Government at the Court of Conciliation and Arbitration of the Organisation for Security and Cooperation in Europe (OSCE) and Deputy Chair- person of the Federal Government’s Advisory Council on Global Change (WBGU, 1996). Markus Krajewski is professor of public and international law at the University of Erlangen-Nuremberg. Before taking up this chair Markus held positions at the universities of Bremen and Potsdam and at King’s College London. He has been a visiting professor at the World Trade Institute in Berne and lectured at postgradu- ate programmes on European Law in Berlin and Florence. He is a regular consultant on international trade law for governmental institutions and non-governmental organisations. His research interests include constitutional and institutional issues of WTO law, GATS, external relations of the EU, and the treatment of public services under European and international law. Contributors xv

Andreas Krallmann is a First Secretary in the WTO unit of the Permanent Mission of Germany to the Office of the United Nations and other International Organisa- tions in Geneva, Switzerland. Andreas studied law at the Free University Berlin, where he graduated in 2000. In 2001, he obtained an LL.M. in International Commercial Law from the University of Nottingham, UK. After taking his bar exam in Germany (Berlin, 2003), he worked in the European departments of the German Federal Ministry of Finance (2004–2006) and the Federal Ministry of the Economy and Technology (2006–2007). In 2007, the latter seconded him to his current posting in Geneva. Rosa Marıá Lastra is Professor in International Financial and Monetary Law at the Centre for Commercial Law Studies (CCLS), Queen Mary University of London. She is a member of the Monetary Committee of the International Law Association (MOCOMILA), a founding member of the European Shadow Financial Regulatory Committee (ESFRC), a senior research associate of the Financial Markets Group of the London School of Economics, and a Visiting Professor of the University of Stockholm (2008–2010). Rosa has consulted with various governmental and inter- governmental institutions, including the International Monetary Fund, the World Bank, the Asian Development Bank, the Federal Reserve Bank of New York and the [UK] House of Lords. Prior to coming to London, she was Assistant Professor at Columbia University School of International and Public Affairs in the City of New York. She studied at Valladolid University, Madrid University, the London School of Economics and Political Science and Harvard Law School. She has written extensively in the fields of monetary law and financial regulation. Colin McCarthy is Emeritus Professor of Economics of the University of Stellen- bosch, South Africa. He specialises in international trade and regional economic integration in particular. He served as a member of the South African International Trade Administration Commission, has published extensively and consulted for a number of organisations in South Africa and abroad. He is an associate of the Trade Law Centre for Southern Africa. Karl M. Meessen is attorney-at-law in Du¨sseldorf (Germany) with a competition law and investment law practice of his own. He also is Jean Monnet emeritus professor of public law, European law, public international law and international economic law at Friedrich Schiller University Jena. Previously, he held a chair at the University of Augsburg and, for six years, the chair for international commercial law/droit de commerce international at the Graduate Institute of International Studies in Geneva as well as visiting professorships at the universities of Chicago, Nice and Paris II. He was the General Rapporteur of the International Law Associa- tion’s Committee on Extraterritorial Jurisdiction and, as Special Consultant on International Economic Law, a member of the International Advisory Panel of the American Law Institute when preparing the Restatement of Foreign Relations Law (Third). Christoph Ohler is Professor for Public Law, European Law, Public International Law and International Economic Law at the Friedrich-Schiller-University of Jena, xvi Contributors

Germany. Since August 2008 he is also speaker of the graduate programme “Global Financial Markets”, funded by the German “Foundation Money and Currency”. He graduated in law at University of Bayreuth (1993) and the College of Europe, Bruges (LL.M., 1994). Christoph received his doctorate in law from the University of Bayreuth (1997) and his Habilitation (2005) from the Ludwig-Maximilians- University of Munich, Germany. Fe´lix Penã Murray is a specialist in international economic relations, international commercial law and economic integration. Among other affiliations and positions, Fe´lix is Director of the Institute for International Trade at Standard Bank Foundation, Professor of International Commercial Relations, Director of the Master in International Commercial Relations and Director of the Jean Monnet Module and of the Interdisciplinary Center for International Studies at the National University of Tres de Febrero(UNTREF).HeisalsoFounding Counselor and member of the Executive Committee of the Argentine Council for International Relations (CARI) and Member of the Group of Experts of the Mercosur Chaire of Sciences-Po Paris. He is a listed Argentine arbitrator of the mechanism for the settlement of disputes of the Mercosur-Olivos Protocol and was part of the group of arbitrators of the ICSID and the WTO. He held several governmental positions, e.g. the position of Undersecretary of Foreign Trade at the Ministry of Economy of Argentina and has been consultant to several inter- governmental organizations. Fe´lix held several academic positions at universities in Argentina and internationally. Alexander Proelss is Professor for public law, public international and European law at the University of Trier (Germany). Untill 2010, he was one of the directors of the Walther-Schu¨cking-Institute for International Law at the Christian Albrechts University at Kiel. He was a member of the Excellence Cluster “The Future Ocean” funded by the German Research Foundation, in which experts from various fields of specialisation concentrate their competences on ocean related issues. Claudia Schmucker is head of the Globalization and World Economy Program at the German Council on Foreign Relations (DGAP) in Berlin. Before joining the institute in 2002, she was a project manager at the Center for International Cooper- ation (CIC) in Bonn. She started her studies at the University of Bonn and Elmira Elmira, NY, and holds a Master in North American Studies and a Ph.D. in economics from the Free University of Berlin. Claudia attended the Yale Center for International and Area Studies (YCIAS) of the Yale University, conducting research on transatlantic trade relations between the EU and the U.S. and the WTO. Heike Schweitzer is professor for private law, European economic law and competition law at the University of Mannheim (Germany) since 2010. From 2006 to 2010, she held the chair for competition law at the European University Institute. Heike has studied law at the University of Freiburg (Germany) and at the Yale Law School (USA) where she received her LL.M. degree in 2000. She was a researcher, and then a senior researcher at the Max-Planck-Institute for Comparative and International Private Law from 1996 to 2004, and has done research in France Contributors xvii

(Universite´ Paris I Pantheón – Sorbonne) and at Columbia University (2005–2006). From 2004 to 2006 she was an assistant professor at Hamburg University. Her main research interests lie in the area of European, German and comparative competition law and regulation, European, German and US corporate law and comparative private law. Erich Vranes has studied law at the universities of Graz, Geneva and Lausanne. He is currently associate professor for international law, international economic law and EU law at the Vienna University of Economics and Business (Wirtschaftsuni- versita¨t Wien). His fields of interest include general international law, WTO law, EU law and legal theory. Wolfgang Weiss, born 1966, studied law and economics at the University of Bayreuth (Germany), where he also received his doctorate in law and his Habilitation. He holds a Chair in Public Law, European Law and Public International Law at the German University of Administrative Sciences in Speyer. Besides, he is affiliated with Oxford Brookes University, where he was a Reader and Professor previously. Wolfgang Weiss´ main research areas are public international law and WTO law, European constitutional and administrative Law, and German public law.