European Journal of Law Reform

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Issue 4, 2021 Expand all abstracts

Access_open Implementation of Law Reform Proposals in the United Kingdom: A Continuing Dilemma?

Keywords law reform, government, legislation, parliament, implementation
Authors Jonathan Teasdale
AbstractAuthor's information

    Law reform in the joint jurisdiction of England and Wales, and in Scotland, was put on a formal footing in 1965. Down the years the two Law Commissions (as statutory independent bodies) worked diligently to produce a significant number of reports advising government on steps to be taken to update and simplify swathes of the law. But by 2009 the legislative implementation rate had slipped badly and Parliament then passed an Act which (for England and Wales) facilitated a governmental protocol designed to make parliamentary review of progress more transparent. The Ministry of Justice acts as gatekeeper for the implementation process. In the short term implementation was taken more seriously, driven by the incentive of the MoJ having to report annually to parliament on progress. In more recent years, however, both implementation and the statutory reporting mechanism have been allowed to slip: there are few signs that the situation is likely to improve. This article examines the position and seeks to explain, notwithstanding some of the real obstacles to swifter implementation, that both parliament through its select committees, and government, need to give the issue greater priority. Systematic review of the law, and the delivering of legislative change, underpin both the rule of law and the essence of the democratic settlement.

Jonathan Teasdale
Jonathan Teasdale is Associate research fellow at the Institute of Advanced Legal Studies (IALS, University of London) and co-leader of the IALS Law Reform Project at the Sir William Dale Centre for Legislative Studies.

Access_open Dispute Resolution under USMCA

Modifications to NAFTA And the Potential Implications

Keywords international trade law, North American Free Trade Agreement, United States-Mexico-Canada Agreement, dispute resolution mechanisms, investor-state dispute settlements, state-to-state dispute settlements, investment disputes, investor protections, asymmetrical fork-in-the-road clause, panel blocking, enforcement actions, trade agreements
Authors Jared Thomas
AbstractAuthor's information

    In this article the author discusses the differences in the dispute resolution mechanisms between the North American Free Trade Agreement and the United States-Mexico-Canada Agreement. The author notes that while all three dispute resolution mechanisms from NAFTA are present in USMCA, two of the mechanisms have been extensively modified. The author is critical of the Trump Administration’s insistence on eliminating NAFTA’s Chapter 11 provisions on investor-state dispute settlements, leading to a severely weakened ISDS mechanism in USMCA. State-to-state dispute settlement (Chapter 20 under NAFTA) was also significantly modified. The third dispute resolution mechanism, a binational panel process that was covered in Chapter 19 of NAFTA, survived with only minor changes as insisted upon by Canada. As the most extensive changes were made to investor-state dispute settlements and state-to-state dispute settlements, the author analyzes these two dispute resolution mechanisms in detail. The author dissects the changes made to these dispute resolution mechanisms and provides insight into the rationale of the countries involved that led to the changes. The author concludes that with Canada’s refusal to sign on to Annex 14-D and a drastically diluted ISDS mechanism governing ISDs between the United States and Mexico, the most likely outcome under USMCA is that there will be a dramatic increase in Chapter 31 claims when the United States is involved and a heavy reliance on the CPTPP for claims between Mexico and Canada.

Jared Thomas
Jared Thomas is a graduate of the Indiana University Robert H. McKinney School of Law.

Access_open Extraterritorial Application of National Trademark Laws

Conflict of Laws and the Changing Nature of Sovereignty and Territoriality

Keywords trademark, territoriality, extraterritoriality, corrective justice, conflict of laws
Authors Bahareh Izadpanah and Mahmood Bagheri
AbstractAuthor's information

    Under public international rules all countries are equal sovereigns which have an absolute sovereignty within their territory. The globalization and economic integration and the advent of the internet has in fact blurred the clear-cut national borders making the concept of territoriality not effective and relevant in terms of the scope of exercise of national sovereignty. For this reason, a country like the United States with great economic, financial and military power could in fact have more meaningful power to exercise jurisdiction beyond its national borders. This is not only a legal assertion of jurisdiction but also a de facto power with the sanctionable remedies exercised within the United States with the deterrent effects beyond its national borders. Whether this exercise of power is legitimate under public international law is not a settled matter. Trademark law is one of the contexts in which the legitimacy of international application of national law should be examined.

Bahareh Izadpanah
Bahareh Izadpanah is an LLM student, Boston University.

Mahmood Bagheri
Mahmood Bagheri is Course Director for LLM in International Corproate Corporate Goverance, Financial Regulation and Economic Law, Institute of Advanced Legal Studies, University of London, e-mail: Mahmood.bagheri@sas.ac.uk.

Access_open ‘Make America Rich Again’

The Nationalist Motives Compromising Good Faith Usage of the Essential Security Exception of the GATT Article XXI

Keywords good faith usage, GATT Article XXI, essential security exception
Authors Sarah Plew
AbstractAuthor's information

    The Nationalist Motives Compromising Good Faith Usage of the Essential Security Exception of the GATT Article XXI
    This article examines the recent applications of the essential security exemption of the General Agreement on Tariffs and Trade and suggests an undercurrent of camouflaged nationalist motivation that has produced an alarming pattern of misuse of the good faith element of the exemption. Part A will outline the essential security exemption of Article XXI in order to provide a background of its history and intended applications. Parts B and C analyse the recent practical applications of Article XXI through case studies, demonstrating the increasing evidence of nationalist motivations that exploit the good faith element of the essential security exemption. Part D assesses the dangers of such misuse and ponders the question: can contracting parties truly be trusted to adhere to international trade law in good faith?

Sarah Plew
Sarah Plew, Master of Laws in International and Comparative Law at Indiana University McKinney School of Law, 2020.

Access_open Building Resilience Against Secondary Sanctions in an Increasingly Polarized World

The Amendment of the EU Blocking Statute

Keywords sanctions, economic sanctions, secondary sanctions, European Union, blocking statute
Authors Mario Mas Palacios
AbstractAuthor's information

    The spectre of foreign secondary sanctions is looming large again in the European Union after the reinstatement in 2018 of US sanctions with extraterritorial effects on Iran. However, in a context of increasing global polarization and geopolitical tensions, the challenge of secondary sanctions goes beyond US sanctions against Iran. The EU 1996 blocking statute is aimed at countering the negative effects that these sanctions have in the European Union, but there is a general consensus that it has failed to preserve the Union’s interests. This article analyses the challenges that secondary sanctions pose in the European Union and the current response provided by the blocking statute. It suggests that an amended statute may play an important role within the broader European policy against secondary sanctions, although it is not by itself a sufficient mechanism. It concludes by suggesting how the statute could be amended to better achieve its objectives.

Mario Mas Palacios
Mario Mas Palacios, LL.M. Harvard Law School. Fulbright Scholar and Real Colegio Complutense at Harvard Scholar. International Associate Lawyer at Simpson Thacher & Bartlett LLP (New York, NY, USA). Associate Lawyer at Cuatrecasas, Gonçalves Pereira, S.L.P. (Barcelona, Spain).

Access_open Giambattista Vico

Critical Legal Studies in Contextual Historical Mode?

Keywords international law, history, Critical Legal Studies, Giambattista Vico
Authors Guillermo Coronado Aguilar
AbstractAuthor's information

    The original thought of Giambattista Vico can provide a different avenue of understanding international law departing from Critical Legal Studies (CLS) by way of making contextual history. According to Vico, history was a human creation upon which history moved in an orbit rather than a straight line to progress, as the Enlightenment proposes. Under such a Vichian perspective, the understanding of ideas, institutions, and civilizations should be judged as elements of their own time; with their own goals, symbols, rituals, art, languages, gestures, myths, social customs, and law. Thus, avoiding presentism and anachronism. Vico provides an alternative method to the understanding of international law through history.

Guillermo Coronado Aguilar
Guillermo Coronado Aguilar, Presidential PhD scholar at The University of Hong Kong. The author wishes to thank the support provided by the University of Hong Kong through the Presidential PhD Scholar Programme and the continous encouragement by Prof. James D. Fry. This work was presented at the TMC Asser workshop “Method, methodology and critique in international law” organized by Dimitri van den Meerssche, special thanks to the conveners and to Prof. Ben Golder who took the time to review and made comments to this work.