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Abstract:
Over the past few decades, international commercial dispute resolution has witnessed substantial change and improvement. A notable feature has been a move away from the traditional court-based litigation model, allowing exploration of other methods and techniques. The United Nations Commission on International Trade Law ('UNCITRAL') has played an important role in this development of alternative dispute resolution. Since its establishment in 1966 UNCITRAL has made improving international commercial dispute resolution one of its priorities. Two important achievements arising from its efforts are the UNCITRAL Arbitration Rules (1976) ('Arbitration Rules') and the UNCITRAL Conciliation Rules (1980) ('Conciliation Rules'). The products of active participation of international experts from various legal, economic and social backgrounds, both have made a significant contribution to the more efficient resolution of international commercial disputes.

Both sets of Rules are based on agreement between the parties, operating on a private contractual rather than public statutory level. This is an important point which distinguishes the Rules from UNCITRAL's other major achievement in dispute resolution: the UNCITRAL Model Law on International Commercial Arbitration ('Model Law'). The Rules are a form of contractual trade law dispute resolution. Since the expectations of the private parties to an arbitration or conciliation under the Rules risk being frustrated by the domestic laws of different countries, the Model Law provides countries with a template that they can adopt for their national laws in order to 'provide a hospitable legal climate for international commercial arbitration.'

This article intends to serve as an introduction to the Rules. We begin by distinguishing conciliation from arbitration and explaining the comparative strengths and weaknesses of these two forms of dispute resolution. We then give an outline of the Arbitration Rules in the context of ad hoc and institutional arbitration generally, followed by an assessment of the influence and acceptance of the Arbitration Rules. We provide a similar analysis of the Conciliation Rules, before concluding with a look at the likely development of the two sets of Rules in the future.

dispute resolution, UNCITRAL, rules, arbitration, coniliation

Abstract:
In this chapter, the authors examine the nature of the exception for regional trade agreements (RTAs) under Article XXIV:5 of GATT 1994. This exception, which aims to maximize the internal trade-liberalizing effects of an RTA while minimizing its external trade-restricting effects, applies specifically to measures adopted upon the formation of customs unions and free-trade areas. It can be used to justify a departure from other provisions of GATT 1994 (such as the obligation to provide most-favored-nation treatment to all WTO Members under Article I) and, in certain circumstances, the provisions of other WTO agreements. However, the exception is subject to detailed conditions. In particular, in broad terms, the restrictions that parties to an RTA impose on trade within the RTA must be eliminated, while restrictions on trade outside the RTA should not be higher than before the RTA was formed. In the case of a customs union, external trade restrictions should be substantially harmonized. In determining whether a given RTA meets these conditions, several questions arise, many of which are yet to be fully explored in dispute settlement or resolved by negotiation among the WTO Membership.

Regional trade agreements, RTAs, GATT, WTO, customs union

Abstract:
Based on the notion that the needs of developing countries are substantially different from those of developed countries, the principle of special and differential treatment (S&D) in the World Trade Organization (WTO) allows a certain degree of discrimination in favour of developing countries. This article considers the potential of this principle in resolving disputes within the WTO. S&D developed in the General Agreement on Tariffs and Trade (GATT) and is today reflected in a series of provisions in various WTO agreements. The meaning of S&D as a broader principle could assist in interpreting such provisions. In addition, the principle of S&D could conceivably be used as part of the inherent jurisdiction of Panels and the Appellate Body in connection with procedural aspects of dispute settlement. However, the article concludes that, due to the incoherence of S&D, as well as the difficulties involved in distinguishing between developing countries and in advancing their interests as an amorphous group, S&D is presently of limited value as an independent principle in WTO dispute settlement.

Special and differential treatment, World Trade Organization, WTO, GATT, developing countries

Abstract:
From the first report of the Appellate Body of the World Trade Organization (WTO) in 1996 to Joost Pauwelyn's seminal work in 2003, commentators and practitioners alike have been grappling with the thorny relationship between the WTO and public international law. More recently, problems in interpreting and applying WTO provisions in the light of customary international law and non-WTO treaties have come to reflect a concern regarding 'fragmentation' of international law more generally. One reason for this potential fragmentation lies in the disparate dispute settlement mechanisms under various international legal systems, including free trade agreements (FTAs).

As negotiations in the Doha Round sputter, and FTAs proliferate, the relationship between FTAs and other institutions and aspects of public international law becomes all the more crucial. States evaluating the benefits of FTAs must be fully aware of the broader international context into which they are born and the implications of international law as each FTA develops. Moreover, existing FTA members may seek additional certainty about their FTA rights and obligations and the likely outcome in the event of a dispute relating to other areas of international law. More broadly, an investigation into the relationship between public international law and FTAs provides an additional case study of the perceived problem of fragmentation of international law.

In this chapter, we focus on two primary sources of public international law, namely treaties and customary international law. We also take into account two other sources of public international law, namely general principles of law and judicial decisions and leading commentary. All four sources are included in Article 38(1) of the Statute of the International Court of Justice (ICJ Statute), which is often recognised as providing an informal list of the sources of international law.

Below, we examine three significant areas in which public international law interacts with FTAs: first, how various forms of public international law affect the interpretation of FTA provisions; second, the related issue of how FTAs contribute to customary international law and the extent to which customary international law applies to FTAs; and, finally, how to resolve conflicts between FTAs and other treaties. This final section examines both substantive conflicts and problems arising from overlapping jurisdictions of FTA tribunals and other international tribunals. This survey illustrates the complex web of links between FTAs and public international law and the readiness of FTA tribunals, particularly under the North American Free Trade Agreement (NAFTA), to draw on other sources of international law in interpreting FTA provisions and otherwise determining FTA disputes. At the same time, no clear answers emerge regarding how best to deal with the likelihood of ever increasing conflicts between FTAs and other treaties.

Free trade, international law, WTO, fragmentation

Abstract:
From the first report of the Appellate Body of the World Trade Organization ('WTO') in 1996 to Joost Pauwelyn's seminal work in 2003, commentators and practitioners alike have been grappling with the thorny relationship between the WTO and public international law. More recently, problems in interpreting and applying WTO provisions in the light of customary international law and non-WTO treaties have come to reflect a concern regarding 'fragmentation' of international law more generally. One reason for this potential fragmentation lies in the disparate dispute settlement mechanisms under various international legal systems, including free trade agreements ('FTAs').

As negotiations in the Doha Round sputter, and FTAs proliferate, the relationship between FTAs and other institutions and aspects of public international law becomes all the more crucial. States evaluating the benefits of FTAs must be fully aware of the broader international context into which they are born and the implications of international law as each FTA develops. Moreover, existing FTA members may seek additional certainty about their FTA rights and obligations and the likely outcome in the event of a dispute relating to other areas of international law. More broadly, an investigation into the relationship between public international law and FTAs provides an additional case study of the perceived problem of fragmentation of international law.

In this chapter, we focus on two primary sources of public international law, namely treaties and customary international law. We also take into account two other sources of public international law, namely general principles of law and judicial decisions and leading commentary. All four sources are included in Article 38(1) of the Statute of the International Court of Justice ('ICJ Statute'), which is often recognised as providing an informal list of the sources of international law.

WTO, FTA, free trade agreement, disput, customery international law

Abstract:
This approximately 2,500 word reference entry considers the meaning of 'electronic commerce' or 'e-commerce', its economic significance, the role of the WTO, trends in electronic commerce and the role of electronic commerce in the modern world economy. It also provides a short list of references that are intended as recommendations for further reading.

electronic commerce, e-commerce, role of WTO

Abstract:
Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first explores the extent to which the WTO’s own dispute settlement process contributes to this area. Second, it considers the operation of administrative law principles embedded within the WTO Agreements on Members. For example, the WTO Agreements require that certain laws be administered “in a uniform, impartial and reasonable manner.” This obligation was recently considered by the Appellate Body, but uncertainty remains about the scope this provision has to permit WTO panels to review domestic administrative practices. In relation to the WTO’s contribution to democracy, this article first considers the challenges and limitations of the current system of decision making within the WTO and compares it to democratic theory. Second, it examines how democracies comply with the findings of WTO dispute settlement tribunals and how compliance could be improved. It concludes by speculating on the implications of this discussion for public international law more broadly.

WTO, Global Administrative Law, in a uniform, impartial and reasonable manner

Abstract:
The principle of 'procedural fairness' (also called 'fundamental fairness', 'due process' and 'natural justice') broadly requires administrative and judicial proceedings to be fair. Decision-makers in administrative and judicial systems attempt to achieve procedural fairness by exercising their discretion in a fair manner and by developing procedural or evidentiary rules explaining how rights, duties, powers and liabilities are administered. As will be seen in this chapter, the principle of procedural fairness is difficult to define precisely, because the demands of fairness depend on the circumstances. For example, it may be necessary to balance an individual's interest in pursuing additional procedures with the value and cost of such procedures. Thus, in particular circumstances, procedural fairness might require a full hearing, whereas in other circumstances, basic notice and the right to speak might be sufficient. Considerations of procedural fairness might also conflict. For instance, parties' rights to be heard and give evidence might weigh in favour of last minute introduction of evidence. On the other hand, the need for equality between the parties and their right to have sufficient time to respond and challenge evidence might weigh against such evidence. Discretion is required to resolve such conflicts.

procedural, fairness, WTO, dispute, Australian

Abstract:
This article explores whether World Trade Organization (‘WTO’) panels and the Appellate Body (‘WTO Tribunals’) have the power to apply certain principles of international law by reason of their judicial character, and because the application of these principles is necessary for the proper exercise of their judicial function. In other words, do WTO Tribunals have an inherent jurisdiction? If so, what are some of the principles they might apply? What are the general limits of this jurisdiction?

WTO, international law

Abstract:
This article begins by describing the international crime of genocide, and considers Australia's response to its international obligations regarding genocide in the context of its implementation of international human rights generally. It then sets out the background to Nulyarimma v Thompson and how the issue of genocide was raised. To provide some understanding of whether implementation of human rights standards is possible without Government action, the relationship between international law and domestic law is then considered. The next section of the article examines the decision of the Full Court of the Federal Court in Nulyarimma v Thompson. Finally, subsequent judicial and parliamentary developments are surveyed and an assessment made of whether further reforms are required.

Genocide, Human Rights, Relationship Between International and Domestic Law

Abstract:
This article examines from a legal perspective how the current Australian approach to offences allegedly committed by defence force members could be modified to enhance fairness and legitimacy, without losing sight of the objectives and constraints of military operations. We begin by providing an overview of legal and practical features of the current system of military justice under the DFDA. We then assess the constitutional validity of military service tribunals under the DFDA, recalling not only the requirements set out in the Australian Constitution but also the rationale for these requirements as relevant to military service tribunals. We pay particular attention to the High Court's most recent pronouncements on this issue, in Re Colonel Aird; Ex parte Alpert. Our analysis leads to a new framework for determining which offences a service tribunal that is not a Chapter III court should be entitled to try. We then review and evaluate the recommendations of the Senate Committee regarding military discipline in its report on "The effectiveness of Australia's military justice system," pointing out areas of correlation with our own proposed framework. Our analysis demonstrates how Re Aird may be reconciled with the Senate Report and how the Constitution ensures both justice and effectiveness in the Australian Defence Force ("ADF").

Military law, military justice, constitutional law

Abstract:
This paper examines the consistency of the EU Renewable Energy Directive with the European Communities’ (‘EC’) obligations under the World Trade Organization (‘WTO’) Agreements. It focuses on the obligations under the General Agreement on Tariffs and Trade 1994 (‘GATT’) and the Agreement on Technical Barriers to Trade (‘TBT Agreement’). The purpose of the paper is to summarise the current state of the law on issues relevant to the EU Renewable Energy Directive and to apply that law to assess the consistency of the Directive with the EC’s WTO obligations. The focus is on the words of the agreements themselves and the previous case law, rather than on general policy arguments that have been repeated constantly in the literature. This paper reaches two conclusions. First, the EU Renewable Energy Directive is likely to be prima facie inconsistent with the EC’s obligations under the GATT. Secondly, it is unlikely to fall within the scope of the TBT Agreement, but if it does, it is likely to be inconsistent with the EC’s obligations under that agreement.

EU Renewable Energy Directive, World Trade Organization (WTO), biofuels

Abstract:
This short article addresses a report released in June 2005 by the Australian Senate Foreign Affairs, Defence and Trade References Committee that calls for wholesale reform of Australia's military justice system. The authors call for immediate implementation of the Committee's recommendations, including in particular the removal of non-military offences from the military justice system.

Australian defence force, justice, reform, military

Abstract:
After negotiating for years to join, and with membership almost a formality, Vanuatu in 2001 and Tonga in 2006 suspended the process of their accession to the WTO. Given the length and cost of the accession process, this is both surprising and unique in the history of the WTO, and raises questions for the WTO and its membership that should not be ignored. This chapter begins by considering the potential barriers and benefits that Small Island Developing States, such as Tonga, Vanuatu and Samoa (which has also applied for membership) encounter when joining the WTO. It then explores some of the broader questions facing the WTO raised by Tonga and Vanuatu suspending their accession. First, it examines equity concerns about the WTO accession process. Second, it considers the shortcomings of the ‘special and differential treatment’ (S&DT) currently offered to developing countries, and how their special needs could be better accommodated in the WTO. While Tonga and Vanuatu both suspended their accession processes, Tonga later proceeded with WTO accession, Vanuatu resumed its accession bid. However, this chapter concludes that these decisions do not constitute an endorsement of the WTO accession process or S&DT as it is presently implemented. Rather accession was pursued despite these limitations.

WTO, accession

Abstract:
This article considers the role of proportionality in determining the level and type of remedies available to World Trade Organization Members for violations of legal obligations or for certain other undesirable or unfair conduct. As an aid to interpretation, proportionality confirms the purpose of suspension of concessions as inducing compliance and may clarify the meaning of "nullification or impairment" and the appropriate response to actionable or prohibited subsidies. However, principles such as proportionality must yield to the relevant text of the WTO agreements, where that text is unambiguous, and WTO Tribunals must carefully investigate the meaning and scope of a principle before using it in the WTO. Contrary to certain past decisions, the principle of proportionality is not relevant to the imposition of safeguards in the WTO.

Abstract:
This report assesses the status of commitments in environmental services that the 32 WTO Members that circulated or received the plurilateral request have made so far, both at the end of the Uruguay Round and in any improved offers during the Doha Round (at the time of writing). It then compares these environmental services commitments and improved Doha Round offers with the extent of liberalisation that these Members may have undertaken in environmental services under various bilateral or regional trade agreements. This report is designed to assist these 32 WTO Members in assessing the extent and quality of environmental services liberalisation offered in their own markets and those of their trading partners. It will also enable them to assess the extent of policy or regulatory space they have preserved in their own territories. This will help these Members to formulate an appropriate negotiating strategy on environmental services both in the WTO and any future regional trade agreements they may wish to conclude.

General Agreement on Trade in Services (GATS), environmental services liberalisation, sustainable development

Abstract:
This is a commentary on GATT Article XIV: Exceptions to the Rule of Non-Discrimination. Article XIV is a complement to Article XII (Restrictions to Safeguard the Balance of Payments) and Sec. B of Article XVIII (Governmental Assistance to Economic Development) GATT, both of which allow trade restrictions to be used for balance of payments reasons. Under each of these articles, any quantitative restrictions imposed must be implemented on a non-discriminatory basis (Art. XIII). Article XIV:1, 2 and 3 provide narrow exceptions to the non-discrimination rule in Article XIII. Article XIV:4 and 5 provide that Members shall not be precluded by Articles XI to XV inclusive or by Sec. B of Article XVIII from applying certain kinds of measures. The purpose of the article is to give the reader a comprehensive and concise insight into the meaning of GATT Article XIV.

GATT Article XIV, Exceptions to the Rule of Non-discrimination, Trade Restrictions for Balance of Payments (BOP) Reasons, The WTO and the IMF

Abstract:
This is a commentary on GATT Article XV: Exchange Arrangements. These exchange agreements are the multilateral rules on currency exchange systems that are administered by the IMF and codified in the Articles of Agreement of the IMF, as well as arrangements that may be made between the WTO and one of its Members if that is not also a member of the IMF (a “special exchange agreement”). Art. XV GATT is the “cornerstone” of the relationship between the IMF and the WTO, setting out the basis for co-operation between the two organisations. The purpose of the article is to give the reader a comprehensive and concise insight into the meaning of GATT Article XV.

GATT Article XV, Exchange Agreements, Exchange Controls and Trade Restrictions, The WTO and the IMF

Abstract:
In this paper, we first identify in Part II the benefits of a common telecommunications market in Australia and New Zealand, before explaining in Part III the extent to which these two countries are already subject to obligations to liberalise telecommunications and harmonise associated regulations. Part IV surveys the treatment of telecommunications services in certain FTAs other than the CER, while Part V examines some practical considerations that will arise in creating a common market of the kind envisaged, including the feasibility of harmonising telecommunications regulation, the need to ensure compliance with WTO obligations, and the formal structures that could be used to set out the parties agreement. We do not purport to propose the optimal regulatory content for a common telecommunications market in these two countries; that is a matter for the respective governments and their constituencies. Nevertheless, we conclude that, as a first step, Australia and New Zealand could incorporate telecommunications expressly in the MOU work program, with a view to establishing in subsequent years a more permanent agreement on telecommunications in the CER. This would not only bring the two countries closer to their goal of a single economic market, but also potentially encourage greater telecommunications competition and liberalisation worldwide, with resulting benefits for both consumers and suppliers in Australia and New Zealand.

Telecommunications, FTA, CER, Common Market

Abstract:
This article argues that the use of principles in WTO dispute resolution is both necessary and desirable. However, Panels and the Appellate Body (WTO Tribunals) have often ignored principles or not clearly identified the legal basis for their use. This article establishes a framework for the use of principles (in particular principles of WTO law, principles of customary international law, and general principles of law) in WTO dispute settlement. Broadly, WTO Tribunals can use principles drawn from these categories to interpret WTO provisions, based on Article 3.2 of the DSU, and Articles 31 and 32 of the VCLT. This follows most directly from a teleological approach to interpretation, but principles also feature under subjective and textual approaches to interpretation. WTO Tribunals may also use certain principles in a non-interpretative manner. Indeed, this may be necessary, particularly to address procedural issues. Precisely how a principle may be used depends on its type, content and status.

Abstract:
This article argues that the use of principles in WTO dispute resolution is both necessary and desirable. However, Panels and the Appellate Body (WTO Tribunals) have often ignored principles or not clearly identified the legal basis for their use. This article establishes a framework for the use of principles (in particular principles of WTO law, principles of customary international law, and general principles of law) in WTO dispute settlement. Broadly, WTO Tribunals can use principles drawn from these categories to interpret WTO provisions, based on Article 3.2 of the DSU, and Articles 31 and 32 of the VCLT. This follows most directly from a teleological approach to interpretation, but principles also feature under subjective and textual approaches to interpretation. WTO Tribunals may also use certain principles in a non-interpretative manner. Indeed, this may be necessary, particularly to address procedural issues. Precisely how a principle may be used depends on its type, content and status.

WTO, dispute, principles

Abstract:
This article examines the key issues that electronic commerce poses for global trade, using as a starting point the General Agreement on Trade in Services (GATS), the World Trade Organization (WTO) agreement most relevant to electronic commerce. It begins with an overview of electronic commerce, providing a workable definition of electronic commerce and examining its growth and economic impact. It then discusses the important function played by the WTO in electronic commerce, and the central role of GATS in that function. The article goes on to consider the compatibility between electronic commerce and global trade at three levels: first, at the textual level of GATS, providing recommendations to improve the treatment of electronic commerce within that agreement; secondly, at the structural level of the WTO agreements, proposing an integration of the General Agreement on Tariffs and Trade (GATT) and GATS to deal better with electronic commerce under the WTO regime; and thirdly, at the level of the global trading system, exploring how recognition of electronic commerce as a global public good may help reduce the digital divide between developed and developing countries.

e-commerce, electronic, commerce, global, trading, GATS, WTO