Diverging EU and WTO Perspectives on Extraterritorial Process Regulation

Minnesota Journal of International Law Online, Spring 2012

67 Pages Posted: 18 Feb 2012  

Laurens Ankersmit

VU University Amsterdam - Faculty of Law

Jessica C. Lawrence

VU University Amsterdam - Faculty of Law

Gareth T. Davies

Free University of Amsterdam - Faculty of Law

Date Written: February 17, 2012

Abstract

This paper looks at the relevant case law from the EU and WTO bodies concerning extraterritorial process regulation - PPMs. We note that while both bodies have an emergent and incomplete jurisprudence in this area, there are differences of approach and sometimes of principle in how they view PPM measures and what may be called 'extraterritoriality'. The EU, with a somewhat wider global and internal mission, and a self-perception of deeper and wider legitimacy, is relaxed, even enthusiastic about the use of trade to leverage social and environmental change. This fits with its basic legal documents, and consistent stated policy approach, which is that economic policy must always take account of its non-economic context. The WTO, by contrast, while not dismissive in principle of PPM measures, displays a greater caution, entirely in tune with the widespread suspicion of PPMs in the international trade law community and the logical prioritising of free trade within the WTO context.

These divergences in attitude, this paper argues, have the potential to lead to hard conflict between the world's largest trading jurisdiction and the global trade regulator. That suggestion is brought into sharp relief by the recent ATAA case at the ECJ, in which the Court of Justice dismissed out of hand claims that the EU's emissions trading practices were extraterritorial when applied to airlines. The relevant parts of the judgment are considered in detail in the paper.

Keywords: EU law, WTO, PPM, extraterritoriality, trade and environment, international trade

Suggested Citation

Ankersmit, Laurens and Lawrence, Jessica C. and Davies, Gareth T., Diverging EU and WTO Perspectives on Extraterritorial Process Regulation (February 17, 2012). Minnesota Journal of International Law Online, Spring 2012. Available at SSRN: https://ssrn.com/abstract=2007098

Laurens Ankersmit

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

Jessica C. Lawrence

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

Gareth T. Davies (Contact Author)

Free University of Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands
+31 20 5986303 (Phone)

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