What Are Trade Agreements For? - Two Conflicting Stories Told by Economists, With a Lesson for Lawyers

Economists tell two stories about the function of trade agreements:trade agreements restrain protectionism, or trade agreementsrestrain the purposeful exploitation of market power, whichI call ‘terms-of-trade manipulation’. These storiesare distinct, because protectionism and terms-of-trade manipulationare distinct, although they are often confused. Logically, tradeagreements might restrain both protectionism and terms-of-trademanipulation, but no one holds this view. Protectionism theoriststhink terms-of-trade manipulation is rare in the real world;terms-of-trade theorists adopt a theoretical perspective inwhich they prove protectionism is globally efficient and shouldnot be restrained. I analyse the two stories to dispel commonconceptual confusions. I show that the protectionism story issuperior, empirically and theoretically: countries do not exploittheir market power, and the theoretical perspective of the terms-of-tradestory is wrong if our concern is to interpret agreements. Ireinterpret a theorem from the terms-of-trade story, and combineit with the fact that countries do not exploit market power,to demonstrate that national regulation that is domesticallyrational (except for not exploiting market power) is globallyefficient and hence should not be restrained. This grounds anovel, efficiency-based argument against ‘balancing’by dispute tribunals and in favour of substantial deferenceto non-protectionist regulation.     

可撤销行政协议的价值与认定

司法解释创设了可撤销行政协议制度,其既能处理行政协议无效以外的其他效力瑕疵,又能保障当事人的自主权,有利于行政协议效力体系的完善。可撤销行政协议的认定可遵循如下标准:行政协议中缔约行政机关不具有法定职权的,应以无法定职权为由撤销;程序违法超过轻微程度应以程序违法为由撤销;不具备缔结前提或内容违反效力性强制性规范的,应以适用法律法规错误为由撤销;缺乏必备条款的协议不宜撤销;行政机关无正当理由课予相对人对待给付义务或对待给付义务无助于行政任务履行的,应以滥用职权为由撤销;双方给付义务失衡或无正当合理关联的,应以明显不当为由撤销。撤销行政协议会给国家利益、社会公共利益造成重大损害的,不予撤销。     

我国文化领域会展双边条约解析

会展法是我国新兴的交叉性法学部门。作为会展法的国际法渊源,会展双边条约应当受到重视。通过对我国建国后所签订的文化类双边条约进行分析,总结出我国文化领域内会展双边条约的缔结、形式和内容,并归纳出我国文化双边会展条约的特点,充分揭示了我国在会展法方面存在比较丰富的国际法渊源这一观点。     

税收优惠违反国民待遇原则悖论——兼谈我国外商投资企业税收政策的选择

近几年来,主张合并内外资企业所得税法、取消外商投资企业税收优惠的观点日渐盛行。这一观点在法律上的依据主要是税收优惠违反了WTO国民待遇原则。通过研究不难发现,WTO并不存在国民待遇原则,而且有关协定的国民待遇也排除了对所得税的适用,我国对外双边税收协定也排除了国民待遇原则。税收优惠不存在违反国民待遇原则的问题,而且符合税收公平原则。我国对外商投资企业采取怎样的税收政策拥有完全的主权,完全应根据我国经济发展的需要对外商投资企业的税收政策作出正确的选择。     

Establishing Reliable Foundations for the International Scientific Investigation of Noise Pollution in the Oceans

Noise in the oceans is an issue that has become the subject of concern in a number of national, regional and international organizations. However, the current scientific investigations surrounding the topic of noise pollution are currently inadequate because they are often limited in their application, contradictory in places, and some of the current research is tarnished by assertions which suggest that it has less than full integrity. Against such a backdrop, multiple sections of the international community are calling for a comprehensive, global and robust analysis of the issue.
This current impasse over the utility of the existing scientific material on noise pollution in the oceans, and the need for an internationally focused scientific endeavour to resolve the uncertainties, is not unique to this area. Rather, such impasses have a long history in a large number of areas in international environmental law. Accordingly, international environmental law and policy has developed a clear set of methods and rules to create reliable scientific reports, from which the political will to form agreements can be built. The necessary foundations from which reliable, internationally based, scientific reports are produced are strong membership of scientific bodies; the facilitation of independent scientific opinion; a deliberative process which is open and transparent; information that is publicly available; and, finally, as much financial independence as possible. If these five requirements are applied to the scientific investigation of noise in the ocean, the first step will be taken in building the foundations from which national, regional and international agreements may be formed to address this issue meaningfully.     

论国际投资协定下国有企业国民待遇的适用

国有企业已经稳定成为国际投资市场的参与者,因此可以从投资者身份去看待国有企业与相关规定适应状况。从国有企业是否是国际投资协定中投资者出发,可以初步判断其能否享有协定下国民待遇。但也存在着因为“相似情形”解释不明、根本例外条款内容不明等情况而无法实际享有国民待遇的情况。我国所签署的国际投资协定基本可以保障我国国有企业享有国民待遇,但仍然存在个别例外。为此,应当注意在国民待遇条款、根本例外条款制定时的细节问题。     

中国对外贸易国家安全制度重构

《对外贸易法》在我国对外贸易中具有防范国家安全威胁和维护国家安全的重要作用。然而,反观美国《1962年贸易拓展法》以及《关税及贸易总协定》《服务贸易总协定》和近期生效实施的部分区域自由贸易协定有关国家安全制度的立法模式,我国《对外贸易法》相关条款的“两分法”模式存在明显不足。根据“总体国家安全观”,我国有必要制定具有“时代性”特点的对外贸易国家安全制度。     

Standing Surety in Europe: Common Core or Tower of Babel?

This article analyses the treatment of non-professional suretyship agreements across the EU in the context provided by Commission initiatives aimed firstly at creating a single market in financial services and secondly at improving the coherence of European private law. Predictably, given their polycontextual function, we are confronted with starkly divergent national approaches towards such agreements: a 'Tower of Babel' rather than a 'common core'. The article proceeds to consider how we may see elements of commonality arising through the tension between the differing national approaches – seen in terms of a Unitary Network. In the course of this analysis the treble paradox of surety protection is described. The article finishes with a prediction of the relevance of a dual-track strategy in this field: involving measures of sector-specific, vertical harmonisation, and a programme of common-law style, non-legislative harmonisation through judicial convergence.     

WHITE COLLAR AND ECONOMIC CRIME: AN INTERNATIONAL PERSPECTIVE

In recent years increased attention has been paid by various international forums to the dangerous upsurge in internationally oriented white collar and economic criminality. At the same time, organs like the United Nations or the Council of Europe are attempting to effectively deal with economic crime occurring on national levels. The author traces the development of international efforts in the field by focusing on the relevant United Nations resolutions and agreements, as well as on documents adopted by the Council of Europe. It is demonstrated that the use of terminology which is not substantially different from theories of white collar crime developed on national levels, as well as indirect references to Sutherland's ideas, constitute the conceptual link between the international instruments dealing with white collar crime (including specific United Nations agreements and codes, and the work undertaken by the Council of Europe), and traditional, nationally-oriented theories. This similarity has far-reaching practical implications: except for purely international white collar crimes, many of which are of very recent origin, white collar crime theory can be applied in combating international crime occurring within national boundaries, the seriousness of which is evident from an examination of the relevant documents. The author advances a theory of international white collar crime and suggests that its increase necessitates the adoption of new theoretical horizons and new practical methods for dealing with this dangerous form of law-breaking which defies traditional notions of “crime” and “criminal”.     

The political economy of international environmental agreements: a survey

This paper surveys the recent literature on the political economy of the formation of international environmental agreements. The survey covers theoretical modelling approaches and empirical studies including experimental work. Central to our survey is the question how the political process impacts different stages of agreement formation and stability. We distinguish the rules defined during pre-negotiations that govern negotiations, ratification and implementation. Strategic delegation and lobbying are directly relevant during the negotiation and ratification phases. Implementation, the choice of policy instruments at the national level, will also be impacted by lobbying and indirectly influence negotiations. We find that the basic theoretical framework for the analysis of international environmental agreements is largely unrelated to empirical approaches. Furthermore, we observe that models of the political process of agreement formation, like for example sequential game models, are yet to be developed.     

论和解合同的适用对象及限制

本文认为,和解协议的民法坐标是和解合同,种类繁多的和解协议能否纳入和解合同范畴进行调整,可以通过三个要素进行识别.“和解权”是控制和解适用对象的实质性要素.公诉案件中,犯罪嫌疑人、被告人同被害人之间达成的刑事和解协议实质上为刑事当事人之间达成的民事和解协议,可归于和解合同范畴.公序良俗原则从另一侧面对和解合同的适用范围作出了限制.     

Medical interpreting and the law in the European Union

In 2011, the Danish government announced that from June that year it would no longer cover the costs of medical interpreters for patients who had been living in Denmark for more than seven years. The Dutch Ministry of Health followed with an even more draconian approach; from 1 January 2012, the cost of translation and interpreting would no longer be covered by the state. These two announcements led to widespread concern about whether or not there is a legal foundation for interpreter provision in healthcare. This article considers United Nations treaties, conventions from the Council of Europe and European Union law. European Union member states have been slow to sign up to international agreements to protect the rights of migrant workers. The European Union itself has only recently moved into the area of discrimination and it is unclear if the Race Directive covers language. As a result, access to interpreters in healthcare, where it exists, is dependent on national anti-discrimination legislation or on positive action taken at national or local level rather than on European or international law.     

Oral International Agreement and China's Relevant Practice

Oral agreements still exist in international practice today.This paper first discusses the nature of agreements in oralform, then turns to introduce relevant practice of China. Theoretically,oral agreements should be regarded as a kind of treaty, althoughthese were not covered by the 1969 Vienna Convention on theLaw of Treaties. In practice, oral agreements were relativelyrare but still had their peculiar utility. The "Zhou Enlai–KosyginAgreement" was a typical example of oral agreement, which ishelpful for us both in observing oral agreements in practiceand in better understanding the Chinese practice of treaty-making.It shows that the choice of form of agreement depends not onlyon the rules of the law of treaties, but also on the circumstancesof conclusion and other factors.     

Clicking Away Your Speech Rights: The Enforceability of Gagwrap Licenses

Abstract

Software companies would like to be able to control what their customers and reviewers can say about them and their software. To this end, many include in their license agreements “DeWitt” or “gagwrap” clauses which purport to prevent written reviews or disclosure of benchmark test results involving the software without the manufacturer's consent. While the courts have recognized the enforceability of software licenses to protect manufacturers, they have so far not addressed the enforceability of gagwrap clauses. This article examines gagwrap clauses and examines them in a public policy framework arising from contract and First Amendment jurisprudence. It proposes a test for the enforceability of the clauses that leaves in place many agreements not to speak but renders gagwrap clauses suspect on public policy grounds.     

Imperatives for the enforceability of collective agreements in Nigera

This article examines the rationale behind the non-enforcement of collective agreements in Nigeria, theories propounded for the enforceability of collective agreements, and the need for courts in Nigeria to adopt a more liberal approach towards enforcement. This article argues that contrary to the position of the law in Nigeria that collective agreements are not enforceable, this parties, especially trade union leaders, academics and notable oil companies in Nigeria such as Shell, Chevron, etc. do intend to enter into legal relations whenever a collective agreement is arrived at and this is the reason why there is less industrial unrest in the private sector of the oil and gas industry in Nigeria. This article argues that multinational oil companies honour collective agreements entered into with their trade unions because they see such agreements as intended to create legal relations. It is the Nigerian government and its agencies that have failed to honour collective agreements freely entered into with trade unions, despite the time and resources that have been expended to arrive at such collective agreements. This article argues that collective agreements do not fall within the purview of social or domestic arrangements, but business transactions. This article takes a look at the position of collective agreements in other jurisdictions such as the USA, Great Britain, South Africa and The Netherlands, and urges the court in Nigeria to expound the law relating to collective agreement since there are several legislations in Nigeria touching on collective agreements which the courts can expound.     

论身份关系协议对民法典合同编的参照适用

婚姻、收养、监护等有关身份关系的协议存在"参照适用"民法典合同编的空间。"身份关系协议的性质"是身份法律行为及相应身份权利义务关系所展现出的身份共同体特点,也是"参照适用"时对被引用法条限制或者修正变通的判断标准和解释依归。"身份关系协议的性质"具体包括鼓励缔结婚姻、维护夫妻等身份关系和谐安定、实现夫妻乃至家庭共同利益、养老育幼、未成年子女利益最大化等价值追求。应该区分不同类型的身份关系协议、区分同一类型身份关系协议中不同内容约款、区分身份关系协议的内部效力与外部效力,分别讨论"参照适用"的空间。不能脱离身份关系协议的"整体"来看待忠诚协议、离婚财产分割协议或者夫妻财产约定中的所谓"赠与条款"这个"部分",身份关系协议原则上应该作为一个整体,且形成继续性民事法律关系。     

Physician agreements to control medical prepayment plans: Federal Trade Commission. Adoption and publication of enforcement policy with respect to physician agreements to control medical prepayment plans

The Federal Trade Commission has adopted, and is publishing with this notice, a statement of enforcement policy with respect to physician agreements to control medical prepayment plans. The statement sets forth the general approach the Commission intends to use in its case-by-case enforcement program for evaluating physician agreements to form, operate, or control such plans and for evaluating the practices of plans that are controlled by a group of physicians.     

Technology licensing contracts features and diversity

Given the nature of knowledge and characteristics of the intellectual property rights system, technological transactions tend to be governed by contracts that are costly and not highly profitable. This explains why there are so few technology licensing agreements. However, in some situations, private and specific institutions tend to enable property rights to be more precise, knowledge transfers to be easier, and technology licensing agreements to be less complex to design and to run. This explains why there is a concentration of technology licensing agreements in some industries and in some relational situations. These shed light on the design of firms’ strategies to valorize intellectual assets and of public policies to stimulate innovation and diffusion.     

Environmental Protection and EC Anti-Trust Law: The Commission's Approach for Packaging Waste Management Systems

The use of environmental agreements by companies as a tool to improve environmental protection can be hindered by a strict interpretation of competition rules. This article analyses how the European Commission attempts to reconcile the requirement of environmental protection with anti-trust law, by examining the principles that the Commission has defined in its assessment of packaging waste management systems. Although the Commission has considered that some agreements concluded under these schemes were restrictive of competition, it decided not to prohibit them. This article argues that, although attention is given to environmental considerations, the arguments invoked to justify the exemption of these agreements do not allow for integration of environmental protection, as such, in European competition policy. An alternative would be to apply standards of assessment comparable to those used to justify exceptions to the free movement of goods.     

美国行政协定的合宪性分析

对三种具体行政协定的合宪性讨论随着美国总统和国会之间就对外贸易政策制定权中主导权的争夺而开始兴起。大多数学者和美国法院都承认行政协定的合宪性。确认美国行政协定的合宪性,有利于理清行政协定和美国对外贸易政策的关系,有利于利用行政协定更好地实施美国对外贸易政策,促进其不断发展。