欧盟REACH法规与GATT／WTO规则的一致性分析

随着REACH法规的实施，与该法规有关的争议将极有可能最终在WTO框架下加以解决。不仅REACH法规体现的保护人类健康和环境的立法理念符合WTO倡导的可持续发展原则，REACH法规与GATT／WTO协议基本原则，如国民待遇原则、贸易障碍最小化原则、透明度原则等也保持了一致，同时，REACH法规也满足了GATT／WTO协议例外规则的要求。有理由相信，REACH法规将会经受住依据GATT／WTO协议提起的质疑。     

后“SchremsⅡ案”时期欧盟数据跨境流动法律监管的演进及我国的因应

“SchremsⅡ案”对以隐私权和数据保护为核心构建的欧盟数据跨境流动规则体系产生重大影响,它要求无论使用何种数据跨境流动工具,都必须确保第三国能够提供与欧盟同等的保护水平。在该案的影响下,《欧盟基本权利宪章》在数据保护领域的地位进一步提高,保障措施的适用愈发严苛,欧洲数据保护委员会在数据保护领域将扮演更重要的角色,数据跨境流动欧盟法规则与国际贸易法的不兼容问题日益凸显。欧盟虽然结合SchremsⅡ案的判决完善了对数据跨境的法律监管,但依然没有减少外界对其监管合理性的质疑。我国对数据跨境流动的监管存在着配套立法不健全、规则可操作性差、多元价值失衡、缺乏内外联动的“中国方案”等问题。对此,应完善我国相关立法,加强中欧国际合作,共同引领构建数据跨境流动的国际规则。     

The Harmonisation of Rules of Conduct in EU Financial Markets: Economic Analysis, Subsidiarity and Investor Protection

The rules that regulate the market conduct of traders and the conduct of the business of investment intermediaries in the context of financial markets have not been comprehensively harmonised in the EU. As a result, cross-border trading in financial products and provision of other financial services is regulated by largely asymmetrical national rules. Host state regulators have remained responsible for the supervision of the compliance of banks and investment firms with national rules of conduct when they engage in the cross-border provision of banking and investment services. However, the advent of both the EMU and global trends in the financial services industry have transformed the market landscape. The regulatory challenges that recent market developments pose require a more efficient supervisory regime and a harmonised regulatory environment. These points were focal in the Commission's recent Communication, entitled 'Action Plan for Financial Markets'. This article examines the current regulatory framework in the area of market conduct and conduct of business in the EU. It argues, with the aid of economic analysis, for the harmonisation of rules of market conduct and for the further harmonisation of conduct of business rules at retail investor level. The harmonisation of conduct of business rules goes beyond the Commission's plans and might raise issues of Community competence. However, such harmonisation is dictated by the challenges of investor protection that changing market conditions create. Also, the transaction costs associated with indirect fragmentation inhibit the growth of cross-border trade in this area.     

Globalization as Boundary‐Blurring: International and Local Law Firms in China's Corporate Law Market

The worldwide expansion of international law firms has generated regulatory battles and workplace conflicts in advanced market economies as well as developing countries. This article uses the case of China to explore the changing global–local relationship in the globalization of the legal profession and to understand the role of the government in constituting the corporate law market. The author argues that the globalization of the Chinese corporate law market is a process of boundary‐blurring and hybridization, by which local firms become structurally global‐looking and global firms receive localized expertise. Boundary‐blurring occurs in law firms' workplaces, in lawyers' career trajectories, and in state regulatory policies. It has produced a localized expertise that can be diffused conversely from local firms to global firms and has partially changed their relationship from collaboration to competition. Consequently, it becomes increasingly difficult for the government to make or enforce any substantive policy to clarify the market boundary between these two types of law firms.     

Global Privacy Concerns and Regulation-- Is the United States a World Apart?

The regulatory approach to privacy protection taken by many foreign jurisdictions is markedly different from that of the United States. The European Union (EU) best illustrates the international approach with its comprehensive privacy directive that applies to all EU members. By contrast, the approach regarding data privacy in the United States has been to pass industry-specific laws and often only in response to public outcry over some privacy concern. These fundamental differences have been the source of some conflict in international commercial transacting. Now that the global community is committed to eliminating terrorism, it remains to be seen if these different attitudes toward privacy by the United States and much of the rest of the world will affect global attempts to weed out terrorists. This article discusses the constitutional basis for most US policy approaches to privacy regulation. The article explains how the US constitution is the source for most of the differences between the US and international regulatory approaches to information privacy. Finally, the discussion addresses how new issues regarding privacy in the war on terrorism may be addressed by US Constitutional law.     

Regulatory Jurisdiction and the WTO

The WTO is not explicitly concerned with the problem of regulatoryjurisdiction in connection with prudential regulation (as opposedto industrial policy regulation). However, as the WTO has addressedincreasingly complex regulatory barriers to trade, it has developedseveral devices that have the implicit effect of allocatingregulatory jurisdiction among states.This article reviews afew illustrative cases in WTO law, including Helms–Burton,Shrimp, and Gambling. This review suggests how these cases maybe understood as dealing with allocation of regulatory jurisdiction.Negative integration rules such as national treatment or proportionalitymay serve as devices applied by tribunals for allocation ofregulatory authority. The WTO has very limited rules of positiveintegration—whereby states either harmonize regulationor agree on more specific allocations of regulatory authority,such as mutual recognition. However, it has developed a modestdegree of capacity to engage in positive regulation, or to referto positive integration rules developed in other contexts, suchas Codex Alimentarius. Finally, this article examines theoreticalbases for allocating and reallocating regulatory jurisdictionin order to establish a framework by which to analyse the roleof the WTO in this context.     

从欧盟经验看地理标志与商标的冲突及解决

尽管地理标志与商标均是在市场中使用的商业标识,但是地理标志强调产品特征与其来源地在自然、人文因素或声誉上的联系,而商标法对此不予以保护。欧盟以专门立法模式强化地理标志的保护,从制止不正当竞争及避免误导消费者的双重视角处理在先地理标志与商标之间的关系。当地理标志与在先商标存在冲突时,欧盟除了遵循“时间在先,权利在先”基本原则外,综合考虑在先商标的声誉和知名度,以及已经使用的时间等因素,以不使消费者混淆为前提,允许地理标志与合法有效的在先商标有限共存,TRIPS协议规定的商标权例外之描述性合理使用为共存方案提供了正当性基础。欧盟正在通过签订双边贸易协定的策略将其内部地理标志与商标冲突处理规范融入国际贸易法领域。欧盟相关经验为我国解决地理标志与商标冲突关系在立法模式的选择、具体规则的细化和符合国际贸易协定要求方面有一定的借鉴意义。     

The limits of regulatory convergence: globalization and GMO politics in the south

Is globalization promoting regulatory convergence in agricultural biotechnology policies in the South? This article examines the nature and limits of regulatory convergence in the field of agri-biotechnology and investigates the effects that international forces have on biotechnology and biosafety policies in developing countries. Based on detailed case studies of Mexico, China and South Africa this article shows that these three leading biotechnology countries in the South are exposed to powerful international influences but are responding to the regulatory challenges of genetically modified organisms (GMO) adoption in distinctive ways. The existing regulatory polarization between US and EU biotechnology approaches has not forced a convergence around either of these two international models. GMO policies in the South do not simply follow the binary logic of the US–EU regulatory conflict. Instead, they integrate elements from both regulatory approaches and are steering a course that suggests substantial regulatory diversity in the South. The globalization of biotechnology thus goes hand in hand with regulatory diversity in the developing world. Furthermore, regulatory polarization between the EU and US has helped to open up political space in key developing countries.     

REACH: A Step Change in the Management of Chemicals

The EU has regulated chemicals since the late 1960s using both general and sectoral legislation, and exposure-based, hazard-based and risk-based decisions. A new proposal from the European Commission – on the Registration, Evaluation and Authorization of Chemicals (REACH) – will build on the experiences of the existing legislation and introduce some new concepts in the management of chemicals. This article is aimed at assessing the current chemical control mechanisms in the EU and those put forward in REACH to demonstrate how REACH is a new paradigm in chemicals management. REACH will carry forward today's experience and approach to the management of chemicals in the EU and introduces some novel aspects, such as utilizing market-based mechanisms and putting into operation the 'substitution principle'.     

The Power of EU Collective Action: The Impact of EU Data Privacy Regulation on US Business Practice

Contemporary critiques of globalisation processes often focus on the potential levelling of regulatory standards and the export by the United States of neoliberal norms of deregulation and market facilitation. This paper, in contrast, examines the extra-jurisdictional impact of EU regulatory policy on the behaviour of foreign private parties, even in powerful states such as the United States. Shaffer finds that the threat of curtailing access to the EU's large market provides the EU with leverage. By acting collectively, EU Member States can magnify the impact of European policy on US business practice and enhance EU Member State clout in the negotiation of de jure and de facto foreign standards. The site of analysis is the current dispute between the United States and the European Union over the provision of 'adequate' data privacy protection in accordance with the EU Directive on data privacy. The paper explores the many ways in which the Directive affects US practice through changing the stakes of US players – including regulators, businesses, privacy advocates, lawyers and privacy service providers – and thereby shifting the playing field in the United States on which competing interest groups clash. In examining the interaction of EU law, US practice and international trade rules, the author finds that WTO law, rather than constraining the Directive's extra-jurisdictional impact, provides the EU with a shield against US retaliatory threats, thereby facilitating a trading up of data privacy standards. The paper concludes by examining the conditions under which cross-border exchange can lead to a leveraging up of social protections: the desire for firms to expand their markets, Member States' collective bargaining power buttressed by market clout, the nature of luxury goods, the externalities of foreign under-regulation legitimising EU intervention, and the constraints of supranational trade rules.     

欧盟461/2004反倾销规则研究

2004年3月,欧盟颁布了461/2004反倾销规则,该规则是对欧盟现行反倾销基本条例的最新补充.该规则对欧盟原反倾销法律实体和程序方面进行的修改,充分体现了近年来国际上关于反倾销立法的潮流:反倾销作为WTO允许的贸易保护手段,其立法既应保证反倾销措施能有效地得以实施也应不断保持透明度.欧盟461/2004反倾销规则在这方面值得包括中国在内的其他WTO成员国借鉴.     

Reconciling Trade and Culture: A Global Law Perspective

This article provides an overview of the most essential issues in the trade and culture discourse from a global law perspective. It looks into the intensified disconnect between trade and culture and exposes its flaws and the considerable drawbacks that it brings with it. It is argued that these drawbacks become especially pronounced in the digital media environment, which has strongly affected both the conditions of trade with cultural products and services and cultural diversity in local and global contexts. In this modified setting, there could have been a number of feasible “trade and culture” solutions—i.e., regulatory designs that while enhancing trade liberalization are also conducive to cultural policy. Yet, the realization of any of these options becomes chimerical as the line between trade and culture matters is drawn in a clear and resolute manner.     

A review of telecom markets in the EU: What did the European Commission learn or not from the past?

The EU telecom regulation relies on a market-by-market sunset approach. In order to facilitate the market review of national regulatory authorities, the European Commission has offered two successive sets of recommended markets susceptible to ex ante regulation. The inclusion or exclusion of a recommended telecom market is analyzed on its competition conditions across the EU. Beginning in 2014 the European Commission published the draft third Market Recommendation. This article aims to give a critical evaluation of those recommended markets by surveying the competition situations on every telecom market in the EU Member States. It observes that while the drafted Third Recommendation makes a reasonable assessment for most telecom markets, it may not have appropriately addressed markets such as retail fixed access, wholesale call origination, wholesale fixed and mobile call termination, wholesale high-quality access, and wholesale broadcasting transmission.     

Orchestration as a form of public action: The EU engagement with voluntary sustainability standards

EU authorities have come to engage with transnational private standards in the domain of sustainability in forms which are different from the traditional interplay based on agency relations and incorporation by reference. This phenomenon is evident in the domain of global value chain sustainability where the employment of voluntary sustainability standards (VSS) is permitted in certain EU measures. This contribution depicts the main features of orchestration as a distinct form of public action involving transnational private regulation. It lays down the reasons underpinning public ‘use’ of forms of public authority, it highlights the potential for orchestration in publicising transnational private rules and it exposes the hidden dynamics stemming from the interplay between public and private rules. It discusses the conditions under which orchestration can enhance the effectiveness of public measures, and how orchestration can transform transnational private regimes by steering their substance and procedures.     

Does Co‐Regulation Strengthen EU Legitimacy?

Abstract:  Within the Better Regulation programme of the EU, co-regulation is promoted as an important strategy to improve the regulatory environment within Europe. It is assumed that co-regulation can enhance the legitimacy of EU governance in the field where this strategy is used. The purpose of this article is to assess the truth of this premise and to analyse whether co-regulation strengthens the legitimacy of EU governance. To this end, the criteria of input and output legitimacy are applied to the European social dialogue as a form of co-regulation in the EU policy area of social law. In this article, a link is made between the tendency to prescribe co-regulation as a specific regulatory strategy in EU legislative policy and the existing knowledge on the purposes and effects of co-regulation and the conditions under which co-regulation can function as a regulation strategy.     

On defense of “ethification” of law: How ethics may improve compliance with the EU digital laws

In recent years, academics and professionals witness the rise of the “ethification” of law, specifically in the area of ICT law. Ethification shall be understood as a proliferation of moral principles and moral values in the legal discourse within the areas of research, innovation governance, or directly enforceable rules in the industry. Although the ethical considerations may seem distant from mere regulatory compliance, the opposite is true. The article focuses on the positive side of the “ethification” of digital laws through the lens of legal requirements for impact assessments pursuant to General Data Protection Regulation and conformity assessments in the proposal for the Artificial Intelligence Act. Authors argue that ethical considerations are often absent in the context of using new technologies including artificial intelligence, yet they may provide additional value for organizations and society as a whole. Additionally, carrying out ethics-based assessments is already in line with existing regulatory requirements in the fields of data protection law and proposed EU AI regulation. These arguments are reflected in the context of facial recognition technology, where both data protection impact assessment under the EU General Data Protection Regulation and conformity assessment under the proposal of the EU Artificial Intelligence Act will be mandatory. Facial recognition technology is analyzed through the ethics-based assessment involving stakeholder analysis, data flows map, and identification of risks and respective countermeasures to show additional insights that ethics provides beyond regulatory requirements.     

The EU Illegal,Unreported, and Unregulated Fishing Regulation Based on Trade and Market-Related Measures: Unilateralism or a Model Law?

The problem of illegal, unreported, and unregulated fishing is well recognized, yet conventional monitoring, control, and surveillance mechanisms administered by coastal and flag states have so far achieved limited success. The EU IUU Regulation is one of the most recent instances of trade and marketplace measures being implemented at the domestic rule level to block out IUU-caught fish. It aims at preventing any harvesting, processing, and re-exporting states from the circumvention of internationally agreed fisheries management goals. The immediate question for international law is whether unilaterally created trade-restrictive measures would affect the development of a truly global strategy to combat IUU fishing as a global activity. This article responds to the inquiry by exploring the potential and legitimacy limitations for domestic trade regulation to be effective and fairly nondiscriminatory. It draws on the regime theory to provide further insights into the ways of reconciling and synergizing disparate fisheries and trade management systems.     

Framing Big Data in the Council of Europe and the EU data protection law systems: Adding ‘should’ to ‘must’ via soft law to address more than only individual harms

On 19 November 2019 the Council of Europe hosted an international conference, immediately preceding the annual plenary meeting of its Committee of Convention 108, on “Convention 108+ and the future data protection global standard”. One of the authors made a presentation on “Comparing the EU and Council of Europe approach to Big Data”, and it is its contents and findings that are further elaborated in this paper; Its aim is, in essence, to incorporate the feedback received and to adapt past research on Big Data, that was mostly relevant to the EU, also on the Council of Europe data protection system. After a few preliminary remarks on Big Data terminology and possible regulatory approaches, Big Data regulation is examined against the EU and the Council of Europe data protection systems. Particular emphasis is given to the Council of Europe regulatory approach both in terms of Convention 108+ and with regard to its Guidelines on Big Data and AI. The authors believe that, because both the EU and the Council of Europe have avoided to refer to Big Data in their basic data protection regulatory texts (a most likely intentional omission), guidance is indeed needed, and it may well come in the form of soft law. The Council of Europe has taken the lead in this through its Guidelines; Their timely, comprehensive and balanced approach showcases the Council's will for such processing to indeed take place, but within a well-regulated environment, albeit not under a rigid regulatory construction.     

Criminal Sex Trade: System Aspects and Tendencies

Trafficking in human beings has become the centre of worldwide attention. This phenomenon should be understood not merely as a matter of organized criminal activity, but as an aspect of the global sex industry. The global sex industry can be defined sociologically as a social system with subsystems in which organized criminal activity represents one subsystem. The overall industry takes place in a context of economic globalization, international migration, and other factors. Using Israel as an example, it is possible to see how the local sex trade is linked to the global phenomenon. To be effective, national responses need to take into account international aspects.     

Global Trade Policy Development in a Two-Track System

The World Bank identifies two trends within the internationaltrading system: multilateral negotiations sponsored by GATT/WTObased on evolving rules grounded in non-discrimination, andbilateral and regional negotiations between nations that reducetrade barriers on a reciprocal and preferential basis. Thisarticle asks how we might enhance the global trade policy developmentprocess through interaction and coordination between these twotrade policy development systems. It seeks an understandingof the nature of bilateral trade negotiations so that we cancompare bilateral and WTO-sponsored multilateral processes.In so doing, we can observe how these two systems naturallyinteract thus enabling us to consider how that interaction maybe better designed to enhance the international trade policydevelopment system. After examining current trends in bilateraland regional trade negotiations, this article considers theopportunities and challenges of a two-track system for developingtrade policy by examining bilateral trade negotiations conductedby Australia, Singapore and the United States. The article concludeswith observations that may assist in re-framing the currentdebate over bilateral and multilateral trade negotiations andincludes recommendations for the effective management of a two-tracktrade policy development system.