MJIEL Vol 1 Issue 3 2004 - Editorial

Communication Flows in International Economic Law

Writing an editorial at the end of 2004 calls for a look back at the chatter in international economic relations albeit if briefly. In this editorial again I intend to continue the theme of communication flows in international economic relations, although in the setting of international economic organizations ©¤ chiefly the Bretton Woods institutions. There has indeed been much chatter in these organisations ©¤ communications have flowed by way of negotiations, international agreements and judicial decisions.

Thus, at the end of 2004 some sixty mostly developing members of the IMF requested financial assistance from it, consenting to different levels of IMF conditionality, under Letters of Intent posted on the IMF website. Thanks to better communication flows in international economic relations, it is now possible for anyone interested to have a sight of a member of the IMF¡¯s Letter of Intent addressed to the Fund describing the member¡¯s undertakings in return for IMF assistance. Of particular note in 2004 is the Letter of Intent from the Government of Iraq of the 24th September 2004. This Letter of Intent contains promises inter alia of measures to promote and ensure trade liberalisation including steps to join the WTO, national treatment in investment, and an open exchange system. As is well understood IMF conditionality has far reaching impact on a country¡¯s economic self-determination. Should Iraq have been the subject of such a programme at this time in its history?

In August 2004 the members of the WTO gave a much needed boost to the Doha Round of Trade Negotiations with agreement as to how the negotiations should proceed further. At the end of 2004 some twenty trade disputes have been initiated in the WTO. Of these some 14 have been initiated by developed members of the WTO, notably US, Japan, EC and Canada. The US and the EU being at the forefront as complainants. Around two of these complaints have been directed at trade measures in developing countries ©¤ namely Egypt and China. Seven of the disputes have been complaints by developing members ©¤ four of which are levelled at developed members and three are as between the developing members. Amongst the developing complainants most are seasoned in the WTO system of disputes viz., Thailand, India, Korea and Indonesia. Of particular note however is the complaint by Bangladesh for the first time, and this year the only least-developing country initiating a complaint, as it happens against its neighbour India. A significant number of the complaints initiated have involved trade remedies ©¤ in particular anti-dumping measures. Of the completed cases this year there have been some eleven Panel Reports, and five Appellate Body Reports. Of particular note for developing members is the Appellate Body¡¯s Report on European Communities - Conditions for the Granting of Tariff Preferences to Developing Countries. During the same time period the Trade Policy Review Body of the WTO engaged in reviews of some 15 countries, including that of the EU and the United States.

In the framework of ICSID, the organization has issued a Discussion paper for comment titled ¡°Possible Improvements of the Framework for ICSID Arbitration¡± October, 2004. The paper contains proposals inter-alia to increase transparency of ICSID proceedings, and an alternative appellate system. ICSID itself delivered two arbitration decisions viz., SGS Soci¨¦t¨¦ G¨¦n¨¦rale de Surveillance S.A. v. Republic of the Philippines; and Tokios Tokel¨¦s v. Ukraine. Currently there are some eighty five pending cases under ICSID. Twenty new arbitrations proceedings were instituted before ICSID between January and August 2004 alone. As of November 2004 at least eight have been directed at Argentina. According to UNCTAD sources the number of investor/State disputes is steadily on the rise, even discounting the spate of disputes involving Argentina.

These communication flows in the setting of international economic organisations are but a snap shot of international economic relations in the year 2004. They may however be said to be high with the chatter of economic actors both State, private and multinational companies¡ªfrom the developed economies. Sadly one organisation¡ªnamely the Advisory Centre on WTO Law based in Geneva¡ªset up to redress this imbalance in chatter in the sphere of international trade resolved to promote essentially expertise in trade matters from actors from developed countries only, by making it a condition in its compilation of trade experts [ACWL¡¯s Roster of External Legal Counsel] that they should have had actual experience in WTO trade litigation. It is the case that trade experts from developed countries had a comparative advantage in this sphere, which the actions of the Centre seem to have further reinforced rather than redressed. It is also the case that expertise in trade litigation can be gained now in different ways, not just through actual experience in WTO trade litigation as such; not to mention the fact that no such barrier is placed on the pool of experts from whom Panellists and Appellate Body judges are and have been chosen to adjudicate in WTO dispute settlement. The condition placed was unfortunate, unnecessary and inflexible¡ª promoting trade experts from developed countries at a time when developing countries needed assistance in this sphere. It is to be noted that UNCTAD in compiling a similar list imposed no such condition.

Asif H Qureshi

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