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Flashcards in EU Law - WTO Deck (71):
1

Articles 2 Technical Barriers to Trade Agreement

Focuses on regulation not 'more trade-restrictive than necessary to fulfil a legitimate objective'

2

CETA

EU-Canada Comprehensive Economic Trade Agreement

3

TTIP

Transatlantic Trade and Investment Partnership

4

Annex 2 EU Reformed Approach

Elaborate rules on independence and ethics of proposed new investment court system

5

Function of appeals tribunal under EU reformed approach

Deal with interpretation and application of law, and when first instance court said to have made a manifest error in appreciation of the facts

6

Who called the appellate body in the dispute settlement of WTO the 'World Trade Court'?

Eeckhout

7

Article 3(2) EU Reformed Approach

Fair and equitable treatment exhaustive list will be set out

8

EU exclusive competence in common external trade policy

Article 207 TFEU

9

What is an issue with the Tecmed judgment?

Ad infinitum - M can never legislate

10

EU hormones case general

Growth hormones cattle

11

How do ISDS lack consistency?

Interpretative autonomy, especially considering lack of appeals mechanism

12

How did Antigua try to hit back in Antigua-US WTO Dispute over Gambling, despite weakness of Article 22(2)

Refused to comply with intellectual property law

13

What are the two agreements made in the EU under new competence given by Lisbon Treaty under Article 207 TFEU?

CETA and TTIP

14

Vattenfall I general

Coal-fired power

15

Article 207 TFEU

EU exclusive competence in common external trade policy

16

What is indirect expropriation?

Equivalent effect through substantial deprivation of fundamental attributes of investment property

17

What could the EU Reformed Approach be the first steps towards?

'International Investment Court' concluded under international multilateral agreement in future

18

What is the WTO the successor and expander of?

GATT

19

TTIP current standing

Negotiations still ongoing, to resume soon - then need to confirm with US

20

What will enforcement of TTIP and CETA be through?

ISDS

21

Phillip Morris v Australia judgment

ISDS declined jurisdiction - moved to Hong Kong specifically to challenge

22

How are CETA and TTIP different from other EU trade agreements?

Additional chapter conferring rights on investors

23

Tecmed v Mexico judgment

Investors need to know of rules/regulations governing their investments beforehands

24

What is the second form of dispute settlement at international level?

Investor State Dispute Settlement

25

How can the influence of EU in shaping WTO be seen most obviously?

Similarities between Articles 34 - 36 TFEU and Articles 2 Technical Barriers to Trade Agreement

26

How does Decision 94/800 show no intention for WTO to have DE?

Agreement not susceptible to being directly invoked

27

How much was the cost of litigation in Phillip Morris v Australia?

$50 million Australian dollars

28

Article 5 EU Reformed Approach

Non-discriminatory measures designed to protect legitimate objectives are not indirect expropriations

29

Example of AG in a case supporting DE of WTO to make it easier to challenge EU law?

Cosmas AG in Affish

30

What is the new investment court system proposed by the EU?

New permanent tribunal of first instance and appeals tribunal

31

What case shows that Article 22(2) is weak if Member in question is very small?

Antigua-US WTO Dispute over Gambling

32

What were the three reasons given for no DE of WTO in Portugal v Council?

Legislative/executive discretion, reciprocity and preamble to Decision 94/800

33

Tecmed v Mexico general

Landfill permit

34

In what three ways is the position of the Council and Commission against DE of WTO reflected?

Schedule of Commitments under GATS, Council Decision 94/800 and Portugal v Council

35

What was the damages given Antigua-US WTO Dispute over Gambling, but never paid?

$21 million

36

Name the three main rights under CETA to investors

No discrimination, fair and equitable treatment and prohibition on direct/indirect expropriation

37

What test does Articles 2 Technical Barriers to Trade Agreement echo?

Least trade-restrictive means test (e.g. Com v Denmark)

38

For what three reasons was there outcry over ISDS?

Lack legitimacy, lack consistency and threatens State regulatory autonomy

39

What source referred to ISDS as the 'obscure legal system that lets corporations sue countries'?

Guardian

40

EC - Seal Products outcome

Won on a small point so EU COULD adjust to conform

41

What is the reciprocity argument in Portugal v Council?

Disuniform application of WTO

42

What is the legislative/executive discretion argument in Portugal v Council?

WTO system lets Members tolerate concession suspension - DE would remove this

43

CETA current standing

Negotiations concluded, pending entry into force

44

What case showed no DE of WTO?

Portugal v Council

45

Antigua-US WTO Dispute over Gambling general

Licensed online gambling

46

What Chapter of CETA covers different investments and rights?

Chapter 10

47

Council Decision 94/800

Adopting multilateral negotiation creating WTO

48

Trademark plain-packaging

Phillip Morris v Australia

49

EU hormones case outcome

EU refused to comply, so US imposed high trade tariffs on imports from EU to US

50

What would the right to regulate under the EU reformed approach be?

Parties can regulate if necessary to achieve legitimate objectives, even if threatens to undermine investor's returns

51

How do ISDS threaten Statute regulatory autonomy?

Fear corporations will always be successful, and that Members will fear the costs of defending the cases, creating a regulatory 'chilling effect'

52

Cosmas AG in Affish

Supports DE of WTO to make it easier to challenge EU law

53

Schedule of Commitments under GATS

Introductory notes rights and obligations from GATS lack self-executing effect and no direct rights

54

Phillip Morris v Australia general

Trademark plain-packaging

55

What AG in Portugal v Council found Decision 94/800 preamble irrelevant for DE?

AG Saggio

56

Article 22(2) WTO

Lets 'winner' of a dispute suspend trade concessions

57

What kind of appeals to the appellate body in dispute settlement of WTO hear?

Appeals on points of law

58

International Fruit Growers Company

No DE of GATT

59

How is the arbitral tribunal in ISDS comprised?

Three people - one from each, then ideally agreement but frequently intervention

60

What kind of system is the dispute settlement?

Intergovernmental - Members can challenge each other but not individuals/corporations

61

How do ISDS lack legitimacy?

Lack of transparency, no assured independence and closed system

62

What is the original case showing no direct effect of WTO-similar law?

International Fruit Growers Company

63

How was the multilateral negotiation creating WTO adopted in EU?

Council Decision 94/800

64

Composition of first instance court under EU reformed approach

50 members, 6-year term renewable twice and qualified to hold judicial position in their own country

65

What is direct expropriation?

Investment nationalised or otherwise expropriated without compensation

66

How did the Lisbon Treaty expand Article 207 TFEU

Includes foreign direct investment

67

In what four ways does the EU seek to reform ISDS?

Right to regulate for Members, clearer definition of key terms, transparency and new investment court system

68

Why did AG Saggio find preamble to Decision 94/800 irrelevant?

Council cannot interfere with Treaty provisions - agreements are binding or within jurisdiction of CJEU

69

Article 18(4) EU Reformed Approach

Guarantee access to documents and let interested 3rds intervene

70

What kind of negotiation was WTO the outcome of?

Multilateral negotiation

71

Vattenfall I speculated outcome

Germany imposed less demanding standard to settle

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