Posts filed under 'Asia & the Pacific'
March 27th, 2010 at 10:25am
Earlier this month, a senior U.S. Department of State official indicated that the United States and China, following years of consideration and five months of expedited negotiations, will soon have the draft text of a Bilateral Investment Treaty (BIT). The agreement would further liberalize the trade relationship between the United States and China, as well as providing a framework for resolving future commercial disputes.
But some commentators have raised questions about the full legal implications of such an agreement. In particular, the BIT could turn many American and Chinese regulatory decisions into arbitrable investment disputes.
A BIT typically permits aggrieved foreign investors to seek compensation for unfair or inequitable regulatory treatment in arbitration instead of host country domestic courts. Such an agreement with China would mark the first time that the United States has signed a BIT with a substantial foreign investor and opened the possibility of litigating American regulatory decisions before international arbitrators. With large scale regulatory reform on the horizon, particularly in the financial sector which has substantial Chinese investment, this possibility raises complex sovereignty questions.
In addition, arbitration of American regulatory disputes raises the tricky question of compliance with an adverse decision. The United States has typically treated BIT’s as self-executing treaties, but Congress would have to approve the payment of adverse judgments. Domestic political considerations would make such authorization unpalatable, and any failure to pay could jeopardize the overall BIT framework.
As of now, the parties have reached no agreement, and the U.S. Senate would have to ratify any BIT before it took effect. But, as several commentators have noted, the issues surrounding a U.S.-China BIT merit careful scrutiny.
For more information, please click here and here.
Permalink
January 31st, 2010 at 04:16pm
On January 1st 2010, a Free Trade Agreement (FTA) between China and the Association of Southeast Asian Nations (ASEAN) took effect. The newly formed FTA is the third largest in the world, with a GDP of $6.6 trillion and a population of 1.9 billion. Prior to the agreement in 2008, China was ASEAN’s third-largest trading partner.
Despite the concerns of members like Indonesia over the impact that the agreement will have on domestic industry, ASEAN is confident that China will act cooperatively in order to ensure mutual gains. The State Councilor of the People’s Republic of China, H.E. Dai Bingguo, recently met with the ASEAN Secretariat to discuss China’s commitment to aid in the transition process, confirming China’s position in a speech before more than 300 dignitaries. This was the first time that a high-level Chinese Diplomat visited the ASEAN Secretariat.
Further, as the Secretary General of ASEAN notes, there are mechanisms such as anti-dumping safeguards in the FTA to protect the domestic markets of ASEAN member states.
For further information, please click here.
Permalink
January 18th, 2010 at 10:10pm
The United States is interested in pursuing a free trade agreement, which will be known as the Trans-Pacific Partnership (TPP), with Australia, Brunei Darussalam, Chile, New Zealand, Peru, Singapore, and Vietnam. As a result, the U.S. Trade Representative (USTR) has asked the U.S. International Trade Commission (USITC) to investigate the likely economic effects of removing duties and non-tariff barriers on product imports from TPP countries. The probable effects of eliminating tariffs on specific agricultural products are also under investigation. While conducting this analysis, the USITC will use the 2010 Harmonized Tariff Schedule and 2008 trade data.
The USTIC is asking the public for input as it explores the potential effects of the TPP. A public hearing will take place on March 2, 2010 in Washington, D.C., and written submissions for the record will be accepted until March 23, 2010. The USITC’s report to the USTR should be completed by early June.
For further information, please click here.
Permalink
December 5th, 2009 at 10:47am
On Monday, November 16th, Beijing’s No.1 Intermediate People’s Court ordered Microsoft to pull some versions of Windows off of the Chinese market for violation of Intellectual Property rights. According to the court, Microsoft exceeded the scope of its licensing agreement with Chinese software company Zhongyi by using certain Chinese character fonts in Window’s 98, 2000, 2003, and Windows XP. Microsoft plans to appeal, claiming that its licensing agreement was not only for Windows 1995.
The suit comes after extensive pressure from the United States and European Union for China to enforce intellectual property rights on behalf of companies like Microsoft. Michael Vella, the head of China litigation for Morrison & Foerster, LLP sees this as the beginning of a trend in which Chinese companies will take their own IP claims to court.
The injunction is unlikely to affect Microsoft’s long-term business goals since roughly 80% of Microsoft’s operating systems in China were pirated from Microsoft in the first place. Chinese courts are, of course, working to prevent this piracy as well. In fact, a Chinese court recently sent four bootleggers to jail for selling illicit versions of Windows 7 in advance of its launch last month.
For further information, please click here.
Permalink
November 22nd, 2009 at 06:06pm
Last weekend, the Leaders of the Asia-Pacific Economic Cooperation (APEC) met to discuss economic growth in the Asia-Pacific region in light of the worldwide financial crisis.
The conversation focused on developing balanced, inclusive, and sustainable growth. To achieve this end, the Leaders are looking to foster structural reforms in areas like infrastructure development and social security. They aim to allocate the benefits of growth across the population by promoting small businesses, job creation, and women’s education through income supplements and short-term social safety nets. In making these reforms, the leaders will take into account sustainability and work to make green technologies available.
The Leaders have maintained their definitive rejection of protectionism and are working to eliminate trade barriers. They are hoping for a successful conclusion to the WTO’s Doha Development Agenda by early 2010. Exploration continues on the prospect of a Free Trade Area of the Asia Pacific (FTAAP), and APEC hopes to achieve regional trade integration by working on liberalization “at,” “behind,” and “across” the border, particularly in areas like supply chain connectivity and intellectual property rights.
The Leaders will also work to ensure human security and governmental transparency. In terms of security, they are particularly concerned with protecting the food supply from terrorist interference and stopping the spread of H1N1 and other global pandemics like AIDS. With regard to transparency, they are asking governments to ratify the UN Convention against Corruption.
For further information, please click here.
Permalink
November 15th, 2009 at 11:00pm
On Tuesday, November 10, the navies of North and South Korea exchanged fire in disputed waters off the western coast of the peninsula, damaging ships from both sides and reportedly killing a North Korean sailor. The incident began when a 215-ton North Korean vessel entered South Korean-controlled waters. Ignoring warnings from the South, the ship exchanged fire with two 130-ton South Korean vessels before re-crossing the border, reportedly in flames. The North, which claims the waters where the incident took place, has blamed the South for instigating the confrontation and issued repeated warnings through its state news service.
South Korea’s options in responding to this incident are limited. Seoul’s right to military retaliation is constrained by the ongoing border dispute. The end of the Korean War never produced a peace treaty, and the North and South have technically been observing a truce since 1953. The North has never accepted the current sea boundary, a UN-drawn border called the northern limit line, and its ships regularly stray into waters controlled by the South. In this context, the South cannot make an undisputed claim that its territory was invaded.
South Korea’s options for less direct action are similarly constrained. While the South could initiate economic sanctions and asset-freezing, it believes that such measures could add to the desperate poverty of the North’s citizens and slow the recent détente between the two countries. In a sign that the confrontation has not altered trade relationships, a North Korean freighter was allowed to enter South Korean waters yesterday on its way to Incheon. Meanwhile, any attempt to arbitrate the dispute before an international body would require the consent of one of the most isolationist regimes in the world.
The North has a history of initiating skirmishes in order to escalate pressure before major regional events; the last time the countries clashed was in 2002, while the South was hosting the World Cup. In this case, analysts believe, the North may be trying to send a message to President Obama, who is currently visiting the region and is scheduled to arrive in Seoul on Wednesday. North Korea wants a formal peace treaty to replace the 1953 truce, including reconsideration of disputed territory. It also wants bilateral negotiations with the U.S., which it believes could lead to its acceptance as a nuclear power. President Obama, who has made engagement with “rogue states” a cornerstone of his foreign policy, plans to send special envoy Stephen Bosworth to Pyongyang for talks over ending the North’s nuclear program.
Permalink
November 1st, 2009 at 02:54pm
Turkey is having a bad day at the European Court of Human Rights (ECtHR). The Court ruled in one decision that Turkey was liable for wrongful death of a Cypriot who in uniform but unarmed crossed the U.N. Buffer zone. Likewise, the Court ruled that Turkish censorship of Turkish newspapers was too restrictive.
In Kallis and Androulla Panayi v. Turkey (1) the Court ruled that Turkey violated Art. 2 of the European Convention on Human Rights (ECHR). The court rejected Turkey’s defences that the plaintiff ought to have first exhausted local remedies(2) as local remedies would have been ineffective(3) awarding monetary damages to plaintiffs under Art. 41 ECHR.
In Ürper and Others v. Turkey(4) the Turkish government had suspended publication of several newspapers which it regarded as publishing propaganda for the Communist party of Kurdistan (PKK), a group it regards as terrorist. The Court used the familiar general principle of proportionality (legitimate purpose, rational means, least restrictive means) test to determine whether the invasion of the fundamental right to freedom of press was legitimate. The court determined that the ban on publication was an interference in the fundamental right(5) prescribed by law,(6) that the end sought by Turkey was a legitimate aim of preventing disorder and crime,(7) but that the means used to that end were not necessary interferences.(8) That is, using the more familiar general principle of proportionality terms, the invasion of the fundamental right was not the least restrictive one possible.
As well as representing the sorts of steps which Turkey must consider taking as it seeks accession to the E.U. the case is relevant as an example of the globalization of fundamental rights as legitimators of the state and as the objective of the international legal system. Further, the Ürper case is one more example of the rise of proportionality as the method to adjudicate constitutionalized fundamental rights. The cases can thus be seen as examples of contemporary trends in the globalization of legal consciousness, the convergence of norms to a global ius commune and as of political interest too.
(1) Application no. 45388/99 (27/Oct. 2009).
(2) Kallis at para. 28.
(3) Kallis at para. 35.
(4) Applications nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07.
(5) Ürper, para. 24.
(6) Ürper, para. 28.
(7) Ürper, para. 32.
(8) Ürper, para. 44.
Permalink
April 9th, 2009 at 12:15pm
The international community roundly condemned North Korea following the test launch of a missile capable of striking targets throughout East Asia as well as in Alaska and the Hawaiian Islands. President Obama and other international leaders issued strong rebukes following news of the launch.
President Obama, speaking in Prague, called the launch a “provocative action” and urged the North Koreans to avoid further such actions and abide by their international obligations. A joint U.S.-European Union statement called for a response from the broader international community. Both calls highlighted U.N. Security Council Resolutions prohibiting North Korea from nuclear or missile tests and suggested that the Security Council respond.
U.N. Secretary General Ban Ki-moon condemned the launch as well but did not mention action by the Security Council or whether it would pursue the matter further. The Security Council was scheduled to meet in emergency session following the launch to consider a response.
President Obama used the opportunity to highlight his Administration’s broader efforts to stabilize the Korean Peninsula and to advance the cause of nuclear nonproliferation.
For further information, please click here.
Permalink
April 1st, 2009 at 01:27am
A United Nations Human Rights Council working group on arbitrary detentions has issued a legal opinion criticizing Myanmar’s continued detention of local pro-democracy leader Aung San Suu Kyi. The ruling military junta, which has been in power since 1962, has confined Suu Kyi to her compound in Yangon for 13 of the past 19 years after refusing to recognize the victory of her party, the National League for Democracy, in the 1990 general elections.
The U.N. report found Suu Kyi’s detention to be in violation of both international law and the domestic laws of Myanmar. Although the U.N. group previously found her detention to be illegal under international law, the recent report marks the first time that the group has accused the junta of violating its own law. The report asserts that the 1975 State Protection Law, under which Suu Kyi has been held, only allows renewable arrest orders for a maximum of five years. Suu Kyi should therefore be released, the report contends, since this five year term ended in May 2008. The report further criticizes the junta’s designation of Suu Kyi as a threat to the “security of the State or public peace and tranquility,” the provision of the State Protection Law that has been used to justify her continued detention.
The junta has not issued a response to the report and Suu Kyi’s lawyer Jared Gesner is wary of the report’s potential to change Suu Kyi’s situation. “I am under no illusion that the junta will be listening to the United Nations. There is no quick and easy answer to the problem of Burma, so we have to take it one step forward at a time.” Others are more hopeful. The National League for Democracy has requested a hearing from Myanmar’s Prime Minister, General Thein Sein, and activist groups, under a Free Burma’s Political Prisoners Now Campaign, are circulating a petition calling for the release of Suu Kyi, which is to be sent to U.N. Secretary-General Ban Ki-moon.
For further information, please click here
Permalink
March 18th, 2009 at 11:51am
The U.S. and China are currently engaged in a skirmish over a confrontation which occurred in the South China Sea and involved five small Chinese vessels and an unarmed American surveillance vessel, the USNS Impeccable. The US claims that the Chinese vessels harassed its ship in violation of the law of the seas, while China claims that the US intruded on an economic exclusion zone in violation of the UN Convention on the Law of the Sea.
Admiral Timothy Keating, the head of the Pacific Command, declined to comment on the Chinese Foreign Ministry’s response, but noted the American reaction would come through the State Department. The Chinese embassy in Washington issued a statement after the incident clarifying its position.
For further information, please click here and here.
Permalink
Previous Posts
