A Comparison between Shale Gas in China and Unconventional Fuel Development in the United States: Health, Water and Environmental Risks

A comparison between Shale Gas in China and Unconventional Fuel Development in the United States: Health, Water and Environmental Risks. Brooklyn Journal of International Law, Vol. 41, No. 2, 2016, pp. 579-655.
Paolo Davide Farah
Riccardo Tremolada

China is believed to have the world's largest exploitable reserves of shale gas, although several legal, regulatory, environmental, and investment-related issues will likely restrain its exploitation. China's capacity to face these hurdles successfully and produce commercial shale gas will have a crucial impact on the regional gas market and on China’s energy mix, as Beijing strives to decrease reliance on imported oil and coal, and, at the same time, tries to meet growing energy demand and maintain a certain level of resource autonomy. The development of the unconventional natural gas extractive industry will also provide China with further negotiating power to obtain more advantageously priced gas. This article, which adopts a comparative perspective, underlines the trends taken from unconventional fuel development in the United States, emphasizing their potential application to China in light of recently signed production-sharing agreements between qualified foreign investors and China. The wide range of regulatory and enforcement problems in this matter are increased by an extremely limited liberalization of gas prices, lack of technological development, and barriers to market access curbing access to resource extraction for private investors. This article analyzes the legal tools that can play a role in shale gas development while assessing the new legal and fiscal policies that should be crafted or reinforced. It also examines the institutional settings’ fragmentation and conflicts, highlighting how processes and outcomes are indeed path dependent. Moreover, the possibilities of cooperation and coordination (including through U.S.-China common initiatives), and the role of transparency and disclosure of environmental data are assessed. These issues are exacerbated by concerns related to the risk of water pollution deriving from mismanaged drilling and fracturing, absence of adequate predictive evaluation regulatory instruments and industry standards: this entails consequences for social stability and environmental degradation which are inconsistent with the purposes of sustainable development.

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A Dispute Resolution Centre for the BRICS?

Dias Simões, Fernando, A Dispute Resolution Centre for the BRICS? (June 2017). in Rostam J. Neuwirth, Alexandr Svetlicinii and Denis de Castro Halis (eds.), The BRICS-Lawyers’ Guide to Global Cooperation (Cambridge University Press, 2017 Forthcoming).
Fernando Dias Simões

Over the last decades, international arbitration has become the foremost technique for resolving disputes between states, individuals and corporations. The expansion of the market for international arbitration is evidenced by the multiplication of arbitral institutions around the world. Some of these institutions specialize in certain types of disputes, focusing on specific markets or trade networks. The BRICS governments are currently discussing the establishment of an arbitral institution for the resolution of commercial and investment disputes among the BRICS nations. The creation of a specialized arbitral institution may be beneficial for disputing parties if the dispute settlement mechanism suits their particular socio-economic idiosyncrasies and legal needs. This article discusses how a BRICS-centered arbitral institution should be structured to cater to the needs and expectations of its end-users.

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A Guardian and a Friend? The European Commission's Participation in Investment Arbitration

Dias Simões, Fernando, A Guardian and a Friend? The European Commission's Participation in Investment Arbitration (June 2017). Michigan State International Law Review, 25(2), 2017, pp. 233-303.
Fernando Dias Simões

The figure of amicus curiae is a central feature of contemporary investor-state arbitration law and practice. Over the last several years the European Commission has taken part in a number of arbitral proceedings that touched upon matters of European Union Law. This phenomenon is part of the European Union’s broader incursion into the realm of investment law. The participation of an entity with legislative and political functions in investment arbitrations raises complex questions regarding the nature of the interests that this entity pursues and the potential impact that its involvement might have in the dispute settlement mechanism. This paper examines the participation of the European Commission (EC) in investor-state arbitrations and assesses its impact in the overall mechanism of investor-state dispute resolution. It is argued that the EC is fundamentally a distinct type of amicus, as it pursues interests different from those of traditional amici, and should therefore be accorded extended participatory rights.

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Amicus Curiae in the Trans-Pacific Partnership

Dias Simões, Fernando, Amicus Curiae in the Trans-Pacific Partnership (2017). American Business Law Journal, 54(1), 2017, pp. 161-238.
Fernando Dias Simões

This article discusses the provisions of the Trans-Pacific Partnership on amicus curiae participation.

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Building in the Light of Private Law Principles

Cofola 2012: The Conference Proceedings: sborník příspěvků z mezinárodní konference: 17. - 19. máj 2012, Brno, Masarykova univerzita, 2012, ISBN 9788021059290, p. 1351-1361.
Tivadar Ötvös

The article deals with the actual legislative problems of buildings and other constructions in the private (civil) law. It underlines some shortcomings of several provisions of the Civil Code of Slovakia in the terms of their coherence with the principles of private law. The absence of the right to build, denial of "superficies solo cedit" and other solutions overcome by development of the legal system a long time ago create a deficit of legal certainty, the elimination of which should be the primary objective of the recent recodification process in civil law.

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Charanne and Construction Investments v. Spain: Legitimate Expectations and Investments in Renewable Energy

Dias Simões, Fernando, Charanne and Construction Investments v. Spain: Legitimate Expectations and Investments in Renewable Energy (June 2017). Review of European, Comparative and International Environmental Law, Forthcoming .
Fernando Dias Simões

The award in Charanne and Construction Investments v. Spain is the first decision in a growing cluster of investment arbitrations relating to the enactment of legislative measures reducing or withdrawing economic support mechanisms previously introduced in support of renewable sources of energy. These disputes raise the question of whether investors can seek compensation under investment treaties when governments encourage investment via economic support schemes, but decide to reduce or eliminate them after the investment has been made. This case note focuses on the most noteworthy aspects of the Charanne decision: the requirements for breach of the standards of investment protection (namely, the prohibition of expropriation and the fair and equitable treatment standard); and the conditions for the protection of the investors’ legitimate expectations. The conclusions reflect on the tribunal’s finding that in the absence of specific commitments, international investment law does not require States to freeze regulatory frameworks.

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China and WTO: Chinese Cultural Traditions in the WTO Context

Farah, Paolo Davide, China and WTO: Chinese Cultural Traditions in the WTO Context (L'Adesione Della Cina All'Organizzazione Mondiale Del Commercio: Ovvero Come Conciliare Cultura E Diritto). Rivista Trimestrale Mondo Cinese, Vol. 124, pp. 34-42, August-September 2005.
Paolo Davide Farah

China's accession to the WTO represents a goal achieved after nearly fifteen years of exhausting negotiations. A special precautionary instrument, the Transitional Review Mechanism (TRM), was included in the Protocol of China's Accession to the WTO, as requested by the US and supported by the EU. The TRM has the objective of monitoring and enforcement of implementation of WTO commitments, promoting transparency and the exchange of information in trade relations with China. China is lowering the expectations of some of the WTO members for the outcome of the TRM. It follows that the WTO members' participation in the review had declined in favour of bilateral negotiations which result in the best means to overcome many problems in China's WTO compliance. It is necessary to try to understand if there are comprehensive and justifiable reasons for China to delegitimize the multilateral system at the WTO in general and in the TRM context. According to some scholars, the general Chinese behaviour not in favour of the TRM could be explained with reference to the Chinese cultural tradition, where the best way to resolve the disputes was through mediation and conciliation. China is a high-context society, where the central role is played by collective entities and groups and not by individuals. A key element in the Chinese mentality (such as in other Asian, Middle East and South American countries) is the concept of preserving group harmony and maintaining one's public image. The best behaviour is to try to avoid any direct confrontation, such as bringing a lawsuit.

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China and the WTO: International Obligations and Cultural Barriers

Revue de l'Antenne Franco-Chinoise, 2006
Paolo Davide Farah

China's accession to the WTO represents a goal achieved after nearly fifteen years of exhausting negotiations. A special precautionary instrument, the Transitional Review Mechanism (TRM), was included in the Protocol of China's Accession to the WTO, as requested by the US and supported by the EU. The TRM has the objective of monitoring and enforcement of implementation of WTO commitments, promoting transparency and the exchange of information in trade relations with China. China is lowering the expectations of some of the WTO members for the outcome of the TRM. It follows that the WTO members' participation in the review had declined in favour of bilateral negotiations which result in the best means to overcome many problems in China's WTO compliance. It is necessary to try to understand if there are comprehensive and 'justifiable' reasons for China to delegitimize the multilateral system at the WTO in general and in the TRM context. According to some scholars, the general Chinese behaviour not in favour of the TRM could be explained with reference to the Chinese cultural tradition, where the best way to resolve the disputes was through mediation and conciliation. China is a high-context society, where the central role is played by collective entities and groups and not by individuals. A key element in the Chinese mentality (such as in other Asian, Middle East and South American countries) is the concept of preserving group harmony and maintaining one's public image. The best behaviour is to try to avoid any direct confrontation, such as bringing a lawsuit.

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China's Water Environmental Management Towards Institutional Integration. A Review of Current Progress and Constraints vis-a-vis the European Experience

Journal of Cleaner Production, 113 (2016) 285-298, Elsevier, SCI
Paolo Davide Farah

In recent years, China has launched ambitious measures to tackle water pollution. As political commitment and public investment soared, Chinese environmental scientists and practitioners have engaged in a substantial debate on the reorganization of the country's water management system. Domestic discussion has largely revolved around best practices adopted abroad, particularly in the European Union (EU), where the Water Framework Directive (WFD) has introduced an integrated management model based on the core concept of unity of the water cycle. This paper seeks to contribute to this debate, by appraising the regulatory, administrative, monitoring, and public participation dimensions of China's water environmental management. Related progress and constraints are discussed in the evolving context of Chinese environmental policies, against the background of the relevant EU experience. Regulatory and administrative coordination and integration, and the adoption of a watershed-based management model, appear at present as essential prerequisites to overcome the fragmentation of China's water environmental management. Despite recent efforts in this direction, institutional rationalization is still hampered by the persistence of conflicting interests and attributions among government bodies concurring to law making and implementation.

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China’s Participation in the World Trade Organization: Trade in Goods, Services, Intellectual Property Rights and Transparency Issues

EL COMERCIO CON CHINA: OPORTUNIDADES EMPRESARIALES, INCERTIDUMBRES JURIDICAS, pp. 83-121, Aurelio Lopez-Tarruella Martinez, ed., Editorial Tirant le Blanch, Valencia (Spain), 2010
Paolo Davide Farah
Elena Cima

During the negotiations and after the accession China has started a massive process of amendment of its domestic laws and regulations regarding all the sectors covered by WTO rules. As any new member of the WTO, China needed to reform the main sectors of its legislation on: trade in goods, trade in services, trade-related intellectual property rights and to start to deeply apply the more general WTO transparency principle. The paper analyses in particular the TRIPs implementation in China.

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China’s role and contribution in the global governance of climate change: institutional adjustments for carbon tax introduction, collection and management in China

Journal of World Energy Law and Business, Oxford University Press, Volume 8, Issue 6, December 2015
Paolo Davide Farah
Deng Haifeng
Anna Wang

As global climate change and its adverse effects have caused serious consequences, the Chinese Government is speeding up on energy saving and emissions reductions, becoming much more active on the climate and environment front. According to the work schedule of the Ministry of Finance, construction of the environmental protection tax system is one essential part of the forthcoming green tax reform in China. On 10 June 2015, the Cabinet’s Legislative Affairs Office issued a Draft Environmental Protection Tax Law of the People’s Republic of China (hereinafter referred to as the ‘Draft EPT Law’) to solicit opinions and comments. This action received much attention and prompted discussion both at home and abroad. The Draft EPT Law shows the trend of transforming pollution charges into tax, and starts a green reform in administrative management by means of financial tools. Though the law does not include carbon dioxide with taxable pollutants, it leaves space for future carbon taxation. With the increase of green reform in the future, carbon tax will no doubt be put on the priority list of the Chinese Government, at which point the Government will face three major challenges. First, the current unsatisfactory tax system environment will jeopardize carbon tax. It is necessary to repeal the overlaps between the Draft EPT Law and carbon tax, other energy taxes and non-environmental taxes, and introduce carbon tax into the current tax system without throwing off the order of the overall tax structure. Secondly, in spite of the design of the new tax structure, the administrative organization of tax management remains a very critical problem. It will be necessary to establish an orderly interactive relationship horizontally between the environmental agency and tax agency, and vertically between the central and the local authorities. Thirdly, a new carbon tax will cause economic slowdown in the short term. In addition to offering tax rebates, reductions and subsidies, a system of penalties could offset negative effects and optimize positive outcomes of emission reduction.

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Chinese Investment in Southern Africa with a Macanese Accent?

Dias Simões, Fernando, Chinese Investment in Southern Africa with a Macanese Accent? (September 1, 2013). in Monitoring Regional Integration in Southern Africa Yearbook 2012, André du Pisani, Gerhard Erasmus and Trudi Hartzenberg (Eds), Trade Law Centre (Tralac), Stellenbosch, 2013, pp. 232-250.
Fernando Dias Simões

Involvement in international cooperation platforms is one of China’s key interests. One of the most important vectors of this policy concerns the promotion of high-level contacts between China and Portuguese-speaking countries, especially Angola and Mozambique, two of China’s most important partners in Africa. Macau plays an important role as an economic cooperation service platform between China and the Lusophone world. In this article we analyse the advantages of Macau as a seat for arbitration of commercial disputes concerning trade between Chinese, Angolan and Mozambican companies, and discuss possible avenues for improvement of the current legal framework.

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Civil Law Principles in a European Context

Súkromné právo v európskej perspektíve - zborník z konferencie: [február 2011], Trnava, Trnavská univerzita, 2011, ISBN 9788080824778, p. 131-142.
Tivadar Ötvös

In this article the author deals with the position of the principles of civil law in the current european integration processes. This topic is not only actual, but also essential according to the harmonisation efforts in the whole private law section. There are chosen parts of civil law analysed in this article from the view of the principles and their role on the european level. The author emphasises the trends to create a catalog of principles (especially in contract law), which would be useful in legal relationships with international components. In the future this catalog could also be the basic of the Code of European Private Law, about which there are already discussions among legal experts.

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Classification of Private Law Principles

Míľníky práva v stredoeurópskom priestore - Zborník z medzinárodnej vedeckej konferencie doktorandov a mladých vedeckých pracovníkov [marec 2013], Bratislava, Univerzita Komenského, 2013, ISBN 978-80-7160-368-9, p. 283-292
Tivadar Ötvös

Principles, which are highly emphasized in the present, are generally the basics (also) of the whole private law area. The goal of this article is to create a complete taxology on the base of value orientation, and mutual derivative relations. On the basis of choosing two fundamental axiological pillars (liberty, justice), horizontal branches were made, which were connected to a vertical dimension regarding several deductive methods. These deductive methods allow to derive from main principles several subordinate ones.

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Commentary on Italian Supreme Court, Delta Impianti Srl v Colacem Spa

Commentary on Italian Supreme Court, Delta Impianti Srl v Colacem Spa, March 5, 2014, 7(3) Global Competition Litigation Review, 2014, R-36.
Riccardo Tremolada
Mario Siragusa

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Commentary on Italian Supreme Court, P.C. v Ordine dei Farmacisti della Provincia di Caserta

Mario Siragusa, Riccardo Tremolada et a., Commentary on Italian Supreme Court, P.C. v Ordine dei Farmacisti della Provincia di Caserta, February 8, 2013, 7(3) Global Competition Litigation Review, 2014, R-34.
Riccardo Tremolada
Mario Siragusa

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Commercial Arbitration in the Portuguese-Speaking World: Opportunities and Challenges

Dias Simões, Fernando, Commercial Arbitration in the Portuguese-Speaking World: Opportunities and Challenges (June 2014). Young Arbitration Review, edition 14, 2014, pp. 30-33.
Fernando Dias Simões

This article discusses how Portuguese-speaking countries may take advantage of the linguistic and cultural bond that unites them to create an arbitration market. Apart from Brazil and Portugal, arbitration is still almost nonexistent in the Portuguese-speaking world. This article discusses the advantages that could result from a serious investment in international commercial arbitration by these countries and the challenges they face.

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Conflict Between Intellectual Property Rights and Human Rights: A Case Study on Intangible Cultural Heritage

Oregon Law Review, Vol. 94, No. 1, 2015
Paolo Davide Farah
Riccardo Tremolada

The ability to protect and safeguard cultural heritage is of vital importance to some communities. Without the ability to maintain control over these expressions, external subjects could freely appropriate them, which could negatively affect the community’s identity, spirituality, and general well-being. Increasing awareness regarding cultural heritage provides momentum to better define a legal framework for the protection of the intangible goods that constitute cultural heritage. It is fundamental to ascertain whether the current intellectual property rights (IPR) regime represents an adequate model of protection vis-à-vis intangible cultural heritage (ICH). The culture’s unique concerns, which variably affect ICH, make it difficult to compare the rationales for these two legal domains. These concerns are pivotal in elaborating the need for legal protection. Not only does misuse and misappropriation of ICH cause economic damage, but it also violates the community’s human rights and identity. Accordingly, a range of issues must be taken into consideration, starting with the desirability of the commodification, or “reification,” which would allow communities to control the commercialization of their ICH through the current IPR regime. To adequately address concerns about commodification, a legal framework must be developed that can guarantee adequate advantages for the countries and communities where the intangible goods originate. This legal framework must, in due time, boost the efforts of these communities to promote a self-sustainable model of economic development and lead them through the inevitable social policy changes that would accompany new ICH protections. Therefore, our study aims to clarify theoretical and practical legislative tools available to help the actors concerned ascertain how to exploit, trade, and market their own resources and heritage within the global market. Bearing in mind that there are numerous potential legal remedies or amendments to the current legal regime covering the protection of cultural heritage, it is not conceivable to tackle this issue as one uniform hurdle. Each community’s ICH concerns are extremely specific, and, as a result, it may be appropriate to apply ad hoc legal remedies to some, but not all, circumstances involving ICH. This analysis consists of five Parts. Part I defines fundamental concepts associated with ICH. Part II looks at ICH as a continuous process of social involvement that helps preserve cultural identification. Part III analyzes the current forms of protection available for cultural expression and knowledge. Part IV discusses the shortcomings of adopting a single, all-embracing, umbrella solution and analyzes ways in which the current IPRs can help protect ICH. And finally, Part V proposes ways to modify and improve the current IPRs to protect ICH more efficiently.

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Consumer Behavior and Sustainable Development in China: The Role of Behavioral Sciences in Environmental Policymaking

Dias Simões, Fernando, Consumer Behavior and Sustainable Development in China: The Role of Behavioral Sciences in Environmental Policymaking (September 2016). Sustainability, 8(9), advance access published in 6 September 2016, doi:10.3390/su8090897.
Fernando Dias Simões

China’s astonishing economic development over the last decades has produced a momentous impact on the country’s environmental equilibrium. Chinese officials are now confronted with the need to tackle environmental problems without disrupting the country’s development. The Chinese government seems keen on striking a balance between these two apparently contradictory goals by promoting the concept of “ecological civilization”, a notion that emphasizes the importance of individual behavior. Over the last few years, environmental policymaking worldwide has been giving a lower profile to the role of the State and placing increasing responsibility for many environmental issues on citizens/consumers. Individuals are increasingly perceived as agents for environmental change and their behaviors are subject to tighter scrutiny. Due to the emergence of a consumer society in China, individual behaviors are increasingly a source of environmental problems and a key component of efficient and long-lasting solutions. Accordingly, Chinese policymakers should recognize the environmental significance of individual behaviors and look beyond traditional policy tools. This article argues that Behavioral Sciences can offer important lessons and help in designing new strategies that can speak directly to the Chinese people as a source of environmental harm, thus reducing their impact on the environment.

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Desirability of commodification of intangible cultural heritage: The unsatisfying role of intellectual property rights

Transnational Dispute Management, Special Issue, Volume 11, Issue 2, March 2014
Paolo Davide Farah
Riccardo Tremolada

The increasing sensibility regarding intangible cultural heritage provides momentum to better define a legal framework for the protection of these peculiar immaterial goods. This article questions whether the current intellectual property rights (IPRs) regime represents an adequate model of protection vis-à-vis intangible cultural heritage. A plethora of caveats must be taken into consideration, starting with the desirability of the commodification of intangible cultural heritage, i.e. its exploitation and commercialization through the IPRs regime, but also including the outlining of the legal instruments needed for guaranteeing adequate advantages for the countries and communities representing the sources of origin of the intangible goods. After framing the crucial issues detected in literature regarding intangible cultural heritage, the article investigates the ways in which the actual IPRs regime grants protection to intangible goods. Our evaluation supports the idea that, without a many-faceted remodeling, current intellectual property laws represent an unsatisfactory mechanism for protecting intangible cultural heritage. This inadequacy is rooted in the inefficacy of IPRs under the patent and copyright regimes in ensuring the protection of cultural heritage, while also falling short of fostering an appropriate comprehensive social policy.

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Digital markets and merger control: Balancing big data and privacy against competition law: a comment on the European Commission’s decision in the Microsoft/LinkedIn merger

Federico Marini-Balestra & Riccardo Tremolada, Digital markets and merger control: Balancing big data and privacy against competition law: a comment on the European Commission’s decision in the Microsoft/LinkedIn merger, European Competition Law Review , 2017.
Riccardo Tremolada
Federico Marini-Balestra

The European Commission’s decision to authorise Microsoft’s acquisition of LinkedIn raises a number of stimulating issues that are likely to be featured in future merger reviews involving digital markets. In examining the merger, the Commission considered big data and privacy-related concerns in professional social networks. In giving the merger the (conditional) green light, the Commission appears to have attained a balanced result. Its investigation of the potential anti-competitive effects of big data echoes the Commission’s previous decision-making practice as it reaffirms the "bundling" theory of harm. Its analysis also stresses the relevance of data privacy as a parameter of competition. The case is, therefore, an excellent opportunity to further develop the analytical framework for the competition law assessment of mergers in the information technology sector.

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Dumping and Anti-Dumping (Preface)

Farah, Paolo Davide and Soprano, Roberto, Dumping and Anti-Dumping (Preface) (November 1, 2009). Paolo Farah and Roberto Soprano, DUMPING AND ANTI-DUMPING (Dumping e Anti-dumping), Il Sole 24 Ore, pp. XXIV-183, November 2009.
Paolo Davide Farah
Roberto Soprano

Dumping is the practice of a company exporting a product to another country at prices lower than the normal value of the product (the domestic prices of the product) on its own domestic market. In the European Union the adoption of antidumping measures (e.g. antidumping duties) is regulated by the EU Antidumping Regulation 384/96 which complies with WTO obligations. The purpose of the Handbook of Paolo Farah and Roberto Soprano is to foster a greater understanding of the EU Antidumping Regulation and assist entrepreneurs in lodging antidumping complaints.

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Editorial Note - Sustainable Energy Investments and National Security: Arbitration and Negotiation Issues

Sustainable Energy Investments and National Security: Arbitration and Negotiation Issues. Journal of World Energy Law and Business, Oxford University Press, Volume 8, Issue 6, December 2015.
Paolo Davide Farah

Energy-related investments have been on a track of constant development since the global expansion of energy utilization and the rapid increase of energy demand both regarding industrial use and consumer consumption. Fundamental trends in the European Union and the world at large provide an increasingly important policy agenda for financing sustainable energy in terms of energy efficiency, innovation in energy exploitation and development of renewable resources. Policies shaping this development are becoming more and more considerate of environmental aspects and maintaining sustainability. Furthermore, international organizations are fully aware of the necessity to keep broadening the scope of countries acquiring these new policy trends.

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Energy Investments and Environmental Concerns in Southeast Asia

ENERGY: POLICY, LEGAL AND SOCIAL-ECONOMIC ISSUES UNDER THE DIMENSIONS OF SUSTAINABILITY AND SECURITY, World Scientific Reference on Globalisation in Eurasia and the Pacific Rim, Imperial College Press (London, UK) & World Scientific Publishing, Nov. 2015.
Paolo Davide Farah

South-East Asia encompasses a number of countries that have experienced rapid economic growth in the last twenty years. The region as a whole is wealthy in fossil energy sources. Energy demand in South-East Asia is expected to increase dramatically in the coming years, creating problems in terms of relations among countries in the region and environmental degradation. The fossil energy sources are not evenly distributed across the region, and consequently some countries are abundant in resources while others are poor in resources. This state of affairs means that some national conceptions about competition among countries in the region need to be overcome, and appropriate transnational infrastructure for oil and gas transportation needs to be developed. Moreover, intriguing opportunities may derive from the development of renewable energy for about six hundred million people, 8.7 per cent of the entire world population. The analysis will focus on the following countries: Brunei Darussalam, Cambodia, Timor-Leste, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, Vietnam.

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Energy Security, Water Resources and Economic Development in Central Asia

World Scientific Reference on Globalisation in Eurasia and the Pacific Rim, Imperial College Press (United Kingdom) & World Scientific Publishing, 2015
Paolo Davide Farah

Central Asia is one of the world’s most prominent regions for hydrocarbon resources. There are large territories still to be explored with high potential, though oil and gas have already been extracted for a hundred years. The region is open to foreign investments, but several issues arise from the past. The breakup of the Soviet Union has not automatically overcome infrastructural dependence. The Russian monopoly on pipelines is in opposition to the interests and the prospective investments of multinational energy companies. The programme for alternative pipelines is, therefore, a technological as well as a geopolitical matter, where international actors and local actors are involved. Central Asia is of strategic importance in terms of international security because of its history, coming from the influence of Russian power, and its geography, with borders with Afghanistan, Iran, China and the Russian Federation. Central Asia, with its large energy resources, seems to be an opportunity also for large energy consumers as evinced by the strong competition between the EU and China to secure supplies from the region. Moreover, the trade in energy commodities and technologies is crucial for the economy of Central Asia and its adapation to climate change. Economic development and environmental protection are often disjoined in the policies of the region. One reason flows from the pressure on the Central Asian economies to maximize their economic advantages as energy exporters, if any societal progress is to be made. The Central Asian Regional Economic Cooperation (CAREC) Programme, which is a partnership of nine countries, places its priorities on trade policy and energy. The final goal is to achieve poverty reduction through accelerated economic growth. Another factor is represented by the interests of global players in securing supplies against environmental considerations. Several regional organizations which have no significant focus on climate change are operating in the region, some strongly influenced by Russia, such as the Eurasian Economic Community (EurAsEC) and the Eurasian Economic Union, and some by China, such as the Shanghai Cooperation Organisation (SCO). It is largely left to the Regional Environmental Centre for Central Asia to play a regional role in supporting environmental protection. The analysis will focus on Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan, Armenia, Azerbaijan, Georgia.

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Energy Trade and the WTO: Implications for Renewable Energy and the OPEC Cartel

Energy Trade and the WTO: Implications for Renewable Energy and the OPEC Cartel. Journal of International Economic Law (JIEL), Georgetown University Law Center, Oxford University Press, Volume 16 (3), September 2013, ISSN 1369-3034, pp. 707-740.
Paolo Davide Farah
Elena Cima

Energy has become increasingly important in international trade relations. However, the World Trade Organization (WTO) does not deal specifically with this sector, and this creates several problems when it comes to regulating trade in energy goods and services. The situation is further complicated, on the one hand, by the need to foster the diffusion of renewable energy to address the current environmental concerns and, on the other, by the total and overwhelming control exercised by the Organization of Petroleum Exporting Countries (OPEC) over the oil market. It is true that, recently, the WTO has shown an increasingly open approach towards environmental issues. However, free trade is still the backbone of the Organization and trade liberalization its main goal. This explains why the WTO Panel and Appellate Body are still reluctant to justify measures adopted to support the renewable energy sector that may conflict with international trade law. Different might be the case with fossil fuels, the main competitor of renewable energy. OPEC exploits several strategies to control oil prices, which, at least in theory, clash with international trade rules. However, whatever the reason, such practices have never been challenged in front of the WTO. The way WTO provisions are interpreted and applied by the Panel and the Appellate Body when environmental concerns are involved can be used as a starting point to forecast a hypothetical judgment in case OPEC's practices were eventually challenged.

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Energy: Policy, Legal and Social-Economic Issues Under the Dimensions of Sustainability and Security

World Scientific Reference on Globalisation in Eurasia and the Pacific Rim, Imperial College Press (United Kingdom) & World Scientific Publishing, 2015
Paolo Davide Farah
Piercarlo Rossi

Energy is a crucial issue for mankind. Especially in modern times, energy has been a factor of economic development and wealth. Today energy is strictly related with the notion of empowerment since energy allows any kind of contemporary life for humans: entertainment, work and protection. Consequently energy security is a top priority for national policies all over the world. Problems arising from climate change and depletion of natural resources are increasing the competition and collaboration among States around the energy production and supply. Sustainability of energy systems is then intertwined with the theme of security. Designed for scholar of different disciplines, the book encompasses several point of view about the different (although partially converging) approach to energy in European Union and Asian countries, considering the ever closer social and economic relations between Europe and Asia. The work also incorporates the state of affair at the transnational stage that originates from the international legal framework, mainly trade law, environmental law and investment law. Even through rapid changes about the political choices in the turmoil of the international arena, we believe that relations between Europe and Asia and the long term strategy on energy can be understood through the lens of three themes: the global demand and the policy questions; the level of trade under the international regulation of environment; and the role of innovation for the sustainability of energy systems. These three themes are developed in the three corresponding parts of the work.

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Enforcement of Online Copyright in Italy: The New Regulation Adopted by the Italian Communications Authority

Marini Balestra, Federico and Tremolada, Riccardo, Enforcement of Online Copyright in Italy: The New Regulation Adopted by the Italian Communications Authority (March 1, 2014). Federico Marini-Balestra & Riccardo Tremolada, Enforcement of Online Copyright in Italy: The New Regulation Adopted by the Italian Communications Authority, 2 INTELLECTUAL PROPERTY QUARTERLY 2014, 143-158.. Available at SSRN: https://ssrn.com/abstract=2994747
Riccardo Tremolada
Federico Marini-Balestra

This article will examine some issues raised by the Italian Communications Authority’s December 2013 regulation on online copyright, and will carry out a review of the current development of copyright protection in Italy. It will examine the implications of the new regulation, including the potential normative shortcomings that according to some scholarly literature may hinder the legitimacy and effective enforcement of its provisions. In that perspective, this article will argue that the current regulation on online copyright constitutes a valuable initiative.

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Ethics and Consumerism: Legal Promotion of Ethical Consumption?

Dias Simões, Fernando, Ethics and Consumerism: Legal Promotion of Ethical Consumption? (September 2013). in The ethics of consumption – the citizen, the market and the law, Helena Röcklinsberg and Per Sandin (Eds), Wageningen Academic Publishers, 2013, pp. 141-146.
Fernando Dias Simões

Consumption patterns influence our quality of life in deep ways, having a substantial effect on both the individual and the society as a whole. Most consumption decisions we make on a daily basis may have an ethical content. Normally our ethical concerns result from personal beliefs and societal influences, not from the Law. The question then becomes whether public entities have legitimacy to impose certain dimensions of ethical behaviour and whether Consumer Law is the appropriate mechanism to achieve such purposes. Government’s role in moulding our consumption habits is doubtful as there is no consensus about the role that Law should play in the promotion of ethical conducts. Traditionally Consumer Law was aimed at protecting the consumer himself. Should legal intervention be expanded to guide consumer behaviour even when the protection of consumers as such is not the goal? In some cases public intervention may be justified with the impact of individual decisions on the community as a whole. In fact, the State is interested in controlling the social costs of individuals’ behaviours that are borne by society at large. However, going beyond the frontier of public interest may be troublesome. This new field of regulatory intervention touches upon some of the values that define us as a society: personal freedom, choice and liberty. Any intervention in this regard should consider the balance between individual freedom and public interest. Citizens should not be treated as creatures deprived of any moral or ethical character.

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Facebook v. Business Competence S.r.l.

Marco D’Ostuni & Riccardo Tremolada, Facebook v. Business Competence S.r.l., 17(2) Leading Internet Case Law, 2017.
Riccardo Tremolada
Marco D’Ostuni

The Court held that Facebook was liable for acts of unfair competition and copyright infringement against Business Competence S.r.l, a client company. The Court found that Facebook had copied the plaintif's location-sharing app Faround when creating its own app of a similar nature.

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Five Years of China WTO Membership: EU and US Perspectives About China's Compliance With Transparency Commitments and the Transitional Review Mechanism

Five Years of China WTO Membership: EU and US Perspectives about China's compliance with Transparency Commitments and the Transitional Review Mechanism. Legal Issues of Economic Integration, Kluwer Law International, Vol. 33, No. 3, August 2006, pp. 263-304.
Paolo Davide Farah

China's accession to the WTO represents a goal achieved after nearly fifteen years of exhausting negotiations. However, many legal, political and social problems have not yet been tackled in terms of achieving real implementation of WTO provisions throughout the territory of the People's Republic of China. The Protocol requires a general and deep application of transparency, which will radically influence and change the Chinese legal system. There are a wide range of transparency related problems such as the formal publication of laws and regulations, procedural fairness in decision-making, the judicial review and the non-discrimination principle. The special precautionary instrument, the Transitional Review Mechanism (TRM), was included in the Protocol of China's Accession to the WTO, as requested by the US and supported by the EU. The TRM has the objective of monitoring and enforcement of implementation of WTO commitments, promoting transparency and the exchange of information in trade relations with China. Bilateral engagements and multilateral forums are both essential to bring China into full compliance with its WTO commitments.

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Foreword to Margeret Stout & Jeannine M. Love, A Radically Democratic Response to Global Governance. Dystopian Utopias

Farah, Paolo Davide, Foreword to Margeret Stout & Jeannine M. Love, A Radically Democratic Response to Global Governance. Dystopian Utopias (July 04, 2016). Transnational Law and Governance, gLAWcal Book Series, Routledge Publishing (New-York/London) ISBN 978-1-1386-5405-1, December 2016, pp. XIII-XV.. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3003155
Paolo Davide Farah

Nowadays, it is impossible to ignore the voices blaming the existing systems of governance within the borderless globalization system for being incapable of adequately responding to the problems and needs of the current age. The rage and discontent of a growing portion of the population who feel they have been left aside or who feel more insecure within prosperous Western societies, is demonstrated in the growing support of anti-system parties and candidates. Most recently – last but not least – the majority vote for “Brexit” in the referendum in the United Kingdom to leave the European Union, leaves us confronted with a burning question: What went wrong? The necessity of finding an answer to this question has never been greater than today. The growing concerns regarding progressive climate change, rapid technological development, wars and conflicts affecting different parts of the world, terrorism, migration crisis, unstable and weak job market and the general insecurity of the populous cannot simply be criticized as collective paranoia against globalization. The rising inequality or insecurity even of the middle-class related therewith puts pressure on the existing social order and elites who often fail to keep a pace with these latest developments or to adequately respond to them in a time of crisis.

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Foreword to Pasi Heikkurinen (edited), Sustainability and Peaceful Coexistence for the Anthropocene

Farah, Paolo Davide, Foreword to Pasi Heikkurinen (edited), Sustainability and Peaceful Coexistence for the Anthropocene (November 12, 2016). Transnational Law and Governance, gLAWcal Book Series, Routledge Publishing (New-York/London), ISBN 978-1-1386-3427-5, May 2017, pp. XIII-XVII.. Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3003114
Paolo Davide Farah

The topic of ‘Anthopocene’ is part of a larger narrative, which is shedding light on the underpinnings of the problem: human beings and their value systems. The concept of ‘narrative’ is crucial in this regard. Narratives convey certain values, translate complex rational or irrational theories and policies into comprehensible forms, and contribute to their acceptance by public at large. The narrative of constant growth, never-ending economic and technological progress, and dominance of humans over nature is slowly confronted with its limitations. According to Vaclav Havel, it is a paradox: humans in the age of science and technology believe they are improving their lives by mastering the laws of nature and exploiting nature. However, it is the contrary: it is these natural laws that prevail over humans and will penalize them for wrongdoing. Humans wanted to conquer nature, and as a result they destroyed it. A change of the narrative is inevitably needed: Civilization needs to be based on a revived and recreated responsibility of the humankind, respecting the boundaries of the natural world. The narratives of science need to serve this cause as well, otherwise, even the bold visions of Elon Musk and other visionaries of colonizing Mars would only be escapes from the primary task of humans, which is taking over the responsibility for our lives and lives of future generations on the planet. The Intergovernmental Panel on Climate Change (IPCC) has referred to climate change as ‘a change in the state of the climate that can be identified by changes in the mean and/or variability of its properties, and that persists for an extended period, typically decades or longer. It refers to any change in climate over time, whether due to natural variability or as a result of human activity.’ The wording is slightly different from the one used by the United Nations Framework Convention on Climate Change (UNFCCC), which refers to climate change as ‘a change of climate which is attributed directly or indirectly to human activity that alters the composition of the global atmosphere and that is in addition to natural climate variability observed over comparable time periods.’ What is important to note here is that IPCC is more cautious than UNFCCC in terms of blaming humans for climate change. This chapter briefly examines these theoretical aspects and its impact in the international negotiations.

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Friends with Benefits? Amicus Curiae in the TPP Investor-State Dispute Settlement Mechanism

Dias Simões, Fernando, Friends with Benefits? Amicus Curiae in the TPP Investor-State Dispute Settlement Mechanism (June 2017). in Julien Chaisse, Henry Gao, and Chang-fa Lo (eds.), Paradigm Shift in the Rule Making of International Economic Law (Springer, 2017 Forthcoming).
Fernando Dias Simões

Amici curiae are individuals or organisations who do not have the right to participate in the dispute as parties but want to intervene because the outcome of the proceedings may affect their interests. The participation of amici in investor-state arbitration has been justified as a useful tool to pursue different interests, inter alia, the promotion of greater transparency, accountability, and openness of this dispute settlement mechanism. However, opening up investment arbitration to the participation of non-disputing parties may raise several concerns, namely as regards the identity and interests pursued by the so-called ‘friends of the tribunal’. This chapter analyses the provisions of TPP’s Chapter 9 on amicus curiae intervention and discusses to what extent they balance the perceived benefits and potential drawbacks of this mechanism of public participation in investor-state arbitral proceedings. The social acceptance of the TPP will depend, to a large extent, on whether it offers solutions that effectively tackle the criticisms that have been thrown at investor-state arbitration, especially those that relate to a perceived lack of transparency and public participation. However, this goal can only be truly achieved if amicus curiae participation creates added value and does not undermine the purpose of peaceful and orderly settlement of investment disputes.

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From Consumer Law to Consumer Ethics

Dias Simões, Fernando, From Consumer Law to Consumer Ethics (Do Direito Do Consumidor À Ética De Consumo) (2014). Boletim da Faculdade de Direito da Universidade de Macau, Ano XVIII, No. 35, pp. 193-199, 2014.
Fernando Dias Simões

This article discusses the interplay between consumer ethics and consumer law.

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Global Energy Governance, International Environmental Law and Regional Dimension

ENERGY: POLICY, LEGAL AND SOCIAL-ECONOMIC ISSUES UNDER THE DIMENSIONS OF SUSTAINABILITY AND SECURITY, World Scientific Reference on Globalisation in Eurasia and the Pacific Rim, Imperial College Press (London, UK) & World Scientific Publishing, Nov. 2015.
Paolo Davide Farah

With the growing importance given to the climate change debate, energy has slowly come to attract the complete attention of the whole world. As a matter of fact, the main strategies identified by international bodies and institutions aimed at addressing the climatic issues faced by our planet always involve energy: in terms both of reducing the use of energy sources that increase emissions, and of using them more efficiently. The energy sector can be roughly divided into renewable energy, on the one hand, and fossil fuels, on the other. The former category is at the core of all the main international agreements regarding climate change and current environmental concerns: increasing the exploitation of renewable energy sources has become an urgent matter and a possible route to reach this goal is to facilitate trade and exchange in renewable energy goods, services, and technologies, through trade liberalization. Another possible route to achieve the global goal of reducing CO2 emissions and protect the environment requires reducing the use of fossil fuels, such as coal and oil. Global energy governance does, indeed, appear to be split into several initiatives, comprising a wide range of energy-related issues, such as trade and climate change, which are not coordinated with each other.

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Good Morals in the Legal Culture of Central Europe

Míľniky práva v stredoeurópskom priestore 2011: zborník z medzinárodnej konferencie: 31. marec - 2. apríl 2011, Častá-Papiernička, Bratislava: UK, 2011, ISBN 9788071603184, p. 144-149.
Tivadar Ötvös

The author of the article concentrated on the definition of the concept of good morals in law, which is considered to be very vague. He examined it from a philosophical point of view and tried to find its place in the system of rules, which regulate social life. As the object of interest the author chose several legal systems from continental law, in which he analysed the position of good morals. In the last part the article contains generalizations, conclusions and also suggests his own general legal definition of the term.

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Harmonisation of Arbitration Laws in the Asia-Pacific: Trendy or Necessary?

Dias Simões, Fernando, Harmonisation of Arbitration Laws in the Asia-Pacific: Trendy or Necessary? (2015). Chapter 11 in: Muruga Perumal Ramaswamy and João Ribeiro (eds.), Trade Development through Harmonization of Commercial Law, UNCITRAL Regional Centre for Asia and the Pacific, New Zealand Association for Comparative Law, pp. 217-231, 2015.

This article discusses the importance of harmonisation of arbitration laws with a particular focus on the Asia-Pacific region.

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Il rapporto tra private e public enforcement del diritto antitrust nella giurisprudenza amministrativa

Il rapporto tra private e public enforcement del diritto antitrust nella giurisprudenza amministrativa (Nota alla sentenza del Consiglio di Stato n. 4773/2014), Rivista Il Foro Amministrativo/Consiglio di Stato, Giuffré, Vol. II(3), 781-796.
Riccardo Tremolada
Federico Marini Balestra

This is a comment on the decision of the Consiglio di Stato of 22 September 2014, no. 4773, which addressed a range of unsettled issues related to antitrust commitments. This comment investigates the relationship between public and private antitrust enforcement, highlighting their different roles. Il also reframes the boundaries of the scope of judicial review on decisions to accept antitrust commitments. The comment, which agrees with the decision of the Consiglio di Stato, examines the evolution of these fundamental concepts related to protection of competition before administrative tribunals

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Illicit Nuclear Trafficking: States, Non-State Actors and the Quest for Criminalization in International Law

Tremolada, Riccardo, Illicit Nuclear Trafficking: States, Non-State Actors and the Quest for Criminalization in International Law (March 1, 2013). OGEL Journal (Oil, Gas & Energy Law Intelligence) Nuclear Law and Policy OGEL 1 (2013). Available at SSRN: https://ssrn.com/abstract=2306472 or http://dx.doi.org/10.2139/ssrn.2306472
Riccardo Tremolada

Nuclear and other radioactive materials are being trafficked outside the realm of legality. These materials are likely to be used in terrorist attacks that could inflict, given the extremely perilous nature of such substances, an enormous amount of casualties and many unforeseen consequences. This fact raises crucial issues that require a precise examination of the wide variety of international legal instruments that could potentially be invoked to curb this threat. Given the shift from traditional nuclear energy markets towards new frontiers, it is indeed crucial to better investigate this phenomenon and the role that can be played by international law in the fight against illicit trafficking in nuclear materials, examining how the law views the different actors of the nuclear black market, in particular non-State actors, and which mechanisms have been set up so far in order to prevent and tackle this menace.

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Inclusion of Standard Clauses in Adhesion Contracts: A Luso-Chinese Comparison

Dias Simões, Fernando, Inclusão de Cláusulas em Contratos de Adesão: Uma Comparação Luso-Chinesa (Inclusion of Standard Clauses in Adhesion Contracts: A Luso-Chinese Comparison) (2013). Boletim da Faculdade de Direito da Universidade de Macau, No. 32, pp. 47-72, 2013.

This article compares the inclusion of standard clauses in adhesion contracts under the Portuguese and Chinese laws.

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Institutional Culture in International Arbitration

Dias Simões, Fernando, Institutional Culture in International Arbitration (2016). Australasian Dispute Resolution Journal, 27(3), 2016, pp. 188-197.
Fernando Dias Simões

Arbitral institutions play a major role in the continuous growth and success of international arbitration. Every arbitral institution has its own culture – a particular way of doing things that distinguishes it from others. This article discusses the concept of “institutional culture” and examines three different elements that contribute decisively to the culture of arbitral institutions: location and legal culture, background of arbitrators, and the language of arbitration. In order to succeed in the highly competitive market of international arbitration, arbitral institutions need to be transparent and flexible so as to accommodate a diversity of cultural and legal backgrounds and expectations.

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Internationalization of the Market, Dumping and State Aids: The EU Position and the Trade Defense Measures for the Enterprises

Internazionalizzazione del mercato, dumping e aiuti di Stato: la posizione dell’UE e le misure di difesa commerciale per le imprese (Internationalization of the Market, Dumping and State Aids: The EU Position and the Trade Defense Measures for the Enterprises). Rapporto Veneto Internazionale, Centri Studi e Ricerche Economiche e Sociali, Vianello Libri, Venezia, 2012, pp. 205-220.
Paolo Davide Farah

In the international arena of the global market, the entrepreneurs and the companies of the European Union are called to face the unfair competition of some Third countries operators. The constant and growing internationalization of the market obliges the European companies to act promptly and efficiently against those challenges through the EU trade defense measure instruments.

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Introduction and Overview

China’s Influence on Non-Trade Concerns in International Economic Law, Global Law and Sustainable Development Book Series, Routledge Publishing (New-York/London), ISBN 978-1-4094-4848-8, September 2016, pp.1-9
Paolo Davide Farah

The motivating idea for this project is to explore the range of Non-Trade Concerns (NTCs) that may conflict with international economic rules with a specific focus on how China can play a decisive role in these matters. If, on the one hand, this volume looks at the tensions between trade and non-trade values through the Chinese experience, on the other, it contextualizes this analysis within the broader framework of public international law. Public international law appears highly fragmented, as different treaties and rules, which often express different values, increasingly overlap. Although the goal of multilateral trade agreements and that of the treaties and institutions promoting different values do not inherently conflict, the norms adopted to achieve them might come into conflict, and, in practice, tensions do exist. In particular, norms with distinct objectives – such as sustainable development, environmental protection, public health, product safety, food security, consumer protection, the right to food, and the right to water – might affect trade patterns, or, conversely, changes in trade flows influence and possibly jeopardize the realization of such norms. Tensions do exist not only between each state’s conflicting obligations, but among states as well, since their priorities differ considerably. With regard to NTCs, developing countries do not have the same approach as developed ones. Public opinion and policy-makers in industrialized nations fear that a further liberalization of international trade may undermine or jeopardize policies and measures protecting a variety of non-trade values and react by increasingly resorting to trade restrictions. On the other hand, developing countries and, even more so, the least-developed ones have more pressing concerns to address, and tend to look at many of the trade measures introduced by developed countries to address NTCs with distrust if not with resistance or dissent, because they suspect such measures often hide protectionist goals. Moreover, developing countries see these measures as an attempt by developed countries to impose their social, ethical, or cultural values and preferences. The key challenge is finding ways to satisfy the right of developed nations to grant social values the degree of protection they consider appropriate, while minimizing the negative effects in terms of market distortion for their trading partners. Prior to China’s accession to the World Trade Organization (WTO), many cautioned that its integration would not only be long and difficult, but possibly damaging to the Organization itself as well as its Members. In view of preventing this outcome, some experts decided to tackle the challenge of integrating China in the world trading system by focusing on the country’s market access concessions, tariff reductions, and liberalization requirements. A second group of scholars placed more emphasis on transparency issues instead, such as legal and administrative policies that China should adopt to ensure equitable and efficient resolution of trade disputes. Per contra, the issue of the potential influence of China’s WTO accession on NTCs has rarely been addressed in a comprehensive manner. Interestingly, though, the country’s influence in this area is now becoming more and more evident in the geopolitical context, considering the impact that China has had not only at the WTO but in other international fora as well, often in combination with the BRICS countries (Brazil, Russia, India, China and South Africa) and other developing countries.

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Law and Language in Timor-Leste: Bridging the Divide

Dias Simões, Fernando, Law and Language in Timor-Leste: Bridging the Divide (2015). Contemporary Southeast Asia, 37 (3), 2015, pp. 381-405.
Fernando Dias Simões

As in other post-conflict states, the international community has been actively promoting the implementation of the rule of law in Timor-Leste. The justice system remains the weakest branch of Timor-Leste’s governance architecture. The effectiveness of the justice system is hampered by the fact that laws and proceedings are not always translated into languages understood by all court actors. Timor-Leste has a long history of multilingualism, with at least sixteen language varieties being spoken in the country. Both Tetum and Portuguese are official languages, with Portuguese being predominantly used in the courts, even though less than 10 per cent of the population is fluent in the idiom. The post-colonial legacy was one of two separate legal systems — the formal legal system and the traditional system — operating in parallel. More than a decade after independence, the former continues to have only a peripheral presence in the lives of most East Timorese. This gap between the language of the people and the language of the courts heightens the challenges to nation- and state-building in Timor-Leste. The purpose of this article is to examine the current language policy in Timor-Leste and discuss possible avenues for strengthening the formal justice system in a multilingual environment.

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Myopic Amici? The Participation of Non-Disputing Parties in ICSID Arbitration

Dias Simões, Fernando, Myopic Amici? The Participation of Non-Disputing Parties in ICSID Arbitration (June 2017). North Carolina Journal of International Law (Forthcoming).
Fernando Dias Simões

The involvement of amici curiae in investment arbitration is becoming increasingly common in disputes that raise public policy considerations. Amicus curiae is a useful tool to promote the transparency, accountability, and openness of the arbitration system, but also to help tribunals in rendering better awards. The 2006 amendments to the ICSID rules facilitated the participation of civil society in the proceedings but did not go far enough in ensuring a full application of the public participation principle. A review of the ICSID jurisprudence shows that the extension of participatory rights of amici curiae beyond the presentation of written submissions has been timid. The efficiency of amicus participation without access to arbitral documents and hearings is doubtful. The ICSID Arbitration Rules should be reformed in line with recent developments so as to endow non-disputing parties with the necessary tools to perform their function properly.

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National Energy Policies and Energy Security in the Context of Climate Change and Global Environmental Risks: A Theoretical Framework for Reconciling Domestic and International Law through a Multiscalar and Multilevel Approach

European Energy and Environmental Law Review (EEELR), Kluwer Law International, Vol. 20, No. 6, pp. 232-244, 2011
Paolo Davide Farah
Piercarlo Rossi

Energy consumption and energy demand are predicted to grow steadily over the next few decades. The international community confronts two great challenges at once: providing secure and cheap energy supplies to meet ever-expanding needs and responding to climate change. There are a variety of national strategies to answer these needs. The impacts of the diverse national strategies on the greenhouse effect are multilevel; they range from the most state-centred to large-scale ones. The nature of the dual problems provides the basis for a review of the diverse approaches based on hierarchies of principles that entail diagonal regulatory strategies on climate change and energy security. These principles should mark the policy priorities to be followed and make it possible to more effectively integrate public laws with differing objectives, such as economic development and the environment. The globalization discourse has fragmented the traditional framework in which the policy-making role of the nation-state is inserted into the international legal system. The coexistence of national, regional and international decision-making levels can be seen to lead to sets of policies which fail to maintain internal consistency. Accordingly, studies on energy issues and studies on environmental risks need to be held together by means of a methodological integration that is able to encompass the multiscalar effect.

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Offshore natural gas resources in the eastern Mediterranean in relation to the European Union: a legal perspective through the lenses of MedReg

Journal of World Energy Law and Business, Oxford University Press, Volume 8, Issue 6, December 2015
Paolo Davide Farah
Riccardo Tremolada

The Leviathan natural gas field has become a significant energy source for surrounding states in the eastern Mediterranean such as Lebanon, Cyprus, Syria, Israel, Jordan and Turkey. Tensions in the particular area cause this resource to be exploited on a low efficiency level both when it comes to utilization and organized cooperation between states helping their economies to benefit from the trade in this natural resource. This article analyses the current tendencies towards the expansion of the regulatory frameworks already functional in Mediterranean states west of the Levantine basin and simultaneously aims to give an assessment of these efforts. The main goal is to thoroughly evaluate the appropriateness of the existing cooperative methods and legal solutions regarding energy trade on an open market between developed states for countries with different political interests in a highly unstable area of constant sociological and political turbulence. Overcoming these challenges through legal, economic and political measures is key to the success of the eastern Mediterranean countries’ energy future, also in light of their relationship with and within the European Union (EU). It is also essential that the EU obtains increasing influence in its role in the region, in particular, that EU Member States really start acting as a whole in their external relations in general and in the energy field.

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Paternalism and Health Law: Legal Promotion of a Healthy Lifestyle

Dias Simões, Fernando, Paternalism and Health Law: Legal Promotion of a Healthy Lifestyle (September 1, 2013). European Journal of Risk Regulation, issue 3, 2013, pp. 347-363.
Fernando Dias Simões

Research in lifestyle risks is becoming more and more important, particularly with reference to what is generally known as “unhealthy diets”. The Law is now firmly established as a prominent instrument of Public Health. There are several distinctive methods of legal intervention targeted at counteracting overweight and promoting healthier lifestyles. In this paper we examine several measures that have been adopted and discuss whether Law should foster healthy diets. Our purpose is to examine the threats of falling into a paternalistic attitude when devising any regulatory intervention aimed at promoting a healthier lifestyle.

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Portuguese-Speaking Africa and the Lusophone Legal System: All in the Family?

Dias Simões, Fernando, Portuguese-Speaking Africa and the Lusophone Legal System: All in the Family? (February 20, 2017). African Studies, available online 20 February 2017.
Fernando Dias Simões

The direct link between economic activity and commercial law is irrefutable. Countries that want to promote economic growth strive to modernise their legal systems. This article discusses the main driving forces for legal reform in Portuguese-speaking African countries. It is argued that Portuguese language and legal culture will continue to be a relevant source of influence. However, foreign investment will also play a decisive role. Legal globalisation will probably be more important than familiarity and regional integration. The most important ‘legal family’ is now international trade law: all developing countries desire to be members of this ‘family’ as they struggle to join the world economy.

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Powered by Expertise: Selecting Arbitrators in Energy Disputes

Dias Simões, Fernando, Powered by Expertise: Selecting Arbitrators in Energy Disputes (October 19, 2015). Journal of World Energy Law & Business, 8(6), 2015, pp. 501-520.
Fernando Dias Simões

Arbitration is the most widely used dispute resolution method in the energy sector. A major advantage of arbitration is that it allows parties to select the persons who will settle the dispute — the arbitrators. However, finding meaningful information on the level of expertise of potential arbitrators is not easy. There are serious information asymmetries that prevent the market for arbitrator services from being fully competitive and impair parties’ ability to make wholly informed decisions. Because most parties and their counsels are not familiar with the market for arbitrators, they tend to rely on personal enquiries and generic or specific directories of arbitrators. The choice of a suitable arbitrator is critical, not merely from the parties’ point of view but also to ensure the efficiency and legitimacy of the overall system of dispute resolution. Arbitrators should be able to balance a variety of diverse interests that frequently go beyond the strict concerns of the disputing parties. This article argues that lists of energy arbitrators should be improved so as to allow interested parties to consult prior awards rendered by potential arbitrators and the feedback provided by previous users of their services. This would allow parties to conduct a more efficient screening of potential candidates, hopefully contributing to make the process of identification of expert energy arbitrators easier and cheaper.

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Private Labels and Products Liability: Hypermarkets as Apparent Producers

Dias Simões, Fernando, Private Labels and Products Liability: Hypermarkets as Apparent Producers (2013). Juridical Review, part 3, 2013, pp. 469-481.
Fernando Dias Simões

Modern-day supermarkets and hypermarkets have been introducing new market strategies that aim to simplify the traditional production and distribution system. Among these novelties is the surprising conversion of retailers into producers through the use of their own brands (‘private labels’). The retailer assumes full control over the production and distribution of private label products. He is responsible for the product’s quality and conformity, a role that was traditionally reserved to producers. Council Directive 85/374/EEC, of 25 July 1985 adopted an economic concept of ‘producer’ that includes ‘any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer’ (the so-called ‘apparent producer’). On this day and age, the brand is a channel of information between supply and demand, exercising a communicative function that can be viewed as a position of liability that its holder assumes for products that he puts into circulation. By labeling products with his own brand, the retailer assumes the same risk as real producers. The trade mark holder shall be liable for the damage caused by defective products jointly and severally with the product’s real manufacturer. The inclusion of the trademark owner in the concept of producer is closely linked to consumers’ expectations. Consumers see the trade mark on the product and are reasonably confident that the holder of such mark had some control over the production and will, accordingly, be liable for any damage caused by the product. In this article we analyse the connection between product liability and consumer expectations, determining whether the consumer may directly sue the hypermarket if the product is defective and causes damages.

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Product Safety in the Framework of the WTO Agreement on Technical Barriers to Trade

China’s Influence on Non-Trade Concerns in International Economic Law, Global Law and Sustainable Development Book Series, Routledge Publishing (New-York/London), ISBN 978-1-4094-4848-8, September 2016, pp. 436-448
Tivadar Ötvös
Paolo Davide Farah
Lukasz Gruszczynski

This chapter discusses the basic obligations for national product safety regulations imposed by the TBT Agreement, and gives a general picture of the rules on technical standards that are applicable in the relations between China and its trading partners. The first section defines the scope of the agreement, while the second analyzes its specific requirements relevant to domestic product safety regulations. The last section concludes with some general observations on the functioning of the agreement. Due to the space limitations, this chapter should be regarded more as an introduction than a comprehensive analysis of existing legal obligations. From the previous reasoning, it is evident that this chapter defines product safety rules quite broadly. They include provisions that aim at eliminating particular health risks – for example, by prohibiting particular chemical substances in some or all products – as well as provisions aimed at limiting their extent – for example, by setting specific thresholds for nicotine in cigarettes or by requiring certain safety devices in cars. In the second instance, a regulator may accept, for other reasons, a certain level of risk connected with the use of a product. Product safety rules also include informational requirements imposed on sellers or producers, such as various labeling obligations requiring them to disclose the composition of a product, provide instructions on its safe use, or indicate specific risks related to such use.

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Protection of Personal Data vs. Marketing Communication

Právní Rozpravy 2012: mezinárodní konference oblasti práva a právních věd: recenzovaný sborník příspěvků z mezinárodní vědecké konference: 6. - 10. február 2012, Hradec Králové: MAGNANIMITAS, 2012, ISBN 9788090487789, p. 170-179.
Tivadar Ötvös

The article deals with the different legal institutes of data protection, and their possible violations during the communication processes with the customer in the field of Marketing.

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Recognition and Enforcement of Foreign Arbitral Awards in Macau

Dias Simões, Fernando, Recognition and Enforcement of Foreign Arbitral Awards in Macau (June 2014). Hong Kong Law Journal, vol. 44, part 2, 2014, pp. 563-587.
Fernando Dias Simões

The recognition and enforcement of foreign arbitral awards in the Macau Special Administrative Region of the People’s Republic of China is not always subject to the same legal rules. Foreign arbitral awards may be divided, according to their origin, into four different groups: awards made in a New York Convention country, other than China; awards made in mainland China; awards made in Hong Kong and awards made in a non-New York Convention country. This article analyses the sets of rules applicable to the different types of foreign arbitral awards. Macanese courts have limited experience in this regard. In order to change this, it is necessary to raise the awareness among judges about the specificities of international commercial arbitration by promoting an “arbitration culture”.

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Regulation and Prospects of the Shale Gas Market in China in Light of International Trade, Energy Law, Production-Sharing Agreements, Environmental Protection and Sustainable Development: A Comparison with the US Experience

Regolazione e prospettive del mercato dello shale gas in Cina: tra diritto del commercio internazionale, diritto dell'energia, accordi di produzione, protezione ambientale e sviluppo sostenibile: un confronto con l’esperienza statunitense (Regulation and Prospects of the Shale Gas Market in China in Light of International Trade, Energy Law, Production-Sharing Agreements, Environmental Protection and Sustainable Development: A Comparison with the US Experience). Diritto Comunitario e degli Scambi Internazionali, 1-2/2015, pp. 29-83.
Paolo Davide Farah
Riccardo Tremolada

Shale gas has been defined as a revolution in the global energy landscape. This is even more true in China, whose large shale gas reserves are likely to have a crucial effect on the regional gas market and on China’s energy mix. The country is endeavoring to minimize reliance on imported fossil fuels, while it strives to address mounting energy demand and gain greater negotiating power on determining gas prices. Nonetheless, this advance does not come without risks, as shale gas exploitation poses a number of legal, regulatory and environmental challenges, which could negatively impact on future exploitation and commercialization, not only in China. This study carries out an in-depth analysis of the current shale gas regulatory framework, moving from previous experiences of unconventional gas exploitation in the United States to evaluating their possible application to China, where regulatory and enforcement hurdles are exacerbated by an energy sector characterized by technological deficiencies, barriers to market access hindering access to resource extraction for private investors, and a limited liberalization of gas prices. These questions are analyzed in light of problems related to water pollution originating from mismanaged drilling and fracturing, and the absence of adequate regulatory measures and industry standards regarding predictive evaluation. The paper goes on to explore the institutional situation of fragmentation, and clashes and overlapping of competences, emphasizing how these processes impact on outcomes. The study concludes by proposing possible ways forward, involving cooperation and regulatory reforms.

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SMEs in the Common European Sales Law

Dias Simões, Fernando, SMEs in the Common European Sales Law (March 1, 2014). in Ilse Samoy & Marco B.M. Loos (eds.), The position of Small and Medium sized Enterprises in European Contract Law, Intersentia, 2014, pp. 9-26.

This article analyzes the regulation of Small and Medium sized enterprises (SMEs) in the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law - SEC(2011) 1166 final, of 11 October 2011. The Proposal covers not only contracts between professionals and consumers but also between two professionals when at least one of them is an SME. One of the most important aspects of this proposal is the regulation of standard contracts, which create special risks for the weaker party to the contract. However, as the application of the Common European Sales law is voluntary, stronger companies will probably not opt in, continuing to choose the legal regime which they are most familiar with and that offers them greater certainty, instead of choosing a set of rules that essentially seeks to protect the weaker party (the SME).

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Some Comments on Contractual Freedom in Labour Law

Zamestnanec a právne aspekty jeho postavenia: zborník vedeckých prác doktorandov: 27. február 2012, Košice, Univerzita Pavla Jozefa Šafárika v Košiciach, 2012, ISBN 9788070979495, p. 75-84.
Tivadar Ötvös

Labour law is connected to private law principles despite of it’s hybrid characteristics. The contractual freedom is applied in this legal sector in a modified way compared to the classic parts of private law (e.g. civil law). This article deals with the provisions which limit this freedom of contracts in order to fulfill the protective feature of labour law. The center of our consideration was the question: is in the time of globalisation correct still to talk about contractual freedom in labour law or should this principle be replaced/filled up with a wider one, which would include also the feature of employer protection and contractual fairness?

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Standard Contracts in the Trade between China and Mozambique

Dias Simões, Fernando, Standard Contracts in the Trade between China and Mozambique (Os Contratos De Adesão Nas Relações Comerciais Entre a China E Moçambique) (June 2014). in Wei Dan, Orquídea Massarongo Jona (eds.), Questões Jurídicas Contemporâneas relativas ao Comércio e Investimento China-África, Almedina, 2014, pp. 41-63.
Fernando Dias Simões

The trade between China and Africa has been growing tremendously in the last years. Mozambique has been emerging as an important market for China, interested in acquiring natural resources and selling products to the developing Mozambiquean market. The use of standard contracts plays an important role in international trade. This article compares the regulation of standard contract terms in the legal systems of China and Mozambique.

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Supply Contracts in the Supermarket Industry

Dias Simões, Fernando, O Contrato De Fornecimento Na Grande Distribuição Retalhista (Supply Contracts in the Supermarket Industry) (2016). in António Pinto Monteiro (ed.), Temas de Direito dos Contratos, vol. II, Rei dos Livros, 2016, pp. 38-62.
Fernando Dias Simões

This article analyses the use of supply contracts in the supermarket industry.

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The Antidumping Measures of the European Union in the Light of the EU Regulation 182/2011

Le Misure Antidumping Dell’Unione Europea Alla Luce Del Regolamento N. 182/2011 (The Antidumping Measures of the European Union in the Light of the EU Regulation 182/2011) . Journal of International Trade Law (Rivista di Diritto del Commercio Internazionale) 3/2013, ISSN: 1593-2605, Giuffre, pp. 865.
Paolo Davide Farah

The Trade Defense Measures in the European Union and the Recent Normative Developments - II. The Anti-dumping Measures and the Related Procedure - III. The New Legal Issues Introduced by Paragraph 5 of Article 5 of Regulation 182/2011: the Comitology and the Specific Mechanism for the Adoption of the related Acts and Permanent Anti-dumping or Compensatory Measures.

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The Chinese Economic Competition and the WTO

The Chinese Economic Competition and the WTO (La Concorrenza Economica Di Pechino Si Combatte Con Le Armi Del WTO). Milano Finanza, Mondo & Mercati, August 2005,  p. 7.<br>
Paolo Davide Farah

As members to the WTO agreement and as signatories of the bilateral agreements, the EU and the US have to help China to comply with its commitments, but they also have the obligation of monitoring the advancement of legislative review and the application of the transparency requirements. The monitoring and enforcement obligations of trade agreements are a demanding task with technical complexity requiring a very high level of expertise. This is more than true with China because of its premature accession to the WTO, its vast territory and several years of gradual decentralization in favour of localities. The EU has demonstrated that it is ready to consider taking an aggressive approach toward China, under specific conditions and if other methods fail. The EU is prepared to introduce safeguard measures and quotas to protect EU companies when Chinese imports are the cause of material damage or might cause material damage to EU industry. It is surely important for the EU to protect its enterprises, but safeguard measures should be considered a temporary solution because they do not facilitate the good trade relations between the EU and China. The EU has to try to prevent problems instead of intervening at the very last moment, when the situation has become critical for EU companies. It is necessary for the EU to begin demanding more and more respect of all the WTO principles and in particular the transparency principles. In this way, by exploiting all the internal and international means, it is possible to help and convince China to comply with the WTO commitments, to open its system for generating market access opportunities for European companies.

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The Civil Liability of Law Firms in Portugal

Dias Simões, Fernando, A Responsabilidade Civil das Sociedades de Advogados em Portugal (The Civil Liability of Law Firms in Portugal) (August 13, 2008). Dereito – Revista Xurídica da Universidade de Santiago de Compostela, Vol. 17, No. 1 (2008), pp. 5-23.
Fernando Dias Simões

In Portugal law firms can choose between limited or limitless liability. In limited liability law firms only the corporation answers for social debts, having to contract a civil liability insurance. The admission of this type of law firms, with exclusion of partners liability, implies a limitation of liability for acts of the debtor himself in cases of deceit or gross fault. The Portuguese legislator should have adopted a solution close to the one of Ley 2/2007, de 15 de Março, de sociedades profesionales, admitting limited liability law firms but imposing limitless, joint and several liability of the intervening partners in a particular case, leaving the remaining partners free from liability.

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The Development of Global Justice and Sustainable Development Principles in the WTO Multilateral Trading System Through the Lens of Non-Trade Concerns: An Appraisal on China’s Progress

China’s Influence on Non-Trade Concerns in International Economic Law, Global Law and Sustainable Development Book Series, Routledge Publishing (New-York/London), ISBN 978-1-4094-4848-8, September 2016, pp. 10–58
Paolo Davide Farah

The ongoing economic instability in several countries and regions throughout the world, along with the volatility of the market and job losses, has lead to an increase in protests that are currently reaching the highest possible levels of conflict against the so-called establishment. Additionally, the growing of political discourse and public opinion regarding the migration crisis and the global fight against terrorism are also providing momentum to some relevant segments of this variegated civil society movements which have continued to express dismay and anger towards human, social, and environmental consequences of the global expansion of world trade and of the monetary and commercial translation of all interpersonal transactions. Majority votes favoring Brexit and other political turmoil happening around European countries, in the United States, and in different parts of the world are just some of the most critical examples on how the existing systems are failing. Specifically, global governance and law with borderless globalization are to blame for the inability to find appropriate solutions to face the challenges of a constantly changing society. Unfortunately, this inability creates a risk that leaves behind an increasing part of the population who are unable to benefit from such globalization. The related fear of the people toward the risks of a world without barriers are very real and concrete. Additionally, the proposed solutions to face these problems are certainly influenced by the negative visions on globalization and liberalism, which neglect to take into account the positive effects of the free trade and liberalization of the markets. For example, more and more political leaders are trying to use this discontent among the society for obtaining an easy consensus, without truly having a real program to improve the life of the people. More importantly, without endorsing the intrinsic dangers, a strong shift back towards nationalism might come to fruition in the long-term as a result. Democratic legitimacy and social justice based on human rights principles should be used as the regulatory framework to structure global expansion of economic welfare as well as WTO rules However, the difficulty and limit of this approach lies in the fact that it affirms both that human rights should guide the process of global legal integration and that the WTO should implement such process. Suggesting that WTO law guarantees respect for fundamental human rights implies a refusal to evaluate the practices of organizations such as the WTO itself and the IMF. The following section of this chapter examines the particularities of China at a crossroads between the “Right to Development” and “NTCs,” given that China still seeks to grow its economy and expand industry to bring millions of more people out of poverty. Simultaneously, it plays an essential role (together with other BRICS countries) in creating a model to “develop” sustainably, with a view towards tackling climate change, avoiding the increasing environmental risks and damages, and balancing the attractions of foreign investments with labor rights, human rights, and public health. The subsequent section titled “Non-Trade Concerns status in the WTO multilateral system” develops a non-exhaustive overview and explores the integration of NTCs in the WTO. In particular, the interplay between environment and trade25 is examined and the prospects for the new acceding Members, taking China as a case study and its accession to the WTO in 2001, the change in the attitude of the WTO DSB while ranking public health issues over trade, the relations between food security and international trade regulations, the difficult balance of the right to access essential medicines and the protection of their IPRs, the respect of other human rights in the multilateral trading system, and the relations between cultural products and public morals.

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The Dilemma of "nemo plus iuris" and Good Faith in Civil Law

Javítandó és jobbítható elemek a Ptk. kodifikációjában: Miskolci konferenciák 3.6.2011 - Miskolc: Novotni Alapítvány a Magánjog Fejlesztéséért, 2012., ISBN 9789639360846. p. 137-147.
Tivadar Ötvös

The article deals with the contradiction of two basic private (civil) law principles: one of them is the well known roman sentence, according to which no one can transfer to another a larger right than he himself has; and the other one is the principle of good faith. Their controversy can result in "hard cases" especially in the field of immovable property rights, which are difficult to decide.

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The EU Debate on Net Neutrality: What About Zero-Rating?

Marini Balestra, Federico and Tremolada, Riccardo, The EU Debate on Net Neutrality: What About Zero-Rating? (June 2015). 21(5) COMPUTER AND TELECOMMUNICATIONS LAW REVIEW, 2015, 115-119.. Available at SSRN: https://ssrn.com/abstract=2994741
Riccardo Tremolada

The debate over network neutrality (‘net neutrality’) is moving into the realm of the concrete. New issues are already challenging regulators and antitrust authorities. Among them, one recently gained momentum: “zero-rating”, i.e., a type of positive price discrimination, resulting in operators not charging end-users for accessing data volume linked to specific applications or internet services. According to some National regulators zero-rating is unlawful as de facto it could discriminate independent content but, at least in Europe, we miss guidance at the EU level. In our view, it is at the very least debatable that punishing a company for offering free data access or lower prices is beneficial to consumers.

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The Energy in the Context of the WTO Agreements: Subsidies for the Renewable Energy and the OPEC Practice of Control of the Price

L'energia nel contesto degli accordi dell'OMC: Sovvenzioni per le energie rinnovabili e pratiche OPEC di controllo dei prezzi (The Energy in the Context of the WTO Agreements: Subsidies for the Renewable Energy and the OPEC Practice of Control of the Price). Journal of International Trade Law (Rivista di Diritto del Commercio Internazionale), 2/2013, pp. 343-381.
Paolo Davide Farah
Elena Cima

With greater importance given to the climate change debate, energy has slowly attracted the complete attention of the whole world. As a matter of fact, the main strategies identified by international bodies and institutions aimed at addressing the climatic issues faced by our planet constantly involve energy: both in terms of reducing the use of sources that increase emissions, and in terms of using them more efficiently. The energy sector can be roughly divided into renewable energy, on the one hand, and fossil fuels, on the other. The former category is at the core of all the main international agreements regarding climate change and current environmental concerns: the increasing exploitation of renewable energy sources has become an urgent matter and a possible route to reach this goal is to facilitate trade and exchange in renewable energy goods, services, and technologies, through trade liberalization. Another possible route to achieve the global goal of reducing CO2 emissions and protect the environment requires a diminished use of fossil fuels, such as coal and oil. As far as petroleum is concerned, the relevant market is completely controlled by a few actors, gathered in the Organization of Petroleum Exporting Countries (OPEC), which set prices and quotas as they please. It is clear from this picture that a central and fundamental role is played by international trade rules. Trade liberalization in renewable energy needs to be consistent with international trade rules, and so do OPEC’s practices. As we will see in section 2, energy is not explicitly covered by the Agreements of the World Trade Organization (WTO), which makes interpretation of this sector extremely important. Section 3 focuses on the possibility to use and interpret WTO Agreements in favor of the deployment and diffusion of renewable energies, in order to contribute to mitigation of and adaptation to climate change. Measures supporting this form of energy are often considered to be inconsistent with WTO rules. This is because the exceptions that would allow the WTO system to justify such measures are usually applied in a textualist manner. After displaying the main provisions and the existing case law, we will draw some conclusions on the possibility of an evolving interpretation thereof, allowing smoother and easier trade in renewable energy. Section 4 will then argue OPEC’s production quotas compliance with the rules and principles established by the WTO. As a matter of fact, international institutions and agreements — such as the WTO and its framework — are designed to provide the stability and predictability necessary for economic growth, and OPEC’s monopoly and control over oil prices undermines the stability and transparency of the market for oil. Challenging such monopoly is necessary to level the playing field where all energy sources compete. In particular, as OPEC’s production quotas are here questioned, a WTO dispute involving quotas will be used for comparison.

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The Erosion of the Concept of Public Service in Water Concessions – Evidence from Investor-State Arbitration

Dias Simões, Fernando, The Erosion of the Concept of Public Service in Water Concessions – Evidence from Investor-State Arbitration (2017). in Julien Chaisse (ed.), The Regulation of the Global Water Services Market, Cambridge University Press, 2017, pp. 70-90.
Fernando Dias Simões

This article discusses the erosion of the concept of public services in water concessions by analysing the case law from investor-state arbitration.

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The European Parliament's Oversight Powers Over Trade and Investment Negotiations

Dias Simões, Fernando, The European Parliament's Oversight Powers Over Trade and Investment Negotiations (2017). European Investment Law and Arbitration Review (2017, Forthcoming).
Fernando Dias Simões

Transparency is essential to ensure the credibility and legitimacy of international trade and investment negotiations. Besides its external dimension (the access of the general public to information), in the European context there is also an internal dimension to the concept – referring to the exchange of information between different European institutions. Pursuant to the Treaty on the Functioning of the European Union, the European Parliament has the right to be regularly informed by the European Commission during the negotiation of any trade agreement. The exercise of this right is, however, constrained by the existence of rules concerning the creation and management of official secrets. These rules may obscure the Parliament’s understanding of relevant issues, thus limiting its ability to exercise democratic control. While the promotion of a high degree of transparency helps to strengthen democratic scrutiny, accountability and legitimacy of the European trade policy; it is also necessary to safeguard confidential or sensitive information and ensure productive, orderly negotiations, so as not to jeopardise the interests of the Union. This article argues that the regulatory framework currently in place strikes a proper balance between these diverging interests and enables the European Parliament to effectively perform its oversight powers.

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The Implementation of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights

The implementation of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) in China. Tsinghua China Law Review, Vol. 2, Spring, 2010 , pp. 317-351.
Paolo Davide Farah
Elena Cima

The Trade-Related Aspects of Intellectual Property Rights (TRIPs) is one of the multilateral treaties adopted at the end of the Uruguay Round in 1994. The Agreement establishes the requirements that the laws of the member states must meet in order to protect intellectual property in all its forms: copyright, patents, trademarks, geographical indications, industrial design. The agreement represents an attempt to overcome the differences in the way member states protect IPRs, in order to bring them under common international rules. Chinese Government adopted Patent, Copyright and Trademark Laws, and joined the main intellectual property international conventions. None of these, though, can be compared, as far as completeness, orderliness and far-reaching consequences are concerned, to the TRIPS agreement, which China has now to deal with, after its accession to the WTO.

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The Influence of Confucianism on the Construction of the Chinese Political and Juridical System

Farah, Paolo Davide, The Influence of Confucianism on the Construction of the Chinese Political and Juridical System (L'influenza della concezione confuciana sulla costruzione del sistema giuridico e politico cinese) (2008). IDENTITA EUROPEA E POLITICHE MIGRATORIE, Giovanni Bombelli, Bruno Montanari, eds., pp. 193-226, Vita e Pensiero, 2008.
Paolo Davide Farah

It will be described the Confucian conception of social order, harmony, medium, and the position of individuals inside the Chinese society, the law (Fa), the costums and the morals (Li), the school of thoughts in the Chinese legal tradition, the legal pluralism and this notion adapted to the Chinese context.

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The Language of International Arbitration

Dias Simões, Fernando, The Language of International Arbitration (2017). Conflict Resolution Quarterly, available online 9 January 2017, DOI: 10.1002/crq.21191.
Fernando Dias Simões

Settling international disputes is a cultural and legal challenge. The first barrier that needs to be overcome is that of language. Parties, lawyers, and arbitrators frequently speak different languages or do not have the same level of proficiency in the same idiom. Determining what language or languages shall be used in international arbitration is decisive on three dimensions: party equality, the composition of the arbitral tribunal, and the interaction with national courts. This article examines several tools that disputing parties can adopt in order to overcome the problems stemming from linguistic diversity in international arbitration.

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The Portuguese Judiciary Amid Old and New Crises

Dias Simões, Fernando, The Portuguese Judiciary Amid Old and New Crises (2016). in Richard Devlin and Adam Dodek (eds.), Regulating Judges: Beyond Independence and Accountability, Edward Elgar Publishing, 2016, pp. 313-330.
Fernando Dias Simões

In recent years Portugal has been enduring a bitter financial and political crisis. The judiciary, time and again depicted as being under pressure, is facing new predicaments. This chapter discusses three points of tension within the Portuguese judiciary: the creation of a new judicial map, popular perceptions about the existence of a dual justice system, and claims of ‘judicialization of politics’ or ‘judicial activism’. Like other areas of Portuguese society, the evolution of the judicial system in the coming years will be deeply dependent on the improvement of the economic outlook.

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The Principle of Common But Differentiated Responsibilities in the International Regime of Climate Change

China’s Influence on Non-Trade Concerns in International Economic Law, Global Law and Sustainable Development Book Series, Routledge Publishing (New-York/London), ISBN 978-1-4094-4848-8, September 2016, pp. 146-157
Imad Antoine Ibrahim
Paolo Davide Farah
Thomas Deleuil

“Preventing future calamity requires not only agreement but action. Governments and other responsible groups are usually accused of reacting to crises rather than foreseeing and preventing them. We have an opportunity here to show that experts, scientists, lawyers, and governments can foresee potentially catastrophic dangers, and prevent them from happening.” This abstract demonstrates the philosophy, issues and objectives of Multilateral Environmental Agreements (MEAs) adopted since the 1970s. Climate change has been described as “the most challenging environmental issue of our time,” and one cannot help but associate this abstract with the construction of, what is called today, the climate regime. Following the process launched at the Rio Conference, the United Nations Framework Convention on Climate Change (UNFCCC) was adopted in May 1992 and a protocol to the Convention followed in 1997: the Kyoto Protocol. Back in 1992, in “common but differentiated responsibilities” (CBDRs), “common” meant that there is a universal responsibility to act for the benefit of “present and future generations." Thus, common responsibilities embody both the notions of “common concern” and “common heritage of humankind,” two notions “as old as international environmental law itself.” In other words, environmental issues such as climate change have too much of a universal impact for the response to be “solely a matter of domestic jurisdiction.” The CBDR principle is only an expression of differential treatment. Other expressions of differentiation are used in the climate regime and could take precedence in the future. It is parties’ actual obligations that will matter to combat climate change. In order to do so, the climate regime must keep a balance between commitments and assistance. Indeed, although adaptation to climate change and assistance are truly important issues, one has to realize that the fight against climate degradation cannot be fought without commitments from stronger polluters to reduce their emissions. The notion of responsibility is central in CBDR but current contributions to climate change cannot be forgotten. COP22 which will be held in Marrakesh between the 7th and 18th of November 2016, will constitute a new opportunity for developed/developing countries to further debate and enhance the latter principle in the light of the commitments/assistance balance that must be maintained.

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The Reverse Side

Dias Simões, Fernando, The Reverse Side (Verso Controverso) (December 1, 2005). Tékhne – Revista de Estudos Politécnicos, Year 1, Vol. 2, N.º 4, December 2005, pp. 87-100.

The use of standard contracts by major companies assumes undeniable importance today. The decision of the Appeal Court of Lisbon of 29 April 2004 considered that "the contractual clauses on the verse of the page of the contract where the signatures appear will not be excluded, if it’is not proven that the same ones have been inserted after those signatures". But which is the right interpretation of the adverb later?

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The Role of China and of the WTO for the Development of the Non-Trade Concerns to Regulate the World Trade in a More Just and Durable Way

Le rôle de la Chine et de l’OMC dans le développement des Considérations Autres que Commerciales pour régler le commerce mondial de façon plus juste et durable (The Role of China and of the WTO for the Development of the Non-Trade Concerns to Regulate the World Trade in a More Just and Durable Way) in Laurence Potvin-Solis, Market Economy, Rights and Freedoms, and Common Values in Europe and Asia, Publications of the Jean Monnet Chair of the University of Lorraine, Metz, France (2012).
Paolo Davide Farah

The delocalization of production appears to be the sole response to the increasing competitive pressure exerted by low-cost producers on European firms. While this delocalization has resulted in loss of employment for European citizens within the EU, it may have a corrosive impact on the core societal values both in EU and in the host country. Both public opinion and policy makers fear that international trade, in particular a further liberalization thereof, may undermine or jeopardize policies and measures on a wide variety of issues, for example, the protection the environment and the sustainable development, good governance, cultural rights, labor rights, public health, social welfare, national security, food safety, access to knowledge, consumer interests and animal welfare. There is a general consensus that these non-trade concerns, which cover very different societal aspirations and fears, must be addressed in EU external policy and in particular measures relating to international trade and foreign direct investment. There is also the expectation that the EU should act in all the international arenas to defend and keep these values at the highest level of protection. However, many of the trade measures introduced by developed countries to address non-trade concerns have been met by developing countries with cautious distrust if not with resistance or dissent. Developing countries, including China, often doubt the authenticity of such concerns that can be inspired by protectionist aims, rather than genuine non-trade concerns. Moreover, developing countries see these measures as an attempt by developed countries to impose their social, ethical or cultural values and preferences on exporting developing countries. Given the different and sometimes opposing interests of developing and industrialized countries, one may question whether international economic law may become a fairer system. If all the countries negotiated in international fora having always in mind the general common interests of the humanity as a whole, this would be the case. Unfortunately this is not the case: this is the reason why this project is timely and necessary. Amongst the new emerging economies, China is already playing a key role in drawing new rules of the game and it is important to evaluate, without prejudice and by taking into consideration its special context, China’s behavior internally and externally to understand which direction the world is being driven in by China.

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The Role of Investment Arbitration in Water Services Governance

Dias Simões, Fernando, The Role of Investment Arbitration in Water Services Governance (2016). Water Policy, available online 28 November 2016, wp2016032; DOI: 10.2166/wp.2016.032.
Fernando Dias Simões

The flux of foreign investment into the water industry that took place over recent decades had a significant impact on the relationship between water companies and states. The creation of a global network of international investment agreements also altered the method of adjudication of possible disputes between the parties. The emergence of global water markets and the advent of Public–Private Partnerships led to the emergence of what has been called Global Water Governance. This articles analyses how the decisions of arbitral tribunals in water-related disputes are becoming an integral part of this global regulatory system and discusses their impact in water services governance. Governments are increasingly required to have a thorough knowledge of the functioning and possible implications of the legal frameworks that underpin foreign investments in the water services market.

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The Shale Gas in China in the Light of the Energy Security and the Principles of Sustainable Development

Lo Shale Gas in Cina alla Luce della Sicurezza Energetica e dei Principi dello Sviluppo Sostenibile (The Shale Gas in China in the Light of the Energy Security and the Principles of Sustainable Development). Italianieuropei, 2/2015, March 2015, pp. 132-141.
Paolo Davide Farah

The significant growth in production of natural gas from shale formations constitutes one of the most important developments in the energy sector, which has been made possible by a reduction of production costs and the overcoming of technological barriers. Recent advances in fracturing (also known as “fracking”) and horizontal drilling technologies have led to a dramatic increase in shale gas production in the United States, which resulted in energy experts describing shale gas as a “bridge fuel” to carbon-free renewable resources as our primary source of energy. Furthermore, shale formations are found in almost every region of the globe; thus the potential for shale gas development is of great importance. Although shale gas represents a revolutionary element in the global energy framework, several regulatory and environmental concerns related to its extraction and production processes have been raised, in particular about the use of hydraulic fracturing fluids and the consequential risk of drinking water contamination. As the “shale gas revolution” that took place in the United States has highlighted, human health and environmental concerns continue to dog shale gas development. In that respect, given the global scope of its potential, it is crucial to ensure that the development of shale gas resources will be carried out in an environmentally sound manner. China is aware of the importance of unconventional gas as a carbon-friendly energy source and pivotal element in achieving the country’s future energy and environmental objectives. As it is the country with the largest increase in greenhouse gas emissions, China’s capacity to substitute coal with cheaper gas as its primary electricity generating fuel has the potential to represent a huge step toward global warming mitigation. However, China lacks comprehensive legal instruments capable of addressing the potential environmental hazards of shale gas extraction, and suffers from weak enforcement of environmental laws and regulations.

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Trade and Progress: The Case of China

Trade and Progress: The Case of China. Columbia Journal of Asian Law, Vol. 30, No. 1, 2016, pp. 51 - 112. Available at SSRN: https://ssrn.com/abstract=3020365
Paolo Davide Farah

China’s accession to the WTO is widely understood as an important step towards greater global market liberalization and integration. However, this step has been also perceived in an ambivalent way. On one hand, the global market liberalization would have never been really completed without participation of such a major player as China. On the other hand, many observers articulated concerns about China’s ability to integrate into the WTO system. In order to tackle the issues of concern, attention was paid mainly to technical issues, which were seen as a precondition for China’s successful integration into the WTO system. For this reason, topics related with market integration, such as e.g. liberalization requirements, as well as topics related with transparency and legal and administrative policies, necessary for securing of just and equitable resolution of commercial and trade disputes, were initially addressed. Still, in the light of the changing and evolving geopolitical climate, it has become more evident that Non-Trade Concerns (NTCs) might be another multifaceted topic requiring special attention. EU and US, becoming increasingly aware of the fact that competition of economies with different level of development might result not only in job losses in developed countries due to relocation of production, but also to general deterioration of environmental, social and health standards, have accentuated the importance of a global consensus on NTCs and their inclusion into EU and US external policies concerning foreign trade and investment. Civil society from the developed world, in general, is afraid that further liberalization may endanger public policies at different levels: environmental protection and sustainable development, good governance, cultural rights, labor rights, public health, social welfare, national security, food security, access to knowledge, consumer protection, and animal welfare. On the other hand, coalition consisting of China and other BRICS countries as well as other developing countries gaining more influence in the WTO and other international fora has been able to articulate discontent with measures adopted by developed countries to address NTCs. The clash between interests of developed and developing countries reveals potential unfairness and inconsistencies of the international system, including the international trade system, which needs to undergo a deep reform to integrate the developing countries’ needs. Many of the measures that developed countries introduce to address NTCs were received by developing countries with suspicion, resistance, and even hostility. Developing countries, including China, doubt the authenticity of such considerations and think they might actually hide protectionist purposes. Additionally, developing countries see these measures as an indirect form of western imperialism whereby they will have no choice but to comply with the social, ethical, and cultural values of the developed states. Nonetheless, not only has China undergone serious reforms and adopted new regulations to address the issue of NTCs, but the country has even begun to play an important role in the international negotiations on NTCs—such as those on climate change, energy, culture, and so on. However, at the same time it provides an opportunity for China and other developing countries to defend their interests in a constructive dialogue with developed countries and restructure the system in order to find a necessary balance between globalization and sustainable development or to shape it according to their interests.

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Transparency in European Trade Policymaking: The TTIP Negotiations as a Case Study

Dias Simões, Fernando, Transparency in European Trade Policymaking: The TTIP Negotiations as a Case Study (June 1, 2017). Katia Fach Gómez (ed.) La Política de la Unión Europea en Materia de Derecho de las Inversions Internacionales. EU Policy on International Investment Law, Bosch Editor, 2017, pp. 351-374.
Fernando Dias Simões

The negotiations for the Transatlantic Trade and Investment Partnership (TTIP) have been surrounded by considerable controversy. One of the most widespread criticisms regards the alleged lack of transparency of the negotiation process. Transparency in trade and investment negotiations refers to the access of the general public to negotiating documents, position papers, and consolidated draft texts. Civil society groups seek to have access to these documents in order to analyse the potential impact of international agreements on citizens’ lives. However, the privacy of trade and investment negotiations is a time-honoured tradition. The level of transparency adopted by the European Commission in the TTIP negotiations, while open to improvement, is already quite satisfactory. The volume of information made available by the European Commission on the TTIP finds no parallel in analogous negotiations currently underway. While the present practice can be improved and fine-tuned, it strikes a sensible balance between the principles of transparency and democratic scrutiny and the need to ensure orderly, fruitful international negotiations.

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WTO Dispute Settlement System, Renewable Energy Subsidies and the Feed-in Tariffs

Il Sistema OMC di Risoluzione delle Controversie, le Sovvenzioni alle Energie Rinnovabili e le Feed-In Tariff (WTO Dispute Settlement System, Renewable Energy Subsidies and the Feed-in Tariffs). Rivista Di Diritto Del Commercio Internazionale, 2/2015, pp. 381-408.
Paolo Davide Farah

Government subsidization has historically started to be frequently and systematically adopted during the mercantilist period from the XVI and the XVII century, although in some countries it goes back even longer. This period was characterized by the introduction of new production and commercialization methods. The merchant class was vested with great power, and often used such power to provide political institutions with suggestions and requests. Indeed, political support was a fundamental element of companies’ survival and growth because states had the power to affect the market and promote the competitiveness of national companies. A broad array of strategies and measures could lead to this result — including the adoption of discriminatory tax regulations and quotas against foreign products and companies in favor of domestic industries. In Europe, mercantilism developed at a time when the economy was in transition, after centralized nation-states successfully replaced the previous feudal system. Moreover, technological innovation in the transportation sector — and in particular in shipping — together with increasing urbanization, led to a rapid and exponential growth in international trade. The function of mercantilism was twofold: on the one hand, it focused on how international trade could bend to serve the interests of nation-states, while on the other it explored ways for national governments to contribute to domestic companies’ trade and business development. Those were the years that saw the adoption of modern accounting. The latter allowed precise and constant monitoring of trade inflows and outflows, creating the necessity of maintaining a positive trade balance, which could be achieved by ensuring that exports were higher than imports. This was possible thanks to the introduction of new domestic products that could effectively replace traditionally imported ones. During the liberalist period — characterized by a laissez-faire economic policy — public subsidies were set aside, while they revived at the end of the XIX century when protectionism enjoyed a new vogue. Since then, subsidies have been used by governments both to promote national economic, social, and political policy as well as to correct market distortions. It is generally recognized that subsidies often produce harmful effects on free trade and production rather than equitable results, and international trade law has taken into account all these concerns in drafting specific rules on subsidies. In this contribution, we are going to draw the attention on the effects of subsidies, distinguishing subsidies which are necessary for desirable and acceptable purposes from those that are nothing but disguised protectionist measures and that might trigger international trade remedies. In particular, this evaluation will be applied to renewable energy subsidies. Governmental support to alternative and renewable energy industry represents a fairly common choice for governments in need to comply with the commitments that bind them within the international framework for climate change. Besides being a common choice, renewable energy subsidies represent an effective one: according to the Intergovernmental Panel on Climate Change (IPCC), “one of the most effective incentives for fostering greenhouse gas (GHG) reductions are the price supports associated with the production of renewable energy, which tend to be set at attractive levels. These price supports have resulted in the significant expansion of the renewable energy sector in countries belonging to the Organization of Economic Cooperation and Development (OECD) due to the requirement that electric power producers purchase such electricity at favorable prices.” This contribution is divided in four sections. The first one (section 2), offers a brief description of the evolution of the World Trade Organization (WTO) regulation of subsidies, while in the second one (section 3) we analyze the approach of the WTO towards renewable energy subsidies, focusing on specific issues, such as the case of feed-in tariffs and local content requirement. Section 4 provides an overview of WTO disputes involving subsidies in the renewable energy sector, and Section 5 focuses on the recent decisions in the Canada — Renewable Energy and Canada — Feed-in Tariff Program disputes. Finally, we draw some conclusions.

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WTO Law in the Canadian Legal Order

Claudio DORDI (edited), THE ABSENCE OF DIRECT EFFECT OF WTO IN THE EC AND IN OTHER COUNTRIES, The Interuniversity Centre on the Law of International Economic Organizations (CIDOIE), Giappicchelli Editore, Turin 2010, pp. 323-330. ISBN 978-88-348-9623-5
Paolo Davide Farah
Giacomo Gattinara

Canada is a country which only recently began to deal with the issue of implementation of international law within its legal system. In particular, its recent birth on the international scene, with an Act of the Imperial Parliament in London, currently called the “Constitution Act, 1867” and once the “British North America Act”, has entailed a certain difficulty to accept a prompt and straightforward implementation of international obligations. Moreover, this lack of a particularly openness to international law and to its perspectives of domestic implementation, what German courts call Völkerrechtsfreundlichkeit, was also due to the federal nature of Canada, a State deeply worried of maintaining the whole unity of the country among all its different constitutive elements. This rather sceptical behaviour towards the domestic effects of international law in the Canadian legal order was witnessed by the attitude of early judicial authorities, which limited their attention on international law just to “taking notice” of it. Consequently, as far as the reception of international law is concerned, in Canada there was always a strong concern for the national unity and for the need to stay autonomous and independent on the international scene. In a word Canadian courts and Parliament share an attention to what has been called by Van Ert the attention to “self-government”, a sensation, in any case, much more felt by the legislative power than the judicial authorities. This concern entails a dualistic system of reception as to international treaties, even though Canadian dualism stems also from the British legal tradition of the country.

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WTO and Renewable Energy: Lessons from the Case Law

49 JOURNAL OF WORLD TRADE 6, Kluwer Law International, ISSN: 1011-6702, December 2015, pp. 1103 – 1116
Paolo Davide Farah
Elena Cima

This contribution illustrates some unresolved issues and tensions that characterize the way the WTO deals with renewable energy subsidies. Indeed, the indisputable urgency to address the negative impacts of climate change on the one hand, and the use of subsidies to boost and support a country’s renewable energy sector on the other, provide momentum to better define the legal framework offered by the World Trade Organization (WTO). It is fundamental to ascertain whether the current framework represents an adequate model to address renewable energy subsidies, or whether a more flexible interpretation of WTO Agreements toward sustainable development and the protection of the environment should be adopted instead. In view of that, this paper carefully investigates the evolution of the WTO subsidies disciplines, focusing in particular on the approach of the WTO towards renewable energy subsidies. This article is divided in three sections. The first one offers an overview of WTO disputes involving subsidies in the renewable energy sector, the second one focuses on the recent decisions in the Canada – Renewable Energy and Canada – Feed-in Tariff Program disputes and on some important issues they raise, while in the last one we draw our conclusions.

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When Green Incentives Go Pale: Investment Arbitration and Renewable Energy Policymaking

Dias Simões, Fernando, When Green Incentives Go Pale: Investment Arbitration and Renewable Energy Policymaking (2017). Denver Journal of International Law and Policy, 45(2), 2017, pp. 251-285.
Fernando Dias Simões

Over the last years many governments have implemented economic support mechanisms to encourage investment in renewable sources of energy. For different reasons, some of them recently decided to change or eliminate those incentives, triggering a wave of arbitral proceedings. Investors claim that such legislative changes breach the protection afforded by international investment law, namely the Energy Charter Treaty. These disputes raise a classic problem in investment arbitration: how to strike a balance between foreign investors’ reliance on the regulations that underpin their long-term investments and the host state’s right to adapt regulations to new scenarios. The outcome of these proceedings may limit the freedom of maneuver of states, affecting their ability to pursue public welfare policies. In designing new policies or adjusting existing ones, governments need to take into account that the legal framework that supports renewable energy investment is not confined to national regulations but also includes the standards of protection contained in international investment treaties. States need to adopt a holistic approach to renewable energy policymaking so as to avoid possible clashes between different sets of rules.

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World Trade Organization, Renewable Energy Subsidies and the Case of Feed-In Tariffs: Time for Reform Toward Sustainable Development?

Georgetown International Environmental Law Review (GIELR), Vol. 27, No. 1, 2015
Paolo Davide Farah
Elena Cima

Energy-related investments have been on a track of constant development since the global expansion of energy utilization and the rapid increase of energy demand both regarding industrial use and consumer consumption. Fundamental trends in the European Union and the world at large provide an increasingly important policy agenda for financing sustainable energy in terms of energy efficiency, innovation in energy exploitation and development of renewable resources. Policies shaping this development are becoming more and more considerate of environmental aspects and maintaining sustainability. Furthermore, international organizations are fully aware of the necessity to keep broadening the scope of countries acquiring these new policy trends. Renewable energy subsidies are crucial for combatting climate change, and yet the world’s international legal infrastructure is not designed to accommodate such subsidies. The world needs a renewable energy sector to develop and implement the technologies necessary to reduce carbon and renewable subsidies are one of the best ways to cultivate this sector quickly. At the same time, one country’s unfair subsidies can harm another country’s industry. To take a recent newsworthy example, China’s subsidies for its solar exports has allegedly bankrupted solar companies in the United States (US) and European Union (EU), undermining this crucial sector in these countries as it takes root. Thus, renewable subsidies pit two legitimate policy concerns against each other: cultivation of renewable energy and prevention of unfair trade practices. The World Trade Organization (WTO) regulates most subsidies effectively, but was simply not designed with renewable subsidies in mind. The Agreement on Subsidies and Countervailing Measures (SCM) – the heart of the WTO subsidies regime – treats renewable subsidies the same as all other subsidies, without an environmental exception in force that takes into account non-trade concerns. This environmental blind spot is unusual for the WTO: for example, Article XX of the General Agreement on Tariffs and Trade (GATT) includes an environmental exception for tariffs and other non-subsidy measures. However, an environmental exception did not make it into the SCM, leaving the agreement ill-suited to balance trade and environmental concerns. This article proposes several legal solutions to fix the SCM’s environmental blind spot – invocation of the Agreement on Agriculture (AoA) for some subsidies, using the SCM’s definition of subsidies to exclude some forms of support for renewable energy — especially Feed-in Tariffs (FITs) - from the WTO’s subsidies regime entirely, adopting a flexible interpretation of GATT Article XX’s environmental exception such that it may apply to subsidies, and negotiating a new WTO agreement for renewable subsidies. Of all the solutions proposed, this article argues that the best approach would be to apply GATT Article XX to the SCM. This approach is not obvious, because WTO law does not make clear the relationship between the GATT and the SCM. Nevertheless, strong legal and policy reasons support this approach. This article proceeds as follows: Part II provides background, first on renewable subsidies, then on the current WTO regime governing subsidies. Part III discusses the proposed legal solutions to the WTO’s green subsidy problem. Part IV compares the proposed solutions and concludes that applying Article XX to the SCM is the best approach.

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Wrongful life? On Wrongful Life Actions and the Dignity of Human Life (Vida indevida? As acções por wrongful life e a dignidade da vida humana)

Dias Simões, Fernando, Wrongful life? On Wrongful Life Actions and the Dignity of Human Life (Vida indevida? As acções por wrongful life e a dignidade da vida humana) (August 13, 2012). Tékhne – Revista de Estudos Politécnicos, vol. VIII, n.º 13, July 2010, pp. 187-203.. Available at SSRN: https://ssrn.com/abstract=2128605
Fernando Dias Simões

In this article we analyze the problem of whether a person who considers his own life as damage may file a complaint against who allowed his birth (wrongful life). The dominant doctrine argues that the award of such compensation would recognize the person a right not to be born, defending that such right does not exist. However, in this type of claims life is not the damage itself, but living with disability. We sustain that wrongful life actions do not contend with the inalienability of human life, and that the respect for the dignity of human life enforces the award of compensation to ensure life with a minimum of conditions.

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