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Panel 4: Interaction Through Seeking Control
Relations between International Courts and Tribunals
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JAMES CRAWFORD, Whewell Professor of International Law, University of Cambridge
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Biography: James Crawford SC, FBA, is Director of the Lauterpacht Centre, University of Cambridge, Whewell Professor of International Law and a Fellow of Jesus College. He was a Member of the United Nations International Law Commission from 1992-2001 and Special Rapporteur on State Responsibility (1997-2001). In addition to scholarly work on statehood, self-determination, collective rights and international responsibility, he has appeared frequently before the International Court of Justice including in the Advisory Opinions on Nuclear Weapons (1996) and the Israeli Wall/Barrier (2004). He has also appeared before other international tribunals, and is actively engaged as an international arbitrator.
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Learning from Others? An Advocate General's Reflection on 'Borrowing' from Other International Regimes
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ELEANOR SHARPSTON, Advocate General at the European Court of Justice
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Biography: Eleanor Sharpston read economics and modern languages at King’s College Cambridge before switching to law. After doing interdisciplinary graduate work in law and economics at Corpus Christi College Oxford, she was called to the Bar in 1980. With the exception of three years as a référendaire at the Court of Justice of the EC (CJEC), she spent the next twenty five years in private practice at the Bar in Brussels and London, becoming a QC in 1999. In parallel, she also pursued an academic career at UCL (1990-1992) and then back at King’s College Cambridge (1992-date). As both practitioner and academic, she has specialised in EC law, comparative law and the ECHR, appearing for the UK in Luxembourg and against it, pro bono, in London and Strasbourg. On 10 January 2006 she was appointed to serve as one of the eight Advocates General at the CJEC.
Abstract: EEC (or EC .. or EU ..) law is all about creating a new legal order from scratch (Van Gend) – a legal order which, if it is to have legitimacy and command intellectual respect, must contain a number of elements which aren't to be found in the founding texts. The constituent Member States of the EU are themselves actors under international law. As such, they participate in the creation of evolving legal norms (and sign up to them in their own right). These legal norms range from fundamental rights (most obviously, the ECHR, but also international covenants under the aegis of the UN or other international bodies) to specific conventions in particular areas of law (such as ILO norms and international agreements on areas of private international law).
How should the EU legal order respond? Should it absorb all this material indiscriminately, like a sponge? Should it stand on its dignity, as a sui generic legal system, and pick and choose – and, if so, on what basis? And how (in terms of process) is the ECJ – the supreme court for questions of EU law – to go about its task? Is it to be bound by what the litigants thought relevant to their dispute; or should it cast its net wider (and if so, how)?
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Importing Other International Regimes into WTO Litigation
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JAMES FLETT, Legal Advisor, European Commission
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Biography: James Flett works in the WTO and Trade Policy team of the European Commission Legal Service. He has represented the European Commission in 120 cases before the ECJ, and the EC in 90 proceedings before the WTO. He regularly advises the Commission on WTO law. Mr. Flett has a law degree from the London School of Economics and Political Science, and a Masters in law from the College of Europe, Bruges. He is a qualified solicitor. Before joining the Commission Legal Service in 1995 Mr. Flett spent several years working for the international law firms Clifford Chance and Van Bael & Bellis, in London and Brussels, with a particular emphasis on international trade law (notably anti-dumping). Since joining the Commission Legal Service he has worked in the areas of agriculture (representing the Commission in the BSE litigation), State aid law, and, for the last several years, WTO law.
Abstract: The WTO is not just about trade. Or if it is, we should not forget that trade, which is a nascent form of community, is inextricably linked to many other issues with which states have traditionally been concerned. This gives rise to many instances of interaction between the WTO and other international regimes. In the context of resolving WTO disputes, many writers have offered theories about the applicable law and rules of treaty interpretation utilised by a WTO panel. Instead, this paper assumes a litigator’s perspective about how this interaction occurs in practice. Using examples from the GATT 1994, the DSU, the SPS Agreement, the SCM Agreement, the Anti-Dumping Agreement and certain other covered agreements, it considers different types of such interaction, including those types that are more evident (such as express treaty references) and those that are less evident (such as expert advice, or international law as fact). It argues that the WTO legal regime is immersed in but separate from international law, rather like a simple organism suspended in a chemical solution. A certain tension is thus apparent. On the one hand, because of the substantial economic and other interests that underpin it and because of its binding and enforceable rules-based approach, WTO law has the potential, through such interaction, to catalyse an acceleration or step-change in the evolution and effectiveness of international law. On the other hand, the authority of the WTO system as objective as opposed to teleological, particularly with respect to the trade objective, must to some extent depend upon the doctrinal rigour with which such interaction is managed in legal terms. If the WTO is to be relevant whilst commanding respect, that necessitates a careful management of the extent and manner of interaction between different regimes.
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Chaired by GEORGES ABI-SAAB, Former Appellate Body Member of the World Trade Organization
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Biography: Georges Abi-Saab is Emeritus Professor of International Law at the Graduate Institute of International Studies in Geneva, Honorary Professor at Cairo University Law Faculty and a Member of the Institut de Droit International. He is a former Member of the Appellate Body of the WTO. He has served as consultant to the Secretary General of the UN and has been appointed twice as a Judge ad hoc on the International Court of Justice. He was also a Judge in the Appeals Chamber of the International Criminal Tribunals for the Former Yugoslavia and Rwanda and Commissioner of the UNCC, and is a member of the Administrative Tribunal of the IMF and various international arbitral tribunals.
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