Papers by Federico Ortino
Social Science Research Network, 2018
This paper critiques a Panel ruling that was permissive in allowing the EU to exclude China from ... more This paper critiques a Panel ruling that was permissive in allowing the EU to exclude China from the renegotiations of several tariff lines of poultry meat and the related allocation of new tariff-rate quotas. The EU's basis for exclusion was that China lacked a principal or substantial supplying interest in the modified tariff lines. The Panel's ruling supported China for only two tariff lines in which China eventually served 50 percent of the EU market after certain SPS measures expired, on the narrow basis that this import increase should have been considered a special factor in the TRQ allocation. The paper argues that the Panel ruled too narrowly by disregarding China's broader claims for a principal or substantial supplying interest. An interpretation consistent with the object and purpose of the GATT supports utilizing a broader set of evidence in China's claim as a principal or substantial supplier for renegotiations of tariff schedules. Allowing nations to use tariff-rate quotas to prevent emerging markets from achieving a substantial supplying interest is a significant obstacle to the WTO's purpose. The Panel's ruling will be important for future tariff-rate quota renegotiations, such as those that would be necessary under Brexit.
The journal of world investment & trade, Jun 22, 2020
Inconsistency in legal interpretation is among the most salient problems in investor-state disput... more Inconsistency in legal interpretation is among the most salient problems in investor-state dispute settlement (ISDS). Some such instances have been particularly glaring, and introducing consistency into ISDS rates high on the agenda of reformers -particularly for several government delegations leading multilateral reform efforts in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. This Article starts from the position that some degree of interpretive inconsistency is endemic to any legal order. Yet systemic inconsistency tends to undermine the basic purposes of the investment treaty regimenamely protecting and promoting foreign direct investment through predictable international legal rules and institutions. With an eye to reform, seek to parse the problem of inconsistency at a more granular level, in order to distinguish between types of norms where a degree of inconsistency is (relatively) manageable and (potentially) tolerable, and those where inconsistency is unacceptable. In this regard, we focus on two key distinctions: between (1) rules and standards, and (2) norms of conduct and structural "rules of the game." Although inconsistency is always problematic, we suggest that it is in this later category (rules of the game) where inconsistency is most destructive.
Social Science Research Network, 2012
This publication has been printed on an environmentally friendly Reprint-paper, produced from 60%... more This publication has been printed on an environmentally friendly Reprint-paper, produced from 60% recycled fibre, which has been granted the following certificates: ISO 9001, ISO 14001, EMAS, DIN 6738, EN-71-3, FSC and EU-flower.
Leiden Journal of International Law, Oct 19, 2016
The paper tackles the question of how far should investment tribunals go in reviewing the reasona... more The paper tackles the question of how far should investment tribunals go in reviewing the reasonableness of host State conduct. Based on an evolutionary interpretation of the preamble of international investment treaties and focusing on the principle of integration as the key element of the concept of sustainable development, the paper main argument is that investment tribunals should avoid a review based on proportionality stricto sensu or cost-benefit balancing.
VCC) seeks to be a leader on issues related to foreign direct investment (FDI) in the global econ... more VCC) seeks to be a leader on issues related to foreign direct investment (FDI) in the global economy, paying special attention to the sustainability dimension of this investment. It focuses on the analysis and teaching of the implications of FDI for public policy and international investment law. Its objectives are to analyze important topical policy-oriented issues related to FDI, develop and disseminate practical approaches and solutions, and provide students with a challenging learning environment. For more information, please see .
The Origin and Evolution of Investment Treaty Standards, 2019
The aim of this chapter is to inquire whether, and if so, the extent to which, investment treatie... more The aim of this chapter is to inquire whether, and if so, the extent to which, investment treaties contain guarantees of strict legal stability. More specifically, this chapter asks whether investment treaties contain provisions (a) guaranteeing that contractual undertakings vis-à-vis the foreign investment are respected (contractual stability in the strict sense); and/or (b) ensuring that adverse regulatory changes will not be applied to foreign investments (regulatory stability in the strict sense). First, the chapter finds that legal stability in the strict sense does represent one of the guarantees in international investment treaties, provided specifically through investment treaties’ umbrella clauses and stabilization clauses. Second, based on an examination of recent arbitral decisions, the role of legal stability within the FET standard remains at best ambiguous.
Since the EU referendum took place in June 2016, the British government’s task to implementing th... more Since the EU referendum took place in June 2016, the British government’s task to implementing the vote to leave the EU has been monumental. With regard to the future trade relationship with the EU27, the British government has proposed a ‘bold and ambitious’ free trade agreement aimed at the ‘freest and most frictionless trade possible’. The complexity of achieving such an agreement within the limited timeframe available has generated lot of controversy, uncertainty and anxiety. The aim of the paper is to bring some clarity with regard to the challenges ahead. A proper appreciation of these challenges is key in order for a transparent, inclusive and realistic debate about the objectives, features and timeframe of the future UK-EU trade agreement.
AARN: Economic Law (Topic), 2010
The recovery of world investment flows will depend substantially on how the world economy will pe... more The recovery of world investment flows will depend substantially on how the world economy will perform in 2011 and beyond, on how MNEs perceive the risks of investing abroad and on how the regulatory environment for foreign investment evolves. Thus, finding the proper balance between protecting the rights of investors and the need for governments to have sufficient policy space to pursue their legitimate public policy objectives will receive increased attention. This attention is particularly important as the international investment regime finds itself in flux as new actors enter the picture and established actors seek to shape the investment regime in light of their own expectations. Renegotiations, the negotiation of new treaties, security clauses, climate change, acquisition of land, and risk allocation will affect the development of the international investment law and policy regime.
The Journal of World Investment & Trade, 2020
Inconsistency in legal interpretation is among the most salient problems in investor-State disput... more Inconsistency in legal interpretation is among the most salient problems in investor-State dispute settlement (ISDS) and it is one of the key issues being addressed by the reform efforts in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. While some degree of interpretive inconsistency is endemic to any legal order, systemic inconsistency tends to undermine the basic purposes of the investment treaty regime – namely protecting and promoting foreign direct investment through predictable international legal rules and institutions. This article seeks to parse the problem of inconsistency at a more granular level, in order to distinguish between types of norms where a degree of inconsistency is (relatively) manageable and (potentially) tolerable, and those where inconsistency is unacceptable. We argue that it is with regard to structural ‘rules of the game’ where inconsistency is most destructive.
The Journal of World Investment & Trade, 2019
The number of international agreements purporting to liberalise trade, mainly focused on reducing... more The number of international agreements purporting to liberalise trade, mainly focused on reducing protectionist measures through the imposition of general principles, has increased greatly over the last 25 years. More recently, the United States and the European Union (EU) concluded comprehensive agreements covering trade in goods, trade in services, and foreign investment. This article inquires whether, and the extent to which, such agreements represent a departure from previous practice. It focuses on (a) the instruments employed to address domestic regulation affecting trade in services and (b) three specific agreements concluded between 2016 and 2018: the EU-Canada Comprehensive Economic and Trade Agreement, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the United States-Mexico-Canada Agreement. While these recent Preferential Trade Agreements put forward novel approaches to regulatory diversity affecting trade in services, it is too early to asc...
SSRN Electronic Journal, 2018
This paper critiques a Panel ruling that was permissive in allowing the EU to exclude China from ... more This paper critiques a Panel ruling that was permissive in allowing the EU to exclude China from the renegotiations of several tariff lines of poultry meat and the related allocation of new tariff-rate quotas. The EU's basis for exclusion was that China lacked a principal or substantial supplying interest in the modified tariff lines. The Panel's ruling supported China for only two tariff lines in which China eventually served 50 percent of the EU market after certain SPS measures expired, on the narrow basis that this import increase should have been considered a special factor in the TRQ allocation. The paper argues that the Panel ruled too narrowly by disregarding China's broader claims for a principal or substantial supplying interest. An interpretation consistent with the object and purpose of the GATT supports utilizing a broader set of evidence in China's claim as a principal or substantial supplier for renegotiations of tariff schedules. Allowing nations to use tariff-rate quotas to prevent emerging markets from achieving a substantial supplying interest is a significant obstacle to the WTO's purpose. The Panel's ruling will be important for future tariff-rate quota renegotiations, such as those that would be necessary under Brexit.
SSRN Electronic Journal, 2016
The paper assesses the definition of indirect expropriation included in the recent EU proposal wi... more The paper assesses the definition of indirect expropriation included in the recent EU proposal within the context of the TTIP negotiation. The paper argues that, while the EU proposal is likely to have narrowed the scope of the concept of indirect expropriation, in terms of providing 'greater clarity', we are not there yet. Like similar attempts before it, the EU proposal refers to a variety of different legal approaches without sufficiently clarifying their content and relationship. While this lack of clarity emphasizes the indecision among policy makers, including the EU, about where to draw the line between an indirect expropriation and a legitimate regulatory measure, it ultimately suggests that there are still doubts about the proper function of international investment law.
SSRN Electronic Journal, 2016
Trade has had a stunning return to the spotlight since the results of the Brexit referendum were ... more Trade has had a stunning return to the spotlight since the results of the Brexit referendum were announced. While it is much too early to speak of failure or success of the UK's trade policy, we allege that the current debate shows a lack of understanding of modern international trade law and policy. This in turn leads to a lack of appreciation of the tasks ahead for the UK. The limited aim of this short article is to point out the scope of some of the key challenges and the complexities that the UK will face on the road towards a post-Brexit trade policy. We consider a proper appreciation of these complexities to be vital for a transparent, fair and inclusive formulation of the UK's trade policies, which will determine not only the UK's economic fate, but also the UK's laws and many of its domestic policies for decades to come.
SSRN Electronic Journal, 2015
The article tackles the question of how far should investment tribunals go in reviewing the reaso... more The article tackles the question of how far should investment tribunals go in reviewing the reasonableness of host state conduct. Based on an evolutionary interpretation of the preamble of international investment treaties and focusing on the principle of integration as the key element of the concept of sustainable development, the article's main argument is that investment tribunals should avoid a review based on proportionality stricto sensu or cost-benefit balancing.
SSRN Electronic Journal, 2012
SSRN Electronic Journal, 2006
Article XVII GATS (National Treatment): 'less favourable treatment' Article XVII GATS encapsulate... more Article XVII GATS (National Treatment): 'less favourable treatment' Article XVII GATS encapsulates the second type of non-discrimination norm: the National Treatment principle. Article XVII requires each Member to 'accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.' Contrary to the MFN obligation in Article II GATS, the National Treatment obligation of Article XVII GATS does not apply generally to all measures affecting trade in services, but only comes into play if Members choose to commit service sectors or sub-sectors in their Schedules of Specific Commitments. GATS follows the so called 'positive list' approach, whereby national treatment obligations extends only to those service sectors that Members have actually (ie., positively) inscribed in their individual schedules. In order to determine the actual level of GATS 'national treatment' commitments, it is therefore necessary to examine each Member's schedule of specific commitments which will indicate the range of activities covered in each service sector and sub-sector and the limitations on national treatment entered by Members pertaining to the different modes of supply. 3 Subject to each Member's specific commitments, Article XVII GATS sets out a three-tier test of consistency which requires the examination of whether (1) the measure at issue affects trade in services, (2) the foreign and domestic services and service suppliers are 'like' services or service suppliers, and (3) the foreign services or service suppliers are granted treatment no less favourable. 4
The journal of world investment and trade, 2020
Inconsistency in legal interpretation is among the most salient problems in investor-state disput... more Inconsistency in legal interpretation is among the most salient problems in investor-state dispute settlement (ISDS). Some such instances have been particularly glaring, and introducing consistency into ISDS rates high on the agenda of reformers particularly for several government delegations leading multilateral reform efforts in the United Nations Commission on International Trade Law (UNCITRAL) Working Group III. This Article starts from the position that some degree of interpretive inconsistency is endemic to any legal order. Yet systemic inconsistency tends to undermine the basic purposes of the investment treaty regime – namely protecting and promoting foreign direct investment through predictable international legal rules and institutions. With an eye to reform, seek to parse the problem of inconsistency at a more granular level, in order to distinguish between types of norms where a degree of inconsistency is (relatively) manageable and (potentially) tolerable, and those whe...
Journal of International Dispute Settlement, 2024
Despite a growing emphasis on the interpretive methods employed by international courts and tribu... more Despite a growing emphasis on the interpretive methods employed by international courts and tribunals driven by their potential to address the issue of international law fragmentation, the multilingual aspect of interpretation, codified in Article 33 of the Vienna Convention on the Law of Treaties (VCLT), has received the least amount of attention from international lawyers. However, the multilingual complexity, rarely found in national legal systems, is precisely one of the reasons why scholars of legal interpretation are fascinated by international law. Based on a critical review of the VCLT approach to the interpretation of multilingual treaties, this work argues for an alternative approach, which we refer to as the 'comparative translation' paradigm. In addition to putting forward a normative case in favour of this alternative approach, we also aim to show how the World Trade Organization dispute settlement organs have started, at least to some extent, to embrace the new paradigm A good practitioner would almost automatically compare the different language versions before commencing any process of interpretation. S. Rosenne
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Papers by Federico Ortino