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Home Archive for category "International Economic Law"

Remaking Globalization for the Local: The Real Search for Equality and Diversity in International Law

Published on November 9, 2016        Author: 

From Western liberal democracies in the United States and the European Union, to historically democratic developing countries such as the Philippines, ignored, disenfranchised, and disempowered local communities emphatically made themselves heard in elections and referenda around the world.  For better or for worse, the international economic order will be remade, somehow.  It would be specious and condescending to merely say that this is the rise of “populism” without truly understanding the concerns of local communities who have driven electorates all over the world to reject any form of the “establishment” – whether they be traditional politicians and parties, State apparatuses, international organizations, mainstream media, or multinational corporations.

The supranationalist structures of modern international law’s prominent institutions – the United Nations (UN), the Washington Consensus behemoths such as the World Bank (WB) and the International Monetary Fund (IMF), the World Trade Organization (WTO), the European Union (EU), among others – are premised on deepening inter-State cooperation while still ensuring full respect for the basic UN Charter of the “principle of sovereign equality” of all States. However, the actual power and felt impact of these global institutions on the daily modern lives of individuals, groups, and local communities reveals serious fissures that expose an obvious imbalance between the terms of international cooperation and States’ sovereign equality – from the micromanagement of Greek agencies by EU fiscal managers and inspectors during the worst nadir of the EU’s financial crisis; the enforced austerity and structural adjustment programs of World Bank technocrats harnessing the leverage of the Bank’s conditionality lending to developing countries; the loss of jobs and social dislocations caused to communities throughout manufacturing states in the United States of America when multinational corporations move operations offshore to China or Mexico; as well as the drastically increased competition for resources and the rise in challenges to religious, social, ideological and group identity posed by cleavages within multicultural societies emerging from formerly hermetic communities now overrun by refugees and other immigrants fleeing political persecution, climate change-related natural disasters, and other humanitarian crises.

Restive “Westphalian” political elites push back against the seeming tyranny of the international system and its global institutions, in order to increasingly assert the sovereign prerogative of states and their supposed ‘independence’ from any form of international governance that ultimately erodes any of these elites’ real bases of power. The recent rise of populist, anti-establishment, anti-trade, and anti-internationalist leaders throughout established democracies – from France’s Marine Le Pen, the United States’ Donald Trump and (to a certain extent) Bernie Sanders, the United Kingdom’s Nigel Farage, the Philippines’ Rodrigo Duterte, Venezuela’s Hugo Chavez, among others – is no coincidence. ‘Silent’, faceless, and individually powerless, electoral majorities are clearly voting for leaders who project themselves as best able to roll back the worst excesses of inequality, insecurity, and uncertainty faced by households from an (actual or imagined) unrestrained international order. The rise of an unstable, deep populism throughout liberal democracies around the world does not only express what IMF Managing Director Christine Lagarde calls “a groundswell of discontent” against globalization, but rather, a return to a much harder ‘Westphalian’ version of State sovereignty insulated from the common interests and shared concerns of this century’s community of nations forged and united in the aftermath of the First and Second World Wars.

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Quasi-Judicial Dialogue for the Coherent Development of International Law

Multilateral Development Banks have established international accountability mechanisms over the last 25 years in order to offer private individuals or groups a process through which they can demand the redress of grievances caused by the banks’ projects. Accountability mechanisms are often composed of experts appointed by each bank’s Board of Directors. The mechanisms generally have a compliance review function, with or without a problem-solving function. With their different mandates, these quasi-judicial bodies have, just like judicial bodies, proliferated in a process that can be deemed “quasi-anarchic“. This post explores a recent project in Kenya presented simultaneously before two accountability mechanisms, and argues that accountability mechanisms’ “quasi-judicial dialogue” can constitute a source of inspiration for the coherent development of international law.

Two Accountability Mechanisms, Two Mandates

As judicial and quasi-judicial bodies participate in the development of international law, there is a risk of incoherence in their decisions with consequences such as unpredictability, inequalities or forum-shopping, which would endanger the international legal system (see Jonathan I. Charney, Is International Law Threatened by Multiple International Tribunals?). Incoherence may become even more acute for Multilateral Development Banks’ accountability mechanisms as they confront very similar factual scenarios, especially in the case of co-financing where parties affected by an investment may seize more than one accountability mechanism, just like in the Kenya Electricity Expansion Project presented before the World Bank and the European Investment Bank’s accountability mechanisms.

Indeed, there are four important differences between the mandates of the World Bank Inspection Panel (hereinafter the Panel) and the European Investment Bank’s Complaints Mechanism. In all four aspects, the World Bank’s policy is more restrictive than the European Investment Bank’s (hereinafter EIB). Read the rest of this entry…

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Detecting Prohibited Subsidies and Determining Continued Compliance: WTO Panel Rules (Again) for the US in the Airbus Dispute with EU

Published on September 26, 2016        Author: 

On 22 September 2016, the United States Trade Representative (USTR) scored another victory in its long-running dispute with the European Union (EU) over subsidies provided by certain EU Member States to large civil aircraft manufacturer Airbus. The USTR sought to prove that 36 challenged EU measures remained inconsistent with its duty to comply with the rulings and recommendations issued by the WTO Dispute Settlement Body (DSB) after adopting the original 30 June 2010 Panel Report in this case.  Specifically, the US challenged four types of subsidies allegedly made by the EU and/or certain EU Member States to Airbus for continuing inconsistency with the Subsidies and Countervailing Measures (SCM) Agreement: 1) launch aid or member State financing; 2) equity infusions for the corporate restructuring of Aerospatiale and Deutsche Airbus; 3) infrastructure related measures of German and Spanish authorities; and 4) research and technological development funding provided by the EU and certain member States.

The 22 September 2016 WTO Panel Report European Communities and Certain Member States – Measures Affecting Trade in Large Civil Aircraft [hereafter, “2016 Panel Report”] found, among others, that: 1) French, German, Spanish, and UK launch aid or member State financing for the Airbus A350XWB constituted actionable specific subsidies (2016 Panel Report, para. 7.1.c.ii.); 2) the EU and certain member States have failed to comply with their obligation to withdraw the subsidies for other Airbus aircraft (2016 Panel Report, para. 7.1.c.ix.); 3) the EU continues to be in violation of Articles 5(c) and 6.3(a)(b) and (c) of the SCM Agreement by failing to comply with previous recommendations and rulings of the WTO Dispute Settlement Body in the original 30 June 2010 Panel Report (2016 Panel Report, para 7.2); 4) to the extent that the challenged EU measures remain inconsistent with the SCM Agreement, they have nullified or impaired benefits accruing to the US under that Agreement (2016 Panel Report, para. 7.3); and 5) the EU and certain member States failed to bring 34 of its 36 challenged measures into conformity with their obligations under the SCM Agreement (2016 Panel Report, para. 7.4).

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Unpacking the Complexities of Backlash and Identifying its Unintended Consequences

Published on August 25, 2016        Author: 

References to “backlash” are becoming increasingly ubiquitous in international law scholarship (see for example this recent EJIL article and accompanying EJIL:Talk! Discussion). Few have, however, sought to define or unpack the complexities of backlash. In this post, we draw upon our chapter in a forthcoming book titled The Judicialization of International Law – A Mixed Blessing? (Oxford University Press, 2017). We seek to develop a notion of “backlash”, identify what underlies it, and illuminate its potential unintended consequences. While we focus upon investment treaty arbitration as a case study, we endeavor to illuminate the complexities of evaluating opposition to international regimes. These issues hold particular relevance to investor-State arbitration given current State negotiations of major bi‑ and multi‑ lateral treaties with investor-State protections. They are also likely to gain in relevance with many investment treaties shortly coming up for renewal or termination.

Defining Backlash

The notion of backlash has seldom been defined, instead being used as an umbrella term to capture a range of forms of critique and contestation. These include State decisions to review, not renew, terminate, or withdraw from existing treaties; refusals to negotiate or sign investment treaties; and changes in the approaches of States to the negotiation of new treaties. There are also forms of “backlash” arising from civil society, non-governmental organizations, and academia in the form of protests, comments in public consultation processes, increased reporting, and academic discussion. Such acts, along with others, are increasingly cited as evidence of “a rising backlash” against the regime of investor-State arbitration generally.

The term “backlash” indicates the presence of something more than scrutiny, critique or even crisis. Read the rest of this entry…

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Philip Morris v Uruguay: an affirmation of ‘Police Powers’ and ‘Regulatory Power in the Public Interest’ in International Investment Law

Published on July 28, 2016        Author: 

In recent years there has been criticism that international investment treaties and investor-State arbitration conducted under those treaties increasingly, and unacceptably, have encroached upon the legitimate uses of States’ regulatory power. These concerns have not only been expressed in scholarship, but have also been at the forefront of State negotiations in recent multilateral and bilateral trade and investment agreements (see, for example, the recent discussion by Anthea Roberts and Richard Braddock here on the China-Australia Free Trade Agreement). The concerns have led to policy proposals from States and international organisations for greater safeguards for States to be able to enact measures in the public interest without attracting liability under investment treaties.

Investor-State arbitration tribunals appear to be alive to these concerns. On 8 July 2016, a tribunal (constituted by Professor Piero Bernardini, Mr Gary Born and Judge James Crawford) convened pursuant to the Switzerland-Uruguay Bilateral Investment Treaty (‘BIT’) delivered an award which, by majority, upheld the legality of two tobacco-control measures enacted by the Uruguayan government for the purpose of protecting public health. The award contains an extensive analysis of the interaction between States’ regulatory powers to enact laws in the public interest and States’ obligations to protect and promote foreign investment within their territory. This post will focus on two aspects of the award that considered this interaction: the claim pursuant to Article 5 of the BIT (expropriation) and the claim pursuant to Article 3(2) (fair and equitable treatment or FET).

The challenged measures

The claim, brought by the Philip Morris group of tobacco companies against Uruguay, challenged two legislative measures. First, the claimants challenged a law that mandated a ‘single presentation requirement’ on cigarette packaging, such that different packaging or variants of cigarettes were prohibited.

Secondly, the claimants challenged a law that mandated an increase in the size of health warnings on cigarette packaging from 50 to 80% of the lower part of each of the main sides of a cigarette package (‘the 80/80 requirement’). As the the amicus brief submitted by the WHO and Framework Convention on Tobacco Control (‘FCTC’) Secretariat noted, large graphic and text health warnings are increasingly common on tobacco packaging globally and a number of States have enacted (or are considering enacting) laws with the aim of preventing misleading tobacco packaging, as is required of States parties to the FCTC (including Uruguay). Read the rest of this entry…

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Arbitral Controls and Policing the Gates to Investment Treaty Claims against States in Transglobal Green Energy v. Panama and Philip Morris v. Australia

Published on June 22, 2016        Author: 

Investor-State arbitral tribunals are increasingly policing the gates to investment treaty claims against States. The initiation of investment treaty claims against States remains subject to a high threshold of good faith against possible abuse of process by investors, as recently stressed by arbitrators Dr. Andres Rigo Sureda (President), Professor Christoph Schreuer, and Professor Jan Paulsson, in their 2 June 2016 Award in Transglobal Green Energy LLC and Transglobal Green Panama S.A. v. Republic of Panama. The Tribunal upheld Panama’s objection to jurisdiction on the ground of “abuse by Claimants of the investment treaty system by attempting to create artificial international jurisdiction over a pre-existing domestic dispute.” (Transglobal Award, para. 118). The Transglobal Award was issued six months after another tribunal in Philip Morris International v. Australia [composed of arbitrators Professor Karl-Heinz Böckstiegel (President), Professor Gabrielle Kaufmann-Kohler, and Professor Donald M. McRae] issued its landmark 17 December 2015 Award on Jurisdiction and Admissibility, declaring that: “the commencement of treaty-based investor-State arbitration constitutes an abuse of right (or abuse of process) when an investor has changed its corporate structure to gain the protection of an investment treaty at a point in time where a dispute was foreseeable. A dispute is foreseeable when there is a reasonable prospect that a measure that may give rise to a treaty claim will materialize.” (Philip Morris Award, para. 585.) While to date there is scarcely any doctrinal unanimity over what comprises abuse of process, abuse of rights, or bad faith institution of investor-State claims [see for example Eric De Brabandere, Good Faith, Abuse of Process, and the Initiation of Investment Treaty Claims, 3 Journal of International Dispute Settlement 3, pp. 1-28 (2012), these recent arbitral decisions provide concrete guidance of factors that tribunals have taken into account to determine whether investor-claimants instituted investment treaty arbitration proceedings in good faith.

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Back to the Lawless Jungle? The Vulnerability of EU Anti-Dumping Measures against China after December 2016

Published on June 15, 2016        Author: 

In a previous post, I argued that the European Union would violate its WTO obligations under the WTO Anti-Dumping Agreement (ADA) if EU anti-dumping investigators will continue to apply ‘non-market economy’ (NME) treatment of Chinese exports in AD investigations under the EU Anti-Dumping Regulation (ADR) after December 11, 2016. It is on that day that Art.15(a)(ii) of China’s Accession Protocol (CAP) expires. Until that date, Art.15(a)(ii) provides WTO members with the right to use non-standard price comparison methodologies to determine whether and to what extent Chinese exports have been ‘dumped’ onto a third country market. The provision has served as a legal basis for a highly effective trade defense remedy that allows for the imposition of extraordinarily steep anti-dumping duties against Chinese exports, and Chinese exports of steel products and solar panels in particular. After the expiration of the said provision, the adoption of EU AD measures against China that are based on the use of non-standard price and cost comparison methodologies will be highly vulnerable to legal challenge in WTO Dispute Settlement (DS) proceedings in Geneva. This conclusion, however, does not prejudge the legality of AD measures that the EU has (or will have) adopted against Chinese producers prior to the December deadline. The question about the post-2016 legality of already existing EU AD measures that are “not based on a strict comparison with domestic prices or costs in China” (Art.15(a)(ii) CAP), is particularly relevant in context of the rising amount of new EU AD measures and investigations against Chinese producers of steel and solar panels that the EU has imposed and initiated in the last 18 months. It is this very question that is subject to analysis in this post.

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The Empire Strikes Back: Yukos-Russia, 1-1

Published on May 26, 2016        Author: 

In the latest chapter to the ever fascinating Yukos dispute, Russia recently secured a victory in the District Court of The Hague, which set aside the US $ 50 billion awards issued two years ago by an arbitral tribunal constituted under the Energy Charter Treaty (ECT). The crucial issue was whether Russia was bound to arbitrate under the ECT’s provisional application clause. The arbitral tribunal, comprised of Y. Fortier, C. Poncet, and S. Schwebel, said ‘yes’; three Judges of The Hague District Court, D. Aarts, I.A.M. Kroft and H.F.M. Hofhuis, said ‘no’. It will be argued here that the District Court put too much emphasis on the domestic constitutional legality of the ECT’s provisional application, at the expense of investors who were entitled to believe that Russia had agreed to such provisional application.

Earlier Episodes of the Dispute

The dispute between the now defunct oil company Yukos and Russia has grown into a protracted legal battle, involving a number of investment arbitration tribunals, the European Court of Human Rights, and domestic courts in various jurisdictions. At one point the largest oil company in Russia, Yukos was liquidated in 2006 by the Russian authorities in the process of enforcing tax reassessments, which allegedly demonstrated that Yukos had engaged in large-scale tax evasion. According to Yukos and many international observers, the tax reassessments were a pretext for regaining control over the Yukos imperium and bringing down its influential CEO Mikhail Khodorkovsky.

Foreign shareholders of Yukos have brought investment arbitration claims against Russia under various treaties, including the 1989 UK-Russia BIT (award), the 1991 Spain-Russia BIT (award), and the ECT. The investors have been largely successful, obtaining their biggest win on 18 July 2014, when a tribunal constituted under the auspices of the Permanent Court of Arbitration issued three awards granting a total of US $ 50 billion to the claimants, on the ground that Russia had breached the expropriation provision of the ECT (Article 13). These awards have now been set aside by The Hague District Court (some reactions here and an analysis of the consequences here).

Provisional Application

Whereas previous battles focused on whether the Russian tax reassessments and subsequent enforcement measures were mala fide, the crucial issue at the current stage is whether the arbitration clause of the ECT (Article 26) was actually applicable with regard to Russia, which signed but never ratified the treaty, and withdrew from it in 2009 (not the only Member State to do so).

Pursuant to Article 45 ECT, a signatory State agrees to apply the treaty provisionally ‘pending its entry into force’, ‘to the extent that such provisional application is not inconsistent with its constitution, laws or regulations’ (para. 1) and if that State had not objected to provisional application at the moment of signing (para. 2(a)). Given the fact that Russia had not issued such an objection (unlike Norway, Iceland and Australia), the dispute focused on whether a provisional application of the ECT was consistent with Russian law.

Consistency of What: the Piecemeal v. the All-or-Nothing Approach

In spite of its apparently casual wording, Article 45(1) or ‘the Limitation Clause’ raises complicated questions of interpretation. A first point of disagreement between the arbitral tribunal and the Hague District Court is what exactly needs to be consistent with Russian law: the idea of provisional treaty application as such, or the provisional application of specific treaty provisions. According to the court (5.18), the issue of consistency should be assessed separately for any treaty provision to be applied provisionally (‘piecemeal approach’), and not for the entire treaty as a whole (‘all-or-nothing approach’), as the tribunal had found (like the tribunal in Kardassopoulos v. Georgia). While the tribunal and the court emphasized different textual elements of Article 45(1), their conclusions also demonstrate different preoccupations. According to the tribunal, the piecemeal approach would ‘create unacceptable uncertainty in international affairs’, allowing a State to opt out of provisional application at any time, in particular after a dispute had arisen (para. 315 Interim Awards). The court, on the other hand, emphasized that Article 45(1) serves to avoid conflicts between domestic law and international obligations (5.19). The provision might indeed cause some uncertainty, but this was the choice of the States party to the ECT and apparently justified by the wish to prevent inconsistencies between international and domestic law.

What Constitutes an Inconsistency?

On the basis of its piecemeal approach, the Hague District Court focused on whether the arbitration clause of the ECT was consistent with Russian law. In this context, the Yukos shareholders argued that an inconsistency between Article 26 and domestic law could only exist in the form of an explicit prohibition under Russian law. The court took a wider approach, ruling that a provisional application of the ECT’s arbitration clause would also be inconsistent with Russian law if there would be no legal basis for this type of dispute settlement. The court would also find an inconsistency if investor-state arbitration did ‘not harmonise with the legal system’ or if it were ‘irreconcilable with the starting points and principles that have been laid down in or can be derived from legislation’ (5.33).

Applying this framework of analysis, the court found that Russian law did not provide ‘a separate legal base’ for investor-State arbitration (5.58). It did not attach much weight to the fact that in 1996 the Russian government had stated that the provisions of the ECT were ‘consistent with Russian legislation’ (5.60). Instead, the court pointed at the history of the ratification of some other investment treaties, demonstrating a parliamentary concern that Russian law did not contain a legal basis for investment arbitration (5.64).

State Sovereignty v. the Legitimate Expectations of the Investor

Provisional application is an exception to the normal rules on how treaties enter into force (reports of the ILC’s Special Rapporteur here). Whereas the period between signing and ratifying normally allows States to reconsider the matter and verify whether domestic law needs to be adapted, a provisional application provision purports to bind States already while these assessments are being made. This is a serious intrusion into State sovereignty, which explains why the ECT contains a Limitation Clause and why it allows signatories to opt out by means of a declaration.

State sovereignty, however, is not the only interest at stake in the context of provisional application, and needs to be balanced against the legitimate expectations of other parties and, in the case of the ECT, investors. When Russia signed the ECT without making a declaration under Article 45(2), it might be thought that it created a presumption of compatibility between the ECT and domestic law. Neither the tribunal nor the court followed the shareholders’ argument that the absence of a declaration under Article 45(2) precluded Russia from invoking the Limitation Clause. However, Russia’s choice not to signal any objections to provisional application but to wait until a claim was filed, sheds doubts on the credibility of the defence. This is even more problematic because the alleged inconsistency concerns ambiguous provisions that seem to allow for legitimate disagreement as to whether they allow investor-State arbitration.

The Hague District Court put a strong emphasis on the importance of the domestic separation of powers. Noting that only the Russian Parliament possesses legislative powers, the court concluded that parliamentary approval was necessary for the creation of a form of dispute resolution which did not have a legal basis in Russian law (5.93). This argument seems to revert back to the question of whether the principle of provisional application is acceptable as such. One could reply that the choice to adopt a provisional application provision in a treaty already means that the signatory States temporarily circumvent the domestic separation of powers, and that they may have good reasons to do so.

Tribunals v. Courts

It is tempting to consider other, more fundamental reasons why the Hague District Court might have decided to set aside the awards. First, since Article 45(1) makes provisional application conditional on domestic law, the court may have felt a need to defer to Russia’s interpretation of its own laws and to follow its argument of inconsistency. Second, it is probable that a court in the Netherlands – with its strong tradition of parliamentary sovereignty – is relatively susceptible to Russia’s arguments concerning the domestic separation of powers. Third, and perhaps most importantly, it is striking that the arbitral tribunal on the one hand and the District Court on the other seem to approach the State in a different manner. The court appears well-disposed towards the State, sharing Russia’s alleged concern over the domestic constitutionality of the provisional application of the ECT, whereas the tribunal is more critical, suggesting doubts as to whether Russia’s invocation of Article 45(1) is sincere and credible. Arguably, the different approaches demonstrate differences between the preoccupations of arbitral tribunals and courts (not only within host states) and the ways in which they balance State sovereignty against investor interests.

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CETA’s New Domestic Law Clause

Published on March 17, 2016        Author: 

The recent, widely-reported ‘legal scrub’ of the Canada-EU Comprehensive Economic and Trade Agreement (CETA) has drawn attention for its endorsement of a radical shift away from the model of investor-state dispute settlement that has prevailed in investment agreements to date. The new text indicates that Canada has agreed to the EU’s proposals on an investment court system, with a permanent roster of arbitrators appointed by Canada and the EU, rather than ad hoc tribunals whose members are appointed by the disputing parties themselves. In another innovation, CETA will also include an appeals mechanism, which will have power to review the merits of first-instance rulings, going beyond the limited grounds for annulment of awards in the existing ICSID system.

Alongside these revolutions, the new CETA text also contains another change from the earlier text. Under the heading of ‘Applicable law and interpretation’, Article 8.31(2) of the new text provides:

The Tribunal shall not have jurisdiction to determine the legality of a measure, alleged to constitute a breach of this Agreement, under the domestic law of the disputing Party. For greater certainty, in determining the consistency of a measure with this Agreement, the Tribunal may consider, as appropriate, the domestic law of the disputing Party as a matter of fact. In doing so, the Tribunal shall follow the prevailing interpretation given to the domestic law by the courts or authorities of that Party and any meaning given to domestic law by the Tribunal shall not be binding upon the courts or the authorities of that Party.

Although the provision is new in CETA, it has also recently appeared in the EU-Vietnam FTA and in similar language in the EU’s November 2015 TTIP proposals. While this might suggest that the provision is a recent invention of the EU, its inspiration in CETA could equally have come from Canada, which included a similar provision in its 2008 FTA with Colombia. In fact, Colombia itself appears to have first spearheaded the provision, including language on domestic law broadly similar to the provision’s first sentence in its 2007 Model BIT and in agreements signed as far back as 2006 with Japan, the UK, India, Belgium, China, Peru and Switzerland. Read the rest of this entry…

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Trade Agreements, EU Law, and Occupied Territories (2): The General Court Judgment in Frente Polisario v Council and the Protection of Fundamental Rights Abroad

Published on December 11, 2015        Author: 

This is a follow-up to my July post on Action for Annulment Frente Polisario v Council (Case T-512/12), a case before the General Court of the European Union (GC) in which Frente Polisario – the National Liberation Movement for Western Sahara – seeks the Annulment of the EU Council decision adopting the 2010 EU-Morocco Agreement on agricultural, processed agricultural and fisheries products. The GC delivered its judgment yesterday, both recognizing the standing of Frente Polisario and granting the (partial) annulment of the decision, with implications for EU-Morocco relations and for EU external relations law more broadly.

(1) Standing of Frente Polisario under Article 263 TFEU

As regards standing, the most striking aspect of the judgment is that the Court accepted the Frente’s entitlement to plead as a ‘moral person’, with the ‘necessary autonomy’ to challenge a decision of the EU legislator (paras. 50-53), without reference to the sui generis character of Frente Polisario or to the unique situation of Western Sahara. This would seem to open the door for other ‘autonomous entities’, even those with no claim to international legal personality, to challenge EU decisions under Article 263 TFEU.

By the same token, the Court fell short of recognizing the Frente’s legal personality under international law. Read the rest of this entry…

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