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Archive for the ‘Articles in peer reviews’ Category

Paolo Davide Farah, “Trade and Progress: The Case of China”, 30 (1) COLUMBIA JOURNAL OF ASIAN LAW, Fall 2016, pp. 51-112.

The full article can be downloaded at the following link:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3020365

Abstract

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.

TO DOWNLOAD THE FULL ARTICLE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3020365

 

Keywords: Globalization, WTO, International Economic Law, Trade, Non-Trade Concerns, Good Governance, Human Rights, Right to Water and Food, Social and Economic Rights, Cultural Rights, Labour, Environment, Climate Change, Energy, Intellectual Property, Health, Sustainability

JEL Classification: Q40, Q48, Q50, Q56, Q58, Q34, Q37, Q32, Q23, Q24, Q25, Q27, K33, K32 Q17, Q18

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Yixiang Deng, Daniele Brombal, Paolo Davide Farah (Corresponding Author), Angela Moriggi, Andrea Critto, Yun Zhou, Antonio Marcomini, “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 (Available online since August 2015), Elsevier Publisher, Science Citation Index – SCI, Impact Factor: 6.207, DOI Information: http://dx.doi.org/10.1016/j.jclepro.2015.08.022

The full article can be downloaded at the following link:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2700386

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, Impact Factor: 4.167 (Available online since August 2015)

Yixiang Deng

Chinese Research Academy on Environmental Sciences (CRAES)

Daniele Brombal

Ca Foscari University of Venice

Paolo Davide Farah

West Virginia University (WV, USA); gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Angela Moriggi

Ca Foscari University of Venice

Andrea Critto

Ca Foscari University of Venice

Yun Zhou

Chinese Research Academy on Environmental Sciences (CRAES)

Antonio Marcomini

Ca Foscari University of Venice

Abstract

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.

Keywords: China, Water, Environmental Management, Institutions, EU Water Framework Directive

JEL Classification: Q20, Q25, Q13, K32, N35, N45, N55, N75, I18, K00, K23, K33, O21

Deng, Yixiang and Brombal, Daniele and Farah, Paolo Davide and Moriggi, Angela and Critto, Andrea and Zhou, Yun and Marcomini, Antonio, 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, Impact Factor: 4.167.

The full article can be downloaded at the following link: https://ssrn.com/abstract=2700386

 

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Paolo Davide Farah, “A Comparison Between Shale Gas in China and Unconventional Fuel Development in the United States: Water, Environment and Sustainable Development” (with Riccardo Tremolada), 41 BROOKLYN JOURNAL OF INTERNATIONAL LAW 2, Spring Issue, 2016, pp. 579 – 654.

The Paper is fully available at the following link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2802157

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

Paolo Davide Farah

West Virginia University (WV, USA); gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Riccardo Tremolada

Cleary Gottlieb Steen & Hamilton LLP; gLAWcal – Global Law Initiatives for Sustainable Development

Abstract

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.

 

Keywords: Shale Gas, Unconventional Fuel, China, U.S.A., Water, Energy, Environmental Protection, Sustainable Development, Comparative Law, Foreign law, Science and Technology, International Law, Transparency, Pricing, Investments, Trade, Production-sharing, Market Access, Taxation, Fiscal Policies, Social

JEL Classification: A12, A13, D40, D62, D81, F10, F13, F18, H23, K32, K33, Q4, Q40, Q41, Q42, Q43, Q48, F1, F13, F40

Farah, Paolo Davide and Tremolada, Riccardo, A Comparison between Shale Gas in China and Unconventional Fuel Development in the United States: Water, Environmental Protection, and Sustainable Development, Brooklyn Journal of International Law, Vol. 41, No. 2, 2016. Available at SSRN: https://ssrn.com/abstract=2802157

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Paolo Davide Farah, “Conflict between Intellectual Property Rights and Human Rights: A Case Study on Intangible Cultural Heritage” (with Riccardo Tremolada), 94 OREGON LAW REVIEW 1, December 2015, pp. 125 – 177.

The paper is fully available at the following link:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2705698

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

Paolo Davide Farah

West Virginia University (WV, USA); gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Riccardo Tremolada

Cleary Gottlieb Steen & Hamilton LLP; gLAWcal – Global Law Initiatives for Sustainable Development

Abstract

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.

Keywords: Intellectual Property, IP, Technology Transfer, Human Rights, Sustainable Development, Intangible Cultural Heritage, Indigenous People, Commodification, Local Communities, IPR, ICH, UNESCO, Patents, Copyrights, Trademarks

JEL Classification: O30, O31, O32, O33, O34, O38, O39, K11, K12, K33

Farah, Paolo Davide and Tremolada, Riccardo, Conflict between Intellectual Property Rights and Human Rights: A Case Study on Intangible Cultural Heritage, Oregon Law Review, Vol. 94, No. 1, 2015. Available at SSRN: https://ssrn.com/abstract=2705698

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Paolo Davide Farah, “WTO and Renewable Energy: Lessons from the Case Law” (with Elena Cima), 49 JOURNAL OF WORLD TRADE 6, Kluwer Law International, ISSN: 1011-6702, December 2015, pp. 1103 – 1116. The article is fully available at:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2704453

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

West Virginia University (WV, USA); gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Elena Cima

Graduate Institute of International Studies; Yale Law School

Abstract

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.

Keywords: WTO, World Trade Organization, Renewable Energy, Feed-in Tariffs, Canada, Subsidies, Dispute Settlement System

JEL Classification: : K33, K32, F02, H23, L95, L50, L55, N70, N75, Q20, Q28, Q30, Q32, Q38, Q40, Q48

Farah, Paolo Davide and Cima, Elena, 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. Available at SSRN: https://ssrn.com/abstract=2704453

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Paolo Davide Farah, “World Trade Organization, Renewable Energy Subsidies and the Case of Feed-in Tariffs: Time for Reform Toward Sustainable Development?” (with Elena Cima), 27 THE GEORGETOWN INTERNATIONAL ENVIRONMENTAL LAW REVIEW 4, December 2015, pp. 515 – 537.

The Full Paper is available at the following link:

 https://ssrn.com/abstract=2704398

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

West Virginia University (WV, USA); gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Elena Cima

Graduate Institute of International Studies; Yale Law School

Abstract

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.

Keywords: World Trade Organization, WTO, GATT, Sustainable Development, Environment, Energy, Feed-in-Tariffs, Subsidies, Financial Contribution, Ethanol, FIT, Climate Change, International Environmental Law, Local Content Requirement, China, Agriculture, Green, Tax Incentives, Loans, Price Support

JEL Classification: K33, K32, F02, H23, L95, L50, L55, N70, N75, Q20, Q28, Q30, Q32, Q38, Q40, Q48

Suggested Citation:

Farah, Paolo Davide and Cima, Elena, “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. Available at SSRN: https://ssrn.com/abstract=2704398

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Haifeng Deng, Paolo Davide Farah (Corresponding Author), Anna Wang, “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, pp. 581 – 599. Online ISSN 1754-9965 – Print ISSN 1754-9957. Social Science Citation Index – SSCI. DOI:10.1093/jwelb/jwv037

The full article can be downloaded at the following link:

http://academic.oup.com//jwelb/article/8/6/581/2578668/Chinas-role-and-contribution-in-the-global?guestAccessKey=4cc75da9-e7d0-44d6-b92d-01ed40042d09

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

Haifeng Deng

Tsinghua University – School of Law

Paolo Davide Farah

West Virginia University (WV, USA); gLAWcal – Global Law Initiatives for Sustainable Development (United Kingdom)

Anna Wang

Tsinghua University – School of Law

Abstract

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.

Keywords: Carbon Tax, China, Chinese Law, Policy, Climate Change, Greehouse Gases, GHG, Emissions, Draft of Environmental Protection Law, Draft EPT Law, Pollution Charges, Administrative Law, Tax System, Energy Taxes, Management, Tax Rebates, Subsidies, Reductions, Institutional Reforms

JEL Classification: Q40, Q42, Q43, Q48, K30, K32, K33, O13, Q20, Q32

Deng, Haifeng and Farah, Paolo Davide and Wang, Anna, 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.

The full article can be downloaded at the following link:

http://academic.oup.com//jwelb/article/8/6/581/2578668/Chinas-role-and-contribution-in-the-global?guestAccessKey=4cc75da9-e7d0-44d6-b92d-01ed40042d09

Available at SSRN: https://ssrn.com/abstract=2695612

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