Skip to main content
SpringerLink
Log in

Panel Procedures Under the Proposed EU-Australia FTA

  • Chapter
  • First Online:
The Australia-European Union Free Trade Agreement

Part of the book series: European Yearbook of International Economic Law ((Spec. Issue))

  • 279 Accesses

Abstract

State-to-state dispute settlement is a common feature in most modern trade agreements and EU Free Trade Agreements (FTAs) have been no exception with its trade agreements since the 2000s containing the possibility for state-to-state dispute settlement through panelists or arbitrators (Cornelia, Ensuring that state to state dispute settlement procedures under the EU FTAs do not end when they have just begun, 2020, p. 2.). While these provisions were largely unused for a long time, since 2018, the EU has been a part of four disputes based on dispute resolution proceedings in FTAs (Disputes against Ukraine, Southern African Customs Union, South Korea and Algeria. Progress on the proceedings can be monitored at https://ec.europa.eu/trade/policy/accessing-markets/dispute-settlement/bilateral-disputes/ (last accessed 9 September 2021).), The EU has recently received a favourable decision in the first concluded proceeding against Ukraine (Final Report of the Arbitration Panel, Restrictions applied by Ukraine on exports of certain wood products to the European Union, 11 December 2020, p. 125.), and mixed results in the second concluded proceeding against South Korea (Report of The Panel of Experts, Panel of Experts Proceeding Constituted Under Article 13.15 of the EU-Korea Free Trade Agreement, January 20, 2021, p. 77.). This line of recent disputes indicates that state-to-state dispute settlement procedures may have a significant role in the future and relevant clauses in the FTAs need to be carefully negotiated with a view to prevent procedural hurdles in future proceedings.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution
Chapter
USD 29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD 119.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Softcover Book
USD 159.99
Price excludes VAT (USA)
  • Compact, lightweight edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info
Hardcover Book
USD 159.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Similar content being viewed by others

Notes

  1. 1.

    European Union, Dispute Settlement, https://ec.europa.eu/trade/policy/accessing-markets/dispute-settlement/ (last accessed 9 September 2021).

  2. 2.

    Bilder (1989), p. 474 et seqq.

  3. 3.

    UNCTAD (2003), pp. 30 et seqq.

  4. 4.

    Holbein and Carpentier (1993), p. 537.

  5. 5.

    See Articles X.11 and X.12, Chapter on Dispute Settlement of the EU-Mexico Agreement in principle announced on 21 April 2018 (‘EU-Mexico Global Agreement’) and Art 12.4, Chapter on Dispute Settlement, EU-Mercosur Association Agreement in principle announced on 28 June 2019 (‘EU-Mercosur Association Agreement’).

  6. 6.

    Article 21.19, Agreement between the European Union and Japan for an Economic Partnership (‘EU-Japan EPA’), OJ 2018 L 330/3; Article 15.12, Free Trade Agreement between the Government of Australia and the Government of the People’s Republic of China, 2015 (‘Australia-China FTA’).

  7. 7.

    Article 12, EU-Mercosur Association Agreement.

  8. 8.

    Clause 9 (a), Annex 29-A, Comprehensive Economic and Trade Agreement (‘CETA’), OJ 2017 L 11/23; Clause 11 (a), Annex 14-A, Free trade Agreement between the EU and Singapore (‘EU-Singapore FTA’), OJ 2019 L 294/3; Clause 14 (a), Annex I, EU-Mercosur Association Agreement.

  9. 9.

    Article X.9, Chapter on Dispute Settlement, Proposed Text for the EU-New Zealand FTA; Article X.9, Chapter on Dispute Settlement, Proposed EU Text.

  10. 10.

    Chase (2013), p. 6.

  11. 11.

    See, Article 7(1) and Article 11, Understanding on rules and procedures governing the settlement of disputes (‘WTO DSU’ or ‘DSU’), 1869 U.N.T.S. 401; See also, Van den Bossche and Prevost (2021), p. 43.

  12. 12.

    For example, See, the terms of reference under Clause 11 (a), Annex 14-A, EU-Singapore FTA: ‘to examine, in the light of the relevant provisions of the Agreement, the matter referred to in the request for establishment of the arbitration panel made pursuant to Article 14.4; to rule on the compatibility of the measure in question with the provisions referred to in Article 14.2 by making findings of law and/or fact, together with the reasons thereof; and to issue a ruling in accordance with Articles 14.7 and 14.8.’ See also, Article 14.7 (1), EU-Singapore FTA (same agreement) which shows that the interim panel report on whose basis the arbitration panel ruling will be made sets out the findings of fact.

  13. 13.

    Article 29.10 (1), CETA; Article 14.19 (2), EU-Singapore FTA; Article 12.8, EU-Mercosur Association Agreement; Article X. 12 (3), Chapter on Dispute Settlement, EU-Mexico Global Agreement. For an outlier FTA which does not contain the term ‘binding’ even with Arbitration procedure, see, Free Trade Agreement between the European Union and the Socialist Republic of Viet Nam, OJ 2020 L 186/3 (‘EU-Vietnam FTA’).

  14. 14.

    See, EU Proposed Texts for Australia and New Zealand FTAs which do not contain a provision stating a binding nature of the decision of the Panel.

  15. 15.

    Article X.23 (2), Chapter on Dispute Settlement, Proposed Text for the EU-New Zealand FTA; Article X.23 (2), Chapter on Dispute Settlement, Proposed EU Text.

  16. 16.

    Article 14.7 (4), EU-Singapore FTA; Article X.12 (2), Chapter on Dispute Settlement, EU-Mexico Global Agreement; Article 12 (3), Chapter on Dispute Settlement, EU-Mercosur Association Agreement.

  17. 17.

    Article 29.9 (2), CETA.

  18. 18.

    Article 29.9 (2), CETA; Article 14.7 (4), EU-Singapore FTA; Article X.12 (2), Chapter on Dispute Settlement, EU-Mexico Global Agreement; Article 12.3, Chapter on Dispute Settlement, EU-Mercosur Association Agreement.

  19. 19.

    Article X.12 (2), Chapter on Dispute Settlement, EU’s proposed Text for Discussion for the EU-New Zealand FTA as released in 2018 (‘Proposed Text for the EU-New Zealand FTA’); Article X.12 (2), Chapter on Dispute Settlement, Proposed EU Text.

  20. 20.

    See, ‘Ruling’ in Article 29.10, CETA; Article 14.8, EU-Singapore FTA; ‘Award’ in Article 12, EU-Mercosur Association Agreement; ‘Report’ in Article 21.19, EU-Japan EPA.

  21. 21.

    Office of Legal Affairs (1992), p. 55. The fact that there is no appeal is explicitly mentioned in Article 12 (8) Chapter on Dispute Settlement, EU-Mercosur Association Agreement.

  22. 22.

    See, Article 18.9, Australia- Hong Kong Free Trade Agreement, 2019 (A-HKFTA).

  23. 23.

    For situations when the Panel makes decisions, See Article X.10- Decision on Urgency, Article X.14 (2)- Decision on reasonable period of time, Article X.15 (2)- Decisions in compliance review, Article X.16 (5)- Decision on temporary remedies, All in Chapter on Dispute Settlement, Proposed EU Text.

  24. 24.

    For instance, See, Article X.23- Report and decisions of the Panel, Article X.8 (b)- Functions of the panel, Article X.18 (2)- Replacement of panelists, Proposed EU Text.

  25. 25.

    See, For Determinations: Article 19.12 (2) Regional Comprehensive Economic Partnership Agreement (‘RCEP’), 2020; For Recommendations, see: Article 12 (6), Australia-PACER Plus FTA, 2017; For both Determinations and Recommendations, See, Article 28.8 (1), Comprehensive and Progressive Agreement for Trans-Pacific Partnership, 2018 (‘CPTPP’); Article 27.8, Peru-Australia Free Trade Agreement, 2018. (‘PAFTA’).

  26. 26.

    See Article 15, Title XXX, Dispute Settlement, EU-Mercosur Association Agreement; Article 21.20, EU-Japan EPA; Article 14.9 EU-Singapore FTA: Article 14.8, Free Trade Agreement between the European Union and its Member States, and the Republic of Korea, OJ 2011 L 127/1 (‘EU-South Korea FTA’); Article 15.12 EU-Vietnam FTA.

  27. 27.

    Article 37, Convention for the Pacific Settlement of International Disputes, 1907, 2 AJIL Supp. 43 (1908).

  28. 28.

    See Article X.13 (1), Chapter- Dispute Settlement, Proposed Text for the EU-New Zealand FTA and Article X.13, Chapter- Dispute Settlement, Proposed EU Text.

  29. 29.

    Reinhold (2015), pp. 60 et seqq.; Uçaryılmaz (2020), pp. 53 et seqq.

  30. 30.

    WTO, Participation in dispute settlement proceedings, https://www.wto.org/english/tratop_e/dispu_e/disp_settlement_cbt_e/c9s3p1_e.htm (last accessed 9 September 2021).

  31. 31.

    Clause 39, Annex X, Rules of Procedure, Proposed EU Text.

  32. 32.

    Articles X.4 and X.5, Panel Procedures, Proposed EU Text.

  33. 33.

    Report of the 11th round of negotiations for a trade agreement between the European Union and Australia 1–11 June 2021, p. 3.

  34. 34.

    See Section C, Panel Procedures, Chapter on Dispute Settlement, Proposed EU Text.

  35. 35.

    Robles (2006), p. 26.

  36. 36.

    Economic Partnership, Political Co-ordination and Co-operation Agreement between the European Community and its Member States, of the one part, and the United Mexican States, of the other part, OJ 2000 L 276/45.

  37. 37.

    It is unclear from the Proposed EU Text if a “Party” for the EU may mean only a member state or it means European Union.

  38. 38.

    Clause 1, Article X.4, Chapter- Dispute Settlement.

  39. 39.

    For the potential for declaratory claims under the state-to-state dispute settlement mechanism in an FTA, see, Lubambo (2020), p. 107.

  40. 40.

    Article X. 4 (2), Section C, Chapter on Dispute Settlement, Proposed EU Text.

  41. 41.

    An analysis can be found in Table 1 above. The proposed EU-Mexico Global Agreement has a provision for formation of a panel.

  42. 42.

    Szepesi (2004), p. 2.

  43. 43.

    Woolock (2007), p. 2.

  44. 44.

    Article X. 4, Section C, Chapter on Dispute Settlement, Proposed EU Text.

  45. 45.

    See the following Articles of Proposed EU Text: Article X.5, Section B, Chapter on Trade Remedies; Article X.9, Section B, Chapter on Trade Remedies.

  46. 46.

    See Article X.7, Section A, Chapter on Anticompetitive Conduct, Merger control and Subsidies, Proposed EU Text.

  47. 47.

    See Article X.13, Chapter on Trade and Sustainable Development, Proposed EU Text.

  48. 48.

    See Article X.12, Chapter on Chapter on Good Regulatory Practices, Proposed EU Text.

  49. 49.

    See the following Articles of Proposed EU Text: Article 3, Annex on Movement of Natural Persons for Business Purposes, Chapter on Investment Liberalisation and Trade in Services.

  50. 50.

    Article X. 15(2), Chapter on Sanitary and Phytosanitary Measures, Proposed EU Text.

  51. 51.

    Article X. 5, Section C, Chapter on Dispute Settlement, Proposed EU Text.

  52. 52.

    Articles X. 7, X.18 and X.20 Section C, Chapter on Dispute Settlement, Proposed EU Text; Annex XX, Code of Conduct for Panelists and Mediators, Proposed EU Text.

  53. 53.

    Clause 1(e), I. Definitions, Annex XX. The members of a “panel” have been referred to as “arbitrators” under Articles X.23(1) and X.34(2), Section C, Chapter on Dispute Settlement, Proposed EU Text, which can be an indication that they are performing functions similar to an arbitrator.

  54. 54.

    Articles X. 10, 11 and 12, Section C, Chapter on Dispute Settlement, Proposed EU Text; Annex XX, Code of Conduct for Panelists and Mediators, Proposed EU Text.

  55. 55.

    Clause 13 and 16, Hearings, Annex X- Rules of Procedure, Proposed EU Text.

  56. 56.

    Indonesia-Australia Comprehensive Economic Partnership Agreement (IA-CEPA), entered into force on 5 July 2020.

  57. 57.

    Australia-Hong Kong Free Trade Agreement (A-HKFTA) and associated Investment Agreement (IA) entered into force on 17 January 2020.

  58. 58.

    The IA-CEPA was signed on March 4, 2019 and the A-HKFTA was signed on March 26, 2019. The Proposed EU Text is dated June 13, 2018.

  59. 59.

    Clause 38-42, Annex 15-A, EU-Vietnam FTA. 2019; Clause 40-44, Annex 14-A, EU-Singapore FTA. 2018.

  60. 60.

    The Final Text of the EU-Vietnam FTA was updated on 24 September 2018; The Final Text of EU-Singapore FTA was signed on 19 October 2018, https://trade.ec.europa.eu/doclib/docs/2018/april/tradoc_156716.pdf (last accessed 9 September 2021).

  61. 61.

    Part XI and XII, Annex X- Rules of Procedure, Proposed EU Text.

  62. 62.

    Clause 10, Annex XX, Proposed EU Text.

  63. 63.

    Clause 11, Annex 15-A, Australia-China FTA.

  64. 64.

    Australia-European Union Free Trade Agreement, Summary of negotiating aim and approach, https://www.dfat.gov.au/trade/agreements/negotiations/aeufta/Pages/summary-of-negotiating-aims-and-approach (last accessed 9 September 2021).

  65. 65.

    Article X. 2, Section A, Chapter on Dispute Settlement, Proposed EU Text.

  66. 66.

    Objectives, https://www.dfat.gov.au/sites/default/files/australia-european-union-fta-objectives.pdf (last accessed 9 September 2021).

  67. 67.

    See also, Report 183, Joint Standing Committee on Treaties, Australian Parliament, https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Treaties/AspectsPAFTArevisited/Report_183/section?id=committees%2Freportjnt%2F024238%2F26778#footnote12target (last accessed 9 September 2021).

  68. 68.

    Objectives, Council of the European Union, Negotiating directives for a Free Trade Agreement with Australia, 7663/18, 25 June 2018, https://www.dfat.gov.au/sites/default/files/australia-european-union-fta-objectives.pdf (last accessed 9 September 2021).

  69. 69.

    Chaisse and Renouf (2018), p. 285.

  70. 70.

    Australia-EU FTA – Report on Negotiating Round Ten, 9–19 March 2021, https://www.dfat.gov.au/trade/agreements/negotiations/aeufta/news/australia-eu-fta-report-negotiating-round-ten-9-19-march-2021 (last accessed 9 September 2021).

  71. 71.

    The Report of the Negotiating Rounds for Australia can be found at https://www.dfat.gov.au/trade/agreements/negotiations/aeufta/aeufta-news. The Report of the Negotiating Rounds for EU can be found at https://trade.ec.europa.eu/doclib/press/index.cfm?id=1865 (last accessed 9 September 2021).

  72. 72.

    ICJ, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Preliminary Objections, Judgment, I.C.J. Reports 2016, p. 833 at 849; PCA Case No. 2012-5, Republic of Ecuador v. United States of America, Award, 29 September, 2012; ICJ, Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011, p. 70.

  73. 73.

    Such a situation was seen in PCA Case No. 2012-5, Republic of Ecuador v. United States of America arising out of the USA-Ecuador BIT, wherein USA refused to take a position on an issue and denied that there was a dispute between the parties.

  74. 74.

    Bernasconi-Osterwalder (2016), p. 259.

  75. 75.

    Article 14, EU-Mercosur Association Agreement.

  76. 76.

    Article XIV, Annex, Rules of Procedure, Proposed EU Text.

  77. 77.

    Article X.18, Section C, Chapter on Dispute Settlement, Proposed EU Text.

  78. 78.

    Clause 25, Hearings, Annex X- Rules of Procedure, Proposed EU Text.

  79. 79.

    Article X.18, Section C, Chapter on Dispute Settlement, Proposed EU Text.

  80. 80.

    Such a provision is seen in Article 14, PCA Optional Rules for Arbitrating Disputes Between Two States.

  81. 81.

    Requirement to prepare transcripts under Clause 30, Hearings, Annex X- Rules of Procedure, Proposed EU Text.

References

  • Bernasconi-Osterwalder N (2016) State-state dispute settlement in investment treaties. In: Singh K, Ilge B (eds) Rethinking bilateral investment treaties. Both Ends, Amsterdam, pp 256–262

    Google Scholar 

  • Bilder RB (1989) International third party dispute settlement. Denver J Int Law Policy 17(3):471–503

    Google Scholar 

  • Chaisse J, Renouf Y (2018) Investor-state dispute settlement. In: Drake-Brockman J, Patrick M (eds) Potential benefits of an Australia-EU Free Trade Agreement- key issues and options. University of Adelaide Press, Adelaide, pp 281–313

    Chapter  Google Scholar 

  • Chase C, Yanovich A, Crawford JA, Ugaz P (2013) Mapping of dispute settlement mechanisms in regional trade agreements – innovative or variations on a theme?. WTO Staff Working Paper. WTO, Geneva

    Google Scholar 

  • Cornelia F (2020) Ensuring that state to state dispute settlement procedures under the EU FTAs do not end when they have just begun. Eutip Policy Brief 1

    Google Scholar 

  • Holbein JR, Carpentier G (1993) Trade agreements and dispute settlement mechanisms in the Western Hemisphere. Case West Reserve J Int Law 25(2):531–570

    Google Scholar 

  • Lubambo M (2020) Entry rights and investments in services: adjudicatory convergence between regimes? In: Gáspár-Szilágyi S, Behn D, Langford M (eds) Adjudicating trade and investment disputes convergence or divergence? Cambridge University Press, Cambridge, pp 92–118

    Chapter  Google Scholar 

  • Office of Legal Affairs (1992) Handbook on the peaceful settlement of disputes between states. United Nations, New York

    Google Scholar 

  • Reinhold S (2015) Good faith in international law. UCL J Law Jurisprud 2(0):40–63

    Google Scholar 

  • Robles ER (2006) Political and quasi-adjudicative dispute settlement models in the European Union Free Trade Agreements- Is the quasi-adjudicative model a trend or is it just another model?. WTO Staff Working Paper ERSD-2006-09

    Google Scholar 

  • Szepesi S (2004) Comparing EU free trade agreements- Dispute Settlement. Inbrief, No. 6G

    Google Scholar 

  • Uçaryılmaz T (2020) The principle of good faith in public international law. Estudios de Deusto 68(1):43–59

    Article  Google Scholar 

  • UNCTAD (2003) Dispute settlement: state-state. United Nations, New York and Geneva

    Google Scholar 

  • Van den Bossche P, Prevost D (2021) Essentials of WTO law, 2nd edn. Cambridge University Press, Cambridge

    Book  Google Scholar 

  • Woolock S (2007) European Union policy towards Free Trade Agreements. ECIPE Working Paper, No. 03/2007

    Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Indian Institute of Management Ranchi, Ranchi, India

    Angshuman Hazarika

Authors
  1. Angshuman Hazarika
    View author publications

    You can also search for this author in PubMed Google Scholar

Editor information

Editors and Affiliations

  1. Saarland University, Saarbrücken, Germany

    Marc Bungenberg

  2. Monash University, Clayton, VIC, Australia

    Andrew Mitchell

Rights and permissions

Reprints and permissions

Copyright information

© 2022 The Author(s), under exclusive license to Springer Nature Switzerland AG

About this chapter

Check for updates. Verify currency and authenticity via CrossMark

Cite this chapter

Hazarika, A. (2022). Panel Procedures Under the Proposed EU-Australia FTA. In: Bungenberg, M., Mitchell, A. (eds) The Australia-European Union Free Trade Agreement. European Yearbook of International Economic Law(). Springer, Cham. https://doi.org/10.1007/978-3-030-91448-6_7

Download citation

  • DOI: https://doi.org/10.1007/978-3-030-91448-6_7

  • Published:

  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-030-91447-9

  • Online ISBN: 978-3-030-91448-6

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Search

Navigation