Essay Instructions: The assignment requires a specialist on International Economic Law (ideally a lawyer) to write a written plea based on a fictitious case. Additionally, part of the IMF Treaty (on Conditionality) needs to be interpreted in light of the concept of state sovereignty.
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THE QUESTIONS
The first question requires an application (fictitious case) of the legal provisions of the SPS treaty as interpreted by the Appellate Body in the EC - Hormones case.
Appellate Body EC - Hormones case
http://www.worldtradelaw.net/reports/wtoab/ec-hormones(ab).pdf
(2000 words)
The second question requires some amount of reading and a somewhat broader knowledge of not only International Economic Law, but nevertheless do refer also to the indicated IMF legal document (meant to provide help).
(2000 words)
DIRECTION
You need to basically write a plea, build a legal case. Find below some indications:
The most important thing when writing a “plea” is to identify and base your case on the right legal provisions (articles) of the treaty and the right paragraphs of the supporting case-law (in this case, the EU ??" Hormones case)
Basically, what you have to do is to put the facts (the fictitious case) into the law.
1. Identify the right provisions of the SPS treaty
2. Interpret the right provisions of the SPS treaty, as appropriate to your facts (you, the lawyer, want to win the case), similar to a report of the Appellate Body (see Hormones also for reference).
A story can only follow after these two steps have been taken. Any lawyer must build its case on legal provisions.
The AB report is written by judges, not lawyers. The report provides you guidance for interpretation of legal provisions. You need to look at the first part of the report, to the claims made by the parties, to get an idea how a lawyer builds a case.
QUESTION 1
NOTE: All countries, facts and claims in this question are purely fictitious.
Imporia imposed a ban on Exporia over the imports of corn beer. It claims that one of the used flavorings in beer, namely the hops, was infected during winter by the Two-spotted Spider Mite (Tetranychus urticae). Imporia’s National Authority on the Quality of Beverages (NAQB) conducted some studies on “Beer and the pests affecting the starches and flavorings used in beer”. These studies showed that the poisonous saliva injected in the plants’ cells by the Spider Mite during feeding is harmful to the facial nerves of human being, inducing localized paralysis when beer is consumed in quantities larger than 2.5 liters/day over a long period of time. Thus, Imporia’s prohibition on imports is based on these studies, which represent its risk assessment.
Imporia recognizes that these particular studies represent a minority view and, as such, after the imposition of the ban, delegated NAQB to conduct further studies (not yet finalized by the time of the dispute). Imporia also recognizes that the studies conducted by the Food and Agriculture Organization (FAO) and the World Health Organization (WHO) were inconclusive with regard to the causality between the poisonous saliva of the Spider Mite and the localized paralysis, although concluding that further studies are needed. For the above reasons, Imporia declared “zero-risk” policy in the face of scientific uncertainty and, consequently, invokes the precautionary principle in its defense.
You are Exporia’s lawyer. Build your arguments (claims) for a future formal complaint, which implies that you must research your case on all possibly applicable grounds (most likely more than in the end would be laid down in the formal complaint). You need to imagine yourself as a lawyer, in your office very late in the night, working to find out which legal provisions from the SPS Agreement apply or not to your particular case and why.
A useful tool you could use when answering Q1 is the interpretation of the SPS Agreement provisions to be found on the WTO website.
http://wto.org/english/res_e/booksp_e/analytic_index_e/sps_e.htm
Build your case on the following points (based on the SPS Agreement and the EC ??" Hormones Appellate Body’s report ??" indicating the relevant articles of the treaty and the relevant paragraphs of the report):
· Scope of application
· The issue of discrimination and the GATT Art. XX (b)
· “Food-borne” vs. pests risks
· Specificity test in risk assessments
· Risk assessments and the precautionary principle
· International standards vs. national standards
· Minority views in risk assessments
QUESTION 2
The IMF may apply conditions when providing balance of payment assistance to a member. May the IMF insist on conditions that interfere with state sovereignty? Refer to the 2002 IMF Guidelines on Conditionality.
http://www.imf.org/external/pubs/ft/sd/index.asp?decision=12864-(02/102)
GUIDELINES ON CONDITIONALITY
A. Principles
1. Basis and purpose of conditionality. Conditions on the use of Fund resources are governed by the Fund’s Articles of Agreement and implementing decisions of the Executive Board. Conditionality??"that is, program-related conditions??"is intended to ensure that Fund resources are provided to members to assist them in resolving their balance of payments problems in a manner that is consistent with the Fund’s Articles and that establishes adequate safeguards for the temporary use of the Fund’s resources.
2. Early warning and prevention. Conditionality is one element in a broad strategy for helping members strengthen their economic and financial policies. Through formal and informal consultations, multilateral surveillance including the World Economic Outlook and discussions of capital market developments, advice to members on the voluntary adoption of appropriate standards and codes, and the provision of technical assistance, the Fund encourages members to adopt sound economic and financial policies as a precaution against the emergence of balance of payments difficulties, or to take corrective measures at an early stage of the development of difficulties.
3. Ownership and capacity to implement programs. National ownership of sound economic and financial policies and an adequate administrative capacity are crucial for successful implementation of Fund-supported programs. In responding to members’ requests to use Fund resources and in setting program-related conditions, the Fund will be guided by the principle that the member has primary responsibility for the selection, design, and implementation of its economic and financial policies. The Fund will encourage members to seek to broaden and deepen the base of support for sound policies in order to enhance the likelihood of successful implementation.
4. Circumstances of members. In helping members to devise economic and financial programs, the Fund will pay due regard to the domestic social and political objectives, the economic priorities, and the circumstances of members, including the causes of their balance of payments problems and their administrative capacity to implement reforms. Conditionality and program design will also reflect the member’s circumstances and the provisions of the facility under which the Fund’s financing is being provided. The causes of balance of payments difficulties and the emphasis to be given to various program goals may differ among members, and the appropriate financing, the specification and sequencing of policy adjustments, and the time required to correct the problem will reflect those and other differences in circumstances. The member’s past performance in implementing economic and financial policies will be taken into account as one factor affecting conditionality, with due consideration to changes in circumstances that would indicate a break with past performance.
5. Approval of access to Fund resources. The Fund will ensure consistency in the application of policies relating to the use of its resources with a view to maintaining the uniform treatment of members. A member’s request to use Fund resources will be approved only if the Fund is satisfied that the member’s program is consistent with the Fund’s provisions and policies and that it will be carried out, and in particular that the member is sufficiently committed to implement the program. The Managing Director will be guided by these principles in making recommendations to the Executive Board with respect to the approval of the use of Fund resources by members.
6. Focus on program goals. Fund-supported programs should be directed primarily toward the following macroeconomic goals:
(a) solving the member’s balance of payments problem without recourse to measures destructive of national or international prosperity; and
(b) achieving medium-term external viability while fostering sustainable economic growth.
7. Scope of conditions. Program-related conditions governing the provision of Fund resources will be applied parsimoniously and will be consistent with the following principles:
(a) Conditions will be established only on the basis of those variables or measures that are reasonably within the member’s direct or indirect control and that are, generally, either (i) of critical importance for achieving the goals of the member’s program or for monitoring the implementation of the program, or (ii) necessary for the implementation of specific provisions of the Articles or policies adopted under them. In general, all variables or measures that meet these criteria will be established as conditions.
(b) Conditions will normally consist of macroeconomic variables and structural measures that are within the Fund’s core areas of responsibility. Variables and measures that are outside the Fund’s core areas of responsibility may also be established as conditions but may require more detailed explanation of their critical importance. The Fund’s core areas of responsibility in this context comprise: macroeconomic stabilization; monetary, fiscal, and exchange rate policies, including the underlying institutional arrangements and closely related structural measures; and financial system issues related to the functioning of both domestic and international financial markets.
(c) Program-related conditions may contemplate the member meeting particular targets or objectives (outcomes-based conditionality), or taking (or refraining from taking) particular actions (actions-based conditionality). The formulation of individual conditions will be based, in particular, upon the circumstances of the member.
8. Responsibility of the Fund for conditionality. The Fund is fully responsible for the establishment and monitoring of all conditions attached to the use of its resources. There will be no cross-conditionality, under which the use of the Fund’s resources would be directly subjected to the rules or decisions of other organizations. When establishing and monitoring conditions based on variables and measures that are not within its core areas of responsibility, the Fund will, to the fullest extent possible, draw on the advice of other multilateral institutions, particularly the World Bank. The application of a lead agency framework, such as between the Fund and the Bank, will be implemented flexibly to take account of the circumstances of members and the overlapping interests of the two institutions with respect to some aspects of members policies. The Fund’s policy advice, program design, and conditionality will, insofar as possible, be consistent and integrated with those of other international institutions within a coherent country-led framework. The roles of each institution, including any relevant conditionality, will be stated clearly in Fund-related program documents.
B. Modalities
9. Nature of Fund arrangements. A Fund arrangement is a decision of the Executive Board by which a member is assured that it will be able to make purchases or receive disbursements from the Fund in accordance with the terms of the decision during a specified period and up to a specified amount. Fund arrangements are not international agreements and therefore language having a contractual connotation will be avoided in arrangements and in program documents. Appropriate consultation clauses will be incorporated in all arrangements.
10. Members program documents. The authorities policy intentions will be described in documents such as a Letter of Intent (LOI), or a Memorandum on Economic and Financial Policies (MEFP) that may be accompanied by a Technical Memorandum of Understanding (TMU). These documents will be prepared by the authorities, with the cooperation and assistance of the Fund staff, and will be submitted to the Managing Director for circulation to the Executive Board. The documents should reflect the authorities policy goals and strategies. In addition to conditions specified in these documents, members requesting the use of Fund resources may in exceptional cases communicate confidential policy understandings to the Fund in a side letter addressed to the Managing Director and disclosed to the Executive Board. In all their program documents, the authorities should clearly distinguish between the conditions on which the Fund’s financial support depends and other elements of the program. Detailed policy matrices covering the broader agenda should be avoided in program documents such as LOIs and MEFPs unless they are considered necessary by the authorities to express their policy intentions.
11. Monitoring of performance. The implementation of the member’s understandings with the Fund may be monitored, in particular, on the basis of prior actions, performance criteria, program and other reviews, and other variables and measures established as structural benchmarks or indicative targets.
(a) Prior actions. A member may be expected to adopt measures prior to the Fund’s approval of an arrangement, completion of a review, or the granting of a waiver with respect to a performance criterion when it is critical for the successful implementation of the program that such actions be taken to underpin the upfront implementation of important measures. In reaching understandings on prior actions, the Fund will also take into account the strain that excessive reliance upon such actions can place on members implementation capacity. The Managing Director will keep Executive Directors informed in an appropriate manner of the progress of discussions with the member.
(b) Performance criteria. A performance criterion is a variable or measure whose observance or implementation is established as a formal condition for the making of purchases or disbursements under a Fund arrangement. Performance criteria will apply to clearly-specified variables or measures that can be objectively monitored by the staff and are so critical for the achievement of the program goals or monitoring implementation that purchases or disbursements under the arrangement should be interrupted in cases of nonobservance. The number and content of performance criteria may vary because of the diversity of circumstances and institutional arrangements of members.
(c) Reviews. Reviews are conducted by the Executive Board.
(i) Program reviews. Program reviews provide a framework for an assessment of whether the program is broadly on track and whether modifications are necessary. A program review will be completed only if the Executive Board is satisfied, based on the member’s past performance and policy understandings for the future, that the program remains on track to achieve its objectives. In making this assessment, the Executive Board will take into consideration, in particular, the member’s observance of performance criteria, indicative targets, and structural benchmarks, and the need to safeguard Fund resources. The elements of a member’s program that will be taken into account for the completion of a review will be specified as fully and transparently as possible in the arrangement. Arrangements will provide for reviews to take place at a frequency appropriate to the member’s circumstances. Reviews are expected to be held every six months, but substantial uncertainties concerning major economic trends or policy implementation may warrant more frequent monitoring. In cases of major delays in the completion of a review, the Managing Director will inform Executive Directors in an appropriate manner.
(ii) Financing assurances reviews. Where the Fund is providing financial assistance to a member that has outstanding sovereign external payments arrears to private creditors or that, by virtue of the imposition of exchange controls, has outstanding non-sovereign external payments arrears, the Executive Board will conduct a financing assurances review to determine whether adequate safeguards remain in place for the further use of the Fund’s resources in the member’s circumstances and whether the member’s adjustment efforts are undermined by developments in creditor-debtor relations. More specifically, every purchase or disbursement made available after the approval of the arrangement will, while such arrears remain outstanding, be made subject to the completion of a financing assurances review. Financing assurances reviews may also be established where the member has outstanding arrears to official creditors.
(d) Other variables and measures. In monitoring the implementation of a member s program, the Fund may also examine variables and measures established as indicative targets and structural benchmarks. The same principles governing the scope of conditions set out in paragraph 7 apply to these variables and measures as well as to other program-related conditions.
(i) Indicative targets. Variables may be established as indicative targets for the part of an arrangement for which they cannot be established as performance criteria because of substantial uncertainty about economic trends. As uncertainty is reduced, these targets will normally be established as performance criteria, with appropriate modifications as necessary. Indicative targets may also be established in addition to performance criteria as quantitative indicators to assess the member’s progress in meeting the objectives of a program in the context of a program review.
(ii) Structural benchmarks. A measure may be established as a structural benchmark where it cannot be specified in terms that may be objectively monitored or where its non-implementation would not, by itself, warrant an interruption of purchases or disbursements under an arrangement. Structural benchmarks are intended to serve as clear markers in the assessment of progress in the implementation of critical structural reforms in the context of a program review.
12. Waivers. The Fund will grant a waiver for nonobservance of a performance criterion only if satisfied that, notwithstanding the nonobservance, the program will be successfully implemented, either because of the minor or temporary nature of the nonobservance or because of corrective actions taken by the authorities. The Fund will grant a waiver of the applicability of a performance criterion only if satisfied that, notwithstanding the unavailability of the information necessary to assess observance, the program will be successfully implemented and there is no clear evidence that the performance criterion will not be met.
13. Floating tranches. Conditions will normally apply to specified dates or continuously. However, when the Fund judges that the member will need to implement a particular structural measure or meet a particular performance target during the program period but not necessarily by a specific date, and when flexibility in timing would promote national ownership, the arrangement may provide for the purchase or disbursement of Fund resources to be made available whenever the measure is implemented or the target observed. These floating tranches are expected to apply primarily to structural performance criteria that are included because of their importance for medium-term external sustainability and growth.
