The Australia-European Union Free Trade Agreement (European Yearbook of International Economic Law)

"This book gathers a selection of peer-reviewed chapters reflecting on the Australia-European Union Free Trade Agreement (AEUFTA). Since 18 June 2018, ten rounds of negotiations for a AEUFTA have been held in a constructive atmosphere, showing a shared commitment to move forward with this ambitious and comprehensive agreement. After a lengthy and arduous process interrupted by the United Kingdom's withdrawal from the European Union (EU), the United States' hesitations regarding the EU's global strategy and the outbreak of the COVID-19 pandemic, the negotiations between Australia and the European Union finally appear to be nearing completion. In challenging times, both parties share a commitment to a positive trade agenda, and to the idea that good trade agreements benefit both sides by boosting jobs, growth and investment. This book explores the challenges, achievements and missed opportunities in the AEUFTA negotiation process, and examines current legal and political relations between the EU, its Member States and Australia. Furthermore, it examines in detail a wide and diverse range of negotiated areas, including digital trade, services, intellectual property rules, trade remedies and investment screening, as well as dispute settlement mechanisms. Lastly, it sheds light on the likely nature of future commercial relations between Australia and the EU. Written by a team of respected authors from leading institutions in both Australia and Europe, the book provides a valuable, interdisciplinary analysis of the AEUFTA." Acknowledgements Contents Overview of the Australia-European Union Free Trade Agreement 1 Introduction 2 The European Union and Australian Political Dynamic 3 Dispute Resolution Procedures in the AEUFTA 4 Australia and Europe in the Bilateral Arena 5 Investment and Market Access in the AEUFTA 6 Digital Trade 7 The Demise of Investment Protection? 8 Services 9 Subsidies 10 Competition 11 Conclusion References Existing Legal and Political Relations Between the EU, Its Member States, and Australia 1 Introduction 2 The Scope of (Existing) Australia-EU Relations 2.1 The Agriculture Problem 2.2 The Joint Declaration 1997 2.3 EU-Australia Partnership Framework 2008 2.4 The 2017 Framework Agreement 3 The Implications of Brexit on the EU-AU Relationship 4 Bilateral Relationships Between Australia and EU-Member States 4.1 Australia-UK 4.2 Australia-France 4.3 Australia ́s Relations with Other European Countries: Brief Overview 5 Current Negotiations for a Free Trade Agreement of Australia with the EU and with the UK 5.1 Australia-EU FTA (AEUFTA) 5.2 Australia-UK FTA 6 Closing Observations References The Framework of Bilateral Trade Agreements 1 Introduction 2 The Relevance of (Geo-)Political Considerations for Internalizing an FTA Exception Into GATT 3 The Legal Status Quo 3.1 Article XXIV GATT as Interface Between WTO Law and FTA 3.2 The Internal Requirements an FTA has to Meet in Order for Article XXIV to Apply 3.2.1 Duties and Other Restrictive Regulations of Commerce 3.2.2 Substantially All the Trade Between the Constituent Territories 3.3 Two Substantive Conditions for WTO Compatibility 3.4 One Formal Conditions for WTO Compatibility 4 Conclusion References Services Trade Liberalisation in the Australia-EU FTA: Progress But No Quantum-Leap 1 Introduction 2 General Scope and Structure of Preferential Services Trade in AEUFTA 2.1 Starting Point 2.2 New Global Standard Setting in AEUFTA? 3 Services of Particular Interest in the Proposals 3.1 Audio-Visual Services 3.2 Education Services 3.3 Professional Services and Temporary Movement of Persons 3.4 Financial Services 3.5 Telecommunication Services 4 Assessment of the Current Draft Chapter on Services 4.1 Ambition 4.2 Potential for Greening the Economy Set Aside: Greener Trade in Services 5 Concluding Remarks References Digital Trade in the Australia-EU FTA: A Future-Forward Perspective 1 Introduction 2 Significance of Digital Trade in Australia and the EU 3 Digital Trade Chapters in EU and Australian FTAs: A Comparative Assessment 3.1 Digital Trade Provisions in EU PTAs 3.2 Digital Trade Provisions in Australian PTAs 4 Digital Trade in Australia-EU FTA: Possibilities and Challenges 4.1 EU ́s Proposed Digital Chapter in the Australia: EU FTA 4.1.1 Scope and Applicability of the Digital Trade Chapter 4.1.2 Right to Regulate and Applicable Exceptions 4.1.3 Data Flows and Privacy 4.1.4 No-Prior Authorisation 4.1.5 Other Digital Trade Provisions 4.2 Placing the Australia-EU PTA in the Digital Trade Realm: A Future-Forward Approach 4.2.1 Data Protection and Privacy 4.2.2 Boosting the Growth of MSMEs 4.2.3 Experimenting with New Models of Cooperation 5 Conclusion Annex 1: Comparison of Electronic Commerce Chapters in EU PTAs Annex 2: Comparison of Electronic Commerce Chapters in Australian FTAs References Investment Screening and Market Access in the AEUFTA 1 Introduction 2 Barriers to Entry of Foreign Investment: Screening and Market Access 3 The AEUFTA and Investment Barriers to Entry 3.1 Potential Value of the AEUFTA 3.1.1 The Australian Screening Regime 3.1.2 The EU Screening Regime(s) 3.1.3 Potential Benefits of the AEUFTA: Investment Screening 3.1.4 Potential Benefits of the AEUFTA: Other Barriers to Entry 3.2 Likely Content of the AEUFTA 4 Conclusion References Panel Procedures Under the Proposed EU-Australia FTA 1 Introduction to Third Party State-to-State Dispute Settlement in FTAs 2 Current Status of Panel and Arbitration Procedures in Recent EU and Australian FTAs 3 Current Status of Negotiations 3.1 EU Proposed Draft 3.1.1 Scope of the Dispute Resolution Procedure 3.1.2 Composition of the Panel 3.1.3 Procedure to Be Followed by the Panel 3.2 Australian Objectives 3.3 Updates Provided by the Parties 4 Resolving the Final Kinks in the Dispute Settlement Procedure 4.1 Providing a Clear Understanding of the Term ``Dispute ́ ́ 4.2 Inclusion of a Provision for Clarification on Panel Reports 4.3 Dealing with Multiple Proceedings 4.4 Requirement for Repeat of Hearings Due to Replacement of a Panelist 5 Conclusion References Investment Protection in the AEUFTA: Missed Opportunities or Strategic Exclusions? 1 Introduction 2 Investment Relations Between Australia and the EU: Towards an AEUFTA 3 The Exclusion of Portfolio Investment, Investment Protection, and Investor-State Arbitration from the AEUFTA 4 The AEUFTA ́s Coverage of Investment-Related Matters 5 Overlaps and Omissions: The AEUFTA ́s Likely Impact on Existing Investment Treaties 6 Conclusions References The Competition Chapter in the EU-Australia FTA 1 Introduction 2 Competition Regulations in FTAs 2.1 Reasons for the Integration 2.2 Contents 3 Chapter ``Anticompetitive Conduct, Merger Control and Subsidies ́ ́ of the EU-Australia FTA 3.1 General Part 3.2 Specific Rules 4 Effects and Consequences of Other Agreements 4.1 Agreements of the European Union 4.1.1 CETA 4.1.2 EU-UK TCA 4.1.3 EU-Switzerland Competition Agreement 4.2 Agreements of Australia 4.2.1 ANZCERTA 4.2.2 CPTTP 4.2.3 MMAC 5 Conclusions References European Trade Policy and the Regulation of Subsidies: What Can We Expect from the EU-Australia FTA? 1 Introduction 2 Regulation of Subsidies as an Objective of European Trade Policy 2.1 Exportation of European State Aid Law Through FTAs 2.2 Unilateral Protection Against Foreign Subsidies 3 The Role of Subsidies in Australian Trade Policy 4 Possible Interests and Incentives in Negotiations on Subsidy Rules 4.1 Reform of International Subsidy Law in the Competition of Systems 4.2 Procedural Facilitation with Regard to the EU ́s New Subsidy Instrument 5 Outlook References "This book gathers a selection of peer-reviewed chapters reflecting on the Australia-European Union Free Trade Agreement (AEUFTA). Since 18 June 2018, ten rounds of negotiations for a AEUFTA have been held in a constructive atmosphere, showing a shared commitment to move forward with this ambitious and comprehensive agreement. After a lengthy and arduous process interrupted by the United Kingdom’s withdrawal from the European Union (EU), the United States’ hesitations regarding the EU’s global strategy and the outbreak of the COVID-19 pandemic, the negotiations between Australia and the European Union finally appear to be nearing completion"--Publisher's description