New Book: “Science and Technology in International Economic Law”

I am pleased to post that my new book, “Science and Technology in International Economic Law: Balancing Competing Interests” (co-edited with Professor Bryan Mercurio at the Chinese University of Hong Kong), was recently published by Routledge. In addition to the introduction, the book includes thirteen articles written by scholars from the Asia-Pacific region, Middle East, and Europe. It is the first attempt to explore the status and interaction of and between science, technology and international economic law (namely, trade and investment) with a view to seeking a proper balance between promoting trade/investment liberalization and ensuring that decisions are soundly based and that technological advancement is not hampered.

On the issue of food safety, scientific evidence and trade disputes, I contributed a paper, titled ”Does Science Speak Clearly and Fairly in Trade and Food Safety Disputes? The Search for an Optimal Response of WTO Adjudication to Problematic International Standard-Making,” which appeared previously in the Food & Drug Law Journal, Vol. 68, pp. 97-114 (2013).

The following reveals a brief background and objective of the book:

As the impact of modern science and technology developments has penetrated national boundaries and increasingly affects the global order, the topic of science and technology has firmly reached the realm of the international agenda.

International economic law plays a relatively responsive role in facilitating science and technology developments. It does so through a bifurcated regime, with the World Trade Organization (WTO) and an increasing number of varied free trade agreements (FTAs) addressing the trade side and bilateral investment treaties (BITs) and FTAs covering investment. In contrast to many of the United Nations (UN)-related systems, most trade and investment mandates are of hard disciplines and regulations with legally binding force on contracting parties. Such a hard law is enforceable through compulsory jurisdiction with binding decisions. The WTO, FTA and BIT model is rarely applied by other international regimes.

The international economic legal order has developed a rather sophisticated and mutually supportive relationship with science and technology developments. In particular, the WTO heavily relies on science-based evidence when dealing with various forms of non-tariff barriers as a form of protectionism. For instance, the WTO’s Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) and the Agreement on Technical Barriers to Trade (TBT) both require science principles to be observed in regulating national health or environmental risks, with deviations to the rules only justifiable on the basis of scientific evidence. Likewise, the WTO’s General Agreement on Trade in Services (GATS) promotes the liberalization of technology-related services, including telecommunication and environmental services. Of course, there is also the WTO’s Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS), which was mainly created to reward and protect technology inventors while at the same time balancing the interests of users. Subsequent FTAs have furthered the interest of inventors through the common addition of so-called TRIPS-plus provisions.

Turning to investment, BITs and FTAs almost always explicitly protect IP as a ‘covered investment’ as well as protect the management of technologies. In agreements negotiated by developed countries, performance requirements are severely limited if not prohibited, and include a prohibition on the forced transfer of technologies. Science is also increasingly playing a role in international investment agreements, with the recent claims by Philip Morris against Uruguay and Australia for, inter alia, various restrictions on the packaging of tobacco products making this link apparent.

Despite the abundance of legal norms dealing with science and technology issues, science and technology by their nature are not easily accessible by the general public. Instead, their creation and the understanding thereof are mainly dominated by the private sector and often by large multinational companies, most often for the purpose of commercialization. Relevant private sectors thus have more capacity to influence not only the creation of science evidence but also the direction and interpretation of the governing legal framework. In such a context, the question of who speaks for the public interest or countries with lower levels of technology becomes relevant.

The objective of the book is not only to review the place of science and technology in the development of international economic law, and vice versa, but also to add to the understanding of whether and how the trade and investment regimes utilize, govern and promote science and technology, and whether they do so fairly and in the interest of global justice.

This collection is not intended to be a treatise, but rather seeks to provide views and research on contemporary international economic legal issues relating to science and technology. The joint work may inspire the future research on the issues, all of which can inform forthcoming developments of international economic lawmaking, negotiations and interpretations in a manner conducive to a fair balance between promoting science and technology and securing social justice.

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.