Elizabeth Sheargold | University of Wollongong

Elizabeth Sheargold

University of Wollongong, School of Law, Faculty of Law, Humanities and the Arts, Post-Doc

University of Wollongong, School of Law, Faculty of Law, Humanities and the Arts, Post-Doc |

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Papers

Submission to the Review of Australia’s Bilateral Investment Treaties

by Markus Wagner and Elizabeth Sheargold

Submission to the Review of Australia’s Bilateral Investment Treaties, 2020

Our submission is focussed on how Australia’s BITs can be modernised to ensure that the promotion... more Our submission is focussed on how Australia’s BITs can be modernised to ensure that the promotion and protection of investments is balanced against the need to safeguard policy space for legitimate public-welfare measures or ‘regulatory autonomy’. This discussion responds primarily to Question 4 of the questions for consideration outlined in the DFAT Discussion Paper, by providing our views on clauses that should be included in any renegotiated BITs or other investment agreements negotiated by Australia in the future.

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The TPP and Good Regulatory Practices: An Opportunity for Regulatory Coherence to Promote Regulatory Autonomy?

World Trade Review, 2016

Chapters relating to regulatory coherence or cooperation are likely to be significant features of... more Chapters relating to regulatory coherence or cooperation are likely to be significant features of new preferential trade agreements, including the Trans-Pacific Partnership (TPP). While the potential for harmonization of standards or institutional cooperation to impact on the regulatory autonomy of treaty parties has been well considered, this article focuses on those elements of regulatory coherence that relate to domestic processes for the development of regulations. It examines whether the adoption of ‘good regulatory practices’ in accordance with the TPP will help to ensure that measures states enact to protect non-economic interests (such as the environment or public health) are consistent with other key obligations of international trade and investment law. Although many elements of good regulatory practice mirror the criteria used to distinguish legitimate regulatory measures from disguised protectionism, there is no guarantee that a tribunal will come to the same conclusions...

The Trans-Pacific Partnership

British Journal of American Legal Studies, 2016

This article provides an overview of the recently concluded Trans-Pacific Partnership Agreement (... more This article provides an overview of the recently concluded Trans-Pacific Partnership Agreement (TPP), a treaty the parties have described as comprehensive and ambitious, yet also representing a balance of competing interests. The article focuses on the TPP’s chapters relating to investment, services, intellectual property and regulatory coherence, each of which provides insight into the motivations that drove the conclusion of the TPP and the negotiating dynamics that determined its final content. In areas such as investment, the TPP takes a more balanced approach than many earlier agreements, providing greater safeguards for the regulatory autonomy of states while still embodying core protections for foreign investors. In relation to intellectual property and services, the TPP goes beyond earlier agreements in several key respects, such as preventing the imposition of local presence requirements for service providers or requiring longer copyright terms than those demanded by other...

GATT Art. XV: Exchange Arrangements

Global Governance: The World Trade Organization's Contribution

Democracy and administrative law concern ideas of governance, legitimacy, and accountability. Wit... more Democracy and administrative law concern ideas of governance, legitimacy, and accountability. With the growth of bureaucracy and regulation, many democratic theorists would argue that administrative law mechanisms are essential to achieving democratic objectives. This article considers the World Trade Organization’s (WTO) contribution to governance both in terms of global administrative law and democracy. In relation to administrative law, it first

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Good Governance Obligations in International Economic Law: A Comparative Analysis of Trade and Investment

by Tania Voon and Elizabeth Sheargold

The Journal of World Investment & Trade, 2016

GATT Art XIV: Exceptions to the Rule of Non-Discrimination

This is a commentary on GATT Article XIV: Exceptions to the Rule of Non-Discrimination. Article X... more This is a commentary on GATT Article XIV: Exceptions to the Rule of Non-Discrimination. Article XIV is a complement to Article XII (Restrictions to Safeguard the Balance of Payments) and Sec. B of Article XVIII (Governmental Assistance to Economic Development) GATT, both of which allow trade restrictions to be used for balance of payments reasons. Under each of these articles, any quantitative restrictions imposed must be implemented on a non-discriminatory basis (Art. XIII). Article XIV:1, 2 and 3 provide narrow exceptions to the non-discrimination rule in Article XIII. Article XIV:4 and 5 provide that Members shall not be precluded by Articles XI to XV inclusive or by Sec. B of Article XVIII from applying certain kinds of measures. The purpose of the article is to give the reader a comprehensive and concise insight into the meaning of GATT Article XIV.

OILS AIN'T OILS: PRODUCT LABELLING, PALM OIL AND THE WTO

by Andrew D Mitchell and Elizabeth Sheargold

Melbourne Journal of International Law, 2011

Under existing food labelling rules in Australia, palm oil can be classified generically as a ‘ve... more Under existing food labelling rules in Australia, palm oil can be classified generically as a ‘vegetable oil’ on labels. The Community Affairs Committee of the Australian Senate is currently conducting an inquiry into the Food Standards Amendment (Truth in Labelling — Palm Oil) Bill 2010 (Cth) (the ‘Bill’). The Bill seeks to change these rules to require that all food products containing palm oil specifically list palm oil as an ingredient. This commentary considers whether the Bill is consistent with Australia’s obligations under the Agreement on Technical Barriers to Trade (‘TBT Agreement’) and the General Agreement on Tariffs and Trade 1994 (‘GATT’) of the WTO. In particular, we focus on whether the Bill is covered by the TBT Agreement and is consistent with arts 2.1 and 2.2 of the TBT Agreement. We then turn to consider the requirements of the GATT, particularly art III:4, and whether the Bill could be saved from any inconsistency with this provision by the general exceptions in art XX by reason of its environmental and health justifications. We conclude that, if the Bill was enacted, and was then challenged in the WTO dispute settlement system, a WTO panel would probably find the Bill inconsistent with Australia’s WTO obligations.

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The law on what documents scientists must keep and disclose

Eos, Transactions American Geophysical Union, 2012

ABSTRACT

Protecting the autonomy of states to enact tobacco control measures under trade and investment agreements

Tobacco control, Jan 31, 2014

Since the adoption of the WHO's WHO Framework Convention on Tobacco Control, governments have... more Since the adoption of the WHO's WHO Framework Convention on Tobacco Control, governments have been pursuing progressively stronger and more wide-reaching tobacco control measures. In response, tobacco companies are frequently using international trade and investment agreements as tools to challenge domestic tobacco control measures. Several significant new trade and investment agreements that some fear may provide new legal avenues to the tobacco industry to challenge health measures are currently under negotiation, including the Trans-Pacific Partnership (a 12 party agreement of Asia-Pacific regional countries) and the Transatlantic Trade and Investment Partnership (an agreement between the USA and the European Union). This commentary examines different options for treaty provisions that the parties could employ in these agreements to minimise legal risks relating to tobacco control measures. It recommends that parties take a comprehensive approach, combining provisions that mi...

Submission to the Review of Australia’s Bilateral Investment Treaties

by Markus Wagner and Elizabeth Sheargold

Submission to the Review of Australia’s Bilateral Investment Treaties, 2020

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The TPP and Good Regulatory Practices: An Opportunity for Regulatory Coherence to Promote Regulatory Autonomy?

World Trade Review, 2016

The Trans-Pacific Partnership

British Journal of American Legal Studies, 2016

GATT Art. XV: Exchange Arrangements

Global Governance: The World Trade Organization's Contribution

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Good Governance Obligations in International Economic Law: A Comparative Analysis of Trade and Investment

by Tania Voon and Elizabeth Sheargold

The Journal of World Investment & Trade, 2016

GATT Art XIV: Exceptions to the Rule of Non-Discrimination

OILS AIN'T OILS: PRODUCT LABELLING, PALM OIL AND THE WTO

by Andrew D Mitchell and Elizabeth Sheargold

Melbourne Journal of International Law, 2011

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The law on what documents scientists must keep and disclose

Eos, Transactions American Geophysical Union, 2012

ABSTRACT

Protecting the autonomy of states to enact tobacco control measures under trade and investment agreements

Tobacco control, Jan 31, 2014

Special Issue: United States' Free Trade Agreements: A Silent (R)Evolution?

by Tania Voon, Panayotis Protopsaltis, Phoenix Cai, Jaemin Lee, Stephen Tully, Maria Panezi, Christian Pitschas και Elizabeth Sheargold

The shift from multilateralism to regionalism, plurilateralism and bilateralism in international ... more The shift from multilateralism to regionalism, plurilateralism and bilateralism in international trade negotiations, amongst others, changed the focus of the academic debate. The challenge of free trade agreements rather than of the WTO now occupy most of the discussions of the relevant epistemic communities all over the world; a trend that is likely to intensify since the conclusion of the TTP and the advancement of the negotiations on the TTIP. This special issue of the British Journal of American Legal Studies, conceived just before the unexpected conclusion of the TTP negotiations, responds to the need for research on the recent U.S. free trade agreements. It does not intend to provide a comprehensive analysis of the problems related to the rise of these agreements or of the content of the agreements themselves. Its aim is rather to focus on selected issues arising from the different obligations included in these agreements.

Twelve distinguished international trade and investment law scholars across the world were invited to explore key aspects of particular U.S. free trade agreements. In his introduction David A. Gantz explores the historical changes in U.S. trade policy and the shift from the support of multilateral rules to the embracement of regional and bilateral trade agreements. Christian Pitschas focuses on the on-going negotiations for the TTIP and on the possible impact of the TTIP on the multilateral trading system and developing countries. Tania Voon and Elizabeth Sheargold analyze the motives and the negotiation dynamics of the chapters relating to investment, services, intellectual property and regulatory coherence of the recently concluded TPP. Rodrigo Monardes analyzes the liberalization of trade in services under the NAFTA negative list approach on the basis of the Chile-United States Free Trade Agreement. Relying on the experience of the Australia-United States Free Trade Agreement, Stephen R. Tully discusses the standards of intellectual property protection and their impact for U.S. trading partners. Haydn Davies analyses the effects of investor-state dispute settlement mechanisms of NAFTA, the European Union-Canada Comprehensive Economic Trade Agreement, the TTP and the draft TTIP on national environmental rules and, in particular, on the precautionary principle. Stephan W. Schill and Heather L. Bray focus on the influence of NAFTA and U.S. practice on the substantive rules governing investor-state relations of the Mega-Regionals. Jaemin Lee explores the dispute settlement’ provisions of the free trade agreements concluded between the United States and Korea, Peru, Panama and Colombia. Using the TPP as her primary example, Phoenix X. F. Cai analyzes regulatory coherence obligations and the role of international standard setting organizations. Maria Panezi, finally, examines the relation between preferential trade agreements and WTO rules with particular focus on the problem of transparency and the limits of the Doha Transparency Mechanisms.

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