The Society of International Economic Law has just released the first fruits of a trial project it is running, translating Spanish
language material related to international economic law into English. The first project has been to translate the
first decision of the MERCOSUR Permanent Tribunal for Review (No1/2005), on the Prohibition of the Importation of Retreaded Tyres from Uruguay.
The translation is on the SIEL website, at www.sielnet.org/sieltranslationproject.The official Spanish language version can be found here.
The translation was carried out by: Taïs Jost; Nicolás Perrone (London School of Economics, Universidad de
Buenos Aires); Maria Alejandra Calle-Saldarriaga (Universidad EAFIT); and Carolina Saldanha (Uno – Trade Strategy Advisors). Further detailed editorial work was then carried out byAleksandra
Bojovic (London School of Economics), Nicolás Perrone, and Taïs Jost, with some
assistance from myself. All have considerable expertise in international economic
law, and they have volunteered an enormous amount of time to this project. I
would like to thank them publicly on behalf of SIEL.
Substantively, there are quite a number of points of
interest in this judgement. Some which spring immediately to mind:
–
the decision makes considerable and very explicit
use of the case law of other integration arrangements, namely EC and Andean
Community judgements, and one WTO judgement (Korea-Beef). It does so under the rubric of a notion of ‘the law of
integration’. This will be of interest to those interested in tracking
transnational interactions between courts, and in particular the borrowings and
transplantations between different regional arrangements.
–
There are some interesting contrasts and
comparisons with WTO law which present themselves. For example, the explicit
(and summary) treatment of the subjective intention behind the prohibition on
imported retreaded tyres (para 16) – which they dismiss as self-evidently
protectionist. Or the assertion
that exceptions to the principle of free trade must be interpreted narrowly
(para 10), an approach which has of course been rejected in WTO law.
–
There are intriguing references to the
(in)ability of Mercosur Tribunals to refer to principles of public
international law external to the Mercosur legal system. It’s not entirely
clear, but what looks initially like an unequivocal rejection seems to get
slightly more complicated later on the judgement. This at least offers some
counterpoint to the usual discussion of whether and how the WTO could take
regional law into account.
–
I found it interesting also that the PTR went
out of its way to reject the notion that the application of
environmental exceptions involves the balancing of two competing objectives, ie
the freeing of trade and the protection of the environment (para 9) –
particularly as the approach it preferred might not be that different in
practice. There is a story to be told at some point, I am sure, which situates
this kind of ‘conflicting considerations’ analysis (which we are very familiar
with from the WTO’s approach to GATT Article XX) within the narratives told by
of Duncan Kennedy and David Kennedy in their chapters in Trubek and Santos’
recent book on Law and Development.
We hope you find the translation of some use.
The unusual language of the Tribunal in some places presented its own
difficulties of translation, and we would value feedback. We would also value
suggestions as to what material is most urgently in need of translation. At present, we have a second Mercosur judgement in the
process of translation, as well as the Protocol of Olivos.