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.
