October 2020: Series 4

Trade Law Updates

Raghav Agrawal and Pushkar Reddy

Council for TRIPS meeting on 15-16 October

40 member states discussed the implications of an earlier proposal submitted by India and South Africa regarding the waiver of certain provisions of the TRIPS agreement to tackle the ongoing COVID-19 crisis. Further, the members also discussed an extension of the transitional period for LDCs regarding the implementation of TRIPS. A summary of the meeting can be found here.

Agenda for DSB Meeting on 26th October

The WTO Secretariat has circulated a list of items proposed for consideration for the next meeting of the Dispute Settlement Body on 26th October. The meeting will consist of all WTO members along with the overseas legal disputes team.

Sustainable Development Goals Trade Monitor launched by WTO

The portal enables individuals to ‘track down the progress made in the area of international trade towards the SDG.’ The monitor allows you to track and conduct research using SDG indicators to further understand the progress undertaken in the area of international trade and the SDG agenda. The data is accumulated and presented by the ITC, UNCTAD, and WTO who provide comprehensive information on the 6 approved SDG indicators (agricultural export subsidies, share of global exports and so on).  

Suspension of Dispute Against Indonesia’s Measure of Importing Chicken

Brazil for the second time has suspended the compliance proceeding against Indonesia. The first time was on 14 August when they informed the DSB to continue the hearing on 12 September 2020. The second time came on 7 October when Brazil requested for a longer suspension till 7 November 2020 pursuant of Article 12.12 of the DSU.

The 7 October 2020 suspension request can be found here, and the decision of the 2017 panel report can be found here

India Seeking to Expand Economic Partnership with Chile

On October 16th, India and Chile deliberated on expanding their Preferential Trade Agreement. The expansion sought to include a Joint Business Council to promote “cooperation in trade, investment, and all industrial sectors between the two countries.” This comes soon after a recent Double Taxation Avoidance Agreement in March 2020 between the two countries, in addition to this they are also working together on a BIT. More information can be found here


Human Rights 

‘Francesco’: Pope Francis Comes Out in Support of Same Sex Civil Unions

Mahima Balaji

A a new documentary titled ‘Francesco’ (by Evgeny Afineevsky), Pope Francis gave his clearest support for the rights of same-sex couples. While his statement itself does not alter the doctrine, it still represent a symbolic shift considering that the Church that has openly fought against LGBTQIA+ rights. Particularly where past popes have called same-sex unions “immoral” and deviant (see here and here).

Pope Francis can be heard saying: “Homosexual people have a right to be in a family. They’re children of God and have a right to a family. Nobody should be thrown out or be made miserable over it (…) What we have to create is a civil union law. That way they are legally covered.” 

In 2015, the European Court of Human Rights, in Oliari and Others v. Italy, realised the need to protect same-sex unions. The key contention was that Italian legislation did not provide scope to consider marriage or civil unions. The ECHR considered the inadequacy of legal protection available to same-sex couples in Italy as violative of Article 8. In this context while the comments made by Pope Francis seem to be taking the crucial next step towards marriage equality, some argue that the Catholic Church itself is not close to taking the step, at least at present.

However, something that is important at this juncture is that while there may be opposition from certain quarters of the church, it is clear that Pope Francis has put his weight behind the legal recognition of civil unions. This may be likely to bolster movements across the globe that seek adequate protection for same-sex couples. Particularly where his comments are an important stepping stone considering that members of the LGBTQ community in predominantly Catholic countries tend to face isolation, violence, and even persecution.

Though, for meaningful impact, there is no denial that there is a need for concrete legal recognition of civil unions, marking a change in policies themselves. Till then, his remarks remain a watershed in terms of the Church’s history of dealing with such issues. 

#ENDSARS

Aditi Nagpal

The #ENDSARS movement in Nigeria took social media by storm when on October 21st, 2020, soldiers fired into a crowd of protestors. #ENDSARS refers to a protest calling for disbanding of a police unit in Nigeria called the Special Anti-Robbery Squad that has previously been accused of violations of civil liberties ranging from torture and murder to extortion. The unit has since been disbanded on October 11th, 2020 however, protests continue to press for large scale reforms of law enforcement. The controversy was spurned by the firing of soldiers onto a crowd of protestors, injuring two of them. The Nigerian police responded saying the attacks were fake which led to severe outrage in the country and several bystanders shared videos and other accounts of the instance. 

This is not just a violation of the country’s internal laws, but also of its international obligations. Nigeria has ratified the International Covenant on Civil and Political Rights and is thus legal bound by its obligations. Its current actions are in violation of Articles 6, 7, 9, 10 and 12 to name a few. What is interesting to note here is that although Nigeria has ratified the Covenant, it has not ratified the First Optional Protocol to the Covenant which gives its citizens the right to seek redress from violations of the same before the Human Rights Committee, which is the Treaty Body established to ensure implementation of the Covenant. Amnesty International has termed these killings “extrajudicial executions.”

Read the Amnesty International response here. You can also read a comprehensive history of the SARS and the current problem plaguing the Nigerian youth here.

Constitutional Tribunal in Poland Further Restricts Access to Abortion

Sahibnoor Singh Sidhu

Poland has been swarmed with protests in most of its prominent cities due to a ruling passed by the Constitutional Tribunal on 22nd October 2020 which placed a prohibition on abortion on the grounds of foetal defects, calling it unconstitutional. This only leaves three grounds open for abortion — in cases of rape, incest and danger to the life of the mother, which together account for a miniscule percentage of cases. The primary issue seems to be the impingement on the sexual and reproductive rights of women, which often takes on many forms — including denial of access to certain services. 

While the protestors went out wearing masks due to the raging pandemic, they were met with pepper spray and physical force. Many pro-choice activists and organisations condemned the acts of the government, which has allegedly sported an inclination to be “anti-choice,” of bringing these changes when people were restrained from going out due to the pandemic. 

Further, those people who opposed the decision have also cast doubts on the impartiality of the Constitutional Arbitration where most judges have been appointed by the currently ruling Law and Justice (Prawo i Sprawiedliwość) party. 


International Arbitration 

English Court of Appeal Upholds Injunction that Restrains UK Company from Funding Affiliates’ ICSID Arbitration 

Ruchi Chaudhury

The English Court of Appeal upheld its High Court’s order of injunction that restrained a UK-based company from funding its affiliate company’s ICSID arbitration against Turkey. 

At the heart of the decision on the injunction order lies a previous undertaking by the UK-based company that it would not use any of its funds or diminish the value thereof except in the “ordinary and proper course of its business.” An issue arose when it had to be decided whether the company funding their affiliate company’s ICSID arbitration against a third party (Turkey) would fall in the permissible course of business. 

The High Court restricted the company from doing so, and the Court of Appeal upheld it by 2-1 a majority. It reasoned that allowing such funding would be in breach of the undertaking previously given by the UK-based company before the lower court. The Court of Appeal observed that undertakings made before courts would also come within the sweep of provisions under the Senior Courts Act 1981, which give courts wide powers to make ancillary orders for ensuring effectiveness in cases. 

Most notably, the majority declined to decide on the basis of evidence whether the funding would lead to an actual breach — and yet answered that funding would be in breach of the undertaking. The dissenting opinion observed that no relief by permanent injunction could be granted to any party if the Court did not first determine whether an impugned act actually constituted a breach. 

Full judgement of  Koza Ltd & Mr Ipek v. Koza Altin Isletmeleri AS, [2020] EWCA Civ 1018 is available here, and a summarised analysis here

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