November 2020: Series 2

Around the World

Biden-Harris win the US Presidential Elections!

Sahibnoor Singh Sidhu

The Democratic ticket of Former Vice-President Joseph Robinette Biden Jr. and Senator Kamala Harris has won the US Presidential Elections defeating the Republican ticket of the incumbents- Donald J. Trump and Mike Pence. In what can only be defined as one of the most consequential elections for the history of the United States and probably the whole world, in a nail-biting competition, where the states of Georgia and Pennsylvania kept switching from red to blue and black to red, Joe Biden finally won the popular vote of these states and has been proclaimed as the President-Elect of the United States of America. Vice-President Elect Kamala Harris has broken another glass ceiling in her career by being the first female Vice President, the first Black Vice-President and the first South Asian-American Vice-President of the United States.

While parts of the nation erupted in joy, Donald J. Trump has refused to concede the elections and rather continues to level unsubstantiated allegations of wide-spread fraud, with his Attorney General also giving US Attorneys the power to investigate any and all substantial allegations of fraud. The Trump campaign has also been trying to push a legal challenge to the election system, especially the counting of votes in Pennsylvania, a case pertaining to which is also pending in the Supreme Court of the United States. However, it is important to note that this will most likely not change the outcome, as Joe Biden has secured a majority in the Electoral College even without the addition of the electoral votes of Pennsylvania. Further, subsequent to the judgment of the Supreme Court in the case of Chiafalo v. Washington has allowed the state governments to compel the “faithless electors” from their state to cast their vote in favour of the candidate who has won the popular vote in that state. Hence, irrespective of the rhetoric and refusal of Donald Trump to concede, Joe Biden has won the elections and is set to re-establish normalcy and consistency in the White House.


Pushkar Reddy

Further Postponement of WTO Director General Election

The General Council special meeting for the appointment of the next Director-General which was slated from November 9th, has been further postponed. The candidate that has received the most amount of support was Ngozi Okonjo-Iweala from Nigeria but her nomination was met by strong opposition from the United States. Ambassador David Walker, the chair of the Geneva Council stated that the reason for the postponement is due to health and safety concerns. 

However, it is more likely that the postponement is due to the United States elections. As a Biden administration would likely join the consensus of the other member States to back Ngozi Okonjo-Iweala. A departure from the Trump administration which attempted to hinder WTO functioning as seen with the blocking of the Appellate Body judges

Hong Kong, China Complaint Against Mark of Origin Requirement 

Hong Kong, China has requested for WTO consultation with the United States concerning a requirement for a mark of origin on goods being produced in Hong Kong, China. The US Border Customs and Border Protection (USCBP) published a notice that after 25th September, 2020, goods from Hong Kongs must be marked to indicate their origin is from “China” under section 304 of the Tariff Act of 1930. Before the notice goods from Hong Kong were only required to indicate its origin is from “Hong Kong”, as the United States generally permitted goods from separate custom territory members of the WTO to be marked with the English name of that territory. 

(Full text of the request for consultation can be found here)

MSME Finalises Package on Recommendation for Small Businesses

The Working Group on Micro, Small and Medium-sized Enterprises (MSME) finalised a package of recommendations meant to facilitate participation and trade of smaller businesses in international trade. The recommendations in the package are non-binding and cover areas like transparency, access to finance, access to market information, inclusion of MSME in regulatory developments and so on. The package will be officially endorsed in December this year and is a result of the WTO’s Eleventh Ministerial Conference in Buenos Aires in December 2017 where 90 WTO members discussed how to address obstacles for MSME’s. 

(More details of the MSME package can be found here

Small and Vulnerable Economies Highlight Importance of Foreign Direct Investment

Three members of the WTO’s Small, Vulnerable Economies (SVE) Group- El Salvador, Guatemala and Saint Lucia highlighted the importance of FDI on 2nd November in order to increase their trading facilities. They also stressed on the significance of the UN Sustainable Development Goals and the WTO negotiation for a multilateral agreement on investment facilitation for development. Other members like the United States also emphasised on the implementation of Trade and Facilitation Agreement (TFA) so it could help with access of essential products in light of the Covid-19 crisis. 

(More details of the meeting can be found here

International Arbitration

Ruchi Chaudhury 

ICC International Court of Arbitration on track to electing its first woman President in its almost 100-year history 

Claudia T. Salomon is a partner at New York’s Latham & Watkins and Global Co-Chair of the firm’s International Arbitration Practice. She is recognized as a leading international arbitration lawyer by Chambers Global, Chambers USA, Legal 500, Who’s Who Legal, Latinvex, and Best Lawyers. Following a recommendation, and pending endorsement by the ICC Executive and election by the ICC World Council, Salomon is on her way to becoming the first woman President of the ICC International Court of Arbitration. With close to a 100-year old history since its inception in 1923, it is one of the foremost international arbitral institutions, renowned for its role in resolving international commercial and business disputes to support trade and investment. 

Australian copper mining company given the green signal to collect 50% of gargantuan $6 billion arbitral award issued against Pakistan

Tethyan Copper, Australian copper mining joint venture won the award in July 2019 in arbitration proceedings that stemmed from Pakistan’s denial in 2011 of a mining lease in a mineral-rich region of the country. It is believed that the project is one of the world’s largest underdeveloped copper and gold deposits, with a mine life potential estimated at more than 50 years, and requiring initial capital investment of over $3 billion. The Tribunal rejected reasons cited by Pakistan to deny Tethyan Copper its lease application. The Tribunal stated that the local government in the Balochistan province had unilaterally decided to create and run its own mining project instead of collaborating with the said company. Due to Pakistan’s non-compliance with an award stay-order, the International Centre for Settlement of Investment Disputes issued an order terminating the stay of enforcement for 50% of the award. Read more about the dispute status and procedural history here.   

Human Rights

Hungary in Focus: Human Rights in the EU

Aditi Nagpal

The European Union has been long upheld as the beacon of a progressive human rights regime, however the reality in EU member states reflects a disparate state of affairs. Hungary has come under fire for its increasingly anti-LGBTQIA stance. In May 2020, it approved a bill amending Article 33 which replaced the word ‘sex’ with the words ‘sex assigned at birth.’ The clarification makes it impossible for transgender persons and intersex persons to receive legal recognition. The move was panned by activists, citizens and international human rights NGOs, such as Amnesty International who termed the action a push back towards the dark ages. 

Further, a survey of the Fundamental Rights Agency released in May pre-dating the bill revealed that 76% of trans Hungarians believed that the Hungarian government “definitely does not effectively combat prejudice and intolerance against LGBTI people.” As mentioned, the response on social media was strong with #drop33 trending. Most recently, the Deputy Prime Minister Zsolt Semjen was quoted in a magazine article stating, “Why is private life not enough for (gays), why do they want official recognition?” and further stating that “gender propaganda” should be constitutionally banned and the “LGBT ideology” has been declared a key issue on the manifesto of the ruling party. 

Canary Islands: A Brewing Refugee Crisis Amidst the Pandemic

Mahima Balaji

This weekend, Spain’s Canary Islands had witnessed a large influx of migrants from West Africa. The route crossing the Atlantic Ocean  has become popular for many setting sail from Senegal since 2018. According to the UNHRC Spain, a significant percentage of the population are from Mali, Morocco, Ivory Coast, Senegal and Guinea, and are people fleeing violence war and persecution.

At present, more than 1,500 people are sleeping in tents on the Arguineguin dock in Mogán, a town in Gran Canaria. Further, a Spanish Red Cross spokesperson has confirmed that aside form a few cases of hypothermia, they are all in good health and have been tested for COVID-19. Between January-July 2020, 3,269 migrants made the crossing from West Africa to the Canary Islands according to the UN’s International Organization for Migration (see here). There have also been an estimated 21 shipwrecks along the Western African Maritime Route as well. Previously, in 2006, there was a peak of nearly 35,000 migrants arriving in the archipelago. 

According to Article 4.1 of the National Refugee Law in Spain, the illegal entry of an asylum seeker will not be penalised when the criteria for recognition of refugee status is met, provided he or she appears before the competent authorities without delay. However, importantly, Article 20 of the legislation permits detention of aliens entering illegally for a maximum period of 72 hours without judicial authority. Human Rights Watch has raised concerns on the basis of certain interviews that some have shown proof of their detention  there for beyond two weeks. Further, most of those interviewed seemed unclear about their rights to apply for asylum, or access to lawyers. There have been calls for rapid action from the Spanish government, without which the situation could mirror the situation in Greece with soaring tensions (here). 

EU Law

ECJ on Customer’s Consent to Processing Personal Data

Abhijeet Shrivastava

On 11th November 2020, the Court of Justice of the European Union (“ECJ”) gave its judgment in Case C-61/19. Here, the ECJ was requested by the Regional Court, Bucharest, Romania, to clarify the conditions in which the customers’ consent to the processing of personal data may be considered valid. Orange România SA, a provider of mobile telecom services, argued that its customers had been informed in their contracts that data relating to their identity shall be collected and stored for “identification” purposes, and thus, users had consented to this process. However, the box relating to this clause was ticked by default by the data controller before the contracts were signed. 

The ECJ observed that under EU law, the consent of subjects whose personal data is processed must be “freely given, specific, informed and unambiguous”, and the onus is on entities collecting such data to prove that data such consent has been obtained. That Orange România SA’s data controller had ticked these boxes by default did not ipso facto establish a positive indication of their consent. In addition, Orange România SA required customers who desired not to share their personal data to declare this objection in writing. The ECJ noted that this additional requirement was liable to unduly affect users’ ‘freedom to object’ to such information storage. Lastly, it noted that national courts, in assessing the existence of consent to such processing, must consider if the terms of such contracts were ‘misleading’ or unclear on whether the contract could be concluded even lacking consent to data collection. Following these clarifications from the ECJ, the merits of the case will now be determined by the Regional Court. 

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