Symposium on International Trade Law and Policy
Relating to Natural Resources, Energy and Environment
Relating to Natural Resources, Energy and Environment
Former WTO Appellate Body Member; Professor Emeritus, University of Tokyo
Special Adviser, Nagashima Ohno & Tsunematsu Law Offices
This event, which took place over two days on March 2-3, 2015, in the Tokai University Club's Aso Room on the 35th floor of the Kasumigaseki Building, examined international trade law and policy relating to natural resources, energy and the environment. In recent years, developments such as explosive world population growth, the rapid rise of the emerging countries (Brazil, China, India, Russia, South Africa, and elsewhere), the impact on agriculture of climate change, desertification and water shortages have caused concern about future shortfalls in natural resources, while resource-rich countries are leaning increasingly toward conserving resources and also limiting resource exports. The rare earth export restrictions recently adopted by China are one such case. Such trends are extremely troubling to a country like Japan which has few natural resources (energy resources included) and depends for the most part on supply from other countries. The Symposium was accordingly held to consider legal and policy issues in relation to natural resources and energy, as well as evaluating the impact of resource development on the environment, in order to identify future directions that will provide a reference for industry and for policymakers.
The Symposium was planned by Mitsuo Matsushita, Professor Emeritus at the University of Tokyo, and Thomas J. Schoenbaum, Harold S. Shefelman Distinguished Professor at the University of Washington, and organized by the Institute for International Studies and Training (IIST) at part of the IIST's program.
The Symposium comprised eight panels discussing a diverse range of themes. The main theme on the first day (March 2) was "Export Controls of Natural Resources", addressed by four panels (Panels 1-4); the second day (March 3) focused on "Energy Trade and Environment", again divided among four panels (Panels 5-8). The panels featured presentations on a broad spectrum of topics, spurring vigorous discussion.
(1) Export Controls of Natural Resources
Panel 1, which looked at "Law and Policy on Natural Resources in Major Exporting Countries," was chaired by Professor Matsushita, and comprised status reports accompanied by detailed explanations from five experts from resource-rich countries on their respective countries' laws and policies in relation to natural resources (in other words, laws on resource extraction and management, mining laws and business licenses, etc.). The panel members were Andrew D. Mitchell (Professor, Melbourne Law School), Jingdong Liu (Professor, Chinese Academy of Social Sciences), R.V. Anuradha (Partner, Clarus Law Associate), Amarsanaa Batbold (Vice Director, National Legal Institute of Mongolia and Georgy Daneliya (Associate, K&L Gates) . Panel 2 turned to "Export Controls and WTO Agreements," chaired by Professor Schoenbaum. Gabrielle Marceau (Counsellor, Legal Affairs Division, World Trade Organization) presented on international disciplines in the WTO in relation to resource export restrictions, followed by comments from Dongsheng Zang (Associate Professor, University of Washington) and Julia Ya Qin (Professor, Wayne State University Law School & Tsinghua University Law School) that also touched on China's position.
The theme of Panel 3 was "Free Trade Agreements and Natural Resources," addressing issues in relation to natural resource management and export regulations in the context of free trade agreements. The principal speaker was Junji Nakagawa (Professor, Institute of Social Sciences, University of Tokyo), with Yuka Fukunaga (Professor, School of Social Sciences, Waseda University) and Junko Suetomi (Attorney-at-Law, Baker McKenzie) serving as commentators.
Panel 4 examined "Competition Law Issues Relating to Export of Natural Resources," a theme selected in light of the serious problems posed by state resource management, as well as by the monopolies, oligopolies and export cartels formed by resource companies. The principal speaker was Jean-Francois Bellis (Managing Partner, Van Bael & Bellis), who looked at joint ventures in the area of iron ore extraction, with Toshiaki Takigawa (Professor, Kansai University) commenting on jurisdiction problems and Marek Martyniszyn (Lecturer, Queen's University Belfast School of Law) on export cartels.
(2) Energy Trade and the Environment
Panel 5, "Special Agreements and Energy: the Energy Charter Treaty, the WTO Green Technology Agreement, the WTO Information Technology Agreement and the WTO Trade Facilitation Agreement," saw presentations and discussion on issues such as the Energy Charter Treaty and the WTO Green Technology Agreement. Chaired by Professor Schoenbaum, the panel's principal speaker was Michael Hahn (Professor, University of Lausanne), with Noriko Yodogawa (former Legal Counsel at the Energy Charter Secretariat; Attorney-at-Law, Nishimura & Asahi) and Tomohiko Kobayashi (Associate Professor, Otaru University of Commerce) serving as commentators. Discussion examined issues such as the similarities and differences between the Energy Charter Treaty and the WTO Green Technology Agreement, and the relationship between these agreements.
Panel 6 focused on "Subsidy Issues in Renewable Energy Trade." Chaired by Professor Matsushita, the principal speaker for the panel was Jaemn Lee (Associate Professor, Seoul National University School of Law), with Heng Wang (Professor, School of International Law, Southwest University of Political Science and Law) and Kojiro Fujii (Senior Associate, Nishimura & Asahi) as commentators. The panel discussed whether the WTO regulations on state subsidies in relation to energy trade should be eased, and what should be done about market definition in subsidized areas.
Panel 7, which addressed "Energy Trade and Investment Treaties," was chaired by Professor Matsushita. The principal speaker was Susan L. Karamanian (Dean for International and Comparative Legal Studies, George Washington University Law School), with Shotaro Hamamoto (Professor, Graduate School of Law, Kyoto University) and Nobuto Iwata (Professor, Aoyama Gakuin University) as commentators. Panel members discussed bilateral investment agreements in relation to resources, as well as investor protection issues.
Panel 8, entitled "Environmental Issues: Climate Change and Trade/Investment," was chaired by Professor Matsushita, with Krista Beth Nadakavukaren Schefer (Professor, University of Basel) as principal speaker and Shinya Murase (Special Rapporeur, Protection of the Atmosphere Project, International Law Commission) as commentator. Discussion examined the various types of climate change control measures, the feasibility of these, and measures that are currently possible.
The Symposium addressed some critical contemporary issues, highlighting certain aspects along an extremely broad spectrum. These issues are of course also already being researched elsewhere. However, there are few other instances of an examination from the perspective of international law, resource law, economic law, and the policies behind such legislation, and in that sense, the Symposium was able to provide useful information for both government and industry in terms of determining future directions. Researchers were also invited not only from the US and Europe but from as far afield as Australia, China, India, Korea, Mongolia and Russia, and the vigorous exchange of views among these international experts and their Japanese counterparts was extremely valuable.
(original article : Japanese)