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Elizabeth Whitsitt

Public morality concerns are ripe for consideration in international trade disputes. The long-awaited WTO decisions in EC – Seal Products afforded the world's leading international trade arbiter the opportunity to consider, among other things, application of the public morals exception in GATT and the TBT Agreement to the EU's 2009 ban on the importation and marketing of seal products. While the EU's seal products ban was ultimately held to be discriminatory and thus did not meet the requirements of GATT Article XX's chapeau, the reasoning enunciated by the Appellate Body (and WTO Panel) would have allowed the ban as being justified under the right to protect public morals. That same reasoning, however, lacked a measured analysis weighing the competing moral considerations about animal (seal) welfare against protecting the traditional and cultural practices (seal hunting) of impacted indigenous communities with short shrift being paid to the indigenous community interests. In result, the WTO's most recent rulings on public morals effectively legitimizes the moral imperialism inherent in the EU's seal products ban.

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Elizabeth Whitsitt and Todd Weiler

Sovereign wealth funds (SWFs) are not new players in financial markets. Recently, however, they have come under increased scrutiny because of their increasing number, their collective wealth, and the growth of their investment activities in developed-country economies. This chapter explores the application of the current regime of international investment law to SWFs, focusing on bilateral investment treaties (BITs) concluded by the States that represent the home jurisdiction for the world’s 15 largest SWFs. There are five sections to this chapter. Following the introduction, Section 2 provides a brief overview of the international investment law regime, including its core disciplines. Section 3 considers treaty practice with respect to the entrance provisions of a BIT that may be used by an SWF to gain access to its substantive protections. Section 4 considers treaty practice regarding the relevant exit provisions of a BIT that permit host States to derogate from their treaty obligations and Section 5 provides concluding remarks.

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Nigel Bankes and Elizabeth Whitsitt