bluuebunny/crossref_metadata_2025 huggingface dataset:
Improving EU Biofuels Policy? Greenhouse Gas Emissions, Policy Efficiency, and WTO Compatibility
Authors: Swinbank Alan , Daugbjerg Carsten
Published: April 2022

Both the EU's Renewable Energy Directive (RED) and Article 7a of its Fuel Quality Directive (FQD) seek to reduce greenhouse gas (GHG) emissions from transport fuels. The RED mandates a 10% share of renewable energy in transport fuels by 2020, whilst the FQD requires a 6% reduction in GHG emissions (from a 2010 base) by the same date. In practice, it will mainly be biofuels that economic operators will use to meet these requirements, but the different approaches can lead to either the RED, or the FQD, acting as the binding constraint. A common set of environmental sustainability criteria apply to biofuels under both the RED and the FQD. In particular, biofuels have to demonstrate a 35% (later increasing to 50/60%) saving in life-cycle GHG emissions. This could be problematic in the World Trade Organization (WTO), as a non-compliant biofuel with a 34% emissions saving would probably be judged to be 'like' a compliant biofuel. A more economically rational way to reduce GHG emissions, and one that might attract greater public support, would be for the RED to reward emission reductions along the lines of the FQD. Moreover, this modification would probably make the provisions more acceptable in the WTO, as there would be a clearer link between policy measures and the objective of reductions in GHG emissions; and the combination of the revised RED and the FQD would lessen the commercial incentive to import biofuels with modest GHG emission savings, and thus reduce the risk of trade tension.
Understanding Non-litigated Disputes in the WTO Dispute Settlement System
Authors: Park Jee-Hyeong , Ahn Dukgeun , Lee Jihong
Published: April 2022

This article focuses on a less scrutinized aspect of the WTO dispute settlement system - non-litigated disputes. Legal rules concerning consultation and settlement during the panel proceedings are analysed with the case laws. We then propose, and empirically analyse, several key economic determinants of non-litigation in the WTO dispute settlement system that are motivated by the theory of bargaining with informational asymmetry. In particular, our logistic regressions show that a greater difference in the size of the pair of disputing countries reduces the likelihood of voluntary settlement or non-litigation. WTO members also tend to prefer non-litigation when the respondent is smaller than the complainant, has less reputational concern, and faces less retaliatory capacity of the complainant. Our findings suggest a case for reforming the legal rules of the consultation process towards mitigating informational asymmetry or improving communication between disputing parties in the WTO.
Improving Regulatory Governance: International Standards and the WTO TBT Agreement
Authors: McDaniels Devin , Wijkström Erik N.
Published: April 2022

The WTO Agreement on Technical Barriers to Trade (the TBT Agreement) obliges governments to use international standards as a basis for regulation yet leaves a degree of flexibility with respect to the choice of standard and the manner of its use. This interplay between obligation and flexibility has given rise to tension in various for a of the WTO, including in committee work, negotiations and dispute settlement. This paper brings together these three distinct strands of WTO work to illustrate core aspects of the international standards debate. In our analysis, we first briefly outline the nature of the discipline in the TBT Agreement itself; next, we describe where and how the discussion arises in the WTO; and, finally, we explore under what circumstances international standards contribute to regulatory convergence and the challenges they face in this regard. We propose that greater regulatory convergence could be fostered through a renewed focus on the procedures used by international standardizing bodies (the how) and greater emphasis on robust technical/scientific underpinnings of the standards themselves (the what).
The Revised Agreement on Government Procurement and Corruption
Authors: Nadakavukaren Schefer Krista , Woldesenbet Mintewab Gebre
Published: April 2022

In March 2012, Parties to the World Trade Organization's (WTOs) plurilateral Agreement on Government Procurement agreed to a revised text to govern public purchasing of goods and services. On 2 May 2013, the first Party to the Government Procurement Agreement (GPA) ratified the Amendment. While structurally significantly different from the current text, the revised Agreement's substantive differences are modest. One significant change, however, was the addition of direct language on corruption prevention. Given the extent of corruption plaguing procurement, there is no doubt that corruption prevention goals in this context are needed. The mention of corruption, therefore, is welcome. It is also noteworthy because it is the first time the WTO Members, or even a subset of them, have made an explicit reference to the issue. This article examines the direct and indirect references to the duties of corruption-reduction found in the revised agreement on government procurement and considers what such references are worth in practice and to the global efforts to control corruption.
Trade in Generics v. World-Scale Market Segmentation: Market-Driven Solutions to the Paragraph 6 Issue
Authors: Miguel Pablo Zapatero
Published: April 2022

WTO Members are involved in an open re-regulatory process to facilitate pro-health pharmaceutical policies in the developing world since the launch of the Doha Development Round and its historical Declaration on public health and access to medicines (2001). However, solutions such as its member-driven mechanism of the 2003 Decision (designed to facilitate access to generics in countries that lack manufacturing capacity) are basically ineffective. Alternatively, market-driven multilateral solutions are to be explored. The multilateral trading system could make a critical contribution to facilitate access to affordable generic medicines in developing countries by concentrating on what it does best, namely promoting global trade in generics, and thus generics market formation on a global scale.
Derivatives as a Test Case for International Financial Regulation through the WTO
Authors: Jain Abhimanyu George
Published: April 2022

Can the WTO play a role in international financial regulation? This paper examines that question focusing specifically on the regulation of international derivatives, reasoning that if that complex and controversial category of instruments can be successfully regulated, international financial regulation generally is theoretically possible. It goes on to describe how such regulation may be achieved through the World Trade Organization (WTO) employing the General Agreement on Trade in Services (GATS) framework, and then demonstrates that the vesting of such regulatory authority in the WTO is in the interests of international finance, international trade and international economic relations generally.
Tied Aid: Immunization for Export Subsidies against the Law of the WTO?
Authors: Hagemeyer Teoman M.
Published: April 2022

The article analyses the practice of tied aid and draws a comparison to export subsidies both in an economic as well as in a legal sense. Tied aid is a form of development aid granted upon the condition that it is spent according to donor preferences. The legal review concentrates on the consistency of tied aid with the Agreement on Subsidies and Countervailing Measures (SCMA) and Article XVII of the General Agreement on Tariffs and Trade (GATT). Here, many potential breaches of the SCMA are revealed, while a violation of the GATT is less apparent due to the unclear concept of State Trading Enterprises. Many variants of tied aid are found to constitute prohibited or at least actionable export subsidies and no regular development aid. Despite the breaches, no trade dispute involving tied aid has been brought before the WTO's dispute settlement system. The final section analyses the practical obstacles to a precedent and argues that the freedom from regulation of development aid cannot be extended to tied aid, which is guided by protectionist motives.
The TISA Initiative: An Overview of Market Access Issues
Authors: Roy Martin , Marchetti Juan A.
Published: April 2022

The plurilateral negotiations on a Trade in Services Agreement ( TISA) have attracted much attention in trade policy circles. Policy and economic implications are intensely debated given the number and economic importance of participants. This article aims to provide insights into the market access issues arising in such negotiations. Should TISA negotiations result in participants exchanging the best commitments they have so far undertaken in their preferential trade agreements (PTAs) - a reasonable starting point -,TISA market access commitments would go well beyond commitments under the General Agreement on Trade in Services (GATS) and services offers tabled in the Doha Round. While this would be in itself a significant outcome (especially in terms of predictability and stability), we also highlight, however, that the real economic benefits would be reduced by the fact that a number of participants have already exchanged significant concessions amongst themselves through bilateral PTAs. Further, and more importantly, exchanging 'best PTA' commitments would not meet the participants' most important export interests. These have often remained unaddressed in many of the previous bilateral negotiations or involve countries not currently participating in TISA. Addressing better these export interests would require going beyond an exchange of 'best PTA' commitments among TISA participants - with the more difficult policy and negotiating decisions that this implies - and/or seeking to expand the group of participants. We also discuss the different forms that such a plurilateral agreement may take vis-à-vis the WTO framework.
The Potential of Tariff Policy for Climate Change Mitigation: Legal and Economic Analysis
Authors: Shingal Anirudh , Nartova Olga
Published: April 2022

This article addresses a potential role that tariff policy can play in encouraging countries to take part in a multilateral effort to mitigate climate change: it complements discussions on border tax adjustment which in law is limited to domestic taxation. It assesses whether increasing tariffs on products from polluting industries amounts to a violation of World Trade Organization (WTO) rules and whether protectionism in this case can be differentiated from genuine environmental concerns. It argues that while lowering tariffs on environmental goods may serve as a carrot to promote dissemination of cleaner technologies, tariff deconsolidation is a legitimate stick to encourage polluting countries to move towards an international climate agreement. The article further explores this view by undertaking a partial equilibrium analysis to examine the impact of a unilateral 5% tariff increase on the most carbon-intensive imports from countries not committed to climate polices. Our results, however, suggest that plurilateral action would be more effective than countries pursuing tariff policy in isolation, with the former leading to an average 1.4% net reduction in carbon-intensive imports from a 5% increase in their tariffs.
Thinking in a Box: A Mode 5 Approach to Service Trade
Authors: Kutlina-Dimitrova Zornitsa , Cernat Lucian
Published: April 2022

This article draws the attention to the growing importance of services inputs in manufacturing sectors' exports in the EU and beyond. The GATS existing four modes of supply do not adequately cover this type of indirect services value-added trade. Hence, theoretically, the case for a new indirect mode of services supply - 'mode 5' - is made. On the basis of the TiVA database, our estimates of mode 5 services exports point to a substantial share of total merchandise trade.

The article also finds that from a 'mode 5' perspective, services embodied into products are also subject to fairly complex trade rules. One such example illustrated in this article is the area of customs valuation. Other issues (trade facilitation, rules of origin) could have an impact on the way 'mode 5' services are traded. The renewed impetus at the WTO on trade facilitation and the post-Bali agenda should provide a new opportunity for policy makers to forge trade rules that are well-suited for the ways in which goods and services interact along global supply chains.
Double Counting: Is There Light at the End of the Tunnel?
Authors: Sampath Seetharaman , Ramanujan Adarsh
Published: April 2022

This article explores the issue of 'double counting' under the WTO, arising from the concurrent imposition of countervailing duties ('CVD') and anti-dumping duty ('ADD').The article has three objectives: first, a critical appraisal of the Appellate Body's findings in United States - Anti-Dumping and Countervailing Duties (China) as well as the Panel's findings in US - Countervailing and Anti-Dumping Measures (China), which were issued in the context of Non Market Economies ('NMEs'); second, a critique of the United States' effort to comply with the Dispute Settlement Body ('DSB') ruling in United States - Anti-Dumping and Countervailing Duties (China); third, to explore the implications of these earlier rulings on MEs.
Dial PTAs for Peace: The Influence of Preferential Trade Agreements on Litigation between Trading Partners
Authors: Mavroidis Petros C. , Sapir André
Published: April 2022

Preferential trade agreements (PTAs) are en vogue both as policy tool, as well as research subject. We do not beg to differ. In this article, inspired by the behaviour of the European Union (EU), we ask whether the proliferation of PTAs and the negotiation of mega-regionals, like the Trans-Atlantic Trade and Investment Partnership (TTIP) between the EU and the United States (US), risk undermining the WTO Dispute Settlement Mechanism (DSM), 'the crown jewel of the WTO system'. The EU is the world's biggest participant in PTAs. It is also, after the US, the most active participant to WTO disputes. Yet, in the twenty years since the creation of the WTO, it has only been involved in a tiny number of disputes with PTA partners. We find that, despite appearances to the contrary, the US has also been involved in very few WTO disputes with its PTA partners. Moreover, without assigning causal relationship to the signature of a PTA and the amount of litigation between preferential partners, we show that there is inverse correlation between the two. We find it likely therefore that the number of WTO disputes is likely to continue decreasing as WTO Members, including the EU and the US, continue signing PTAs. It remains to be seen whether the WTO system will profit or suffer from the likelihood of fewer WTO disputes.
Impact of the WTO on Chinas Rule of Law in Trade: Twentieth Anniversary of the WTO
Authors: Minyou Yu , Li Liao
Published: April 2022

The World Trade Organization (WTO) will commemorate its 20th anniversary in 2015. Over the last twenty years, WTO has accepted thirty-four new members ranging from some of world’s largest economies to some of the least developed. Of them, China’s accession has been internationally recognized as one of the most historic events. ‘This is an historic moment for the WTO, for China and for international economic cooperation’, said the WTO’s Director-General, Mike Moore, commenting on the approval of China’s accession on 10 November 2001. China’s membership of the WTO has been a resounding success for both the WTO and China. The WTO has not only made a major contribution to the strength and stability of the global economy by helping to boost trade growth, resolve numerous trade disputes and support developing countries to integrate into the trading system, but also played a pivotal role in strengthening multilateralism, establishing an inclusive world economic order and promoting an open, rules-based and non-discriminatory multilateral trading system. Since admission to the WTO, China not only became the largest trading nation of goods in 2013, but also has set a new blueprint for the rule of law in the world’s second largest economy in 2014. No doubt, the rule of law in trade encouraged by the WTO has promoted and will further push the rule of law in China. The WTO promotes the rule of law in trade in China in at least the following five dimensions: the optimization of China’s trade institutions, the legalization of China’s trading system, the strengthening of China’s trade law enforcement capacity, the promotion of judicial review on China’s trade-related governmental decisions and the perfection of the rule of law in China’s trade.
Australias Anti-dumping and Countervailing Law and Practice: An Analysis of Current Issues Incompatible with Free Trade with China
Authors: Zhou Weihuan
Published: April 2022

This article identifies and analyses five major issues relating to current antidumping and countervailing laws and practice in Australia. Given the recent conclusion of a free trade agreement between Australia and China, the article proposes to focus on Australia’s antidumping and countervailing investigations against China. The article discusses whether the Australian laws and practice are consistent with the relevant WTO rules and how they may impact on the promotion of trade liberalization between Australia and China. The article concludes that all of these issues may create trade barriers to Chinese exports to Australia and hence must be dealt with to protect the enhancement of market access of Chinese exports to Australia under the Australia – China free trade initiatives.
How Regulations Became the Crux of Trade Politics
Authors: Winslett Gary
Published: April 2022

Whereas tariffs were once the main barrier to international trade, cross-national differences in regulation now constitute the most significant impediment to trade and are therefore the centrepiece issues in contemporary trade negotiations. That change has profound implications for the global economy and for international political economy scholarship. This article explains how that change occurred in order to explore how the incorporation of regulation affects trade and illuminate the politics that surround the negotiation over these regulatory trade barriers. As tariffs and other non-regulatory measures were reduced, the extent to which cross-national differences in regulation impeded trade became more apparent, especially to multinational firms which pushed for attenuations of these regulatory trade barriers. Once regulations became the subject of trade negotiations in the 1980s, civil society groups with a vested interested in those regulations became involved in trade politics to a greater degree than ever before. These developments have shaped the major trade negotiations underway today and are likely to remain at the centre of trade politics for the foreseeable future.
Negative List in the SHPFTZ and Its Implications for Chinas Future FDI Legal System
Authors: Wang Zhongmei
Published: April 2022

The Negative List Approach in the Shanghai Pilot Free Trade Zone (SHPFTZ) is an incremental step towards equal treatment for foreign-invested enterprises in China. Nonetheless, the Chinese government’s reluctance and prudence in further opening-up, especially in domestic liberalization, is an encumbrance to the advancement of its large economy. The Negative List Approach in the SHPFTZ has many fundamental flaws, including low-level authority, uncertainty, limited effects, and incomplete reform. However, the Negative List Approach in the SHPFTZ is at least a model for other new FTZs in China and a reference for China’s future new FDI regulatory framework.
Can ASEAN+1 FTAs Be a Pathway towards Negotiating and Designing the Regional Comprehensive Economic Partnership (RCEP) Agreement?
Authors: Sen Rahul , Srivastava Sadhana , Das Sanchita Basu
Published: April 2022

This article undertakes a comparative analysis of five ASEAN 1 Free Trade Agreements and the ASEAN Economic Community to analyse the ease or difficulties in negotiating and developing the Regional Comprehensive Economic Partnership (RCEP) agreement by 2015 and beyond. The analysis suggests that the ASEAN Economic Community and the ASEAN-Australia-New Zealand Free Trade Agreement are the most comprehensive agreements and have deeper commitments as compared to the other ASEAN regional Free Trade Agreements (FTA). Despite some broad commonalities, there are significant differences across them in terms of the negotiating framework, coverage of issues, deadlines and depth of commitments. This lack of coherence across the ASEAN 1 Free Trade Agreements and varying domestic interests of negotiating countries would be a difficult task to harmonize under the RCEP agreement. Adding to this complexity are the geopolitics in the Asian region and the emergence of the Trans-Pacific Partnership agreement, which involves seven of the RCEP members. The article concludes that the potential success of the RCEP negotiation would depend on the extent to which countries that are part of this partnership can reach a consensus on – substantial tariff elimination coverage, a common market access schedule, comprehensive coverage of WTO-plus issues and behind-the-border integration measures that enable both physical and institutional connectivity.
The Challenges of Chinas Recent FTA: An Anatomy of the China-Korea FTA
Authors: Wang Heng
Published: April 2022

As the biggest Chinese free trade agreement (FTA) to the date of its signature, the China-Korea FTA provides an amazing case study for the development of China’s recent FTAs. This paper analyzes major challenges in its rule development, implementation, and interpretation. The author argues, first, that rule development encounters market liberalization, regulatory cooperation and coherence, as well as sectoral challenges. Second, the fundamental issue for rule implementation and interpretation is the lack of a ‘systemic’ response to the relationship among FTA chapters, and to the relationship among the China-Korea FTA, domestic law, and international law. Finally, the relationship between the China-Korea FTA and World Trade Organization (WTO) law deserves special attention, which consists of five categories of circumstances. A number of questions are analyzed: which WTO rules apply to the China-Korea FTA? Do WTO rules apply to WTO-plus obligations? Can WTO jurisprudence be applied to the China-Korea FTA? The issue of the applicability of WTO rules and jurisprudence to FTA obligations including WTO-plus obligations remains open. These challenges are not unique to the China-Korea FTA and are likely to exist in other Chinese FTAs.
Regulatory Coherence and Pathways towards Global Wine Regulation
Authors: Waye Vicki
Published: April 2022

Regulatory coherence is a goal that has captured the imagination of international trade negotiators. Undeterred by the elusive nature of this holy grail, regulatory coherence is now embedded within a number modern preferential trade agreements. Using the global wine sector as an exemplar the article explores how far we have to go to achieve regulatory coherence and whether it will ever be fully achieved.
WTO and Export Restrictions
Authors: Marceau Gabrielle
Published: April 2022

This article focuses on the disciplines on export restrictions found in the World Trade Organization (WTO) agreements as well as relevant jurisprudence by WTO panels and the Appellate Body, both in general and in particular in the context of export restrictions on natural resources. The article also explores alternative approaches for increasing the regulation of export restrictions, found in the accession protocols of some recently acceded WTO Members. In addition, the wider impact of export restrictions is examined in the areas of sustainable development, food security, and environmental protection.
The Extra-Jurisdictional Effects of Environmental Measures in the WTO Law Balancing Process
Authors: Will Ulrike
Published: April 2022

This article enlarges the discussion on trade and environment conflicts in World Trade Organization (WTO) law by examining different approaches on how to deal with extrajurisdictional effects. WTO Member States have the regulatory autonomy to define whether they want to protect an environmental concern or not. They decide on the level of protection and choose the respective instrument. If environmental policies restrict WTO free trade rules, they need to fulfil balancing requirements, that is the necessity test or the ‘relating to’ requirements and criteria to exclude disguised discrimination. These balancing approaches result mainly from case law where Article XX General Agreement on Tariffs and Trade (GATT)and Articles 2.1 and 2.2 Technical Barriers to Trade (TBT) Agreementwere interpreted. However, if environmental measures restrict not only free trade rules but also competing environmental policies, these tests might not always resolve the legal conflict conclusively. Even the least trade-restrictive measure without disguised discrimination might restrict competing environmental policies. WTO adjudicating bodies recognized this conflict and its dimension of extra-jurisdictional effects. Yet, either the problem was left open addressing other, more obvious violations of WTO law or a recognition of competing policy goals was required while ignoring the possibility of incompatible measures. If, however, parties bring up the extra-jurisdictional effects on their environmental policies being the only violation of WTO rules, more differentiated balancing approaches might be needed. The article discusses three approaches: the comparison of the intensity of extra-jurisdictional effects, the comparison of the connection to the environmental concern and the re-evaluation of the significance of the regulatory goal. It is asserted that they contain shortcomings.
Here There Be Dragons? Analysis of the Consequences of Granting Market Economy Status to China
Authors: Maiza Andoni
Published: April 2022

European Union (EU) industry has recently raised deep concerns about the potential negative consequences on the economy and employment of the EU granting Market Economy Status (MES) to China. This article leverages existing research on the economic impacts of Anti- Dumping (AD) and MES together with data on the evolution of AD action and trade, to explore the likely impacts of such a decision. We conclude that such impacts, although real, have been greatly exaggerated by detractors. MES is likely to reduce the number of AD cases taken against Chinese exports and the applied duty in cases that are investigated, which would indeed increase Chinese imports. However, in past cases of according MES, both in the EU and elsewhere, AD cases have continued and methodologies have been adapted to take account of the reality of such markets. Finally, Switzerland, a country which has never applied AD action to their imports, has not seen its market monopolized by Chinese imports, even in key sensitive sectors. In addition, prices of Chinese imports to that market are often higher than for low cost EU suppliers. Overall, only a few EU Member States will be affected and two industries – ceramics and steel – will be key to that impact, underlining the potential need for targeted support measures.
The Public Debate over Transatlantic Trade and Investment Partnership and Its Underlying Assumptions
Authors: Eliasson Leif Johan , Garcia-Duran Patricia
Published: April 2022

The Transatlantic Trade and Investment Partnership (TTIP) negotiations have become the centre of debate in EU trade policy, where the European Commission and civil society organizations are key actors. This article argues that a key reason why TTIP has become so controversial has to do with the nature of the arguments used by each side. The main arguments in favour of TTIP emphasize the economic and geostrategic benefits. The main criticisms of TTIP focus on its alleged negative impact on product safety and public policies. Identifying the foundational assumption(s) behind these arguments, we show that this debate is special because opponents and supporters’ premises emerge from assumptions based on different perspectives: while opponents assume that the EU will succumb to neoliberal American preferences, supporters focus on the US-EU combined market power vis-à-vis third countries. Since these assumptions do not necessarily contradict each other, the debate is less whether benefits outweigh costs and more whether such costs are probable, leaving the supporters with a defensive position. This is an important distinction in explaining why opponents dominate the public debate. Our findings also indicate, however, that opponents’ thesis has been successful because the US is the partner; such public mobilization is less probable on other trade agreements.
Carbon Safeguard? Managing the Friction Between Trade Rules and Climate Policy
Authors: Moore Michael O.
Published: April 2022

The December 2015 Paris agreement on climate change did not include an enforcement mechanism. Long-recognized potential frictions between climate goals and trade rules therefore remain. This article will present a concrete policy solution that both ensures continued adherence to core multilateral trade commitments while allowing nations to pursue independent greenhouse gas mitigation policies. A ‘carbon safeguard’ would allow for border adjustments on select imports from countries with less onerous carbon pricing policies but only after demonstration of injury to a domestic industry as a result of differential carbon policies. This process would concentrate complicated carbon border adjustments on a small subset of carbon-intensive and trade-sensitive sectors but continue broad adherence to the long-standing WTO ‘national treatment’ principle. The structure also would incorporate hard-earned lessons from trade remedy procedures under current WTO rules.
USCOOL: How the Appellate Body Misconstrued the National Treatment Principle, Severely Restricting Agency Discretion to Promulgate Mandatory, Pro-Consumer Labeling Rules
Authors: Colares Juscelino F. , Canterberry William P.
Published: April 2022

In United States–Certain Country of Origin Labeling Requirements1the Appellate Body (AB) of the World Trade Organization (WTO) ruled that the United States’ country-of-origin labeling regulations (COOL) on beef and pork products violated the Agreement on Technical Barriers to Trade’s (TBT) National Treatment (NT) Principle.2 Aimed at promoting informed consumer choice, COOL required retailers to disclose the covered products’ origin. In prior decisions under the General Agreement on Tariffs and Trade (GATT) Article III:4, the AB correctly rejected protectionist rules that unnecessarily encumbered consumer choice, while adversely affecting conditions of competition for imports. In US–COOL, however, the AB formalistically transposed such GATT jurisprudence into TBT analysis, equating private action in compliance with neutral, transparency-promoting labeling rules to private action in compliance with capricious, opacity-inducing distribution rules. This article argues that, while GATT NT-jurisprudence should enlighten analysis under the TBT, WTO adjudicators should not allow exporting Members’ perceived entitlement to trade volumes – which may well be premised on continued opacity and uninformed consumer choice – to interfere with importing Members’ origin-neutral regulations. (JEL: F13, F53, K23, K41, Q13, Q17).
Enhancing the Standards of Civil Damages Remedies to Fight Copyright Piracy in International Trade? A Commentary on the Proposed TRIPS-Plus Damages Reforms in the Third Amendment to the Copyright Law
Authors: Zhang Chenguo
Published: April 2022

The proposed third amendment to PRC copyright law endeavours to enhance the standards of damages to fight piracy more effectively via a TRIPS-Plus approach. This includes, inter alia, reframing statutory damages, introducing punitive damages, and new evidence rules granting the right of information to right holders. Nonetheless, the inconsistency of the extra-compensatory rationales of civil damage with the principle of restoration enshrined in the traditional Chinese copyright regime risks causing difficulties for the Chinese courts in implementing the new rules. The new provision on the right of information on pirated goods is a significant weapon to combat piracy that, conversely, risks causing tension between copyright enforcement and data protection, in addition to jeopardizing the defendants’ and third persons’ rights to privacy. This article argues that the proposed higher protection standards of copyright enforcement in China should not remain solely written law. The Chinese courts need to develop applicable conventions for calculating damages, based essentially on investigation using objective criteria of how much compensation ought to be payable, which is also the basis of calculating reasonable statutory damages. In this regard, this article advocates considering the merits and demerits of compatible enforcement provisions in the US and EU, and, meanwhile, developing a unified minimum standard for all courts in China via accepted and consistent judicial practice and through persistent dialogue and interaction with the academic community.
The Future of Sanitary and Phytosanitary Governance: SPS-Plus or SPS-Minus?
Authors: Wagner Markus
Published: April 2022

Food safety plays an increasingly important role in today’s interdependent trading relations. The existing multilateral rules embodied in the World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary (SPS) Measures are increasingly being supplemented by a series of bilateral and multilateral agreements. Unlike debates surrounding intellectual property rights, the negotiations concerning SPS rules in preferential trade agreements are rarely analysed in a systematic and detailed manner. The article uses the SPS Chapter negotiated for purposes of the Trans-Pacific Partnership Agreement (TPPA) as a model for the future of SPS governance and compares it to the existing disciplines under the SPS Agreement. While the future of the TPPA in its current iteration may be in doubt, the US has clearly posited its SPS Chapter as a blueprint for future SPS governance. While the SPS Chapter contains some procedural advances in SPS governance, its substantive rules – or lack thereof – are not only at odds with the existing SPS regime; they exhibit a flawed understanding of scientific enquiry and how to deal with the uncertainty inherent therein.
Impact of Sanitary and Phytosanitary Measures and Technical Barriers on International Trade
Authors: Ramizo Dorothea M. , Kang Jong Woo
Published: April 2022

In principle, sanitary and phytosanitary (SPS) measures aim to protect the health of humans, plants and animals, while technical barriers to trade (TBT) ensure product quality and safety. However, governments may overshoot the requirements of health and consumer safety and use SPS and TBT to shield domestic producers from fair competition. Potential abuses of both measures as protectionist tools not only constrain international trade but also consumers’ welfare by restricting the choices of goods available to them. Our analysis shows that in general the measures seem to be positive for trade after controlling for other factors. However, the impacts are mainly driven by exports from advanced economies. Less developed countries do not gain as much when implementing the measures or are disadvantaged in exporting goods, particularly when importers are advanced economies. Within South countries, developing Asia are more adversely affected by SPS while non-Asian developing country exports are afflicted more by TBT. SPS in particular is damaging intraregional agricultural trade among Asian countries, which calls for policy makers to act more proactively in resolving nontariff hurdles in the region.
Understanding EU Trade Policy on Geographical Indications
Authors: Moir Hazel V. J.
Published: April 2022

This article explores European Union (EU) policy on geographical indications (GIs) as expressed in the outcomes of EU trade negotiations. This empirical approach provides a factual basis about the GI deals which are acceptable to the EU. Across the EU’s six recent Global Europe treaties the EU has achieved a good degree of success in obtaining strong-form GI rights (no use of -like, -style qualifiers on labels) for a number of specific products. The article also identifies GI outcomes in recent treaties driven by US negotiating demands. While US-driven treaties prioritize a trademark approach to GIs, they also allow for coexistence with EU-style strong-form GIs. Comparing these two sets of outcomes provides useful insights for future EU trade negotiations, such as the proposed Transatlantic Trade and Investment Partnership (TTIP) with the US or the proposed Free Trade Agreement with Australia and New Zealand. In particular the Canada-EU Comprehensive Economic and Trade Agreement (CETA) shows how the interests of domestic cheese and meat producers can be protected while allowing for strong-form GI privileges for a reasonable number (163 in CETA) of listed product names.
Curbing Supply-Chain Human Rights Violations Through Trade and Due Diligence. Possible WTO Concerns Raised by the EU Conflict Minerals Regulation
Authors: Van der Velde Steffen , Partiti Enrico
Published: April 2022

The recent adoption of the EU Regulation laying down supply chain due diligence obligations for Union importers of tin, tantalum and tungsten, their ores, and gold originating from conflictaffected and high-risk (CAHR) areas constitutes an important step to curb particularly heinous crimes connected to the so-called ‘conflict minerals’ supply chains. The EU measure is remarkable insofar it incorporates an international soft-law instrument, the Due Diligence Guidance for Responsible Supply Chain of Minerals from CAHR Areas, and makes it mandatory for EU importers. Importers are under a mandatory obligation to engage in supply chain due diligence to avoid dealing in conflict minerals, and thus regulating upstream entities. This contribution assesses the relation between such a regulatory strategy and provisions of WTO law. It assesses whether the EU bears responsibility for possible detrimental impact stemming from the incorporation of the OECD Guidance and from the delegation of certain regulatory tasks to economic operators. Subsequently, it evaluates the status under international law of the OECD Guidance, and discusses whether its status can justify possible detrimental impact stemming from the EU regime.
Disciplining Private Standards Under the SPS and TBT Agreement: A Plea for Market-State Procedural Guidelines
Authors: van der Zee Eva
Published: April 2022

This article shows that, although private standards could fall within the scope of the Sanitary and Phytosanitary(SPS) or Technical Barriers to Trade(TBT) Agreement, the responsibility of WTO Members to effectively ensure that private standard-setters are not more trade-restrictive than necessary is limited under the respective frameworks. Other mechanisms, rooted in a commercial disguise, would be more effective as they could incentivize private standard-setters to comply with the WTO legal system. It is argued that WTO Members worried about the trade-restrictive nature of private standards should draft procedural guidelines in collaboration with intergovernmental organizations(IGOs) and private multi-stakeholder standard-setting bodies. Such procedural guidelines should be aimed at simplifying the certification process and making it easier for farmers and producers to comply with the private standard.
EU  Price Comparison Methodologies (DS516): Challenging the Non-Market Economy Methodology in Light of the Negotiating History of Article 15 of Chinas WTO Accession Protocol
Authors: Peng Delei , Zhou Weihuan
Published: April 2022

The EU’s and the US’s written submissions in EU – Price Comparison Methodologies, for the first time, elaborated their respective positions on how Article 15 of China’s WTO Accession Protocol should be interpreted and applied after fifteen years of China’s entry into the WTO on 11 December 2016. This article offers a detailed analysis of the weaknesses in the interpretation of Article 15 as proposed by the EU and the US, that is, the so-called ‘Shifting in Burden of Proof’ approach. The article argues that the non-market economy antidumping rule contemplated in Article 15 must be terminated according to the fifteen-year deadline. Through a careful examination of the negotiating records of Article 15 and China’s Accession Protocol under both the GATT/WTO multilateral negotiations and the US-China bilateral negotiations, the article submits that the bilateral records show convincingly that the compromise reached between the US and China on Article 15 was that while China accepted the application of the special antidumping rule, the US agreed that the rule would remain applicable for fifteen years only. There were no negotiating records to suggest that this compromise was not endorsed by the WTO membership. In conclusion, the article offers brief observations on the broader implications of this dispute.
Captain America and the Tarnishing of the Crown: The Feud Between the WTO Appellate Body and the USA
Authors: Condon Bradly J.
Published: April 2022

The Appellate Body is considered the jewel in the crown of the WTO dispute settlement system. However, since it blocked the re-appointment of Jennifer Hillman to the Appellate Body, the United States has become increasingly assertive in its efforts to control judicial activism at the WTO. This was a hot topic in the corridors at the eleventh WTO Ministerial Conference, in Buenos Aires. This article examines judicial activism in the Appellate Body, and discusses the efforts of the United States to constrain the Appellate Body in this context. It also analyses US actions and proposals regarding the dispute settlement systems of the NAFTA, in order to place the WTO debate in a wider context. It concludes that reforms are necessary to break the negative feedback loop between deadlock in multilateral trade negotiations and judicial activism.
Foot Dragging or Strategic Withdrawal? The Cotton Dispute and Executive Compliance
Authors: Langevin Mark S.
Published: April 2022

US – Upland Cotton (DS267), known as the cotton dispute, revealed the limits of the World Trade Organization’s Dispute Settlement Understanding and pitted US agricultural and trade policies against Brazil’s comparative advantages in cotton cultivation. More than any other case, this trade dispute exposed the underlying challenges to advancing the Doha Development Agenda. This article explores US compliance with the Dispute Settlement Body’s successive rulings from 2005 to 2009 by examining executive compliance efforts in the face of congressional foot dragging, and how such efforts shaped the evolution of this trade conflict and framed its resolution in October of 2014. The examination confirms the pivotal role that congress played in preventing full compliance, but also reveals the importance of executive administrative discretion, legislative advocacy, and trade policy orientation in determining the outcome of the cotton dispute and its eventual impact upon US global trade liberalization leadership, including the US government’s strategic withdrawal from the Doha round.
Promoting Renewable Energy Through FTAs? The Legal Implications of a New Generation of Trade Agreements
Authors: Cima Elena
Published: April 2022

This article addresses the relationship between international trade law and renewable energy focusing on the role played by free trade agreements (FTAs). The analysis of the legal implications of the diverse and evolving techniques used by FTAs to incorporate renewable energy within their texts is framed within a broader theory of the evolution of the narrative underlying the trade and environment nexus. The article argues that the space devoted to environmental and renewable energy considerations in trade agreements has not only expanded but, more importantly, it has significantly changed, reflecting the evolution of trade agreements which are less and less simply trying to accommodate environmental concerns but rather becoming important instruments to ensure the effective advancement of environmental goals.
Re-Conceptualizing the Role of Science in International Trade Disputes
Authors: Du Ming
Published: April 2022

Science has been traditionally characterized as an objective discipline that is free of values and which leads to definitive knowledge. In the GATT/WTO system, science has been elevated as the ultimate arbiter of international trade disputes. This article intends to critically evaluate, and re-conceptualize, the role of science in distinguishing disguised trade protectionism and legitimate government regulation. Drawing insights from psychology and behavioural science, the article first sets forth two normative principles that should be followed where science is to be used as an arbiter in trade disputes. It then proceeds to examine to what extent the current WTO case law has deviated from these normative principles. The article concludes that WTO Members enjoy wide discretion to address pervasive scientific uncertainty. Nevertheless, it remains possible that a rigorous use of science will bring WTO rules into direct conflict with national democracy in some highly value-laden and politically sensitive disputes.
The States Invisible Hand: Chinese SOEs Facing EU Antitrust Law
Authors: Briguet Julien
Published: April 2022

We argue that the European Commission (EC) case law on mergers involving Chinese state-owned enterprises (SOEs) suffers from several flaws. First, it is inconsistent with the set of criteria initially set out in the EC case law for SOEs. Secondly, the EC’s assessment is based on an ownership bias that ignores the institutional environment in which Chinese SOEs operate. Third, it violates the basic legal rationale to maintain and ensure competitive neutrality between private and public companies in merger review. We argue in favour of a more systematic application of the single entity theory to restore the consistency of the case law. This appears a necessity in the case of Chinese investments in the EU. Indeed, due to its broad influence over its economy and its financial system, Chinese SOEs may enjoy an exorbitant privilege that could jeopardize the principle of competitive neutrality at the core of EU competition law. One should recognize that the antitrust law is a point of tension between the Western understanding of corporate law and the Chinese state capitalism based on a radically different institutional environment. A more consequential implementation of the principle of competitive neutrality is necessary to take into account this institutional environment.
Sustainable Development Chapters in the EU Free Trade Agreements: Searching for Effectiveness
Authors: Hradilová Katerina , Svoboda Ondrej
Published: April 2022

The objective of this article is to discuss the current practice related to trade and sustainable development chapters (TSD) in the EU free trade agreements and compare it with the model promoted by the US. The paper provides an analysis of primary and secondary literature on TSD chapters and examines two cases based on the specific EU and US experiences. The major question is whether the EU should follow the US approach in order to strengthen the enforcement mechanism of its TSD chapters. As the case of dispute between US and Guatemala shows, the sanction-based approach has not proved as an adequate tool to address non-compliance with labour and environmental standards. On the contrary, cooperation between parties along with capacity building seems as a more relevant approach when it comes to compliance with international standards. This article argues that main challenges for enforcement of TSD chapters are related to strengthening of civil society participation, cooperation between the Parties and monitoring implementation.