bluuebunny/crossref_metadata_2025 huggingface dataset:
Accountability and Legitimacy in Global Health and Safety Governance: The World Trade Organization, the SPS Committee, and International Standard-Setting Organizations
Authors: Naiki Yoshiko
Published: April 2022

Following the creation of the World Trade Organization (WTO) and the application of the WTO’s Sanitary and Phytosanitary Agreement (hereinafter ‘SPS Agreement), concerns over health and safety have become increasingly predominant in the international trade regime. While rulings under the WTO dispute settlement procedure, as in the case of European Communities – Measures Concerning Meat and Meat Products (Hormones) (hereinafter ‘EC-Hormones’) and European Communities – Measures Affecting the Approval and Marketing of Biotech Products (hereinafter ‘EC-Biotech(GMOs)’), have received most of the attention, these rulings based upon the SPS Agreement are not the only governance arrangements available in the WTO. The SPS Agreement also provides a forum – the SPS Committee – for debate over the health and safety concerns among Member States. This article reviews how the work of the SPS Committee fits into the recent WTO accountability debate. It examines how the SPS Committee provides for an accountability mechanism between Member States, thereby facilitating participation and promoting transparency. Furthermore, it focuses on the role of international standards, established by international standard-setting organizations, and addresses debates over the legitimacy of international standard-setting processes. This article also examines how ‘international regime complexity’ (or ‘regime interactions’) between the WTO and international standard-setting organizations relates to the questions of legitimacy and accountability. Finally, it concludes with a look at the question of the accountability of the SPS Committee itself.
Global Governance Quandaries Regarding Transformative Technologies for Bioproducts, Crops, and Foods
Authors: Phillips Peter W.B. , Smyth Stuart
Published: April 2022

The evolution of multilateral regulatory regimes is a slow process that is based on consensus-building among a large number of participants. International organizations function best in relatively stable international environments where the inherently slow pace of decision-making does not create disconnects. They are least effective during periods of rapid change. By definition, a transformative technological change such as biotechnology precipitates disequilibrium. Technological change leads to the need for institutional adaptation and/or the establishment of new institutions. This article provides a review of international regulatory initiatives implemented or under negotiation to develop the architecture for regulating the production, trade, and marketing of biologically derived crops, bioproducts, and foods. The results of these global governance efforts are compared and contrasted to assess how transformative technology barriers have been identified and addressed within these institutions. Options for further effort are examined.
Trade and Culture in International Law: Paths to (Re)conciliation
Authors: Burri-Nenova Mira
Published: April 2022

The United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on Cultural Diversity marks a wilful separation between the issues of trade and culture on the international level. The present article explores this intensified institutional, policy- and decision-making disconnect and exposes its flaws and the considerable drawbacks it brings with it. These drawbacks, the article argues, become particularly pronounced in the digital media environment that has impacted upon both the conditions of trade with cultural products and services and upon the diversity of cultural expressions in local and global contexts. Criticizing the strong and now increasingly meaningless path dependencies of the analogue age, the article sketches some possible ways to reconcile trade and culture, most of which lead back to the World Trade Organization (WTO), rather than to UNESCO.
CFIUS, Chinese MNCs’ Outward FDI, and Globalization of Business
Authors: Anwar Syed Tariq
Published: April 2022

Internationalization of Chinese multinational corporations (MNCs) as well as regulatory bodies’ legal and procedural issues are major topics in world trade. By using literature from the areas of world trade, international law, geopolitics, global business, and globalization, this paper investigates the changing role of the Committee on Foreign Investment in the United States (CFIUS) and its interactions with Chinese and other MNCs. The study uses a longitudinal case-based research approach to analyse seven Chinese MNCs and adds value to the current literature by discussing three timely topics: Chinese MNCs? internationalization activities, the CFIUS and its regulatory approval mechanism, and globalization of business and its world trade-related issues.
A Sensible Policy Tool for Pareto Improvement: Capital Controls
Authors: Sheng Li , Gu Xinhua
Published: April 2022

This article analyses the fact that managed capital flows under capital controls are superior to free capital flows with market distortions and exposes the empirical invalidity of the orthodox theory, which has become a prevailing ideology but with misleading policy implications. We reformulate the issue of international capital flows by taking into account their inherent volatility and disruptive effects. This article finds that capital freedom may benefit capital-exporting countries at the expense of capital-importing countries due to the financial risk of volatile capital flows. We prove that, as a Pareto improvement policy tool, capital controls, if carefully chosen and properly managed, can make both parties better off by reducing the instability of those flows. It is shown that the source of this Pareto improvement lies in the favourably changed composition of capital flows (more of foreign direct investment (FDI) and less of speculative hot money) under interventions. Thus capital controls should be kept into perspective and cannot be weakened further in developing countries such as China.
Taking Justice into Your Own Hand: The TBI Mechanism in China
Authors: Gao Henry
Published: April 2022

To protect the trade interests of their firms in foreign markets, several countries have established various institutional arrangements. For example, the United States has the section 301 procedure, while the EU has the Trade Barrier Regulation (TBR). Learning from their experiences, China also established its own Foreign Trade Barrier Investigation (TBI) mechanism in 2002. This article starts with a discussion on the background for its establishment as well as the substantive and procedural requirements for investigations under TBI. In the next part, the article discusses how TBI has worked in practice by reviewing the Japan – Quantitative Restrictions on Laver case (hereinafter ‘Japan–Laver case’), the only case that has ever been brought under the mechanism. Drawing from the lessons learnt from the Japan–Laver case, the article then offers suggestions on how the TBI might be improved in the future. The article concludes with observations on the possible implications of the TBI on China’s trade partners and the multilateral trading system as a whole.
Which WTO Rules Can a PTA Lawfully Breach? Completing the Analysis in Brazil – Tyres
Authors: Brink Tegan
Published: April 2022

The proliferation of preferential trade agreements (PTAs) has given rise to possible legal conflicts between PTAs and WTO rules. WTO jurisprudence on the PTA exception in GATT Article XXIV remains scant. A recent dispute concerning Brazilian measures on retreaded tyres in the context of MERCOSUR was the first WTO case in which an environmental and health measure was intertwined with an Article XXIV defence. While the Appellate Body resolved some important aspects of the relationship between PTAs and WTO rules in this case, the operation of Article XXIV itself was not clarified. This article seeks to complete the analysis on Article XXIV in Brazil – Tyres. It considers whether Brazil’s import ban could be justified under Article XXIV, addressing both whether MERCOSUR meets the procedural and substantive conditions laid out in the article and whether Article XXIV is an applicable defence to the measure at issue. Reconciling the panel’s reasoning in US – Line Pipe with the necessity test developed by the Appellate Body in Turkey – Textiles, this article suggests that Article XXIV can be interpreted as excusing only those breaches of MFN that are necessary to establish a PTA under Article XXIV and not independently justifying other breaches. Brazil would therefore be unable to rely on Article XXIV to excuse its discriminatory import ban. In coming to this finding, this article seeks to draw some conclusions regarding the scope and applicability of the Article XXIV exception. In particular, it argues that the overly narrow focus on the definition of ‘other regulations of commerce’ and ‘other restrictive regulations of commerce’ has resulted in an inability to see the Article XXIV forest for the trees and a tendency to improperly invoke Article XXIV in regulatory contexts unrelated to the purpose for which it was provided.
Opening a GATE to Reduce Global Emissions: Getting over and into the WTO
Authors: McIsaac Christine
Published: April 2022

A solution to the control of greenhouse gas (GHG) emissions looms, and it requires international cooperation, binding commitments, and international trade under the rules of the World Trade Organization (WTO). Much-hyped international climate talks continue to fall short, highlighting the reliance on domestic policies to address emission cuts. Even so, domestic legislation faces uncertain compatibility with international commitments. Domestic Climate policies inevitably implicate trade, and trade creates leverage to encourage other key trade partners to bind themselves to a climate deal. WTO Members should introduce a new agreement, the General Agreement on Trade and Emissions (GATE), to reduce GHG emissions through international trade.
WTO Origin Rules for Services and the Defects: Substantial Input Test as One Way Out?
Authors: Wang Heng
Published: April 2022

The origin of services is often one of the issues that regulators have to address to determine whether there is trade in services. It is also indispensable for the application of preferential trade commitments including national and most-favoured-nation (MFN) treatment, among others. This article examines the relevant provisions to ascertain whether there are any defects in origin rules for services of the General Agreement on Trade in Services (GATS), and, if so, how they could possibly be handled. It concludes, first, that there is the twofold typology for the origin rules: general origin rules and special origin rules. Second, four defects exist in general origin rules for commercial presence, particularly the ownership or control requirement. They are insufficient to determine the origin for juridical persons of equal or scattered shareholding structure or services co-supplied by providers of different nationality. Neither are they always capable of identifying the economic service suppliers and the ultimate owner or controller of suppliers. Third, the application of the general interpretation rule leaves the meaning ambiguous. A substantial input test based on the value added criteria could be adopted as the supplementary means of interpretation.
Sense and Sensibilities of China and WTO Dispute Settlement
Authors: Harpaz Marcia Don
Published: April 2022

This article aims at making a preliminary assessment of China in the World Trade Organization (WTO) dispute settlement system from an international socialization perspective. When China joined the WTO in November 2001, it was not clear how China would behave in the WTO dispute settlement. At first, China proved to be a conciliatory defendant and reluctant complainant. Recently, however, China’s profile in dispute settlement has shifted to a more proactive one, leading some observers to label its behaviour ‘aggressive’.

I argue that China’s behaviour should be viewed in a different light. From totally rejecting international third party adjudication in the past, China – by permitting WTO panels to determine its fate in trade disputes – has started to exhibit new willingness to accept binding international adjudication. In this context, China is demonstrating respect for international rules as well as its faith in western legal norms and institutions. Through more intense participation in WTO dispute settlement, China is also becoming increasingly vested in the maintenance of WTO norms and rules, and consequently, the WTO dispute settlement system is playing an important role in socializing China.
China and the Doha Development Agenda
Authors: Lim Chin Leng
Published: April 2022

In contrast to early predictions during its accession, China has not sought to play a leadership role in the Doha Round negotiations or to rewrite WTO rules in a systemic manner. However, China’s role in the negotiations came into prominence during the ‘mini-ministerial’ held in Geneva in July 2008. Now included in the seven-member group (G-7), China came under fire from the United States and the European Union for failing to demonstrate greater leadership. This article seeks to explain the nature of that criticism and argues that over-reliance on the question of ‘Chinese leadership’ as an explanatory concept could aggravate broader misperceptions about China’s position in the Doha Round. According to these misperceptions, China has ‘broken cover’ and that it has become more ‘assertive’ while becoming more ‘protectionist’. In other words, there is the view today that China has emerged as a fresh obstacle to the conclusion of the Doha Round talks. This article analyses that misreading and argues that an analysis of China’s position in the negotiations must be tempered by a more nuanced understanding of certain tensions and mixed positions within China’s overall approach. The article seeks to explain China’s current position in the goods negotiations, on agriculture and non-agricultural market access, and in the services and rules negotiations. It also tries to explain the complexities of China’s alignment with developing country members and how that is likely to translate into various negotiating positions on specific issues. Finally, the article discusses a range of factors that are likely to play an important, continuing role in shaping China’s perception of specific trade issues and, more importantly, its perception of the overall worth of an eventual outcome to the Doha Round. These range from China’s reflections on the success of the 2001 accession process, its domestic political constraints, the emergence of a successful FTA programme, and resort to out-of- WTO aid for developing country nations, as well as the potential longer term impact of the current global economic crisis.
China’s Experience in Dealing with WTO Dispute Settlement: A Chinese Perspective
Authors: Ji Wenhua , Ji Wenhua
Published: April 2022

The year 2009 witnessed the rise of China as one of the major players in World Trade Organization (WTO) dispute settlement since it alone accounted for half of the fourteen new WTO disputes initiated in that year. This paper examines China’s growing involvement in major WTO dispute settlement activities and concludes that China’s participation has been a gradually evolving process. This article explains that China’s defensive and offensive positions are generally balanced and argues that China seems to approach WTO disputes on a case-by-case basis rather than by applying any preset litigation avoidance strategy. When faced with negative rulings, China has so far been quite restrained in its reactions and has generally maintained a good record of compliance, but China’s future behaviour in this regard may not always be as consistently positive. As to overall performance, this paper demonstrates that China’s record has been typical of the bigger WTO Members. Finally, it would be unfair to assess this record only with reference to the global ranking of China’s trade volumes and economic size while ignoring China’s short period of WTO membership and lack of historical experience in international dispute settlement proceedings.
The Fragmentation of International Trade Law
Authors: Delimatsis Panagiotis
Published: April 2022

The fragmentation of general international law is not a new phenomenon. Nevertheless, it is a sign of our era and essentially results from the legal pluralism that characterizes it. Increasing adjudication also makes the study of this concept even more fascinating. The phenomenon of fragmentation manifests itself with particular tension in international trade law. Private interests and commercial transactions can be irreversibly affected by the absence of legal security or, worse, by the existence of contradictory rulings delivered by adjudicating bodies, which constantly compete for increasing jurisdiction and thus influence. This article reviews the discussion of fragmentation of international law and critically analyses the problem of absence of coherence in regulating trade. By focusing on adjudication, permissible sources of law, and interpretation, it argues for more openness towards non-trade law when interpreting trade rules.
Drug Trafficking, Money Laundering and International Trade Restrictions after the WTO Panel Report in Colombia – Ports of Entry: How to Align WTO Law with International Law
Authors: Alvarez-Jiménez Alberto
Published: April 2022

Transnational crime is the dark side of globalization, and States have been taking concrete steps to cope with it through the adoption of important multilateral conventions over the last decades. The World Trade Organization (WTO) cannot be a bystander in this crusade: trade and the fight against drug trafficking and money laundering should not collide. Perhaps one of the most relevant means the WTO has at its disposal to make a contribution is through the interpretation of the WTO-covered agreements. Although trade disputes related to transnational crimes are not common, a recent one, Colombia – Indicative Prices and Restrictions on Ports of Entry, had this dimension. The panel report on this case constitutes a starting point on which to draw on to ensure that WTO law aligns with general international law in the fight against transnational crime. To this end, the article suggests three main improvements to the report in Colombia – Ports of Entry. The first is to place the interpretation of General Agreement on Tariffs and Trade (GATT) Article XX(d) under these circumstances in the context of public international law. The second improvement recommendation is that of aligning the current interpretation of the two-tier test of Article XX(d) with international law in disputes of this character. The third suggestion is that of making cooperation between litigants – a widely recognized, suitable instrument in international law to address transnational offences – an attractive solution as part of the settlement of the case when the exception of GATT Article XX(d) is invoked.
Is China’s Currency Regime A Countervailable Subsidy? A Legal Analysis Under the World Trade Organization’s SCM Agreement
Authors: Caryl Benjamin Blase
Published: April 2022

Members of Congress are currently threatening to enact legislation authorizing the US Department of Commerce to investigate China’s allegedly undervalued currency as a countervailable subsidy. If this happens, then China will very likely challenge the United States at the World Trade Organization’s (WTO’s) dispute settlement mechanism. This paper analyses whether a countervailing duty (CVD) applied to China’s currency regime would be consistent with the WTO’s Subsidies and Countervailing Measures (SCM) Agreement. Contrary to many commentaries, this paper concludes that, while there are several significant potential obstacles, there are in fact legitimate arguments that a WTO panel could use to uphold a US-imposed CVD on China’s undervalued currency.
Systemic Reflection on the EC-IT Product Case: Establishing an Understanding on Maintaining the Product Coverage of the Current Information Technology Agreement in the Face of Techn
Authors: Lin Tsai-Yu
Published: April 2022

The dividing character of the Information Technology Agreement (ITA), separating information technology (IT) products in the list from those yet to be included, by its nature, might make the ITA stumble on the converging technology trend. The European Communities and Its Members States - Tariff Treatment of Certain Information Technology Products (hereinafter 'EC-IT Product') case has opened up Pandora's box: would original ITA products, after technological change, still be included in the ITA? In light of the terms of relevant concessions being interpreted, the Panel establishes that the ITA could be dynamic along with new technology in that the addition of new technology or features would not necessarily warrant the exclusion of the ITA products from the duty-free coverage. However, because of the limitation on the scope of coverage through terms and conditions or the use of HS interpretative rules, ITA products might be excluded as a result; this is not necessarily supportive in terms of the ITA. The author argues that the dispute settlement mechanism does not provide a satisfactory systemic solution for the ITA. In this regard, the author proposes that establishing an 'understanding' on the maintenance of product coverage of current ITA under technological change, which includes the use of 'like product' analysis and the development of an 'indicative good practices guidance', might serve as a pragmatic tool and the starting point for further discussions towards finding the 'simple, transparent, and expeditious solution' contemplated by the ITA Committee.
Climate-Change-Related Trade Measures and Article XX: Defining Discrimination in Light of the Principle of Common but Differentiated Responsibilities
Authors: Hertel Michael
Published: April 2022

As many countries move towards adopting domestic measures to mitigate the effects of climate change, there has been extensive consideration in academic literature regarding whether unilateral trade measures could be used to offset carbon leakage and competitiveness concerns in a manner that would comply with the rules of the World Trade Organization (WTO).1 However, little consideration has been given to whether such measures would be permissible under the United Nations Framework Convention on Climate Change (UNFCCC)2 and how this could affect the outcome of a WTO dispute.
Chinas WTO Compliance-Plus Anti-dumping Policy
Authors: Harpaz Marcia Don
Published: April 2022

Is China complying with its World Trade Organization (WTO) anti-dumping (AD) commitments? The strong import competition created by the rapid opening of China's domestic market and the continued state involvement in its industry could conceivably generate domestic pressure on the Chinese government to use AD measures intensively and possibly illegally. Moreover, since its exports are a primary global target of AD actions, China might be expected to retaliate by levying questionable AD measures on imports.

Despite factors conducive to a more protectionist bias and possible non-compliance, I argue that China is not only complying with AD rules but also demonstrating domestic restraint, and to a certain extent, a pro-liberalization interpretation of the rules. This policy along with China's Doha Round negotiating proposals on AD suggests what is characterized in this article as a compliance-plus policy. The fact that China has chosen to pursue such a policy is not trivial, taking into account the more protectionist paths taken by other key WTO members. On a broader level, this case study aims at contributing to the contemporary debate regarding China's changing role in the global arena. By complying with WTO rules, China is demonstrating that it is accepting, following, and becoming increasingly vested in their maintenance.
Principles of EU Imports, Tariffs, and Tariff Regimes
Authors: Nilsson Lars
Published: April 2022

This paper provides an introduction to the basics of European Union (EU) imports, tariffs, and tariff regimes. Firstly, it describes the inherent complexities in the EU tariff schedule and outlines the approach taken for aggregating EU tariffs from the ten-digit level to a lower level of aggregation. Secondly, the paper presents the distribution of EU imports by main partners and broad product groups under the four different statistical import regimes and highlights the importance of which statistical regime a product is classified under. Thirdly, based on a simplified classification, the paper explains the methodology behind the merger of tariff data and trade flows used to provide information on the distribution of EU import flows by import tariff regime (Most Favoured Nation (MFN), Generalized System of Preferences (GSP), and other preferential regimes. Finally, an overview of EU imports by tariff regime is presented and commented upon.
Rethinking Trade in Education Services: A Wake-Up Call for Trade Negotiators
Authors: Saner Raymond , Lim Aik Hoe
Published: April 2022

The educational market has grown in size with more exporters entering the field to satisfy growing demand worldwide. The education sector today truly operates in a global context with institutions, programmes, and people supplying services across borders at an unprecedented scale. Yet, one of the anomalies of the education sector is that, despite the rapid internationalization of education services, limited progress has been achieved in trade negotiations. Education services remain one of the least committed sectors under the General Agreement on Trade in Services (GATS), as well as in Preferential Trade Agreements (PTAs). Firstly, this article reviews the factors behind the growth in trade in education services, particularly at the tertiary level. These include a combination of demographic changes, technological developments, national development goals, and governmental reforms to the funding and provision of higher education. Secondly, it argues that trade policy and negotiations need to wake-up to the global nature of the education sector and address the complex international trade and regulatory challenges. That would not only better reflect the reality on the ground but, through the formulation of negotiating positions, also ensure an informed debate of efficiency and equity considerations.
Rethinking the Right to Initiate WTO Dispute Settlement Proceedings
Authors: Zimmermann Claus D.
Published: April 2022

This article analyses the economic merits of the factual right of governments to interpose themselves as political filters ex ante of potential World Trade Organization (WTO) disputes. As analysed in this article, the current state of WTO law regarding the initiation of dispute settlement proceedings undermines the longterm objectives in pursuance of which states join trade agreements like the WTO Agreement in the first place. This article proposes the creation of an independent prosecution department within the WTO Secretariat, with an exclusive right to initiate dispute settlement proceedings. Without the existing discretionary filtering power, WTO membership would constitute a more credible commitment by governments that they wish to tie their hands in order to better resist domestic lobbying from powerful, importcompeting, industries, giving in to which might maximize the government's short-term political welfare but would be contrary to society's long-term interest in free trade.

[T]he true purpose of international [trade] negotiations is arguably not to protect us from unfair foreign competition, but to protect us from ourselves.

Paul Krugman
The End of the Bananas Saga
Authors: Guth Eckart
Published: April 2022

The article recalls the origins of the problem of the bananas trade war between the EU, several Latin-American countries and the US. It describes in a nutshell the numerous attempts to find a solution to this trade conflict through the WTO-Dispute Settlement Mechanism. It then analyses the legal, economic, political and procedural aspects of the negotiations from the 'Good Offices' Process in the WTO to the final negotiations of the Geneva Agreement on Trade in Bananas (GATB). Finally the article assesses the possible benefits of the GATB for the main parties involved in the GATB.
The Interpretation of GATS Disciplines on Economic Integration: GATS Commitments as a Threshold?
Authors: Wang Heng
Published: April 2022

The interpretation of GATS Article V, which deals with economic integration, is of crucial importance to the growing number of economic integration agreements (EIAs) in services, in terms of dispute settlement, services negotiations, the WTO review of EIAs, the coordination between multilateralism and EIAs, and best practices in drawing up EIAs. However, the Article has received insufficient study and remains vague. This paper takes China's eight EIAs as test cases for interpreting GATS Article V and argues that GATS commitments may be an appropriate threshold for interpreting the Article, in particular the substantial sectoral coverage and elimination of discrimination requirements, which are probably among the major challenges.
Bridging the Abyss? Lessons from Global and Regional Integration of Ukraine
Authors: Pogoretskyy Vitaliy , Beketov Sergiy
Published: April 2022

Multilateral and regional trade integration has become quite complex these days, very often involving states that pursue simultaneous economic arrangements, envisaging different liberalization and integration agendas. With such integration being so much intertwined, an obvious question arises whether concurrent participation of one state in several regional trade frameworks is legally and technically possible and which criteria should be met in this case. This article examines a particular example of Ukraine - a World Trade Organization (WTO) member - in its ongoing regional integration processes both to the West (free trade agreement (FTA) with the European Union (EU)) and to the East (Customs Union (CU) with Belarus, Kazakhstan, and Russia) through the prism of mutual compatibilities and WTO rules on regional trade integration. An assessment of the compatibility issue arising from various forms of economic integration has proved to be critical for the accurate analysis of any country's compliance with the WTO commitments. This article concludes that regional integration of Ukraine to the East requires careful considerations and structural redesigns. The recently discussed mode of integration into the CU would invoke legal and procedural difficulties for Ukraine in aligning it with the WTO rules as well as with its integration to the West. To this end, this article presents some practical observations concerning compatibility between Ukraine's different integration agendas and provides possible solutions to overcome legal problems arising thereof. The lessons derived from this article can be applied mutatis mutandis to other regional frameworks.
Regulating E-commerce through International Policy: Understanding the International Trade Law Issues of E-commerce
Authors: Ahmed Usman , Bieron Brian
Published: April 2022

The Internet has facilitated a new wave of economic growth and development. Businesses across the world - both big and small - have taken advantage of the scale, scope, and access that the Internet provides to reach new markets and consumers. A small business in rural America can now reach an individual consumer in the European Union (EU) without any physical footprint in the EU. This type of transaction was not possible before the advent of electronic commerce (e-commerce). Moreover, this type of transaction requires a revaluation of a trade regime that was created with only the largest multinational corporations able to truly engage in international trade.

The US has created trade policy governing cross-border e-commerce transactions largely through recent free trade agreements (FTAs). Since 2000, every FTA the US has signed has contained a chapter on e-commerce. These chapters have included important protections for the digital economy (e.g., no tax on digital goods, transparency in regulation, and free flow of information).Yet, these chapters have often taken a very narrow view of the issues that they have sought to tackle. It is worthwhile, a decade after these provisions were first written, to revisit and update them to better reflect the nature of modern e-commerce.

There are a number of additional issues that are imperative to e-commerce that have not been addressed in past trade regulation. E-commerce often results in the cross-border transfer of digital services. These digital services must be protected against trade-distortive and domestic discriminatory preferences. Moreover, nation-states often rely on narrow interpretations of intellectual property law to restrict the cross-border transfer of e-commerce products and services.

These non-traditional barriers to trade must be broken down. Internet intermediaries provide essential services that drive e-commerce. Strong limitations on liability must be guaranteed for these intermediaries. Finally, small businesses are only starting to engage in e-commerce. Future trade regulation should facilitate the growth of small businesses engaged in e-commerce.

This article begins by describing the rapid growth of the e-commerce economy. It then reviews the history of past US free-trade agreement e-commerce provisions and suggests how to improve and update these provisions. The document then describes a host of additional e-commerce related issues that should be addressed in trade policy moving forward.
Governing Economic Globalization: The Pioneering Experience of the OECD
Authors: Kudrle Robert T.
Published: April 2022

The Organization for Economic Co-operation and Development (OECD) has pioneered global governance in three areas of vital importance to international commerce: competition, foreign direct investment, and tax policy. The results have varied sharply; most national policy change has resulted from policy diffusion in which the OECD role was supportive but not critical. Greater consistency among states in competition policy has been thwarted by differing objectives, legal systems, administration, and penalties. The Multilateral Agreement on Investment (MAI) failed mainly because the problems it addressed lacked urgency. This contrasts sharply with some OECD tax activity that has focussed on urgent needs for greater international policy congruence.
The Cushioned Negotiation: The Case of WTOs Industrial Tariff Liberalization
Authors: Klein-Bernard Pablo
Published: April 2022

This article is about the World Trade Organization's Doha Round negotiation on industrial tariffs - i.e., WTO law making process. We make a number of observations on the most recent negotiating text, the December 2008 modalities, based on simulations of its implementation for different types of WTO members. The imports of developed countries and advanced developing countries, which represent one third of the WTO membership but 95% of world trade, are liberalized to a small degree. The other two thirds of the WTO membership are covered under a complex web of special categories and exceptions that calls into question their future participation in the international trading system. Moreover, the tariff reductions are to be achieved in a highly differentiated manner across WTO members. All the different cases and carve outs in the text are like cushions that members use to avoid undertaking a more significant trade liberalization, but in doing so they also defeat the Doha mandate in terms of the degree of ambition required.
Increased Legalization or Politicalization? A Comparison of Accession under the GATT and WTO
Authors: Basra Hardeep
Published: April 2022

An important task the WTO faces in pursuit of universality is the integration of non-members. Yet, becoming a member of the multilateral trade system is not easy. Accession to the WTO is a complicated and cumbersome process which, on average takes ten years to complete. Drawing from historical institutionalism, the article claims the current politics of WTO accession is better understood with an appreciation of GATT accession. The establishment of the WTO did not bring with it a change in accession procedures. Consequently, it is argued the difficulties and haphazardous process associated with WTO accession is best valued in light of how original accession procedures developed and evolved under the GATT. The paper finds that the current politics of WTO accession have been shaped by a rigid asymmetric path dependency.
Fisheries Management Standards in the WTO Fisheries Subsidies Talks: Learning How to Discipline Environmental PPMs?
Authors: Meliadò Fabrizio
Published: April 2022

The ongoing fisheries management discussions, held at the World Trade Organization (WTO) in the context of the fisheries subsidies negotiations, can influence the highly debated WTO legal parameters for the assessment of national environmental regulation addressing non-product-related processes and production methods (PPMs).This can be the case because the harmonization of fisheries management standards entails legal and political aspects analogous to the harmonization of environmentally-friendly PPMs among sovereign entities, and this process happens for the first time within the WTO. This article analyses the extent to which this harmonization process is informed by regulatory and standard-setting guidelines drawn respectively from WTO jurisprudence and an array of relevant international instruments; at the same time, it argues that the fisheries subsidies negotiations can result in the WTO taking a more definite position on the 'issue' of environmental PPMs.
Interest Group Influence on WTO Dispute Behaviour: A Test of State Commitment
Authors: Fattore Christina
Published: April 2022

This study examines the influence of interest groups on a state's willingness to pursue their most favourable decision during a WTO dispute. States are committed to their WTO agreements, but they also have to act as a watchdog for their domestic industries in states that may not hold WTO agreements in high esteem. Interest group influence on the state has been examined through case studies, but never at the systemic level. I hypothesize that states being pressured by many interest groups are more likely to pursue a dispute into the higher levels of dispute resolution. I test this using data from the WTO as well as interests groups from around the world. I find that complainant states are more likely to be pressured by their interest groups to pursue a favourable outcome rather than settle or accept an earlier decision.

I will go anywhere in the world to open new markets for American products. And I will not stand by when our competitors don't play by the rules. We've brought trade cases against China at nearly twice the rate as the last administration, and it's made a difference…. It's not fair when foreign manufacturers have a leg up on ours only because they're heavily subsidized. - Barack Obama, January 24, 2012
Developing Country Success in WTO Disputes
Authors: Mitchell Kristina M.W.
Published: April 2022

Developing country participation in the World Trade Organization (WTO) dispute settlement mechanism (DSM) has been studied extensively in the literature, with many scholars concluding that developing countries are underrepresented due to a lack of domestic legal capacity. I expand study of developing countries in the DSM by looking at legal capacity's role in the panel stage of disputes. I consider the impact of newly available legal aid and create a novel measure for legal expertise that draws from domestic Supreme Court literature. I find that legal capacity variables are not the predictors of success; panel decisions are driven by strategic considerations.
A Personal History of the WTO Subsidies Agreement
Authors: Horlick Gary N.
Published: April 2022

The article reviews and reveals some of the unwritten background of the negotiation of the WTO Agreement on Subsidies and Countervailing Measures, based on the author's experience. It highlights the role of the WTO Secretariat, along with the practical observation that the development of a working subsidies methodology was in effect forced by the need to make decisions in cases.
Preferential Tariff Formation  The Case of the United States
Authors: Joshi Vivek
Published: April 2022

In this article, we address the impact of multilateral trade liberalization (MTL) on the preferential tariffs granted by the United States, which is one of the largest traders and one of the biggest contributors to MTL. We empirically address two important questions. First, if the Most Favoured Nation (MFN) tariff for a product is higher, does it lead to a higher or lower preferential tariff? Second, the US being a large trading partner in such agreements, does reciprocity matter for giving meaningful preferential access? For a given MFN tariff, we model the preferential tariff with a simple linear functional form. We take the US MTL as known to the world by the end of Uruguay Round in 1994 and estimate the impact of MTL on preferential tariff negotiations of the US during 1995 to 2007. Here use a three-dimensional panel data, which takes into account the partner, product and time variation of the data-set. To complete our data-set, we codify eight Preferential Trade Agreement (PTA) legal agreements. We draw three important conclusions. First, the products that are highly protected do not get high preferential access even at the regional level. Second, reciprocity plays only a limited role in granting better preferential access. Third, irrespective of development level of the partner, the non-reciprocal Generalized System of Preference (GSP) preferences always matter.
Do We Need Trade and Environment Negotiations or Has the Appellate Body Done the Job?
Authors: Quick Reinhard
Published: April 2022

Environment-related cases in WTO dispute settlement have been the foundation for far-reaching interpretations of WTO law. This development is in contrast to the lack of results in the current DDA environment negotiations which deal with issues that seem outdated or unnecessary. The disagreement between the WTO members on how to accommodate environmental concerns with new rules is overtaken by the Appellate Body's interpretations. When rule-making seems impossible the judicial branch of the WTO is given space to advance the subject but is also burdened with the heavy responsibility of not becoming the rule-maker itself. In the area of trade and environment the Appellate Body has come to remarkable conclusions without overstepping its boundaries. This trend will have to continue as long as the political will for new rules is lacking.
The Status of Investor - State Arbitration: Resolving Investment Disputes under the Transpacific Partnership Agreement
Authors: Trakman Leon E.
Published: April 2022

Intense debate is currently brewing over the multistate negotiation of the Transpacific Partnership Agreement (TPPA). The TPPA is likely to be the second largest trade and investment agreement after the European Union, with trillions of investment dollars at stake. However, there is significant controversy and uncertainty over the resolution of investor-state disputes under it. This manuscript evaluates these issues. It concludes with the proposition that states that forsake investor-state arbitrator in favour of domestic courts, among other options, do so at their peril.
Service, Trade in Services and Trade of Services Industries
Authors: Damien Broussolle
Published: April 2022

The paper focuses on the issue of international cross-border trade in services. It argues that its current understanding may be quite misleading because the concept of service is not accurately delineated and because available data are not appropriately understood. First, bearing in mind Hill's (1999) service definition, the paper discusses the extent of service-producing activities. It stresses that 'services' producing 'knowledge capturing products' should be recognized as genuine goods-producing activities. It also asserts that cross-border trade in genuine services is still scarce, even if Information and Communication Technologies (ICT) have made it easier in some cases. Second, the paper explains that the picture of trade in services, which the Balance of Payments (BOP) displays, although improving, is nevertheless quite heterogeneous and blurring. Contrary to a common view, the BOP does not provide accurate information about trade of service industries. Moreover, still unfamiliar is the fact that, for several significant services, service industries are not the major actual international service traders.
The FTA Paradigm for the Configuration of World Trade and Foreign Investment: The Case of Outward Processing Zones
Authors: Qureshi Asif H.
Published: April 2022

This article explores whether international investment liberalization and its regulation should be conceived through the prisms of world trade within the context of the practice of Free Trade Agreements. In section 2-4, the paper addresses the relationship between investment and trade liberalization, including the propriety of any cross-fertilization of the international disciplines in the two fields. In section 5, the case study of the manner in which the phenomenon of Export Processing Zones qua investment regimes is configured from a legal perspective in FTAs, is analysed.
How to Design Trade Agreements in Services: Top Down or Bottom-Up?
Authors: Adlung Rudolf , Mamdouh Hamid
Published: April 2022

This article deals with claims, recently raised in various circles, that structural faults in the General Agreement on Trade in Services (GATS) have prevented WTO Members from advancing services liberalization under the Agreement. The GATS is generally associated in this context with a bottom-up (positive-list) scheduling approach where the sectors on which trade commitments are undertaken are selected individually. This is claimed to be less efficient, in terms of liberalization effects, than alternative approaches under which everything is considered to be fully committed unless specifically excluded (top-down or negative listing). However, a closer look at services negotiations conducted in various settings, including the Doha Round process, WTO accession cases and different types of Regional Trade Agreements (RTA), suggests that such structural issues have limited, if any, impact on the results achieved. What ultimately matters are not negotiating or scheduling techniques, but the political impetus that the governments concerned are ready to generate.
The Pass-Through of Subsidies to Price
Authors: Kelly Brian
Published: April 2022

Nations set countervailing duties equal to the amount of subsidy granted to the exporter, ignoring questions of the effects of the subsidy on import prices. The 2011 WTO Appellate Body decision in US - Antidumping and Countervailing Duties ( China)), followed by conforming changes in U.S. law in 2012, has brought a renewed focus on the pass-through of subsidies to price. This paper reconsiders the theory concerning subsidy pass-through, refining the existing literature and extending the theory to the important case of subsidized fixed factors of production. This allows an appraisal of the role and effectiveness of countervailing measures generally and of recent U.S. attempts to measure pass-through in particular.
Stare Decisis in the WTO: Myth, Dream, or a Sirens Song?
Authors: Luanratana Woraboon , Romano Alessandro
Published: April 2022

Building on the tools of the economic analysis of law, we will try to solve the riddle of precedents in the World Trade Organization (WTO). In the first part of the article, it will be shown how the traditional economic models used to advocate the efficiency of stare decisis do not capture its distinguishing traits due to oversimplification. Second, it will be argued that a de jure regime of stare decisis is ill suited to the peculiar nature of WTO's litigation. More precisely, the action of interest groups and the intricacies characterizing the legislative process of the WTO create incentives that are drastically different from private litigation.