bluuebunny/crossref_metadata_2025 huggingface dataset:
State Responsibility and Government-Affiliated Entities in International Economic Law: The Danger of Blurring the Chinese Wall between State Organ and Non-State Organ as Design
Authors: Lee Jaemin
Published: April 2022

This article addresses the issue of 'state organs' and 'non-state organs' in the 2001 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts, and examines the basic scheme contained in the instrument. It then examines recent disputes of international economic law in which this issue has been extensively analysed, and shows how the basic scheme of the ILC Draft Articles is not accurately reflected or incorporated in these disputes, thereby causing confusion and stoking further disputes. The article argues that the conflation of state organs and non-state organs in recent decisions of certain tribunals of international economic law constitutes a deviation from the ILC Draft Articles and misapplies the established jurisprudence in this area. The article then provides suggestions to address this problem in the future.
The Relationship between the MFN Principle and Anti-Dumping Norms of the WTO Law Revisited
Authors: Rovnov Yury
Published: April 2022

The panel in EU - Footwear recently opined that anti-dumping measures fall within the scope of the MFN obligation thus resuscitating the debate around the relationship between GATT Articles I:1 and VI. The panel's conclusions may potentially encourage more extensive invocation of GATT Article I:1 by complainants challenging anti-dumping measures in the World Trade Organization (WTO) dispute settlement system and have been used by one author to suggest ways to curtail anti-dumping activity of WTO Member States. This article seeks to disentangle the confusion that has arisen around this topic. It seeks to show that WTO anti-dumping norms cannot fall within the purview of the MFN obligation, while the Appellate Body, which appears to be of the same view, would have overruled the panels' reasoning if it had been to consider it on its merits.
Rethinking the International Investment Law System
Authors: Lester Simon
Published: April 2022

The debate over investor-state dispute settlement (ISDS) has been increasingly contentious, while at the same time becoming less focused on the substantive issues involved. This article seeks to provide a balanced critique of ISDS, emphasizing three main points: (1) foreign investment today is often courted by host governments, rather than treated badly; (2) in today's globalized world, the distinction between 'foreign' and 'domestic' investment is less clear; and (3) international judicial review is a controversial idea that should be pursued with some caution. It also suggests alternative approaches to dealing with any negative treatment that foreign investors face.
The Common Agricultural Policy and the UN Development Goals: Can Do Better?
Authors: McMahon Joseph A.
Published: April 2022

At the heart of the Millennium Development Goals (MDGs) and their successors, the Sustainable Development Goals (SDGs), is the commitment to reduce and ultimately eradicate extreme poverty in all its forms. While extreme poverty can be measured in different ways, hunger is certainly one of its cruellest manifestations. The first MDG set the target of halving the proportion of people who suffer from hunger between 1990 and 2015 and the SDG’s headline target is the ending of hunger by 2030.This article attempts to look back at the role European Union (EU)’s Common Agricultural Policy (CAP) may have played towards the MDG target and to look forward at the role it might play towards the SDG target, investigating, in particular, whether or not the recent focus on policy coherence for development at the EU level is likely to position the CAP as a force for good for the attainment of SDGs.
Sanitary and Phytosanitary Issues for the Customs Union of Russian Federation, Belarus and Kazakhstan in Relation to Trade with Other CIS Countries and the EU, with Special Reference to Food of Non-an
Authors: Kireeva Irina
Published: April 2022

This article examines the regulatory impact of SPS measures applied by the Members of the Eurasian Customs Union (CU) on trade with other countries, first, by looking at Russia’s SPS legislative regime before and after its accession to the World Trade Organization (WTO) and the degree of compliance with the principles of the WTO’s SPS Agreement. This includes references to some laws and regulations of the subjects of the Russian Federation (such as Republics, Oblast, Krai) as well as the Federal legislation applicable to the entire territory of the Russian Federation. Second, it analyses the adoption of SPS measures by the CU in relation to trade within the CU and with other countries, taking into account background provided in a related article by the same authors. Russia is a key for understanding the issues of trade regulation because Russia’s case for joining WTO was made on the basis of the CU. For this reason, the adoption of SPS measures by Kazakhstan (in accession negotiations) and by the Kyrgyz Republic (WTO Member since 1998 and candidate for membership of CU) are discussed and compared. The article concludes with a discussion of the key issues about SPS measures and trade in the CU that were raised in the introduction. It is intended that this will provide the legal/regulatory background for economic analysis of trade in food and other agricultural products within the CU and between the CU and third countries.
The Necessity Test and Trade in Services: Unfinished Business?
Authors: Muller Gilles
Published: April 2022

The necessity test is a fundamental principle in the World Trade Organization (WTO) system. It seeks to strike a balance between two important goals: preserving the freedom of WTO Members to set and meet their regulatory objectives through measures of their own choosing, while discouraging them from adopting or maintaining measures that unduly restrict trade. This paper analyses the necessity test in relation to trade in services. Under the General Agreement on Trade in Services (GATS), the test is used as both an exception and an obligation. The test in the form of an exception draws heavily on Article XX General Agreement on Tariffs and Trade (GATT) jurisprudence and its content is well established. In contrast, its structure as an obligation is still under negotiation. While the elements for the adoption and interpretation of the test in the form of an obligation appear to be on the table, a lack of political momentum makes progress extremely unlikely. At the same time, discussions in other fora, notably the Trade in Services Agreement (TISA) and the Transatlantic Trade and Investment Partnership (TTIP), may change the situation. However, these negotiations are still ongoing, which begs the question of whether the necessity test will remain unfinished business.
EU Exports and Uptake of Preferences: A First Analysis
Authors: Nilsson Lars
Published: April 2022

More focus is increasingly being put on implementation of the free trade agreements (FTAs) the European Commission has negotiated on behalf of the European Union (EU). Based on data gathered by EU Delegations from competent authorities in partner countries, this article is the first of its kind to analyse the uptake of preferences by EU exports in these markets. Overall, the preference utilization rate (PUR) stood at about 75% in 2013, up from 63% in 2009, albeit with a changing country coverage over the years. The PURs vary significantly by originating EU Member State (MS) and by broad product group. EU export flows of low values make relatively good use of preferences as opposed to low value exports from developing countries to developed countries, which is something the literature has pointed to. Similarly, the figures challenge a commonly held view that the preferential margin needs to be in the range of 3%–6% for preferences to be used. The empirical analysis examines the extent to which the PUR is influenced by the preferential margin, the value of exports and potential duty savings.
Could the Recently Enacted Data Localization Requirements in Russia Backfire?
Authors: Mihaylova Iva
Published: April 2022

In the wake of ex-NSA contractor Edward Snowden’s surveillance revelations to the global public, and despite an unimpeded cross-border data flow and knowledge transfer being a prerequisite for the development of the digital economy, governments around the world are increasingly tending to resort to mandatory local data storage and to restrictions and bans on data transfers in a rather drastic attempt to protect their citizens’ data security and privacy. This article discusses the legal and economic aspects of the recently enacted data localization requirements in the Russian Federation, as well as the consequences for costs, uncertainty, and the hampering of business activities that may arise if they are applied unaltered. The principal conclusion reached is that a less extreme solution that adheres to or builds upon the existing global practices and takes into account non-economic goals should be considered.
The Protection of Labour Rights in Trade Agreements: The Case of the EU-Colombia Agreement
Authors: Marx Axel , Lein Brecht , Brando Nicolás
Published: April 2022

In response to the disappointing progress at the multilateral level, trading powers like the European Union (EU) have increasingly used their market access power as leverage to promote non-trade objectives with third countries. Through so-called ‘Trade & Sustainable Development Chapters’, the EU’s new generation of regional and bilateral trade agreements include explicit provisions on labour rights promotion, Corporate Social Responsibility and environmental sustainability. While legal scholars have commented extensively on these provisions, little is known about their practical application. With regard to labour rights in particular, the International Labour Organization has noted the lack of empirical evidence on the effects of integrating labour rights provisions in trade agreements. Based on extensive desk research and a series of interviews in Brussels and Bogotá, the present article aims to bridge this gap by providing insights into how the practical application of labour provisions and monitoring mechanisms plays out in a particular country context. Our findings identify significant shortcomings in both the design and application of the current sustainability chapters, affecting not only their effectiveness but also the credibility of the EU as a normative actor as a whole.
Silk Road Economic Belt: Can Old BITs Fulfil Chinas New Initiative?
Authors: Huang Jie (Jeanne)
Published: April 2022

The ‘Silk Road Economic Belt’ (SREB) Initiative is the focal point of China’s ‘Belt and Road’ national strategy. This article explores the feasibility of the SREB initiative from the perspective of international investment law. Sixty-one Bilateral Investment Treaties (BITs) were concluded between China and SREB countries and thirty-eight of them were signed in the 1990s or before. By a statistical research method, this article argues that these thirty-eight BITs may not fulfil the SREB initiative because of their insufficiencies in three aspects: ambiguous definitions of ‘investor’ and ‘investment’, no national treatment and limited investor-state dispute resolution mechanism. By referring to recent BITs/ Free Trade Agreement (FTAs) concluded by China, such as the China-Korea FTA and the China-Australia FTA, this article suggests solutions to revise these old BITs.
Trade, Testing and Toasters: Bringing Conformity Assessment Procedures into the Spotlight
Authors: Karttunen Marianna , McDaniels Devin
Published: April 2022

Even if firms adapt to technical regulations and standards in an export market, they still must prove compliance by undergoing conformity assessment procedures (CAPs), such as testing, inspection or certification. Duplication, delays or discrimination in CAPs can significantly increase trade costs, and this risk is reflected in their growing importance in World Trade Organization (WTO) discussions and bilateral and regional free trade agreements. This article conducts an empirical study of the trade issues that WTO Members encounter with CAPs as described in specific trade concerns (STCs) raised in the WTO Committee on Technical Barriers to Trade (TBT) during 2010– 2014. We observe that CAPs raise proportionally more concern among WTO Members than technical regulations do, and that testing and certification are the procedures that most frequently give rise to trade problems. The authors present the legal discipline applicable to CAPs under the TBT Agreement, describe the actors involved in their implementation as well as the common features of CAPs, and finally present with case studies how Members characterize CAP-related trade concerns in light of the framework of the TBT Agreement.
E-Commerce Products Under the World Trade Organization Agreements: Goods, Services, Both or Neither?
Authors: Richards Cameron , Farrokhnia Farrokh
Published: April 2022

E-commerce is becoming an increasingly important focus of the international trade. Dealing with the virtual nature of e-commerce to create a borderless global economy requires the involvement of the World Trade Organization (WTO) as the only international organization regulating global trade between nations. However, the WTO has struggled in its efforts to address the various uncertainties of classification applied to e-commerce products (hereinafter ‘Classification’) under its existing Agreements (e.g. General Agreement on Tariffs and Trade (GATT) and General Agreement on Trade in Services (GATS)). This article investigates how a comprehensive approach is needed to address foundational Classification challenges. Using the key tools of the grounded theory method, this article analyses all the WTO Members’ discussions (1998–2014) related to the Classification issue. It does so as a basis for critiquing the WTO’s approach to addressing this challenge. It argues e-commerce products are both or neither goods or services. Extending the territorial and geographical notions created for traditional trade to the virtual nature of digital world is simply inadequate and fails to appropriately draw a certain line between traditional trade and existing as well as emerging e-commerce products. On this basis this article provides an outline of the distinct and more integrated approach needed.
GIs Beyond TTIP: Death or Victory for the Living Cultural and Gastronomic Heritage?
Authors: Inama Stefano
Published: April 2022

In 1995 the author was advising South African government officials during their Free trade Area negotiations with the EU when the issue of the use of ‘Port’, ‘Sherry’ and ‘Grappa’ by some South African wine and spirits producers came into the forefront of the negotiating agenda. A South African negotiator asked the author why the Europeans were obsessed with such names, after all, he said, ‘whenever I go to Pizza Hut and I order pizza I always think of pizza as made in Italy’. I replied that this was exactly what Europeans were afraid of.

There is a deep ‘cultural’ and legal divide between the EU and the US on the issue of geographical indications, its cultural underpinnings and trade interests. This article examines how this debate is becoming more complex and deep rooted with developing country markets, some increasingly using Geographical Indications (GIs) to promote their own products, being the object of the contest. By not providing adequate technical assistance to support the growth of GIs in developing countries and Least developed countries he EU fails to live up to its commitment to preserve the ‘Living cultural and gastronomic heritage’ that is not limited to EU products and trade interests .The ultimate answer lies on our everyday ability as consumers to make our choice based on unequivocal information about the nature and the origin of the products we buy in groceries stores.
Chinas Belt And Road Initiative: Mapping the World Trade Normative and Strategic Implications
Authors: Chaisse Julien
Published: April 2022

In 2013, Chinese President Xi Jinping announced that he wanted to resurrect the legendary Silk Road; he proposed a titanic project to build hundreds of roads, bridges, and railroads to connect China and Europe. In China, the government also speaks of the ‘Belt and Road initiative’ (One Belt, One Road – abbreviated OBOR) to describe the project that will span more than 50 years. OBOR is President Xi Jinping’s most important project and it marks a radical change in China’s foreign policy as it constitutes a new economic model that also aims to strengthen China’s position as an economic superpower. Despite its major impact on international trade and investment, OBOR does not belong to present-day categories of international pacts and treaties. For the first time in its modern history, China is attempting to export its development model, that is, China is relying on massive investment in infrastructure, roads, ports, and railways, at home and abroad, to accelerate industrial development throughout the region. At a time when the globalization of the economy is tilting the balance towards the East, OBOR will redistribute the maps of trade and investment to an extent which this Article assesses.
WTO Rare Earths Cases Influence on Chinas Domestic Regulatory Changes
Authors: Wang Chenxi
Published: April 2022

This article reviews the influence on China’s domestic governance exerted by a high profile WTO case – the Rare Earths case. It argues that China’s domestic regulatory framework for rare earths has been phenomenally reshaped by the WTO Rare Earths case. First, China removed the export restrictions on rare earths in order to implement the WTO Dispute Settlement Body (DSB) Rulings. Second, China improved environmental legislation to facilitate its defence in the WTO Rare Earths case, and incorporated environmental protection concerns in its regulatory philosophy. Third, China invested more administrative resources in mobilizing local governments to better implement rare earths policies, which cover the mining, production, circulation, and industrial consolidation of rare earths. While the first measure was mandatory in terms of China’s obligation to implement WTO DSB rulings, the second and the third initiatives resulted from China’s voluntary adjustment of its governance in reaction to the WTO Rare Earths case. Reading China’s engagement with the WTO Rare Earths case in the broader context of China’s performance in the WTO Dispute Settlement System (DSS), it is evident that China is a firm supporter of the WTO DSS: China has kept its good record of compliance with the WTO rulings, maintained its reputation as an active player in the WTO DSS, and embraced WTO’s far-reaching impact on its domestic management regime.
An Empirical Analysis on the WTO Safeguard Actions
Authors: Park Jee-Hyeong , Ahn Dukgeun , Kwon Koohyun , Lee Jihong
Published: April 2022

Using WTO data on safeguard (SG) actions initiated during the period from 1995 to 2012, we empirically identify the factors that influence SG measure. Our analysis shows that most of the determinants emphasized by the existing studies perform their expected and statistically significant role in explaining the observed SG usage patterns across countries and industries. Countries take into consideration all factors that matter for SG measure, including potential retaliation threats, during initial investigation decision stage. Emerging economies as a group display a higher likelihood of SG utilization than other (advanced and developing) economies, but only a few such economies invoke SG measure more frequently than other SG-utilizing WTO members at individual level.
The Standard in the GATT/WTO TBT Agreements: Origin, Evolution and Application
Authors: Kim Minjung
Published: April 2022

In the WTO Technical Barriers to Trade (TBT) Agreement, a standard is a voluntary document that prescribes product and production characteristics, and its compliance is a crucial legal element that distinguishes it from a mandatory technical regulation. However, the lack of a sufficiently clear definition for ‘standards’ causes regulatory uncertainty. This article considers the concept ‘standard’ from a developmental perspective; it specifically explores the textual evolution of its meaning during negotiations of the GATT/WTO TBT Agreements. Its main findings suggest that, since its initial incorporation in a draft text of the GATT, the term has been substantially modified throughout negotiations, particularly through the process of ECE/ISO harmonization during the Tokyo Round. There is also consistent evidence that the concept has developed to be considerably TBT-specific, albeit increasingly departed from the concept ‘technical regulation’.
The Crisis in WTO Dispute Settlement: Fixing Birth Defects to Restore Balance
Authors: Mcdougall Robert
Published: April 2022

The impasse in the World Trade Organization over the appointment of new members of the Appellate Body is just one symptom of crisis in cooperation on trade. Driven by scepticism about multilateralism and binding dispute settlement, and a growing rivalry with China, the current US administration has elevated longstanding concerns about WTO dispute settlement to new heights. The collective inability of WTO members to exercise their authority to interpret the meaning of WTO commitments has meant that the Appellate Body is not subject to any checks and balances. As other WTO members blocked US efforts to negotiate more member control led nowhere, it turned to unpopular unilateral mechanisms, culminating in the current block on new appointments.

 

Restoring the dispute settlement system and enhancing its legitimacy will now require some changes. This might include improving mechanisms for political oversight, diverting sensitive issues from adjudication, narrowing the scope of adjudication, improving institutional support and providing members more say over certain procedures. Preserving compulsory, binding and impartial dispute settlement in the WTO will require an accommodation of different perspectives on how that system should function. Achieving this, in whatever form, will contribute to maintaining and even strengthening multilateral cooperation on trade.
Green Subsidies and WTO Trade Rules: A Conflict of Values or A Conflict of Norms?
Authors: Raslan Reem Anwar Ahmed
Published: April 2022

The conflict between societal values, including environment protection, and trade rules has been a recurring issue in WTO jurisprudence. This conflict is evident in recent WTO disputes where renewable energy support mechanisms allegedly infringed WTO trade rules including the Agreement on Subsidies and Countervailing Measures (SCM Agreement). Most of the literature looks at this conflict as a conflict between societal values, such as environment protection, and WTO-trade rules. This article takes a different look at this problem. Specifically, this article contends that both WTO-trade rules and international environmental law embrace environment protection as a ‘common value’. Nevertheless, the fragmented nature of international law in the modern times gave rise to the phenomenon of ‘self-contained regimes’. Both the WTO trade regime and international environmental rules are considered ‘self-contained regimes’ with unclear boundaries between each other as well as between each of them and the general body of international law. In short, the real conflict between WTO – trade rules and international environmental rules is a ‘conflict of norms’ rather than a ‘conflict of values’.
A FundamentalMoral Imperative: Social Inclusion, the Sustainable Development Goals and International Trade Law After Brazil-Taxation.
Authors: Moon Gillian
Published: April 2022

In 2017, the WTO Panel in Brazil-Taxation held that a Brazilian program promoting ‘social inclusion’ was designed to protect ‘public morals’ within GATT Article XX(a). The Panel also found, however, that the program was unnecessarily discriminatory and, hence, not justified under that Article Some alarm has been raised that an exceptionally low threshold has been applied by the Panel for identifying a ‘public morals’ measure. Those alarms are unfounded, given the circumstances of the particular dispute. Instead, the Panel’s report indicates a way for trade law to adapt to fundamental demographic changes occurring since 1995. Two-thirds of the world’s more than one billion poor now live in middle-income countries (MICs) and are predominantly ethnic minorities. Forces of social and economic exclusion have obstructed their benefiting from the economic growth which has raised standards of living around them. Action by the MICs involved to lift these communities out of poverty will include assisting them to build enduring economic bases. This is likely to require affirmative action measures favouring local minority producers and suppliers in those MICs. At present, there is little appetite among the industrialized countries for tolerating trade-affecting, affirmative action measures in prospering MICslike India and China. Yet the global community has pledged, in Goal 1 of the Sustainable Development Goals, to halve global poverty, and eradicate extreme poverty, by 2030 – a Goal which has been described as the moral issue of our time. Achieving that Goal depends on internal action taken by the MICs involved to reduce social and economic exclusion. The public morals exception in WTO law (and in most trade agreements) offers a way for trade law to support legitimate domestic measures which are necessary for social inclusion and poverty reduction.
To Increase Damages of Intellectual Property Infringement in China: A Double-Edged Sword for the Market
Authors: Ma Xiao , Feng Shujie
Published: April 2022

TRIPs Agreement encourages WTO members to enhance intellectual property (IP) protection, and developed countries have been pushing developing countries to the high level of protection of IP. However, this is not always good for the market. The damages for IP infringement increased drastically in China in recent years. This has drawn our attention to the application of the Chinese IP laws. This article analysed the rules in Chinese patent, trademark and copyright laws and their application by Chinese courts regarding damages adjudication with most updated legislative documents, statistics, important cases as well as the judicial policies of the Chinese Supreme Court. The article found that, driven by judicial policy, the courts used significant discretion to achieve increase of damages unjustifiably. This is a double edged sword for the market because, though favourable to IPR owners, it is harmful to the rule of law and it makes IP enforcement a business to misappropriate licit profit of infringer, especially in view of the emerging IP trolls. China should carry out reform to improve the legal regime of damages for IP infringement. The solution to these problems lies in resorting to the strict application of compensatory damages.
Counteracting SEP Abuse: In Search of a WTO-Consistent Approach
Authors: Kozachuk Nataliia
Published: April 2022

This article assesses risks of WTO inconsistencies of ‘stringent’ and ‘relaxed’ competition regimes that counteract standard essential patent (SEP) abuse with the provisions of the WTO TRIPS and TBT Agreements and provides recommendations on how such risks should be mitigated. First, China has pioneered introducing quite ‘stringent’ lex specialis to counteract SEP abuse. Such shifting of the balance between patent holder’s rights and obligations may breach TRIPS Article 28 not justified under TRIPS Articles 30, 31 or 40.2. Second, the EU and US are examples of a more ‘relaxed’ competition regime that employs general provisions of competition law elaborated in a body of case-law to counteract SEP abuse. It is assessed whether SEP abuse that deters technological innovation or negatively impacts cross-border trade may contravene TRIPS Articles 7, 8.2 and 40.3. Another red zone for WTO compliance emerges when SEPs are part of an international standard within the meaning of TBT Annex 1.2 and SEP abuse creates unnecessary obstacles to international trade in violation of TBT Article 4.1. This article advocates for balancing of SEP holder’s rights and obligations in a WTO-consistent manner.
A Defining Act: How TPP Rules Are Undermining WTO Jurisprudence
Authors: Neeraj R.S.
Published: April 2022

Despite the withdrawal of United States from the Trans-Pacific Partnership Agreement (TPP) agreement, the TPP continues to remain relevant as it carries the potential to shape future bilateral and multilateral negotiations on trade issues. This article argues against the suitability of TPP rules for future negotiations at the World Trade Organization (WTO) as these rules undermine, if not directly contradict, WTO’s treaty provisions as interpreted by its adjudicating bodies. The article elaborates three instances where TPP rules are in direct conflict with WTO jurisprudence. Moreover, TPP disciplines on these three areas incorporate the arguments that were advanced by the United States (US) in disputes at the WTO and were rejected by its adjudicating bodies. This shines fresh light on the ‘norm enterpreneuring’ role of the US within the TPP and also demonstrates how TPP rules reconstruct the meaning of WTO’s treaty provisions in a manner that is most suitable for the parochial interests of the US.
Recent Evolution in International Trade in the Transatlantic Area: Unexpected Consequences or Nothing New Under the Sun?
Authors: Gagliani Gabriele
Published: April 2022

Since January 2017, the US Government has taken some controversial positions in international trade. This includes, most notably, the renegotiation of the North American Free Trade Agreement (NAFTA) with Canada and Mexico, the implementation of higher tariffs on steel and aluminum, and the suspension of the Trans-Pacific Partnership (TPP) and Transatlantic Trade and Investment Partnership (TTIP). The present contribution wishes to study whether the US trade positions have caused any effect in transatlantic trade relations, with a specific focus on the EU, Canada and Mexico. Formal trade talks between the EU and Canada and the EU and Mexico go back at least to the 1970s. Currently, EU–Canada and EU–Mexico trade relations revolve mainly around the EU–Canada Comprehensive Economic and Trade Agreement (CETA), provisionally entered into force in September 2017, and the modernization of the Global Agreement between the EU and Mexico, the trade part of which was concluded in principle in April 2018. This contribution argues that the US trade agenda has generated some effects in transatlantic trade relations, such as strengthening the economic and geopolitical alliance between the EU, Canada and Mexico and accelerating their agreements negotiation and/or approval. These effects, however, are not surprising. Indeed, they perfectly follow a historical pattern according to which the EU, Canada and Mexico have always tried to strengthen their economic and political ties as a reaction to US moves. That notwithstanding, it is argued that the CETA and the modernized Global Agreement are innovative in a number of areas and this is the result of a number of circumstances and US moves that predate President Trump administration.
African Continental Free Trade Area Agreement: The Euphoria, Pitfalls and Prospects
Authors: Ajibo Collins C
Published: April 2022

The ratification of African Continental Free Trade Agreement (AfCFTA) climaxes African Union effort to foster intra-African Trade. AfCFTA is expected to foster socio-economic development and industrial competitiveness in Africa. AfCFTA will engender massive liberalization of intra-African trade in goods and services, making it easier for business to trade across borders and reduce the costs of trade. But there are fears that a successful implementation of the agreement in a continent that lacks capacity, industrial competitiveness and infrastructure will be fraught with challenges. The article examines the dynamics, and contends that the success of AfCFTA will be significantly dependent on a number of factors, namely the level of commitment exhibited by the Member States, availability of technical capacity and infrastructure, transparency and accountability of processes, and the manner infractions and complaints are addressed or redressed.
Three Changes Not Foreseen by WTO Rules Framers Twenty-Five Years Ago
Authors: Chu C. Y. Cyrus , Lee Po-Ching
Published: April 2022

We argue that three structural changes to the global trading economy not foreseen by the original WTO rules framers have rendered existing WTO rules outdated, and partially contributed to the US–China trade war. The first change is the prevalence of the Internet. The lack of relevant WTO rules in this field allows authoritarian countries to exercise control over Internet access, create cyberspace trade barriers, and abuse locally collected data. The second change is the emergence of the property of ‘increasing returns’ in the knowledge-based industries. The early front-runner in a hi-tech industry today is most likely to establish an invincible position tomorrow. Governments thus have motives to subsidize not-yet-existing industries to help them compete for the front-runner position. China’s Made in China 2025 project may be one example. WTO existing subsidy rules are incapable of regulating effectively. The third change is the emergence of large previously communist economies, where the distinction between the public and the private sector is blurred. The prevalence of state-owned industries shakes the WTO’s free-market foundations. Current WTO transparency rules cannot reveal the true extent of government intervention or guarantee fair competition. We propose possible directions for rules modifications to deal with these changes.
‘Overreaching’ or ‘Overreacting’? Reflections on the Judicial Function and Approaches of WTO Appellate Body
Authors: Gao Henry , Zhou Weihuan
Published: April 2022

Since 2017, the US has blocked appointments to the WTO Appellate Body (AB), citing various concerns over its judicial approach, with the most significant being the issue of judicial overreach. This article provides a critical analysis of this issue and makes important contributions to the ongoing debate. Drawing on the fundamental function of the WTO, it offers a fresh approach to assess judicial overreach and shows that AB rulings in major non-trade remedy cases (that have consistently concerned the US) have served that function and hence should not be treated as ‘overreaching’. We argue that, the allegation of judicial overreach, while untenable, does reflect systemic concerns with the legislative failure of the WTO Members to provide effective checks against the judicial power. This will need to be addressed, or else it will continue to haunt the AB or any other adjudicative body that takes over its role. We propose several fresh solutions to restore a proper balance between the legislative and judicial functions of the WTO, before concluding that as a Member-driven organization, the success or failure of the WTO ultimately depends on its Members.
Enforcing ‘Purely’ Environmental Obligations Through International Trade Law: A Case of the CPTPP’s Fisheries Subsidies
Authors: Jung Haneul , Jung Nu Ri
Published: April 2022

Several free trade agreements extend their dispute settlement mechanisms to environmental obligations that ‘affect trade or investment’ between contracting parties. The recently concluded Comprehensive and Progressive Agreement for Trans-Pacific Partnership (‘CPTPP’) takes such attempt to the next level by extending its dispute settlement mechanism even to a measure that does not necessarily affect trade or investment between the contracting parties. Unfortunately, however, the conventional trade dispute settlement mechanisms are not designed to enforce obligations that are ‘purely environmental’ in nature, and as such, do not lend effective mechanisms to enforce such obligations. After briefly introducing the evolution of the trade-environment convergence in international law, this article observes systemic limitations of the conventional trade dispute settlement mechanisms in enforcing purely environmental obligations through an analysis of the CPTPP’s rules on fisheries subsidies. Thereafter, this article proposes certain modifications to the conventional trade dispute settlement mechanisms for effective enforcement of purely environmental obligations.
Trade Law and the Capability Approach
Authors: Manley Rhys
Published: April 2022

International trade agreements have brought undoubted benefits to the world economy and society. But they have also wrought substantial harm, both in developed and developing countries. Even if the aggregate benefits outweigh the harms, those harms tend to be very visible. They rightly attract condemnation from across the political spectrum, leading to increasing scepticism of free trade. There is also a growing sense that certain trade agreements are being used as a vehicle for the pursuit of special interests – further eroding the case for free trade in the public’s mind.

These issues cannot be ignored. Left unchecked, popular pressure may lead to a partial or complete collapse of the liberal trading order – harming both developed and developing countries in the process.

A new approach is needed. One that leads to an international trading order firmly grounded in the concept of justice.
Is EU GSP+ Fostering Good Governance? Results from a New GSP+ Compliance Index
Authors: Marx Axel , Lebzelter Thomas
Published: April 2022

The European Union’s Generalized Scheme of Preferences Plus (GSP+) regulation grants beneficiary countries non-reciprocal preferential market access on the condition of ratification and implementation of twenty-seven international conventions which cover a range of policy issues including human rights, labour rights, environmental protection and good governance. Doubts have been raised on the scheme’s efficacy. To analyse whether the scheme can foster the implementation of these conventions, this article attempts to quantify compliance with these conventions by creating a GSP+ Compliance Index. The article presents the results of two variations of the index: a ‘comprehensive index’ which aims to cover as many conventions as possible and a more ‘selective index’ with higher validity. The comprehensive scenario provides scores for all current GSP+ beneficiary countries (Armenia, Bolivia, Cape Verde, Georgia, Kyrgyzstan, Mongolia, Pakistan, Paraguay, Philippines, Sri Lanka). The selective scenario provides information on all current beneficiary countries, except for Cape Verde and Kyrgyzstan. Based on the newly created index, we find arguments for an effective GSP+ conditionality, especially after the reform of the GSP regulation, and the inclusion of good governance in trade policy.

EU Trade Policy, Generalized Scheme of Preferences, Human Rights, Environmental Protection, Good Governance, Compliance and Conditionality
Developing Countries and Domestic Support Measures in Agriculture: Walking a Tightrope
Authors: Janardhan Sparsha , Nedumpara James J.
Published: April 2022

Supporting the domestic agriculture sector is a vital concern for most developing countries. Of late, developing countries’ agricultural subsidies are increasingly falling under scrutiny at various WTO fora, including the Dispute Settlement Body and the Committee on Agriculture. The recent WTO panel ruling in China – Agricultural Producers and the multiple challenges against India’s support measures on sugar and cane sugar are illustrations of this trend. It is a potential tinderbox and is bound to push the WTO dispute settlement system to another political crisis if these measures are seriously pursued. The fault lines of the Agreement on Agriculture (AoA) are glaringly visible and the dubious economic basis for agriculture subsidy disciplines are likely to be vigorously contested. Maintaining essential agriculture support programme is a matter of life and death for several developing countries. In that context, the article is an attempt to formulate a few suggestions which can be helpful for the developing countries to design their agriculture policies in a manner that is consistent with the WTO legal framework and, in particular, the AoA. The article provides some practical suggestions for designing programmes which can take advantage of the limited flexibilities provided under the AoA for the calculation of Aggregate Measurement of Support and Market Price Support. On the whole, a carefully crafted agriculture subsidy policy can help the WTO Members to maintain essential public stockholding or other income or price support programmes.

Market Price Support, Developing countries, Domestic Support, Policy Space, Agricultural Subsidy, Quantity of eligible production, Korea – Beef, China – Agricultural Producers, Amber Box support, Public Stockholding for Food Security Purposes
A Crisis or an Opportunity? The Trade War Between the US and China in the Solar PV Sector
Authors: Meng Fang Mandy
Published: April 2022

Since early 2018, the US–China ‘trade war’ has increased tariffs on a wide range of Chinese products, including solar panels. The tension between the US and China in solar sector, if left unchecked, will not only harm the bilateral relationship between the two trade powers but also impede climate change mitigation as higher costs will slow down the deployment of solar products.

The article begins by tracing the rapid development of the solar energy sector in China, before reviewing US trade measures to counteract the increased imports and protect its domestic industry. The article then proceeds to examine the WTO rules, finding that China is likely to prevail in the dispute on claims made under the General Agreement on Tariffs and Trade and the Agreement on Safeguards. However, while WTO litigation may be a necessary step it is not sufficient. China must also take the opportunity to solve deeply-rooted problems in its solar industry, namely solar overcapacity and heavy reliance on export markets in a limited number of countries that render Chinese solar manufacturing susceptible to trade restrictions imposed by other countries. Addressing these issues will not only remove a major irritant to the US and other trading partners but would also solidify the position of the industry within the country.

The article recommends two options for China: first, explore domestic market potential for solar energy so as to absorb manufacturing capacity. The key here lies in progressively scaling up domestic solar consumption, which is essential in promoting China’s solar development in a healthy and sustainable manner. Second, strengthen ties with countries along the Belt and Road Initiative (BRI) in solar trade and investment. Exporting Chinese solar technologies and building solar power infrastructure in BRI countries not only alleviates China’s over-dependence on a limited number of advanced economies’ markets but also contributes to ‘greening’ the BRI and global climate change mitigation.
Reality Check: The lack of consensus on new trade rules to govern the digital economy
Authors: Lacey Simon
Published: April 2022

This article makes three arguments. First, that beyond a very narrow set of largely uncontroversial disciplines on domestic legislative reforms to facilitate or promote e-commerce and cooperate in this area, it has proven and will likely continue to prove extremely difficult to establish anything but the most superficial consensus with respect to meaningful new trade rules to govern the digital economy. Second, it argues that with respect to a second set of rules that seek to establish genuine and enforceable constraints to governments’ ability to effect harmful regulatory interventions in the digital economy, the textual outcomes that have emerged so far in trade agreements such as the CPTPP are so riddled with broadly formulated exceptions and carve-outs, that there is little prospect for business to obtain the predictability and certainty that these new rules should ideally promise. Finally, this article argues that a set of exogenous factors has conspired to make the need to establish consensus on new trade rules to govern the digital economy more urgent but also infinitely more difficult, including but not limited to a backlash against technology the rise in income inequality in advanced industrialized countries, a resurgence in protectionism, and an America no longer willing to show constructive leadership that threatens to permanently cripple the rules based multilateral trading system.

Digital trade, e-commerce, consensus, WTO, CPTPP, protectionism, backlash, big-tech, US-China, trade war
Official Export Credit Support: Competition and Compliance Issues
Authors: Dawar Kamala
Published: April 2022

Aggressive competition in the official export credit support market has resulted in an increase in activity that lies outside of the main instruments regulating competition and sustainable development in export finance terms – the OECD Arrangement on Officially Supported Export Credits, (OECD Arrangement on Official Export Credits. TAD/PG(2019)1) and the OECD Common Approaches(OECD Recommendation of the Council on Common Approaches for Officially Supported Export Credits and Environmental and Social Due Diligence (The ‘Common Approaches’). TAD/ECG(2016)3). By default, the World Trade Organization’s Agreement on Subsidies and Countervailing Duties (SCM) is becoming the main legal deterrent, despite its weakness in not covering trade in services or the sustainable development dimensions of official export credit support. Yet the playing field is also unruly because of the apparent reluctance on the part of WTO Members to challenge these measures.

Export Credit Agencies (ECAs), the OECD Arrangement, the OECD Common Approaches, the WTO SCM, International Working Group on Export Credit Support (IWG)

The current economic slowdown in export growth, coupled with the rise of unruly export credit support programmes, presents a strategic dilemma for the Participants to the OECD Arrangement. They are faced with the difficult choice between taking a strong pro-competition position domestically, or by fighting fire with fire and developing their own non-Arrangement type export credit support programmes. The former option is the more preferable for economic efficiency considerations and long-term competitiveness, although it may result in a controversial reduced role for their ECAs.

There is a collective interest in preventing publicly-funded, yet opaque, subsidy wars in export credit terms and conditions, with negative economic, political, social and environmental repercussions. This calls for heightened cooperation among ECA governments within international bodies such as the WTO, OECD and the International Working Group (IWG) on Export Credit Support.

Export Credit Agencies (ECAs), the OECD Arrangement, the OECD Common Approaches, the WTO SCM, International Working Group on Export Credit Support (IWG)