bluuebunny/crossref_metadata_2025 huggingface dataset:
Why Should We Care? Bullying in the American and South African Workplace
Authors: Plessis Johannes Voet Du , Smit Dina Maria (Denine)
Published: April 2022

Data suggests that workplace bullying is prevalent. However, as many regard workplace bullying as a social matter of human behaviour, lawmakers and the legal fraternity in some jurisdictions, including South Africa, have thus far failed to implement legislative and regulatory measures to protect employees, employers and society at large from this devastating phenomenon. This article argues that bullying indeed poses a legal dilemma: Not all bullying deeds are necessarily illegal, yet their effects are devastating to victims. This constitutes a lacuna in the legal system, often leaving stakeholders without sufficient legal protection. In this contribution, the legal position on workplace bullying in South Africa, where the problem is prevalent, though attracting little attention thus far, is discussed against the backdrop of the position in the United States and other jurisdictions. It concludes by not only showing sufficient reason why employers, unions and the legal fraternity in South Africa (and elsewhere) should care about workplace bullying, but also by tendering suggestions as to how it could be actively dealt with and prohibited.
Setting the Temporal Boundaries of Work: An Empirical Study of the Nature and Scope of Labour Law Protections
Authors: Gesualdi-Fecteau Dalia , Vallée Guylaine
Published: April 2022

Labour law aims to protect the employee, defined as a person who performs work for an employer and is entitled to a wage. Labour law provides tools to distinguish between work time and personal time. However, in several emerging models of work organization, workers must increasingly be available beyond the time actually spent carrying out their work, whether they are at the workplace or elsewhere. It is not clear whether workers are then considered to be performing work and entitled to compensation. Nor is it clear whether these periods are taken into account in the maximum weekly or workday working hours, in the minimum daily and weekly rest periods provided for or when calculating overtime. It is also uncertain whether these workers are deemed to be at work. The various contemporary manifestations of the requirement for workers to be available leads to the question of what constitutes the span of work that is in fact legally regulated by labour law. The results of an empirical study conducted in 2014 (which includes a comprehensive analysis of judicial decisions and data collected from a Quebec administrative body) and an analysis of the debates surrounding the revision ot the European Working Time Directive lead on to a discussion of the capacity of labour law to protect workers who have to be available beyond the time actually required to carry out their work tasks.
Labour Law and the Capability Approach
Authors: Del Punta Riccardo
Published: April 2022

This article considers whether the Capability Approach, fundamentally taken as a normative theory, can provide a new and updated foundation for labour law. After an overview of the reasons for the crisis in the traditionally accepted foundations of labour law, the article examines whether the Capability Approach is able to speak the language of legal rights, and in particular labour rights. The core of the analysis also considers whether the Capability Approach can effectively address the dimension of power, which is crucial in employment relations, and vice versa whether the notion of individual autonomy supported by the Capability Approach can be a strategic and valuable goal for labour law. In addition the article explores whether the cognitive gains ensuing from the Capability Approach can enable labour lawyers to cultivate a broader vision of the scope of the discipline. In conclusion it will be argued that the Capability Approach has the potential to make a significant contribution to the elaboration of a more dynamic and sustainable labour law.
The Impact of Brexit on UK Labour Law
Authors: Ford Michael
Published: April 2022

The recent vote by the UK electorate to leave the European Union (EU), known as Brexit, has potentially enormous implications for employment rights in the UK, most of which are now underpinned by EU law. At present the vote has no legal effect but if Brexit happens all these rights are legally vulnerable. The article examines how workers’ rights informed the debates surrounding Brexit, the history of the UK’s attitude to EU employment rights, and how the employment rights and remedies guaranteed by EU law currently affect UK labour law and policy. It analyses the legal mechanism likely to be adopted by the UK to change EU-guaranteed employment rights post-Brexit, and highlights some of the factors likely to contribute to the future form of UK labour law, including UK government policy, the effect of employment tribunal fees, the trading relationship between the EU and the UK, and the position of the devolved administrations in Scotland, Wales and Northern Ireland.
On Writing Labour Law History: A Reconnaissance
Authors: Tucker Eric
Published: April 2022

Labour law historians rarely write about the theoretical and methodological foundations of their discipline. In response to this state of affairs, this article adopts a reconnaissance strategy, which eschews any pretense at providing a synthesis or authoritative conclusions, but rather hopes to open up questions and paths of inquiry that may encourage others to also reflect on a neglected area of scholarship. It begins by documenting and reflecting on the implications of the fact that labour law history sits at the margins of many other disciplines, including labour history, legal history, labour law, industrial relations and law and society, but lacks a home of its own. It next presents a short historiography of the writing of labour law history, noting its varied and changing intellectual influences. Next the article notes some of the methodological consequences of different theoretical commitments and discusses briefly the possibilities opened up by computer technologies as revealed by two interesting projects that rely heavily on the construction of sophisticated data bases. Finally, the article reflects on the methodological challenges the author has experienced in his current project on labour law’s recurring regulatory dilemmas and conclude with some thoughts on the contribution labour law history can make to our understanding of the dynamics that shape the law's current challenges.
The CBR-LRI Dataset: Methods, Properties and Potential of Leximetric Coding of Labour Laws
Authors: Deakin Simon , Adams Zoe , Bastani Parisa , Bishop Louise
Published: April 2022

Leximetric data coding techniques aim to measure cross-national and inter-temporal variations in the content of legal rules, thereby facilitating statistical analysis of legal systems and their social and economic impacts. In this article we explain how leximetric methods were used to create the CBR Labour Regulation Index (CBR-LRI), an index and related dataset of labour laws from around the world spanning the period from 1970 to 2013. Datasets of this kind must, we suggest, observe certain conventions of transparency and validity if they are to be usable in statistical analysis. The theoretical framework informing the construction of the dataset and the types of questions which it is are designed to answer should be made explicit. Then the choices involved in the selection of indicators, the definition of coding algorithms, and the aggregation and weighting of data to create composite measures, must be spelled out. In addition, primary legal sources should be referenced, and it should be clear how they were used to generate reported values. With these points in mind we provide an overview of the CBR-LRI dataset’s main features and structure, discuss issues of weighting, and present some initial findings on what it reveals of global trends in labour regulation.
Successful Rules on Successive Fixed-Term Contracts?
Authors: Kamanabrou Sudabeh
Published: April 2022

In 1999 the European social partners negotiated the framework agreement on fixed-term work which was then put into effect by Council Directive 1999/70/EC. It contains, inter alia, measures designed to prevent abuse of successive fixed-term contracts. As the relevant clause of the agreement is rather loosely framed, its effect on legislative approximation in the EU is debatable. However, a study of the law on successive fixed-term employment contracts of fifteen EU Member States showed that legislative approximation in this field of law has largely been achieved.
The End of the Subordinate Worker? The On-Demand Economy, the Gig Economy, and the Need for Protection for Crowdworkers
Authors: Todolí-Signes Adrián
Published: April 2022

The digital era has changed industrial relations dramatically, giving rise to considerable legal uncertainty about the rules that apply in cyberspace. Technology is transforming business organization in a way that makes the employee as a salaried worker less necessary. A new type of company in the ‘on demand economy’ or ‘sharing economy’ connecting customers directly with individual service providers is emerging. These companies base their core business entirely on workers classified as selfemployed workers. In this connection, employment law is facing its greatest challenge, dealing with a very different reality compared to the one that existed when it came into being. However, workers still need protection, and this article examines the reasons for this claim.
The Comprehensive Economic and Trade Agreement (CETA): Are Existing Arrangements Sufficient to Prevent Adverse Effects on Labour Standards?
Authors: Ebert Franz Christian
Published: April 2022

The Comprehensive Economic and Trade Agreement (CETA) negotiated between the EU and Canada has given rise to concerns in terms of its effects on labour standards. This article analyses the arrangements available under CETA to address risks for labour standards entailed by the Agreement and what effects can be expected of these arrangements in practice. For this purpose, labour provisions as well as exception clauses, impact assessments and the Joint Interpretative Instrument pertaining to the Agreement are considered. In the final section it is argued that none of the arrangements examined is sufficient to guarantee that CETA will not result in undercutting domestic labour standards, while several avenues are explored for improving the design of the Agreement and better safeguarding labour standards.
Presenteeism, Its Effects and Costs: A Discussion in a Labour Law Perspective
Authors: Pärli Kurt
Published: April 2022

The economic crisis and resulting restructurings, downsizings, financial worries and fears of dismissal due to absence from work are significantly influencing employees’ decisions on whether to continue working despite ill health. Studies suggest that the economic costs of presenteeism (working while sick) far outweigh the costs of absence from work on the grounds of sickness. The level of sick pay regulation as well as weak protection against dismissal and a lack of privacy of health data are important drivers for the increase in presenteeism. Activation policies focusing on the sick or long-term sick may give rise to some significant risks for basic human labour rights such as the right to work, just and favourable working conditions, and the fundamental right to social security including paid sick leave and the right to privacy. As a result, a human-rights based approach to human resource management is needed. This is not just in the interest of employees, but is also the better option from a public health perspective.
Collectively Agreed (Minimum) Labour Conditions as Protection Boosters
Authors: Zwinger Verena , Brameshuber Elisabeth
Published: April 2022

The steady fall in unionization rates has led to the evident weakening of collective bargaining powers, resulting in a decline in collective bargaining coverage in many Member States of the European Union (EU) in recent years. In Germany, one of the responses of the legislator to this development was the introduction of a statutory national minimum wage. However, there are still national systems, such as Austria and the Scandinavian countries, where collective bargaining plays a major role in setting employment standards. The first two parts of this article examine the different standard-setting mechanisms in place, taking a closer look at minimum wage legislation and collectively bargained wages in particular. The article also considers the fact that non-standard employment relationships, in particular in the so-called gig economy, seem to fall between two stools: in the majority of EU Member States non-standard workers fall under the scope neither of statutory minimum standards, nor of collective bargaining agreements. This article argues that collective bargaining could be a key factor in efforts to ensure fair and just working conditions, while protecting non-standard workers from other risks historically covered by social security.
Regulatory Innovation in the Governance of Decent Work for Domestic Workers in South Africa: Access to Justice and the Commission on Conciliation, Mediation and Arbitration
Authors: Tiemeni Thierry Galani
Published: April 2022

South Africa ratified the Decent Work for Domestic Workers Convention, 2011 (No. 189) in 2013, after playing an important role in the adoption of the Convention. South Africa is one of the countries that has a significant domestic work population that reflects the legacies of slavery and apartheid. South Africa is also one of the ILO Members to have acted decisively to foster decent work for domestic workers through law. This article offers a critical analysis of the legislative landscape on domestic work in South Africa, but focuses its attention on the innovative Commission for Conciliation, Mediation and Arbitration (CCMA). The article draws on interviews and participant observations of the CCMA’s approach to dispute resolution. It canvasses the ethnographic material alongside key scholarship on topic, to suggest that there are firm indicia that the CCMA structure, procedures and accessibility have helped to reinforce, over time, a recognition that domestic work is a form of employment to which labour law principles apply. The institution, its structure, its attempt at inclusion, play a crucial mediating role, underscoring that state law is applicable to the household as a workplace, and can help to change its asymmetrical, pluralist law. That mediation is part of the aspiration of decent work for domestic workers embodied in Convention No. 189 and Recommendation No. 201. The article concludes by affirming that the CCMA is a critically important institution, only part – but also a meaningful part – of the promise of labour law’s ‘citizenship at work’ in the context of persisting societal inequality.
We are All Entrepreneurs Now: Options and New Approaches for Adapting Equality Law for the Gig Economy
Authors: Blackham Alysia
Published: April 2022

As the world of work moves to increasingly precarious, temporary and insecure forms of labour, traditional forms of work regulation are becoming less relevant for the ‘gig economy’. Equality law has traditionally been framed as protecting ‘employees’ (and now ‘workers’) against acts of discrimination by ‘employers’. As these categories become increasingly remote from the lived experience of work, the relevance and potential of equality law to secure individual employment rights becomes increasingly limited. Drawing on comparative legal doctrinal analysis of the UK and Australia, this article considers options and new approaches for protecting workers from discrimination in new forms of employment, canvassing ideas such as the extension of equalitylaw to non-traditional workers, collectivized approaches to individual protection, and the use of positive duties to regulate the gig economy. This article questions the basic relevance and structuring of equality law for new forms of work. If equality law is to remain relevant and effective, serious changes are required to how it is conceived, framed and promoted. Merely extending existing ideas of ‘equality law’ to new forms of work will not respond to fundamental shifts in the labour market: there is a need to rethink and retheorize the role and purpose of equality law
Property Rights as a Pathway to Labour Law Protection in the Nigerian Informal Economy
Authors: Osiki Abigail
Published: April 2022

Traditionally, the idea of labour law has been based on the premise that the standard employment relationship is a site of social oppression, inequality, and conflict, and labour law is the mechanism to balance this relationship. However, in many countries, particularly developing economies, the brunt of such oppression, inequality and conflict is experienced by people who are outside the purview of labour law and are in relationships that are difficult to characterize as employment. One such category is that of street vendors in Nigeria. These workers are not deemed to be employed in the legal sense and they are outside of the protective net of labour regulation. In Nigeria, street vendors comprise a large proportion of the wholesale and retail informal sector in the informal economy. Street vending serves as a viable economic means for many urban informal workers. However, it is criminalized. Street vendors are regularly harassed by law enforcement officials because their activity, particularly their use of public spaces, ostensibly poses urban planning and development challenges. In recognition of the decent work challenges facing informal workers, the International Labour Organization (ILO) adopted Recommendation 204 to facilitate the transition of workers from the informal to the formal economy. Nigeria has adopted this Recommendation; yet, contrary to the spirit of the Recommendation, the criminalization of street vending remains intact. This article argues for the implementation of a hybrid regime of property rights in order to realize Recommendation 204 and extend labour law protection in the informal economy.
Unsavoury Employer Practices: Understanding Temporary Migrant Work in the Australian Food Services Sector
Authors: Fudge Judy , Tham Joo-Cheong
Published: April 2022

Why do employers in specific sectors use migrant workers to a significant extent? Taking temporary migrant work in the Australian food services sector as a case study, this article argues that employer demand for migrant workers is shaped by two forms of social regulation: the immigration controls that create a supply of different kinds of migrant workers, and the labour market norms and institutions that operate within a specific industrial sector. Specifically, the article argues that the cost-minimization strategy of the Australian food services sector in conjunction with its precarious work norms result in ‘demand’ on the part of employers in the sector for vulnerable workers to perform precarious jobs. Such ‘demand’ is met in part by the workers supplied through temporary labour migration programs who may be an attractive form of precarious labour because of the conditionalities they experience. The normalization of noncompliance with labour laws by food services employers, that stems from the broader culture of illegality in the sector, further heightens the vulnerability (and attractiveness) of temporary migrant labour, allowing employers to ‘demand’ illegal working conditions.
Enforcing Employment Standards for Temporary Migrant Agricultural Workers in Ontario, Canada: Exposing Underexplored Layers of Vulnerability
Authors: Tucker Eric , Casey Rebecca , Vosko Leah F.
Published: April 2022

Over 50,000 migrant agricultural workers are employed in Canada each year, almost half of whom are destined for the Province of Ontario. These workers are among the most vulnerable in the country and therefore most in need of labour and employment law protection. One important source of employment rights in Ontario is the Employment Standards Act (ESA), which establishes basic minimum entitlements in areas such as wages, working time, and vacations and leaves. Drawing on an analysis of the Ontario Ministry of Labour’s (MOL’s) Employment Standards Information System (ESIS), a previously untapped administrative data source containing information on all of Ontario’s employment standards (ES) enforcement activities and their outcomes, this article investigates the enforcement of ES among migrant agricultural workers. After offering a few methodological caveats, the analysis unfolds in three parts beginning, in Part I, by setting the stage with a discussion of the layers of vulnerability that combine to construct migrant agricultural workers as an extreme case. Against this backdrop, Part II describes agricultural workers’ limited entitlements under the ESA and the Act’s complaint-based enforcement regime, which produces, for workers in general, a gap between rights on the books and in practice. Part III then looks more specifically at ES enforcement among agricultural workers, focusing, where possible, on the situation of those that are migrants and illustrating how a complaint-based enforcement regime and an under resourced and poorly targeted inspectorate is ill-suited to the realization of rights among this group.
Labour Market Policy and Labour Law Reforms in Germany: Towards Inclusive Growth
Authors: Schmid Günther
Published: April 2022

This article, first, provides a comprehensive overview of German labour market policy and labour law reforms since the beginning of this millennium and assesses to what extent Germany is pursuing the principles of inclusive growth, accompanied by selective evidence of their consequences for the German labour market performance. A stylized and descriptive overview of the inclusive impact of these reforms in quantitative and qualitative terms follows, complemented finally with an essay reflecting the concept of the inclusive labour contract.
State Policy and Employment Regulation in Britain: An Historical Perspective
Authors: Whiteside Noel
Published: April 2022

Waged work in Britain is being transformed: permanent full-time jobs decline as precarious irregular task-based employment increases. This development is actively supported by government policy (labour market deregulation, the promotion of ‘flexibility’), to promote work as the sole route out of poverty. Using historical evidence, this article argues that, on the contrary, irregular employment was for long understood as a primary cause of poverty, not its cure. It thus generates high levels of social dependency. The UK’s earliest labour market policies sought to eradicate casual work and to encourage permanent employment – policies promoted assiduously for most of the twentieth century. Current governments are recreating the labour markets of the late nineteenth century, the conditions that stimulated state intervention in the first place. Three salient points arise. First, irregular employment exacerbates widening social inequalities. Second, it damages public trust. Employers evade employment obligations for task-based workers while state regulations require job-seekers to take on this work. Third, multiple job-holding and unstable employment destroys labour market categories on which policy analysis and the law rely. Legal frameworks governing employment rights are weakened and public understanding of labour markets is undermined.
Towards Work Liberalization: The WTO Discourse on Labour Standards and Policy
Authors: Delgado Natalia
Published: April 2022

After the rejection of any inclusion of a social clause in the World Trade Organization agreements, the 1996 Singapore Declaration formally separated the organizational remits for labour and trade in international law. Since then the World Trade Organization (WTO) has been reticent in addressing labour-related issues in multilateral fora, thus distancing itself from social concerns intimately related to the international trade of goods and services. However, a close reading of the World Trade Reports between 2003 and 2017 shows that the WTO addresses labour standards and policy extensively. The WTO discourse advances specific views on how international trade interrelates with labour standards, labour market policy, migrant workers, unemployment benefits, workers’ skills and social protection. This article shows that the WTO Secretariat, through its reports, strongly links the success of its agenda to deregulatory reforms in labour market policy and labour standards. Against this background the article argues that the crisis of the WTO today, rather than being caused externally by a protectionist turn, is rooted in the failure of the international trade system to sufficiently engage with social concerns.
Occupational Pensions and Unemployment Benefits in Sweden
Authors: Johansson Caroline
Published: April 2022

This article focuses on two Swedish benefits: occupational pensions and unemployment benefits. Both have undergone interesting developments recently, partly relating to changes in the public social security system, partly to changes in the labour market. These changes have led the social partners at sectoral level to decide on different priorities when negotiating collective agreements or offering unilateral benefits to their members. The overarching aim of the article is to illustrate and explain the increasing activity at sectoral level regarding occupational pensions and unemployment benefits. However, there are changes in the labour market that the social partners have not managed to address, or that it might not even be their role to address. When a significant proportion of welfare benefits derive from collective agreements and membership of private organizations, this has implications for atypical and self-employed workers, that are further elaborated in the article.

Occupational Benefits, Pension, Unemployment, Collective Agreements, Swedish Model, the Social Partners, Atypical Work, Self-Employed, Collective Bargaining, Transition Agreements, Occupational Welfare
'Festina Lente’: The ILO and EU Agendas on the Digital Transformation of Work
Authors: Potocka-Sionek Nastazja , Aloisi Antonio
Published: April 2022

This article compares the International Labour Organization (ILO) and European Union (EU) agendas concerning the digital transformation of work, and addresses possible policy gaps and their implications for international and EU labour law. It critically reviews the current social acquis of both institutions and concentrates on the key analogies between the ILO’s Centenary Declaration for the Future of Work and some of the various regulatory initiatives taken by EU institutions in the context of the Pillar of Social Rights. The article finds that, despite the often articulated calls for urgent and original measures, both institutions’ programmes present largely a prudent continuation of traditional narratives, failing to strengthen the adequacy of existing labour regulation regimes. Besides their predominantly non-binding nature, the efficacy of the most future-oriented instruments is profoundly undermined by the unreasonable exclusion of those workers who bear most of the brunt of social disparities accelerated by digitalization and casualization of work. In addition, the implementation of these initiatives may be jeopardized by complex governance methods and unresolved tensions between conflicting approaches and objectives. The study concludes that, although positive signs are emerging in the supranational legal order, much remains to be done to address the multifarious challenges arising from the digital transformation.

International Labour Organization, European Union, European Social Law, Digital Transformation, Platform Work, Social Policy, Future of Work, Labour Regulation
Digging Into Deterrence: An Examination of Deterrence-Based Theories and Evidence in Employment Standards Enforcement
Authors: Hardy Tess
Published: April 2022

In a bid to curb employer non-compliance with wage and hour regulation, policy-makers across many different jurisdictions are seeking to deliver greater doses of deterrence. This trend stems from a series of common assumptions. In particular, it is often assumed that introducing stiffer sanctions, such as criminal penalties for wage theft, will automatically amplify the relevant deterrence effects. This article seeks to unpack these assumptions to better understand: a) how deterrence is conceptualized and understood in the context of wage underpayment; and b) which tools or approaches are likely to be most powerful in enhancing deterrence and promoting compliance. Drawing on recent developments in Australia, the article argues that alternatives to enforcement litigation – such as voluntary agreements or undertakings – may hold critical, albeit under-appreciated, deterrence value. This analysis also reveals that the perceived risk of detection, the speediness of the relevant sanction and the publicity it ultimately generates may all serve to heighten deterrence in ways that encourage and entrench employer compliance with wage and hour laws.

Deterrence, Enforcement, Compliance, Employment, Labour, Regulation
Charting a New Course in a Fissured Economy? Employer Concepts and Collective Bargaining in the US and Canada
Authors: Bartkiw Timothy J.
Published: April 2022

The legal concept of the employer plays an increasingly important and contested role in the modern economic context of broad-sweeping organizational fissuring. This article focuses on the role of employer concepts specifically in the collective bargaining domain, where they hold the unique potential to substantially affect access to regulated collective bargaining, its efficacy, and the extent of worker bargaining power. Building on a critical engagement with previous normative literature on fissuring and on the concept of the employer, the paper examines the interaction of fissuring and employer concepts in the context of the US and Canadian ‘Wagnerist’ collective bargaining regimes, and compares the trajectory of employer concept doctrine in each of these two countries in recent decades. The comparative analysis suggests that while employer concept reform within collective bargaining regimes remains constrained in important respects in both the US and Canada, these concepts have also recently diverged in important formal respects shaping their effects in fissured contexts. This divergence is comprised of a formal expansion of their scope in Canada; a narrowing of their scope in the US; and an effective inversion of the US joint employer concept consequentially into less of a remedial, and a more restrictive device. As a heuristic, comparison of US developments with those in its neighbour’s regime that has much else in common, help to highlight the extraordinarily restrictive nature of most recent US doctrine, including the 2020 National Labor Relations Board (NLRB) final rule on joint employer status, its facilitation of fissuring, and the formidable task confronting US labour of somehow bringing lead firms into the regulated collective bargaining process.

Employer Concept, Fissuring and Collective Bargaining, Joint Employer, Scope of Collective Bargaining Regime
“New Regionalism” in Asia: A Comparative Analysis of Emerging Regional and Bilateral Trading Agreements involving ASEAN, China and India
Authors: Sen Rahul
Published: April 2022

The term “new regionalism” has come to resemble the ongoing phenomenon of proliferation of bilateral and regional trading agreements in the Asia-Pacific, especially in the aftermath of the regional financial crisis of 1997-1998. While ASEAN economies, beginning with Singapore, were the first to embark on this route, other major Asian economies, viz. China and more recently, India have followed suit. Although several studies have suggested adoption of a common framework on such agreements to be more WTO-consistent, there has been a dearth of studies on this issue in the Asian context.This article, while exploring some of the rationale behind new regionalism in Asia, provides a comparative analysis of the ongoing bilateral and regional initiatives involving ASEAN, China and India and attempts to analyse the similarities and differences among them with respect to the negotiating framework, coverage of issues and depth of its commitments. The article observes that most of these initiatives are at best resulting in a partial liberalization, and are unlikely to be building blocks towards global free trade on their own, unless supported by unilateral and multilateral liberalization.
Labour Standards in US and EU Preferential Trading Arrangements
Authors: Qalo Veniana
Published: April 2022

This article addresses the development and enforcement of labour standards in US and EU FTAs and non-reciprocal preferential trading arrangements. It is clear that since the emergence of a consensus at the WTO Singapore Ministerial Conference in 1996 labour standards issues should not be part of the multilateral trade agenda and should be dealt with at the ILO that the United States, in particular, has pursued a bilateral track on labour standards. The gradually escalating obligation on trade related labour standards in bilateral US FTAs, starting with NAFTA and culminating in the recently completed US-CAFTA, now provide explicitly for dispute settlement mechanisms by direct referral to a WTO Panel. Developing countries were amongst the most vigorous opponents of the introduction of labour standards and sought and achieved the apparent WTO consensus at Singapore. Some developing countries have now in fact agreed to labour standards that are now more onerous than would have been the case had the WTO agreed to discipline these standards and limit them to the ILO’s core labour standards.
Like Products, Animal Welfare and the World Trade Organization
Authors: Swinbank Alan
Published: April 2022

Some production processes, such as organic or animal welfare friendly systems, can become embedded as credence characteristics in consumer goods. Market mechanisms, involving voluntary labelling schemes and accreditation systems might be developed to ensure the delivery of many of the credence characteristics sought out by consumers. However, when credence characteristics capture ethical concerns then voluntary labelling may be insufficient, as it is the production as well as the consumption of the product that causes offence. Thus a ban on unacceptable production methods may emerge as the political response. Any attempt to extend the ban to imported products, in the form of mandatory labelling, or a ban on imports not produced in the manner laid down in the home jurisdiction, will potentially fall foul of WTO rules. GATT’s Article XX does provide for some general public policy exceptions, but animal welfare is not one, and there is a strong presumption against the recognition of process methods for differentiating between goods. It is argued that there are circumstances in which mandatory labelling of imports could be justified, and these are spelt out. Both producers, and lawmakers, need to respect consumer requirements. A producer-focused unwillingness to disentangle “like products”, because of undue deference to the theory of comparative advantage, will not enhance the WTO’s authority.
The Role of Chairman’s Statements in the WTO
Authors: Grosse Ruse-Khan Henning M.
Published: April 2022

“The WTO organs are somewhat addicted to Chairman’s statements. It must be admitted that they often present a useful way out of the dilemma. The chairman pronounces them from the Chair, usually after painstaking consultations with many delegations, but in principle they are not fully negotiated. Nobody contradicts them, but nobody has accepted them either and everybody can live in the illusion that this statement is the Chair’s responsibility alone, does not really represent a true consensus or decision but, as if by magic, will still be followed and respected by everyone.”
The Biofuels Landscape: Is There a Role for the WTO?
Authors: Abdel Motaal Doaa
Published: April 2022

The International Food and Agricultural Trade Policy Council (IPC) has recently called on the WTO to clarify its rules on biofuels. It called for a resolution of the customs classifications problems surrounding these fuels so that trade could flourish in an organized manner. More specifically it argued that uncertainty over the biofuels customs classification, and the range of governmental measures to protect domestic biofuel production, including tariffs and subsidies, risked stunting growth in trade even as the global demand for biofuels was rising. For the IPC–as well as for numerous actors on the biofuels landscape–an examination of how WTO rules apply to these fuels has clearly become timely.

This article seeks to draw attention to the multiple policy objectives that are driving governments to promote biofuels, and to how “trade policy” is largely being put to the service of the specific goals to which governments are attaching priority. It argues that a coherent vision at the international level of the role that biofuels should play in energy, economic and environmental policy has yet to emerge, but that despite this situation it is key that this sector develops on a “level trade policy playing field” for its long-term efficiency. Such a levelling would, in particular, unleash the full comparative advantage of tropical developing country producers of ethanol. The article highlights that–even in the absence of a concerted decision by governments on how to handle these fuels at the WTO–certain restrictions to biofuels trade would in any event be reduced through the current Doha Round of trade negotiations. But for the Doha Round to bear full fruit, it would be important for governments not to fully shelter either biofuels, or their production feedstock, through existing “flexibilities” in the negotiations.
What Scope for an EU—ASEAN Free Trade Agreement?
Authors: Andreosso-O’Callaghan Bernadette
Published: April 2022

The starting point of this article is that a free trade agreement will, sooner or later, be negotiated between ASEAN and the EU. As a result, the objective of the article is not to examine the rationale for such an agreement but to outline its possible scope.

Because the content of a potential agreement depends very much on the nature of the relationship between the two partners, the first section of the article examines briefly their characteristics. It highlights substantial disparities between the two partners (primarily in terms of economic size and internal homogeneity) and a strong asymmetry in their trade and investment relations. The section also shows that the greatest divergence in trade restrictiveness between the two regions arises in the service sector and through non-tariff barriers. Finally, past trade tensions further substantiate the hypothesis of large disparities in the two regions’ competition policies and IPR protection.

After taking stock of existing free trade agreements (FTAs) negotiated on both sides, the second section concludes that a potential EU–ASEAN FTA can be expected to be quite broad, encompassing both goods and service liberalization as well as trade-related issues such as competition policy or IPR protection. Despite this relatively high level of ambition, realism must also prevail and the depth of the commitments can be expected to remain modest in a number of areas. Moreover, because of the differentiated levels of development and of regulatory capacity among the countries of the partnership, realism calls for some differentiation in the level of commitments, as well as in the timelines imposed on the various partners (within the limits provided by the World Trade Organization (WTO)). Finally provisions on technical assistance and trade-related capacity building should be an integral part of the future ASEAN–EU partnership agreement.
Fear and Loading in West Bank/Gaza: The State of Palestinian Trade
Authors: Berends Gijs
Published: April 2022

For many years, the international community has attempted to improve trade between the Palestinian Territories and its trading partners. The argument behind these efforts is that trade will spur economic growth and that the ensuing prosperity is expected to prove more fertile ground for any peace endeavours. It is also considered to be a force of good because it would raise the quality of life of Palestinian economic operators. As a result, numerous studies, sponsored by various donors, have been carried out to map the obstacles for the Palestinian businessman and the predicament and possibilities of the Palestinian trade regime. The first purpose of this overview article is to disseminate the main results of these studies. A second objective is to explore three additional yet understudied avenues for improving Palestinian trade flows: (1) opening the Rafah crossing between Gaza and Egypt for exports; (2) introducing diagonal cumulation of origin; and (3) improving trade in services.
Select Issues and Debates around Geographical Indications with Particular Reference to India
Authors: Das Kasturi
Published: April 2022

The protection of geographical indications (GIs) has, over the years, emerged as one of the most contentious intellectual property right issues in the realm of the World Trade Organization (WTO) Agreement on Trade–Related Aspects of Intellectual Property Rights (TRIPs). The hierarchical nature of protection for GIs under TRIPs fails to provide full protection for GIs other than those designating wines and spirits. Aware of this inadequacy, India, along with other like–minded countries, has been pressing for the “extension” of the higher level of protection, currently granted only to GIs of wines and spirits, to all GIs. However, the issue has reached a stalemate at the WTO for quite some time now. Against this backdrop, this article provides a cogent account of a range of issues in the context of GI protection, with a particular focus on India.
Movement of Natural Person and the United States: Probability of the Mode 4 Offer Improvement by the United States
Authors: Matsuzawa Kotaro
Published: April 2022

In the negotiation on trade in services held at that WTO, the response by the United States to the request concerning Mode 4 will become an important issue. This article examines whether and how the United States could respond to the request through analysis of the current situation of the commitments of the United States and a immigrration control system for the acceptance of foreigners.
Climate Change and the WTO: EU Emission Trading and the WTO Disciplines on Trade in Goods, Services and Investment Protection
Authors: Vranes Erich
Published: April 2022

This contribution examines the legal relationship between domestic trading in emission certificates and World Trade Organization (WTO) law. As domestic emission trading regimes differ – even when they are based on the international climate change regime – this article uses the EU emissions trading system as an example. In doing so, it also addresses the so-called project-based mechanisms, that is, the joint implementation and the clean development mechanisms (CDM) that are introduced under the Kyoto Protocol. This approach not only takes account of the fact that trading in emission certificates and credits resulting from these project-based mechanisms are economically and legally linked but also of the view that all three flexible instruments can be regarded as forms of emission trading, with trading under Article 17 of the Kyoto Protocol representing the ‘purest’ form of emissions trading.
Corruption and the WTO Legal System
Authors: Nadakavukaren Schefer Krista
Published: April 2022

The World Trade Organization (WTO) has no substantive rules directly addressing corruption in trade relations. There are, however, numerous legal provisions in the various WTO texts that offer indirect support to traders facing corrupt trade administrators. Whether these provisions are sufficient to address the bulk of trade-related corruption is questionable, given the narrow range of corrupt practices that are affected by these, mainly procedural, obligations. This article sets out a framework for further research into the question of how corruption affects trade liberalization, and puts forth a suggestion for how the WTO could take a step towards remedying its avoidance of the topic of corruption while not exceeding its functional scope of regulating trade relations among Members.
Governments’ Interventions into the Real Economy under WTO Law Revisited: New Tendencies of Governmental Support of the Automobile Industry
Authors: Grosz Mirina , Weber Rolf H.
Published: April 2022

The automobile industry has received unprecedented governmental support during the ongoing economic crisis. Rescue packages have been provided to sustain the significant market branch and asserted key driver of growth, export, innovation, and jobs particularly in the EU and the United States and to avoid further downward spirals, which risk affecting the national economies on a wider scale. Since such tendencies can have trade distorting effects, however, the question arises whether the increased governmental interventions are compatible with the World Trade Organization (WTO) legal framework, which arguably enshrines free trade theory in international law. By adopting a legal perspective, this contribution shall address the state’s role in global markets and examine the degree of policy space that is conferred to WTO Member States in support of real economy sectors.
The Equity of Levelling the Playing Field in the Climate Change Context
Authors: O’Brien Julia
Published: April 2022

Most countries contemplating the introduction or maintenance of domestic carbon reduction policies in response to the climate change challenge are facing considerable political pressure to offset the economic burden of such action on their domestic constituencies. This paper examines the World Trade Organization (WTO) consistency of a potential unilateral introduction of a carbon tax on imports to address perceived trade competitiveness concerns. The nature of the tax examined would aim to charge imported goods the equivalent of what their producers would have had to pay if the goods had been produced in the importing country. This paper argues that attempting to ‘level the playing field’ by imposing a carbon tax on imports from countries with less stringent multilateral carbon reduction obligations would be contrary to the international recognition of ‘common but differentiated responsibility’ for climate change. By taking into account this principle in particular, reflected in the UN Climate Change Convention, a WTO panel may find in favour of a complainant against such a carbon tax under Article III of the General Agreement on Tariffs and Trade (GATT) 1994 and also find that the measure is not justified under Article XX.