bluuebunny/crossref_metadata_2025 huggingface dataset:
Welfare States and the Need for Social Protection of Self-Employed Migrant Workers in the European Union
Authors: Thörnqvist Christer
Published: April 2022

So-called bogus – or false – self-employment has been increasingly highlighted as a problem within the European Union (EU), especially since the first eastern expansion in 2004. Although the concept is not fully clear in legal terms, a common denominator of most definitions is that bogus self-employment can be seen as ‘disguised employment’, occurring when someone who has an employee status in practice is not classified as an employee, in order to hide the actual legal status and to avoid costs such as taxes and social security contributions. In the light of different welfare systems, industrial relations and EU legislation, this article discusses this issue, drawing empirically on findings from a project about precarious employment in twelve EU countries. Although there are some fairly strict definitions of the ‘employee concept’ within the EU, the difficulties of identifying the employer leave the bogus self-employed in a legal limbo. No European Social Model has curtailed this problem, despite an expressed desire to address all aspects of precarious work. However, the inclusion of all ‘self-employed’ workers within social insurance systems and workers with an employee status in practice seems possible also under existing EU regulations. It is rather a matter of goodwill and the resources to scrutinize the terms and conditions of employment.
False Self-Employment and Other Precarious Forms of Employment in the Grey Area of the Labour Market
Authors: Thörnquist Annette
Published: April 2022

The aim of this article is to discuss the problem of false (bogus) self-employment and other precarious forms of employment in the ‘grey area’ between genuine self-employment and subordinate employment in Sweden. Why has this area developed in a longer and shorter perspective? How does the use of disguised and ambiguous forms of employment affect workers, industrial relations and regular labour standards? Examples are given from the construction, road haulage and cleaning industries. The article indicates that work in the grey area has become more and more common in recent years, not only in the context of east-west labour migration, but also among Swedish workers. The author also discusses this development.
Legal Approaches to Combating the Exploitation of Third-Country National Seasonal Workers
Authors: Rijken Conny
Published: April 2022

The Directive on Seasonal Workers is aimed at combating exploitative practices vis-à-vis seasonal workers from outside the EU. After a thorough analysis of the conditions under which practices can be qualified as exploitative, this article assesses the extent to which the directive is equipped to combat such practices. It concludes that the directive has made progress by addressing situations that are prone to exploitation, using multiple legal approaches. However, it will largely depend on the willingness of the Member States whether the directive will achieve its aim to combat situations of exploitation.
Proposal for a Theoretical Framework for the Analysis of Time Porosity
Authors: Genin Émilie
Published: April 2022

This article develops the concept of time porosity with the aim of better defining and theorizing the interference between work and personal time. The notion of working time is discussed from its origins to its current meaning, as are the issues raised by the transformation of work in the twenty-first century, looking specifically at the increasing interference between work time and personal time. Starting from the European standard defining working time, the concept of porosity between personal time and working time is conceptualized. Several forms of time porosity are examined, including situations where the current measurement of working time is insufficient when it comes to limiting, controlling and paying for the work that is performed. Finally, the challenges posed by the porosity of time are discussed.
How to Operationalize Open Norms in Hard and Soft Laws: Reflections Based on Two Distinct Regulatory Examples
Authors: Kun Attila
Published: April 2022

Labour standards are often and increasingly framed as open norms, at a higher level of abstraction, both as national hard laws and transnational hybrid, soft labour law instruments. A significant share of these open norms set standards for employers to stimulate socially responsible corporate behaviour. Nonetheless, concerns are often raised about the uncertain, unmeasurable, possibly insufficient implementation of these standards. This article examines two regulatory case-studies in order to reflect on the chances of implementation of open norms. One case study is taken from national hard law: the principle of ‘equitable assessment’ from the 2012 Hungarian Labour Code, according to which ‘employers shall take into account the interests of workers under the principle of equitable assessment; where the mode of performance is defined by unilateral act, it shall be done so as not to cause unreasonable disadvantage to the worker affected’. The other regulatory case study is from transnational soft law: the concept of risk-based ‘due diligence’ enshrined in many global soft law standards (such as the UN Guiding Principles on Business and Human Rights, and OECD Guidelines for Multinational Enterprises). Although these examples are different in many respects (hard vs soft, national vs transnational), they share important features: as normative ‘benchmarks’, they try to influence employer decision-making and they are difficult to implement. One of the assumptions of the article is that mostly the ‘essence’ (i.e.: goal, aim, relevance, ‘marketing’, uptake, etc.) of a given open norm is what matters most for its overall impact, rather than the legal form in which it is manifested. The regulatory case studies are intended to support this argument and draw general conclusions about the possible operationalization of open-textured norms, manifested in hard or soft laws. The conclusions bring together the author’s two main fields of research: the enforcement of national (Hungarian) labour law, and the effectiveness of transnational private/hybrid labour law.
The Enforcement of Employment Standards in Australia: Successes and Challenges in Aged Care
Authors: Howe John , Charlesworth Sara
Published: April 2022

The enforcement of minimum labour standards in Australia has undergone a significant transformation over the last decade with the Fair Work Ombudsman’s (FWO’s) adoption of a ‘strategic’ enforcement model. Nevertheless, there are areas of the labour market where both employment standards and their enforcement are inadequate, particularly for precarious or vulnerable workers. This paper explores the challenges to effective employment standard enforcement in aged care, a gendered industry characterized by restricted government funding, low wages, non-standard employment and low unionization. There has been some limited enforcement activity by both unions and the FWO, mainly in residential aged care. However, the gendered nature of the work in an industry in which the government is in effect the lead organization coupled with the invisibility of home-based aged care present significant enforcement challenges.
The Influence of the ILO Domestic Workers Convention in Argentina, Chile and Paraguay
Authors: Poblete Lorena
Published: April 2022

Since the International Labour Organization Decent Work for Domestic Workers Convention (No. 189) was adopted in 2011, twelve Latin American countries have ratified it. Argentina, Chile and Paraguay are particularly interesting when analysing how C189 influenced national reforms because they made sweeping amendments to their legislation after the Convention was adopted. In the case of Argentina and Chile, the debate on the reforms took place as the Convention was in the process of being ratified, and in Paraguay after ratification. In these countries, adapting national regulatory frameworks to the Convention’s provisions involved two main challenges. One of them was to draft legislation considering the specific nature of domestic work while guaranteeing these workers the same rights granted to employees. The other was to innovate in relation to enforcement mechanisms to ensure compliance with new laws when domestic work has been generally perceived as a relation based on affection and trust and regulated by customary practices. Comparing the way in which national legislation was shaped following the international standard in these three countries reveals diverse uses of C189 reflecting distinct approaches to regulating this activity and the features of the labour market in each country. This means that during the law-making process, C189 was read, interpreted and translated in different ways in each country for the purpose of filling the legal gaps associated with the protection of domestic workers. The aim of this article is to analyse how the principles and rights established in C189 are assimilated to different national contexts while considering the common challenges facing legislators in these three countries.
Opportunities or Tensions: Assessing French Labour Market Reforms from 2012 to 2018
Authors: Gazier Bernard
Published: April 2022

This article provides an overview and critical assessment of the intense efforts made to reform French labour market institutions and labour law during the Presidency of François Hollande (2012–2017) and the first eighteen months of the Presidency of Emmanuel Macron. It focuses on the provisions of the El Khomri Act of 2016, the Macron Orders of 2017 and the 2018 Act reforming lifelong learning institutions. The article identifies a strong continuity between the two presidencies, except for the 2018 lifelong learning reform which aims at introducing real change. Compared to the German Hartz reforms of 2002–2005 (similar in scope and importance), and situating European reform strategies within a range of policy options, the article argues that the French reforms correspond to a particular version of ‘flexicurity’, characterized by strong State involvement in labour market policies but also leaning increasingly towards flexibilization and individualization. The article ends by highlighting the limits of the French strategy, especially in the context of slow growth and social unrest in 2018–2019, and outlines a number of principles and orientations that may lead to more efficient and acceptable policies.
Collective Bargaining and Unpaid Care as Social Security Risk: An EU Perspective
Authors: Schiek Dagmar
Published: April 2022

This article contributes to the debate on how collective agreements can enhance social security from the perspective of unpaid care work. It defines the risk of giving up employment in favour of unpaid care as a social security risk (the care risk). It analyses how collective agreements in the EU can address this risk without compromising gender equality. The analysis is conducted with a focus on analysing the risks emerging from European Union law on a regulatory practice yet to emerge: the inclusion of institutional (child) care provisions in collective agreements. The article concludes that it is disruptive for innovative collective bargaining strategies if interpreted from a standpoint focusing merely on economic integration.

Occupational Social Security, Work-Life Balance, EU Competition Law, Collectively Agreed (Child) Care Institutions, European Union, EU Law
Safeguards in the World Trade Organization Ten Years After: A Dissociated State of the Law?
Authors: Martín Rodríguez Pablo
Published: April 2022

This article examines the contradictory functioning of the World Trade Organization Agreement on Safeguards during the first ten years of application. On the one hand, it shows that, by using a literal interpretive shift and proceduralizing some substantive requirements, the WTO case-law has established a highly restrictive interpretation of safeguards; as an absolutely exceptional safety valve in the case of serious unforeseen developments. On the other hand, it reviews State practice in order to highlight the emergence of a more lenient pattern according to which safeguards are non-compensated short-length tariff measures aimed at conveying temporarily protectionist pressures on markets in trouble, aggravated by increasing imports. This situation has led to two different interpretations in the literature, namely the “massive infringement scenario” and the “normative rejection scenario”, neither of which is fully convincing. For this reason, the article concludes that the situation is better described as a dissociation scenario between the “law as stated” and the “law as applied”. Furthermore, it analyses the causes of this dissociation and distinguishes between those pertaining to legal technique (the special features of the WTO dispute settlement system and the different efficiency of the international control devices laid down in the Agreement on Safeguards) and those pertaining to legal theory (namely, the conception of safeguards as a discretionary legal power instead of a temporary special treaty regime). Finally, the article draws some conclusions about the role of safeguards within the trade remedy context (currently under reconsideration).
Forecasting the Trade Outcomes of Liberalization in a Quota Context—What Do We Learn From Changes in Textiles Trade After the ATC?
Authors: Curran Louise
Published: April 2022

The liberalization of clothing and textiles trade on 1 January 2005 under the Agreement on Textiles and Clothing (ATC), gives us a very interesting real world example of the impact of liberalizing quota restrictions on markets and, by implication, the impact on markets of quotas themselves. Several efforts were made to forecast the outcome prior to liberalization. The most comprehensive used CGE models based on the GTAP database. This article looks at the actual impacts of liberalization, particularly on the EU market, but also on the United States. It finds that, although models forecast some elements of the outcome reasonably accurately—specifically the large increases for China and India—other forecasts were less accurate. In particular, the heavy losses of the Asian tigers—especially Korea and Taiwan—were not anticipated. The fact is that ATC quota restrictions, by limiting competition on protected markets, were to some extent, also protecting certain less competitive suppliers’ market share.
Fragmentation of International Law or “Systemic Integration” of Treaty Regimes: EC—Biotech Products and the Proper Interpretation of Article 31(3)(c) of th
Authors: McGrady Benn
Published: April 2022

Article 31(3)(c) of the Vienna Convention on the Law of Treaties obliges a treaty interpreter to take into account “any relevant rules of international law applicable in the relations between the parties”. The WTO Panel Report in EC—Approval and Marketing of Biotech Products held that all parties to a treaty under interpretation must also be parties to an extraneous treaty in order for that extraneous treaty to trigger Article 31(3)(c). However, contrary to this overly restrictive approach, Article 31(3)(c) should be viewed a basic procedural obligation to consider relevant rules of international law where the issues in dispute fall within the scope of those extraneous rules.
Indisputably Essential: The Economics of Dispute Settlement Institutions in Trade Agreements
Authors: Schropp Simon , Keck Alexander
Published: April 2022

Trade scholars have made considerable progress in explaining why sovereign countries cooperate in trade,but have difficulties in explaining why countries settle and enforce trade disputes with the help of an impartial third party, a ‘trade court’. In the relevant models, typically, the very reasons why institutions are needed are assumed away. We identify and successively relax the implicit set of rigid assumptions underlying these models. We show that theories of (self–) enforcement, besides enforcement capacity, must also consider questions of ‘enforceability’ (observability, verifiability and quantifiability). On the basis of this extended theoretical framework, we find that dispute settlement institutions in trade agreements may assume a variety of roles, including that of an information repository and disseminator, an honest broker,an arbitrator and calculator of damages, an active information gatherer or an adjudicator. We are able to show that the World Trade Organization (WTO) dispute settlement mechanism (DSM) fulfils many of these institutional roles.
Proliferation of Preferential Trade Agreements: Quantifying its Welfare Impact and Preference Erosion
Authors: Hallaert Jean-Jacques
Published: April 2022

Literature has frequently evaluated the proliferation of preferential trade agreement (PTAs) by counting the number of PTAs or the share of international trade covered by these agreements. But these indicators have been recently criticized. This article, using a Computable General Equilibrium (CGE) model, attempts to quantify the economic impact (measured by its welfare effect) of the proliferation of PTAs. Results show that the welfare impact is limited and often vanishes quickly because preferences are eroded by the proliferation of PTAs. This contrasts with the gains from non–discriminatory liberalization. Therefore, proliferation of PTAs is unlikely to continue. This article also has methodological implications for CGE modelling: ignoring the proliferation of PTA significantly bias the results; and the bias is not only potentially large but also its direction is a priori uncertain.
The Permissible Reach of National Environmental Policies
Authors: Horn Henrik , Mavroidis Petros C.
Published: April 2022

Domestic instruments affect public order but are negotiable, and, consequently, is scheduled. Public order is unilaterally defi ned, but must respect the default rules concerning allocation of jurisdiction that are common to all WTO Members and bind them by virtue of their appurtenance to the international community. In this article, we focus on the interaction between trade and environment. The purpose of this study is to highlight how these rules and the GATT/WTO jointly determine the scope for unilateral environmental policies for WTO Members. In the study we examine the relevant multilateral framework dealing with this issue, as well as the relevant GATT and WTO case law. We also briefly present the jurisdictional default rules in public international law. We consider a series of scenarios, partly building on factual aspects of cases that have already been brought before the WTO. These scenarios are intended to isolate issues of specifi c interest from a policy point of view. For each scenario we then seek to determine what would the outcome be, in case WTO adjudicating bodies were to explicitly take account of the default rules concerning allocation of jurisdiction, something that has not been done to date. Our main conclusions are twofold: on occasion, the outcome would be different had WTO panels observed the default rules concerning allocation of jurisdiction; more generally, the default rules can help us understand the limits of some key obligations assumed under the WTO. Crucially, absent recourse to the default rules concerning allocation of jurisdiction, one risks understanding non-discrimination (the key GATT obligation) as an instrument aimed to harmonize conditions of competition across markets, and not within markets, as the intent of negotiators has always been.
Reproductive Outsourcing to India: WTO Obligations in the Absence of US National Legislation
Authors: Stephenson Christina
Published: April 2022

This article examines the World Trade Organization (WTO) obligations that inhere from US persons or couples contracting with Indian women for gestational surrogacy. Surrogacy contracts are considered in the context of the General Agreement on Tariffs and Trade (GATT) and the differing laws on surrogacy of different US states. By exploring WTO Appellate Body (AB), Panel and GATT Panel decisions, this article endeavors to determine what WTO obligations bind the US in circumstance of cross–border surrogacy contract. This article addresses how the varying state laws on surrogacy affect the WTO obligations of the US in market access, national treatment and most–favoured–nation (MFN) treatment. The article concludes that there are a variety of ways in which the different state laws have the capacity to violate US trade commitments in relation to international surrogacy contracts. In addition, the analysis serves to illuminate the process under which US trade obligations can be scrutinized to determine what commitments are relevant to a service not contemplated in the US Schedule.
Accession for What? An Examination of Ethiopia’s Decision to Join the WTO
Authors: Geboye Desta Melaku
Published: April 2022

Ethiopia, a founding member of many of the international and regional organizations today and the second most populous country in the UN list of least–developed countries (LDCs), is currently in the early stages of negotiating its accession to the World Trade Organization (WTO). This article asks the basic questions of why Ethiopia uncharacteristically stayed out of such an important multilateral endeavour for so long and why it wants to join now, and what the potential implications of the decision to join the system will be for the legal, institutional and economic policy landscape of the country both during the accession process as well as after achieving membership. The Ethiopian Government argues that WTO accession would help facilitate economic growth, attract foreign investment, secure predictable and transparent market access, and allow it to have a say on the direction of globalization. While many of these are in line with the conventional explanations about the benefi ts of WTO accession, this article argues that the balance of rights and obligations contained in the WTO legal framework and its enforcement mechanism mean that Ethiopia’s ability to make use of the system to realize these ambitions is, at best, limited. However, the article concludes with a positive note that, if the accession process is handled carefully and final membership obligations carried out in good faith, WTO accession is likely to contribute to those goals indirectly through, interalia, the review and reform of national laws and policies, the establishment of objective, impartial and effective administrative procedures and implementing institutions, and its potential overall contribution to the establishment of a system of rule of law, administrative transparency and accountability in the country.
The Green Dilemma about Liberalization of Trade in Environmental Goods
Authors: Mathew Anuj J. , de Córdoba Santiago Fernández
Published: April 2022

Environmental goods are a key element of the ongoing World Trade Organization (WTO) negotiations. Conventional wisdom argues that trade liberalization of environmental goods is crucial in the sustainable economic development process as it sustains potential benefits for promoting environmental protection and economic development. For many, the ongoing WTO Doha negotiations represent an opportunity to enhance the mutual supportiveness of trade and environment. However, as this article shows, the policy choice for most developing countries is not so clear–cut. The truth is that most of them might not be better off with ambitious trade liberalization in this sector. This article attempts to answer if trade liberalization in environmental goods helps developing countries. If so, which trade liberalization policy would serve in best interest of as well as benefit these as well as benefit of these countries. Lastly, this article also looks at various scenarios of environmental goods liberalization in the context of the ongoing proposals on the WTO negotiating table and tries to assess how they measure up against the development objectives of the negotiations.
Liberalization of Trade in Television Services: The Negotiation Dilemma and Challenges for the Future
Authors: Peng Shin-yi
Published: April 2022

Although a number of WTO Members have made commitments to television services sector in the initial and revised offers during the Doha Round, the regime offered still appears extremely restrictive. As evidenced by the China-Hongkong Closer Economic Partnership Arrangement (CEPA) and the EU-Television without Frontier (TVWF), a general producer-based rule of origin for services trade may fall short of realizing the legal and economic rationales of the concept of origin. Considering the impact of the multiplicity of channels available for distribution of television services made possible by new technology, legal and precise definitions are needed to determine the ‘origin’ of television services. Moreover, the ongoing panel proceeding of China-AVHE is a significant opportunity to clarify the issues as to whether audiovisual services should be treated as ‘ordinary’ services. In any event, the W/120 classifications and their correspondence with the Central Product Classification (CPC) need to be renegotiated to make it clear whether the General Agreement on Trade in Services (GATS) disciplines should apply to services delivered on demand, such as Internet downloads.
Services in Doha: What’s on the Table?
Authors: Gootiiz Batshur
Published: April 2022

Services trade reform matters, but what is Doha doing about it? It has been hard to judge because of the opaqueness of services policies and the opaqueness of the request-offer negotiating process. This paper attempts to assess what is on the table. It presents the results of the first survey of applied trade policies in the major services sectors of fifty-six industrial and developing countries. These policies are then compared with these countries’ Uruguay Round (UR) commitments in services and the best offers that they have made in the current Doha negotiations. The paper finds that at this stage, Doha promises greater security of access to markets but not any additional liberalization. Uruguay Round commitments are on average 2.3 times more restrictive than current policies. The best offers submitted so far as part of the Doha negotiations improve on Uruguay Round commitments by about 13% but remain on average 1.9 times more restrictive than actual policies. The World Trade Organization’s (WTO’s) Hong Kong Ministerial had set out ambitious goals for services, but the analysis here shows that much remains to be done to achieve them.
Health Protection at the World Trade Organization: The J-Value as a Universal Standard for Reasonableness of Regulatory Precautions
Authors: Collins David
Published: April 2022

Article XXb of the General Agreement on Tariffs and Trade (GATT) and the Sanitary and Phytosanitary (SPS) Agreement prohibit health safety measures that are unreasonable restrictions on trade, which World Trade Organization (WTO) case law has shown to mean not based upon sound scientific principles or international consensus. However, the existing difficulty in ensuring uniformity in these criteria as implemented by the WTO Dispute Settlement Body (DSB) necessitates resort to a universal scale for assessing the legitimacy of health and safety precautions by reference to an objective cost-benefit analysis. This paper attempts to apply the J-Value scale, developed in the United Kingdom, to gauge expenditures in industrial risk prevention, to evaluate the reasonableness of WTO Member State product safety regulations in a readily quantifiable, judicially instructive manner. The J-Value can be implemented by WTO panels ex post and government regulators ex ante in order to assess whether or not a specific measure aimed at ensuring human health and safety is actually an unnecessary barrier to international trade. In keeping with WTO principles, key features of the J-Value formula allow for different tolerances towards health risks depending on the view of the Member States that implement them, based on factors such as life expectancy and Gross Domestic Product (GDP).
National Climate Change Mitigation Measures and Their Implications for the Multilateral Trading System: Key Findings of the WTO/UNEP Report on Trade and Climate Change
Authors: Tamiotti Ludivine , Kulaçoglu Vesile
Published: April 2022

This article presents the key findings of the final chapter of the recently published World Trade Organization (WTO)/United Nations Environment Programme (UNEP) Report on Trade and Climate Change. It provides an overview of the range of national climate change mitigation policies, including possible border measures, and relevant WTO rules. The development of such policies has increasingly gained pace over the past two decades, and their scope and complexity have increased. It is therefore fundamental to understand better their key features in order to draw a clearer picture of their overall effect and potential impact on environmental protection, sustainable development, and trade.
Arab Economic Integration: Missing Links
Authors: Sekkat Khalid
Published: April 2022

This paper surveys the recent literature on Arab economic integration and discusses the goals and progress that has been made to date and some of the key policy, regulatory, and political factors that underpin the segmentation of Arab markets. It argues that there has been an excessive focus by both analysts and policy makers on trade in goods and that the prospects for – and returns to – efforts to deepen integration of other markets (services, labour, and capital) are likely to be higher.
Why Are WTO Panels Taking Longer? And What Can Be Done About It?
Authors: Kennedy Matthew
Published: April 2022

World Trade Organization (WTO) dispute settlement panels have steadily taken longer to complete their work since the establishment of the WTO, but since 2005, the delays have sharply increased. The Dispute Settlement Understanding (DSU) time frames for panel proceedings are problematic in light of the time and number of parties’ submissions. However, unexpected delays in panel work have become more frequent, which, if they continue to increase at their present rate, will offset reform of DSU time frames at other stages of the procedures. This article examines the reasons why delays have occurred and considers some possible solutions.
The Reform of the EC GSP Rules of Origin: Per aspera ad astra?
Authors: Inama Stefano
Published: April 2022

On 1 January 2011, a new regulation on EC Generalized System of Preferences (GSP) rules of origin came into force, ending a reform process that was initiated by the Commission Green Paper of 2003 on the future of rules of origin in preferential trade arrangements. The new EC GSP rules of origin herald a new era and set a benchmark for other preference-giving countries: they are far more liberal than the previous ones with the notable exception of fishery products and processed agricultural food. The Regulation also introduces as of 2017 a new administration of rules of origin whereby origin declarations are made upon registered exporters designation of the certifying authorities.

The aim of this article is twofold. The first is to analyse the EC reform to assess the major changes from previous rules of origin; the second aim is to briefly analyse the foundation, evidence, and studies that have underpinned such reform. It discusses the methodology used by the EC Commission and developed by the author in previous UNCTAD papers in setting a given rule of origin. The article concludes with a comparative table of old and new product-specific rules of origin outlining the major changes in key industrial sectors such as agri-food products, clothing, machineries, and electronics.
The Offensive Power of Regional Trade Agreements
Authors: Jacobs Michael N.
Published: April 2022

Given the bilateral structure of the World Trade Organization (WTO) dispute settlement process, several scholars have concluded that success in the process is determined by the complainant state's ability to make a credible and potentially harmful retaliatory threat to the respondent state. Previous research has found that the trade relationship between the two states in a dispute influences the potential potency of retaliatory threats. This analysis builds off of previous studies and hypothesizes that membership in a Regional Trade Agreement (RTA) will increase a state's bargaining position and its success in the dispute process. A probit regression is used to test this hypothesis. Fifty-seven dispute settlement cases from 1995-1998 are included in the analysis. The results indicate that RTA membership does increase a state's likelihood of success in the WTO dispute settlement process, but only for the complainant state in the dispute.
Emerging Sovereign Wealth Funds in the Making: Assessing the Economic Feasibility and Regulatory Strategies
Authors: Chaisse Julien , Mukherjee Jaydeep , Chakraborty Debashis
Published: April 2022

The recent emergence of Sovereign Wealth Funds (SWFs) as active and important players in international financial markets has raised a host of questions about their likely effect on markets and states. This trend is further reinforced in 2010/2011 by the fact that despite the fears and turbulences that spread all over the world in reason of the global economic and financial crisis, SWFs have blatantly retained their influence. SWFs create a regulatory and theoretical challenge because they serve two masters with very different agendas. This article is the first to explore the challenges governments face when they wish to set up an SWF. It explores determinants and policy options governments have to set up an SWF by analysing the fiscal and monetary parameters while simultaneously focusing on the regulatory determinants funds may and should comply with in order to be better accepted as international investors. The challenges are important since SWF are expected to grow in the future and might emerge as decisive investors throughout a world in crisis.
The Role of Preferential Trade Agreements (PTAs) in Facilitating Global Production Networks
Authors: Yamashita Nobuaki , Hayakawa Kazunobu
Published: April 2022

This article examines the effects of over 250 preferential trade agreements (PTAs) on trade flows distinguished into parts and components (PCs) and final goods in production networks for the period of 1979-2008. The gravity equation estimates suggest that the concurrent year effects of PTA formation on trade in PCs are not seen, while they have the positive impact on trade in final goods. Rather, it is found that PTAs have positive and perversive effects on both types of trade flows in six and nine years after the PTA formation.
The Economic and Monetary Union of the Gulf Cooperation Council
Authors: Al-Khodiry Amer
Published: April 2022

Since the establishment of the Cooperation Council for the Arab States of the Gulf (Gulf Cooperation Council (GCC)) in 1981, its Member States (the Kingdom of Bahrain, the State of Kuwait, the Sultanate of Oman, the State of Qatar, the Kingdom of Saudi Arabia, and the United Arab Emirates) have pursued economic and monetary integration further to the constituent aim of the Charter of the GCC for regional cooperation.

With that aim, the Economic Agreement of 1981 established a Free Trade Area, operational since 1983, in the expectation that it would promote regional trade creation and, in turn, greater economic and monetary integration among the Member States. However, most of its provisions for an Economic and Monetary Union (EMU) never took effect.

Thus, twenty years after its entry into force, the GCC Supreme Council agreed to revise the terms of the Economic Agreement. The Economic Agreement of 2001 now regulates the economic programme of the GCC.A timetable for the establishment of a Monetary Union was approved at the same time with a proposal to introduce a single currency by 1 January 2010. However, only four of the six Member States (Bahrain, Kuwait, Qatar, and Saudi Arabia) have concluded the Monetary Union Agreement of 2008 and, to date, the single currency remains a proposal only.

The GCC has failed to achieve any significant level of economic and monetary integration: ultimately, the EMU and single currency are yet to materialize. On that premise, the article critiques the scope and effect of implementation of the Economic Agreements of 1981 and 2001 as it examines the origins and development of economic and monetary integration in the GCC.
Reshaping the EUs FTA Policy in a Globalizing Economy: The Case of the EU-Korea FTA
Authors: Horng Der-Chin
Published: April 2022

On 3 October 2006, the European Union (EU) initiated a new generation Free Trade Agreement (FTA) policy in Global Europe: Competing in the World. Market potential and protection level were set out as the key economic criteria for new FTA partners. Based on these criteria, South Korea emerges as one of the EU's priorities. The EU-Korea FTA, signed on 6 October 2010, is the first of a new generation of FTAs. The Agreement is very comprehensive with regard to trade liberalization in a number of fields, including services, investment, competition, enforcement of intellectual property rights (IPRs), government procurement, sustainable development, cultural cooperation, and so on. Many of these policy areas are still not well regulated by the World Trade Organization (WTO). Under the Lisbon Treaty, EU trade policy shall be conducted in the context of the principles and objectives of EU foreign policy. Leveraging trade and foreign policy is expected to strengthen the EU's position in negotiating new FTAs. This article takes the EU-Korea FTA as a case study to examine the following core issues: the historical background of the EU's trade policy, legal basis and decision-making procedure of the new generation FTA, the main contents and special features of the EU-Korea FTA, and the impacts of the EU-Korea FTA on the WTO and third countries. For the future development of EU's FTA policy, this article also proposes an open regionalism approach to make the FTA compatible with the WTO.
First WTO Case on Transitional Product-Safeguard Measure under Section 16 of the Protocol of Chinas Accession to the WTO: Affirming Discriminatory Safeguard Measure by the WTO?
Authors: Lee Yong-Shik
Published: April 2022

On 5 September 2011, the WTO issued the Appellate Body report for the first WTO case on a transitional product-specific safeguard measure, United States - Measures Affecting Imports of Certain Passenger Vehicle and Light Truck Tyres from China (U.S. - Tyres). Transitional product-specific safeguard measures (TSMs) are controversial primarily on two grounds. First, unlike a general safeguard measure (GSM) which must be applied non-discriminatorily to all imports regardless of their source, a TSM is applicable only to the imports from a single country, China. Second, a TSM is applicable under more relaxed conditions than those stipulated for a GSM, subjecting imports from China to a more vulnerable condition against the protectionist pressure from competing domestic producers of the importing countries. The core principle of the WTO disciplines, including those for safeguard measures, is the most-favored-nation (MFN) principle which stipulates the requirement of non-discrimination among nations, and the inherently discriminatory nature of TSM undermines this core principle. This article examines the TSM provisions in comparison to the general safeguard provisions and discusses the implications of the first WTO case, U.S. -Tyres, for the TSM regime.
A Case for Misaligned Currencies as Countervailable Subsidies
Authors: de Lima-Campos Aluisio , Gaviria Juan Antonio
Published: April 2022

Artificially undervalued currencies are giving an unfair competitive advantage to some World Trade Organization (WTO) Members, nullifying the trade protections of other WTO Members and undermining the predictability and credibility of WTO rules. A threshold dividing legal and illegal devaluations, from the Agreement on Subsidies and Countervailing Measures (ASCM) standpoint, must be drawn to address this issue. This paper argues that such a threshold is exceeded when a WTO Member's measures undervalue its currency far below an equilibrium level and for more than the time needed to address economic imbalances. In this scenario, an artificially undervalued currency may amount to a countervailable subsidy actionable under the ASCM.
The Trade Implications of the Post-Moratorium European Union Approval System for Genetically Modified Organisms
Authors: Viju-Miljusevic Crina , Yeung May T.
Published: April 2022

Trade in genetically modified (GM) products remains a major issue in international trade. In 1999, the EU imposed a temporary import ban on genetically modified organisms. In the wake of aWorld Trade Organization (WTO) case brought by the US and Canada against the import ban - which the EU lost - the EU put in place a new regulatory regime for GM products. As of March 2012, the operation of this new import regime has not been formally assessed. The first GM-crops are just now working their way through the post-moratorium regulatory system and an assessment of the operation of the regime is timely. The results of this assessment suggest that the EU's approval system is only partially based in science and thus, the potential for political interference remains. Hence, the new EU regulatory regime for GM products makes investments in trade related activities pertaining to GM products very risky.
Understanding Chinas Recent Active Moves On WTO Litigation: Rising Legalism and/or Reluctant Response?
Authors: Huang Cui , Huang Cui
Published: April 2022

China's utilization of the WTO dispute settlement system since its accession shows an overall growth with distinctions at different stages. The majority of the existing commentaries generally argue that China seemed to take a reluctant and passive attitude towards WTO disputes in the first five years of its WTO membership and then changed to an active and aggressive one in the last five years. This paper reflects on why China has taken a more active approach and argues that China's recent activism is not only a purely voluntary action as a result of the rising legalism in China but also a reluctant choice or response. As China lacks other legally available and practical means and before turning directly to unilateralism, it chose the WTO venue as the last resort. This was largely due to the insurmountable difficulty that it had encountered in its past bilateral efforts to amicably resolve critical trade issues and because of the grave political pressure on China's imbalanced position under the WTO dispute settlement system. This paper also argues that China still seems far from the moment when it can be satisfied with its litigation performance on the international level and that China needs to continuously enhance its legal competence in a comprehensive way to better utilize the WTO dispute settlement system.
The Integration of Accession Protocols into the WTO Agreement
Authors: Kennedy Matthew
Published: April 2022

The World Trade Organization (WTO) dispute settlement system has begun to enforce accession commitments without a systematic analysis of the relationship between accession protocols and the WTO agreements. The Appellate Body has twice made recommendations as if a protocol of accession were a separate covered agreement under the Dispute Settlement Understanding (DSU) when, manifestly, it is not. This approach can affect the interpretation of the accession protocols, notably as regards the availability of general exceptions.

Even if it is agreed that an accession protocol is 'an integral part of the WTO Agreement', that statement needs to be analysed and not merely recited. It is a pivotal clause which expressly addresses the relationship between an accession protocol and the WTO Agreement and therefore provides an interpretative framework for the assessment of claims arising under accession commitments. Analysis of that clause in its context reveals that it provides for an accession protocol to be read together with the WTO Agreement as a whole, including the multilateral trade agreements, such as GATT 1994.
The Comitology Reform in the EU: Potential Effects on Trade Defence Instruments
Authors: Forganni Antonella , Dordi Claudio
Published: April 2022

The reform of the EU comitology system, enacted with Regulation 182/11, had the effect of extending the general principles regulating the Commission's exercise of implementing powers to the trade defence instruments' (TDIs) procedures, which, before the reform, were regulated by an autonomous discipline. This article offers an overview of the modifications brought about to TDI's comitology by Reg. 182/11 and identifies the possible consequences of the new discipline. The analysis benefited from the results of an empirical simulation, consisting in the application of the new voting methodology to past procedures of TDIs. The authors conclude, among the others, that the new system will likely reduce the usual political interferences in the Commission activities regarding TDIs, and it will settle a number of shortcomings of the old system.
The WTOs Influence on Other Dispute Settlement Mechanisms: A Lighthouse in the Storm of Fragmentation
Authors: Lanovoy Vladyslav , Izaguerri Arnau
Published: April 2022

This article provides a comprehensive overview of the use of World Trade Organization (WTO) rules and case law by other dispute settlement mechanisms (DSMs) in international law. Our findings show that DSMs frequently refer to WTO rules and case law not only on matters of procedure but also on various substantive aspects of trade law and general international law. The 150 identified references vary in their quality and importance for the rationale of the DSM. They range from a footnote en passant to being at the core of the solution for a particular legal problem that the adjudicator or arbitrator faces. We cluster our findings into four major categories of circumstances under which other DSMs deem it appropriate to cite the WTO (factual determinations, procedural aspects, general principles of international law or the rules on treaty interpretation, and substantive rules).A more difficult task has been to draw tentative conclusions as to the reasons that motivate DSMs to look specifically into WTO rules and case law. In most instances, this is due to the fact that the terms or their context in a given applicable law of a regional trade mechanism resemble those of the WTO disciplines. However, the use of the WTO precedent for purposes of procedure and clarification of general principles of international law or the rules on treaty interpretation show a broader influence of the WTO on international dispute settlement.
Mutual Recognition Agreements and the Proximity-Concentration Trade-off between Foreign Direct Investment and Export
Authors: Jang Yong Joon
Published: April 2022

This article analyses the trade-off relationship between exports and horizontal foreign direct investment (FDI) in response to a mutual recognition agreement (MRA) for technical regulations and certification procedures for import goods. As an MRA is concluded to reduce entry costs of exporting, multinationals (MNEs) derive more benefits from economies of scale than from tariff-jumping strategies, implying that they have more incentive to export than to perform horizontal FDI. In order to prove the above argument, the article introduces MRA and FDI into Helpman, Melitz andYeaple (2004)'s framework of international trade, analyses the relationship between exports and horizontal FDI sales in response to MRA and then tests empirically the theoretical results, utilizing data from US multinational affiliate sales and exports. The empirical results show that MRAs have positive effects on the US exports relative to horizontal FDI, bringing the results in line with the theoretical model.